dated as of July 6, 2007,
as Canadian Borrower,
as U.S. Borrower,
PARTY HERETO AS U.S. BORROWERS,
as U.K. Borrower,
as Swiss Borrower,
as Parent Guarantor,
as U.S./European Issuing Bank, U.S. Swingline Lender and Administrative Agent,
as Collateral Agent and Funding Agent,
as Syndication Agent,
CIT BUSINESS CREDIT CANADA INC.,
as Documentation Agents,
acting through its Canadian branch,
as Canadian Issuing Bank, Canadian Funding Agent and Canadian Administrative Agent,
UBS SECURITIES LLC,
as Joint Lead Arrangers and Joint Bookmanagers
Page | ||||||||
ARTICLE I. DEFINITIONS | 2 | |||||||
SECTION 1.01 | Defined Terms | 2 | ||||||
SECTION 1.02 | Classification of Loans and Borrowings | 77 | ||||||
SECTION 1.03 | Terms Generally; Alternate Currency Transaction | 77 | ||||||
SECTION 1.04 | Accounting Terms; GAAP | 78 | ||||||
SECTION 1.05 | Resolution of Drafting Ambiguities | 79 | ||||||
ARTICLE II. THE CREDITS | 79 | |||||||
SECTION 2.01 | Commitments | 79 | ||||||
SECTION 2.02 | Loans | 81 | ||||||
SECTION 2.03 | Borrowing Procedure | 83 | ||||||
SECTION 2.04 | Evidence of Debt | 85 | ||||||
SECTION 2.05 | Fees | 86 | ||||||
SECTION 2.06 | Interest on Loans | 87 | ||||||
SECTION 2.07 | Termination and Reduction of Commitments | 90 | ||||||
SECTION 2.08 | Interest Elections | 90 | ||||||
SECTION 2.09 | Special Provisions Applicable to Lenders Upon the Occurrence of a Conversion Event | 92 | ||||||
SECTION 2.10 | Optional and Mandatory Prepayments of Loans | 93 | ||||||
SECTION 2.11 | Alternate Rate of Interest | 98 | ||||||
SECTION 2.12 | Yield Protection; Change in Law Generally | 99 | ||||||
SECTION 2.13 | Breakage Payments | 101 | ||||||
SECTION 2.14 | Payments Generally; Pro Rata Treatment; Sharing of Setoffs | 102 | ||||||
SECTION 2.15 | Taxes | 104 | ||||||
SECTION 2.16 | Mitigation Obligations; Replacement of Lenders | 109 | ||||||
SECTION 2.17 | Swingline Loans | 111 | ||||||
SECTION 2.18 | Letters of Credit | 114 | ||||||
SECTION 2.19 | Interest Act (Canada); Criminal Rate of Interest; Nominal Rate of Interest | 123 | ||||||
SECTION 2.20 | Canadian Lenders | 124 | ||||||
SECTION 2.21 | Lenders to Swiss Borrower | 125 | ||||||
SECTION 2.22 | Blocked Loan Parties | 125 | ||||||
SECTION 2.23 | Increase in Commitments | 126 | ||||||
ARTICLE III. REPRESENTATIONS AND WARRANTIES | 128 | |||||||
SECTION 3.01 | Organization; Powers | 128 | ||||||
SECTION 3.02 | Authorization; Enforceability | 128 | ||||||
SECTION 3.03 | No Conflicts | 128 | ||||||
SECTION 3.04 | Financial Statements; Projections | 128 | ||||||
SECTION 3.05 | Properties | 129 |
i
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SECTION 3.06 | Intellectual Property | 130 | ||||||
SECTION 3.07 | Equity Interests and Subsidiaries | 131 | ||||||
SECTION 3.08 | Litigation; Compliance with Laws | 132 | ||||||
SECTION 3.09 | Agreements | 132 | ||||||
SECTION 3.10 | Federal Reserve Regulations | 132 | ||||||
SECTION 3.11 | Investment Company Act | 132 | ||||||
SECTION 3.12 | Use of Proceeds | 132 | ||||||
SECTION 3.13 | Taxes | 132 | ||||||
SECTION 3.14 | No Material Misstatements | 133 | ||||||
SECTION 3.15 | Labor Matters | 133 | ||||||
SECTION 3.16 | Solvency | 133 | ||||||
SECTION 3.17 | Employee Benefit Plans | 134 | ||||||
SECTION 3.18 | Environmental Matters | 135 | ||||||
SECTION 3.19 | Insurance | 136 | ||||||
SECTION 3.20 | Security Documents | 136 | ||||||
SECTION 3.21 | Acquisition Documents; Material Indebtedness Documents; Representations and Warranties in Acquisition Agreement | 139 | ||||||
SECTION 3.22 | Anti-Terrorism Law | 140 | ||||||
SECTION 3.23 | Ten Non-Bank Regulations and Twenty Non-Bank Regulations | 141 | ||||||
SECTION 3.24 | Location of Material Inventory and Equipment | 141 | ||||||
SECTION 3.25 | Accuracy of Borrowing Base | 141 | ||||||
SECTION 3.26 | Senior Notes; Material Indebtedness | 141 | ||||||
SECTION 3.27 | Centre of Main Interests and Establishments | 142 | ||||||
SECTION 3.28 | Holding and Dormant Companies | 142 | ||||||
SECTION 3.29 | Hindalco Acquisition | 142 | ||||||
SECTION 3.30 | Excluded Collateral Subsidiaries | 142 | ||||||
SECTION 3.31 | Immaterial Subsidiaries | 142 | ||||||
ARTICLE IV. CONDITIONS TO CREDIT EXTENSIONS | 142 | |||||||
SECTION 4.01 | Conditions to Initial Credit Extension | 142 | ||||||
SECTION 4.02 | Conditions to All Credit Extensions | 150 | ||||||
SECTION 4.03 | Certain Collateral Matters | 151 | ||||||
ARTICLE V. AFFIRMATIVE COVENANTS | 152 | |||||||
SECTION 5.01 | Financial Statements, Reports, etc. | 152 | ||||||
SECTION 5.02 | Litigation and Other Notices | 155 | ||||||
SECTION 5.03 | Existence; Businesses and Properties | 156 | ||||||
SECTION 5.04 | Insurance | 157 | ||||||
SECTION 5.05 | Payment of Taxes | 158 | ||||||
SECTION 5.06 | Employee Benefits | 158 | ||||||
SECTION 5.07 | Maintaining Records; Access to Properties and Inspections; Annual Meetings | 159 | ||||||
SECTION 5.08 | Use of Proceeds | 160 | ||||||
SECTION 5.09 | Compliance with Environmental Laws; Environmental Reports | 160 | ||||||
SECTION 5.10 | Interest Rate Protection | 160 |
ii
Page | ||||||||
SECTION 5.11 | Additional Collateral; Additional Guarantors | 160 | ||||||
SECTION 5.12 | Security Interests; Further Assurances | 162 | ||||||
SECTION 5.13 | Information Regarding Collateral | 163 | ||||||
SECTION 5.14 | Affirmative Covenants with Respect to Leases | 164 | ||||||
SECTION 5.15 | Secured Obligations | 164 | ||||||
SECTION 5.16 | Post-Closing Covenants | 164 | ||||||
ARTICLE VI. NEGATIVE COVENANTS | 164 | |||||||
SECTION 6.01 | Indebtedness | 164 | ||||||
SECTION 6.02 | Liens | 167 | ||||||
SECTION 6.03 | Sale and Leaseback Transactions | 170 | ||||||
SECTION 6.04 | Investments, Loan and Advances | 170 | ||||||
SECTION 6.05 | Mergers, Amalgamations and Consolidations | 173 | ||||||
SECTION 6.06 | Asset Sales | 175 | ||||||
SECTION 6.07 | European Cash Pooling Arrangements. | 177 | ||||||
SECTION 6.08 | Dividends | 177 | ||||||
SECTION 6.09 | Transactions with Affiliates | 178 | ||||||
SECTION 6.10 | Minimum Consolidated Fixed Charge Coverage Ratio | 179 | ||||||
SECTION 6.11 | Prepayments of Other Indebtedness; Modifications of Organizational Documents and Other Documents, etc. | 179 | ||||||
SECTION 6.12 | Limitation on Certain Restrictions on Subsidiaries | 182 | ||||||
SECTION 6.13 | Limitation on Issuance of Capital Stock | 183 | ||||||
SECTION 6.14 | Limitation on Creation of Subsidiaries | 183 | ||||||
SECTION 6.15 | Business | 183 | ||||||
SECTION 6.16 | Limitation on Accounting Changes | 184 | ||||||
SECTION 6.17 | Fiscal Year | 184 | ||||||
SECTION 6.18 | Lease Obligations | 184 | ||||||
SECTION 6.19 | No Further Negative Pledge | 184 | ||||||
SECTION 6.20 | Anti-Terrorism Law; Anti-Money Laundering | 185 | ||||||
SECTION 6.21 | Embargoed Persons | 185 | ||||||
SECTION 6.22 | Tax Shelter Reporting | 185 | ||||||
ARTICLE VII. GUARANTEE | 185 | |||||||
SECTION 7.01 | The Guarantee | 186 | ||||||
SECTION 7.02 | Obligations Unconditional | 186 | ||||||
SECTION 7.03 | Reinstatement | 187 | ||||||
SECTION 7.04 | Subrogation; Subordination | 188 | ||||||
SECTION 7.05 | Remedies | 188 | ||||||
SECTION 7.06 | Instrument for the Payment of Money | 188 | ||||||
SECTION 7.07 | Continuing Guarantee | 188 | ||||||
SECTION 7.08 | General Limitation on Guarantee Obligations | 188 | ||||||
SECTION 7.09 | Release of Guarantors | 189 | ||||||
SECTION 7.10 | Certain Tax Matters | 189 | ||||||
SECTION 7.11 | German Guarantor | 190 | ||||||
SECTION 7.12 | Swiss Guarantors | 192 |
iii
Page | ||||||||
SECTION 7.13 | Irish Guarantor | 193 | ||||||
SECTION 7.14 | Brazilian Guarantor | 193 | ||||||
ARTICLE VIII. EVENTS OF DEFAULT | 193 | |||||||
SECTION 8.01 | Events of Default | 193 | ||||||
SECTION 8.02 | Rescission | 196 | ||||||
SECTION 8.03 | Application of Proceeds | 197 | ||||||
ARTICLE IX. COLLATERAL ACCOUNT; COLLATERAL MONITORING; APPLICATION OF COLLATERAL PROCEEDS | 198 | |||||||
SECTION 9.01 | Accounts; Cash Management | 198 | ||||||
SECTION 9.02 | Inventory | 201 | ||||||
SECTION 9.03 | Borrowing Base-Related Reports | 202 | ||||||
SECTION 9.04 | Rescission of Activation Notice | 203 | ||||||
ARTICLE X. THE FUNDING AGENT AND THE COLLATERAL AGENT | 203 | |||||||
SECTION 10.01 | Appointment and Authority | 203 | ||||||
SECTION 10.02 | Rights as a Lender | 203 | ||||||
SECTION 10.03 | Exculpatory Provisions | 203 | ||||||
SECTION 10.04 | Reliance by Agent | 204 | ||||||
SECTION 10.05 | Delegation of Duties | 205 | ||||||
SECTION 10.06 | Resignation of Agent | 205 | ||||||
SECTION 10.07 | Non-Reliance on Agent and Other Lenders | 206 | ||||||
SECTION 10.08 | No Other Duties, etc | 206 | ||||||
SECTION 10.09 | Indemnification | 206 | ||||||
SECTION 10.10 | Overadvances | 207 | ||||||
SECTION 10.11 | Concerning the Collateral and the Related Loan Documents | 207 | ||||||
SECTION 10.12 | Release | 208 | ||||||
SECTION 10.13 | Acknowledgment of Security Trust Deed | 208 | ||||||
ARTICLE XI. MISCELLANEOUS | 208 | |||||||
SECTION 11.01 | Notices | 208 | ||||||
SECTION 11.02 | Waivers; Amendment | 213 | ||||||
SECTION 11.03 | Expenses; Indemnity; Damage Waiver | 216 | ||||||
SECTION 11.04 | Successors and Assigns | 219 | ||||||
SECTION 11.05 | Survival of Agreement | 223 | ||||||
SECTION 11.06 | Counterparts; Integration; Effectiveness | 224 | ||||||
SECTION 11.07 | Severability | 224 | ||||||
SECTION 11.08 | Right of Setoff | 224 | ||||||
SECTION 11.09 | Governing Law; Jurisdiction; Consent to Service of Process | 224 | ||||||
SECTION 11.10 | Waiver of Jury Trial | 225 | ||||||
SECTION 11.11 | Headings | 226 | ||||||
SECTION 11.12 | Treatment of Certain Information; Confidentiality | 226 | ||||||
SECTION 11.13 | USA PATRIOT Act Notice | 226 |
iv
Page | ||||||||
SECTION 11.14 | Interest Rate Limitation | 227 | ||||||
SECTION 11.15 | Lender Addendum | 227 | ||||||
SECTION 11.16 | Obligations Absolute | 227 | ||||||
SECTION 11.17 | Intercreditor Agreement | 228 | ||||||
SECTION 11.18 | Judgment Currency | 228 | ||||||
SECTION 11.19 | Euro | 228 | ||||||
SECTION 11.20 | Special Provisions Relating to Currencies Other Than Dollars and Canadian Dollars | 229 | ||||||
SECTION 11.21 | Abstract Acknowledgment of Indebtedness and Joint Creditorship | 229 | ||||||
SECTION 11.22 | Special Appointment of Collateral Agent for German Security | 230 | ||||||
SECTION 11.23 | Special Appointment of Funding Agent in Relation to South Korea | 231 | ||||||
SECTION 11.24 | Designation of Collateral Agent under Civil Code of Quebec | 232 | ||||||
SECTION 11.25 | Maximum Liability | 232 | ||||||
ARTICLE XII. FOREIGN CURRENCY PARTICIPATIONS | 232 | |||||||
SECTION 12.01 | U.S./European Revolving Loans; Intra-Lender Issues | 233 | ||||||
SECTION 12.02 | Settlement Procedure for Specified Foreign Currency Participations | 233 | ||||||
SECTION 12.03 | Obligations Irrevocable | 236 | ||||||
SECTION 12.04 | Recovery or Avoidance of Payments | 236 | ||||||
SECTION 12.05 | Indemnification by Lenders | 236 | ||||||
SECTION 12.06 | Specified Foreign Currency Loan Participation Fee | 237 |
v
ANNEXES | ||
Annex I | Applicable Margin | |
Annex II | Mandatory Cost Formula | |
SCHEDULES | ||
Schedule 1.01(a) | Refinancing Indebtedness to Be Repaid | |
Schedule 1.01(b) | Subsidiary Guarantors | |
Schedule 1.01(c) | Applicable Jurisdiction Requirements | |
Schedule 1.01(d) | Specified Account Debtors | |
Schedule 1.01(e) | Excluded Collateral Subsidiaries | |
Schedule 1.01(f) | Immaterial Subsidiaries | |
Schedule 1.01(g) | Specified Holders | |
Schedule 1.01(h) | Participating Specified Foreign Currency Lenders | |
Schedule 1.01(i) | Agent’s Account | |
Schedule 2.18 | Existing Letters of Credit | |
Schedule 2.20 | Canadian Lenders | |
Schedule 2.21 | Lenders to Swiss Borrower | |
Schedule 3.06(c) | Violations or Proceedings | |
Schedule 3.17 | Pension Matters | |
Schedule 3.19 | Insurance | |
Schedule 3.21 | Acquisition Documents and Material Debt Instruments | |
Schedule 3.24 | Location of Material Inventory | |
Schedule 4.01(g) | Local and Foreign Counsel | |
Schedule 4.01(l) | Sources and Uses | |
Schedule 4.01(o)(iii) | Title Insurance Amounts | |
Schedule 5.11(b) | Certain Subsidiaries | |
Schedule 5.16 | Post-Closing Covenants | |
Schedule 6.01(b) | Existing Indebtedness | |
Schedule 6.02(c) | Existing Liens | |
Schedule 6.04(b) | Existing Investments | |
Schedule 9.01(b) | Cash Management | |
EXHIBITS | ||
Exhibit A | Form of Administrative Questionnaire | |
Exhibit B | Form of Assignment and Assumption | |
Exhibit C | Form of Borrowing Request | |
Exhibit D | Form of Compliance Certificate | |
Exhibit E | Form of Interest Election Request | |
Exhibit F | Form of Joinder Agreement | |
Exhibit G | Form of Landlord Access Agreement | |
Exhibit H | Form of LC Request | |
Exhibit I | Form of Lender Addendum | |
Exhibit J | Form of Mortgage | |
Exhibit K-1 | Form of U.S./European Revolving Note |
vi
Exhibit K-2 | Form of Canadian Revolving Note | |
Exhibit K-3 | Form of European Swingline Note | |
Exhibit L-1 | Form of Perfection Certificate | |
Exhibit L-2 | Form of Perfection Certificate Supplement | |
Exhibit M-1 | Form of U.S. Security Agreement | |
Exhibit M-2 | Form of Canadian Security Agreement | |
Exhibit M-3 | Form of U.K. Security Agreement | |
Exhibit M-4 | Form of Swiss Security Agreement | |
Exhibit M-5 | Form of German Security Agreement | |
Exhibit M-6 | Form of Irish Security Agreement | |
Exhibit M-7 | Form of Brazilian Security Agreement | |
Exhibit N | Form of Opinion of Company Counsel | |
Exhibit O | Form of Solvency Certificate | |
Exhibit P | Form of Intercompany Note | |
Exhibit Q | Form of Receivables Purchase Agreement | |
Exhibit R | Form of Borrowing Base Certificate | |
Exhibit S | Form of Revolving Credit Facility Collateral Agent Appointment Letter |
vii
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(A) | a lender: |
(i) | which is a bank (as defined for the purpose of Section 879 of the Income Taxes Act 2007) making an advance under this Agreement or any other Loan Document, or |
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(ii) | in respect of an advance made under this Agreement or any other Loan Document by a person that was a bank (as defined for the purpose of Section 879 of the Income Taxes Act 2007) at the time that that advance was made, | ||
and which is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or |
(B) | a lender which is: |
(i) | a company resident in the United Kingdom for United Kingdom tax purposes; | ||
(ii) | a partnership each member of which is either: |
(I) | a company resident in the United Kingdom for United Kingdom tax purposes; or | ||
(II) | a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which is required to bring into account in computing its chargeable profits (within the meaning of Section 11(2) of the Income and Corporation Taxes Act 1988) the whole of any share of interest payable in respect of that advance that falls to it by reason of Sections 114 and 115 of the Income and Corporation Taxes Act 1988; or |
(iii) | a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account that interest payable in respect of that advance in computing the chargeable profits (for the purposes of Section 11(2) of the Income and Corporation Taxes Act 1988) of that company; or |
(C) | a lender which: |
(i) | is treated as a resident of a jurisdiction having a double taxation agreement with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest for the purposes of the treaty; and | ||
(ii) | does not carry on a business in the United Kingdom through a permanent establishment with which the Lender’s |
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3399 Peachtree Road NE, Suite 1500
Atlanta, GA 30326
Attention: Orville Lunking, Treasurer
Telecopier No.: 404-814-4200
Email: orville.lunking@novelis.com
3399 Peachtree Road NE, Suite 1500
Atlanta, GA 30326
Attention: Leslie J. Parrette, Jr.
Telecopier No.: 404-814-4272
Email: les.parrette@novelis.com
208 |
135 South LaSalle Street, Suite 425
Chicago, IL 60603
Attention: Account Officer
Telecopier No.: 312-904-6450
333 West Wacker Drive, Suite 2100
Chicago, IL 60606
Attention: Seth E. Jacobson
Telecopier No.: (312) 407-8511
Phone No.: (312) 407-0889
135 South LaSalle Street, Suite 425
Chicago, IL 60603
Attention: Account Officer
Telecopier No.: 312-904-6450
333 West Wacker Drive, Suite 2100
Chicago, IL 60606
Attention: Seth E. Jacobson
Telecopier No.: (312) 407-8511
Phone No.: (312) 407-0889
540 West Madison, 26th Floor
Chicago, IL 60661
Attention: Trade Services
Telecopier No.: 312-780-0828
209 |
333 West Wacker Drive, Suite 2100
Chicago, IL 60606
Attention: Seth E. Jacobson
Telecopier No.: (312) 407-8511
Phone No.: (312) 407-0889
79 Wellington Street West
TD Waterhouse Tower, 15th Floor
Toronto, ON M5K 1G8
Canada
Telecopier No.: (416) 367-7937
Telecopier No.: (416) 367-7937
Telecopier No.: (312) 601-3610
Telecopier No.: (416) 367-1485
333 West Wacker Drive, Suite 2100
Chicago, IL 60606
Attention: Seth E. Jacobson
Telecopier No.: (312) 407-8511
Phone No.: (312) 407-0889
210 |
Beethovenstrasse 33
P.O. Box 2065
CH-8022 Zurich
Switzerland
Attention: Margot Kuesters and Annette Schmid
Telecopier No.: +41 44 631 41 80
333 West Wacker Drive, Suite 2100
Chicago, IL 60606
Attention: Seth E. Jacobson
Telecopier No.: (312) 407-8511
Phone No.: (312) 407-0889
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NOVELIS INC., as Canadian Borrower | ||||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville G. Lunking | |||||||
Title: | Vice President and Treasurer | |||||||
NOVELIS CORPORATION, as U.S. Borrower | ||||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville G. Lunking | |||||||
Title: | Authorized Signatory | |||||||
NOVELIS PAE CORPORATION, as U.S. Borrower | ||||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville G. Lunking | |||||||
Title: | Authorized Signatory | |||||||
NOVELIS FINANCES USA LLC, as U.S. Borrower | ||||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville G. Lunking | |||||||
Title: | Authorized Signatory | |||||||
S-1
NOVELIS SOUTH AMERICA HOLDINGS LLC, as U.S. Borrower | ||||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville G. Lunking | |||||||
Title: | Vice President and Treasurer | |||||||
ALUMINUM UPSTREAM HOLDINGS LLC, as U.S. Borrower | ||||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville G. Lunking | |||||||
Title: | Vice President and Treasurer | |||||||
NOVELIS UK LTD, as U.K. Borrower | ||||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville G. Lunking | |||||||
Title: | Authorized Signatory | |||||||
NOVELIS AG, as Swiss Borrower | ||||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville G. Lunking | |||||||
Title: | Authorized Signatory | |||||||
S-2
NOVELIS CAST HOUSE TECHNOLOGY LTD., as Canadian Guarantor | ||||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville G. Lunking | |||||||
Title: | Authorized Signatory | |||||||
4260848 CANADA INC., as Canadian Guarantor | ||||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville G. Lunking | |||||||
Title: | Authorized Signatory | |||||||
4260856 CANADA INC., as Canadian Guarantor | ||||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville G. Lunking | |||||||
Title: | Authorized Signatory | |||||||
NOVELIS NO. 1 LIMITED PARTNERSHIP, as Canadian Guarantor, | ||||||||
By: | 4260848 CANADA INC. | |||||||
Its: | General Partner | |||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville G. Lunking | |||||||
Title: | Authorized Signatory | |||||||
S-3
NOVELIS EUROPE HOLDINGS LIMITED., as U.K. Guarantor | ||||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville Lunking | |||||||
Title: | Authorized Signatory | |||||||
NOVELIS DEUTSCHLAND GMBH, as German Guarantor | ||||||||
By: | /s/ Gottfried Weindl | |||||||
Name: | Gottfried Weindl | |||||||
Title: | Managing Director | |||||||
NOVELIS SWITZERLAND SA, as Swiss Guarantor | ||||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville Lunking | |||||||
Title: | Authorized Signatory | |||||||
NOVELIS TECHNOLOGY AG, as Swiss Guarantor | ||||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville Lunking | |||||||
Title: | Authorized Signatory | |||||||
S-4
Present when the Common Seal of | ||||||||
NOVELIS ALUMINIUM HOLDING COMPANY, | ||||||||
was hereunto affixed in the presence of: | ||||||||
Name: | /s/ Andreas Thiele | |||||||
Title: | Duly appointed attorney | |||||||
Name: | /s/ Eva Paus-Werdermann | |||||||
Title: | Assistant to Legal Counsel | |||||||
NOVELIS DO BRASIL LTDA., as Brazilian Guarantor | ||||||||
By: | /s/ Tadeu Nardocci | |||||||
Name: | Antonio Tadeu Coelho Nardocci | |||||||
Title: | Presidente | |||||||
By: | /s/ Alexandre Almeida | |||||||
Name: | Alexandre M. Almeida | |||||||
Title: | Director Financeiro | |||||||
AV ALUMINUM INC., as Guarantor | ||||||||
By: | /s/ Orville Lunking | |||||||
Name: | Orville G. Lunking | |||||||
Title: | Authorized Signatory | |||||||
S-5
ABN AMRO BANK N.V., as Administrative Agent, U.S./European Issuing Bank, Swingline Lender, Joint Lead Arranger, Joint Bookrunner and as Lender | ||||||||
By: | /s/ James Moyes | |||||||
Name: | James L. Moyes | |||||||
Title: | Managing Director | |||||||
LASALLE BUSINESS CREDIT, LLC, as Collateral Agent and as Funding Agent | ||||||||
By: | /s/ Steve Friedlander | |||||||
Name: | Steve Friedlander | |||||||
Title: | S.V.P. | |||||||
ABN AMRO BANK N.V., acting through its Canadian branch, as Canadian Administrative Agent, Canadian Funding Agent, Canadian Issuing Bank and as Lender | ||||||||
By: | /s/ Lawrence Maloney | |||||||
Name: | Lawrence J. Maloney | |||||||
Title: | Country Executive | |||||||
By: | /s/ Michael Quinn | |||||||
Name: | Michael D. Quinn | |||||||
Title: | Vice President | |||||||
ABN AMRO INCORPORATED, as Joint Lead Arranger and Joint Bookmanager | ||||||||
By: | /s/ David Wood | |||||||
Name: | David Wood | |||||||
Title: | Managing Director | |||||||
S-6
UBS SECURITIES LLC, as Syndication Agent | ||||||||
By: | /s/ Mary E. Evans | |||||||
Name: | Mary E. Evans | |||||||
Title: | Associate Director | |||||||
By: | /s/ Irja R. Otsa | |||||||
Name: | Irja R. Otsa | |||||||
Title: | Associate Director | |||||||
BANK OF AMERICA, N.A., as Documentation Agent | ||||||||
By: | /s/ Stephen Y. McGehee | |||||||
Name: | Stephen Y. McGehee | |||||||
Title: | Senior Vice President | |||||||
NATIONAL CITY BUSINESS CREDIT, INC., as Documentation Agent | ||||||||
By: | /s/ Michael P. McNeirney | |||||||
Name: | Michael P. McNeirney | |||||||
Title: | Vice President | |||||||
CIT BUSINESS CREDIT CANADA INC., as Documentation Agent | ||||||||
By: | /s/ Dennis McCluskey | |||||||
Name: | E. Dennis McCluskey | |||||||
Title: | President & CEO | |||||||
By: | /s/ Darryl Lalach | |||||||
Name: | Darryl Lalach | |||||||
Title: | Treasurer & V.P. Operations | |||||||
S-7
UBS SECURITIES LLC, as Joint Lead Arranger and Joint Bookmanager | ||||||||
By: | /s/ Mary E. Evans | |||||||
Name: | Mary E. Evans | |||||||
Title: | Associate Director | |||||||
By: | /s/ David Julie | |||||||
Name: | David B. Julie | |||||||
Title: | Associate Director | |||||||
S-8
Canadian | |||||||||||||||||||||
Average Quarterly Excess Availability | Eurocurrency | EURIBOR | ABR | Base Rate | BA Rate | ||||||||||||||||
Level I | 1.00 | % | 1.00 | % | (0.25 | %) | (0.25 | %) | 1.00 | % | |||||||||||
Greater than or equal to $575 million | |||||||||||||||||||||
Level II | 1.25 | % | 1.25 | % | 0.00 | % | 0.00 | % | 1.25 | % | |||||||||||
Less than $575 million and equal to or greater than $375 million | |||||||||||||||||||||
Level III | 1.50 | % | 1.50 | % | 0.25 | % | 0.25 | % | 1.50 | % | |||||||||||
Less than $375 million and equal to or greater than $175 million | |||||||||||||||||||||
Level IV | 1.75 | % | 1.75 | % | 0.50 | % | 0.50 | % | 1.75 | % | |||||||||||
Less than $175 million |
(a) | in relation to a GBP Denominated Loan: |
AB + C(B – D) + E x 0.01 | per cent. per annum | |||||
100 – (A + C) |
(b) | in relation to a Loan in any currency other than GBP: |
E x 0.01 | per cent. per annum. | |||||
300 |
Company | Description | Bank Name | Issue Date | Due date | Amount | |||||
Novelis Inc. | Bond | N/A | February 3, 2005 | February 3, 2015 | US$841,000.00 | |||||
Novelis Inc. | Revolving and Term Loans | Citibank as agent | January 10, 2005 | January 10, 2012 | US$290,647,096.00 | |||||
Novelis Corporation | Revolving and Term Loans | Citibank as agent | January 10, 2005 | January 10, 2012 | US$873,672,511.50 | |||||
Novelis AG | Revolving Loans | Citibank as agent | January 10, 2005 | January 10, 2012 | €16,052,177.32 | |||||
Novelis Deutschland GmbH | Revolving Loans | Citibank as agent | January 10, 2005 | January 10, 2012 | €30,115,675.00 | |||||
Novelis UK Ltd. | Revolving Loans | Citibank as agent | January 10, 2005 | January 10, 2012 | £19,509,581.69 | |||||
§ | 4260848 Canada Inc. | |
§ | 4260856 Canada Inc. | |
§ | Aluminum Upstream Holdings LLC | |
§ | Novelis AG | |
§ | Novelis Aluminium Holding Company | |
§ | Novelis Cast House Technology Ltd. | |
§ | Novelis Corporation | |
§ | Novelis Deutschland GmbH | |
§ | Novelis do Brasil Ltda. | |
§ | Novelis Europe Holdings Limited | |
§ | Novelis Finances USA LLC | |
§ | Novelis Inc. | |
§ | Novelis No. 1 Limited Partnership | |
§ | Novelis PAE Corporation | |
§ | Novelis South America Holdings LLC | |
§ | Novelis Switzerland SA | |
§ | Novelis Technology AG | |
§ | Novelis UK Ltd. |
Company | Concentration Limit | |||
§ Anheuser-Busch Inc. | 30 | % | ||
§ Rexam Beverage Can Company | 30 | % | ||
§ Ball Metal Beverage Container Corp. | 20 | % |
§ | Al Dotcom Sdn Berhad | |
§ | Alcom Nikkei Specialty Coatings Sdn Berhad | |
§ | Albrasilis Aluminio do Brasil Indústria e Comércio Ltda. | |
§ | Eurofoil, Inc. | |
§ | Isytec GmbH i.L. | |
§ | Novelis Aluminium Beteiligungs GmbH | |
§ | Novelis Automotive UK Ltd. | |
§ | Novelis Belgique SA | |
§ | Novelis Benelux N.V. | |
§ | Novelis de Mexico, S.A. de C.V. | |
§ | Novelis Laminés France SAS | |
§ | Novelis Luxembourg SA | |
§ | Novelis PAE SAS | |
§ | Novelis Sweden AB |
§ | Al Dotcom Sdn Berhad | |
§ | Alcom Nikkei Specialty Coatings Sdn Berhad | |
§ | Albrasilis Aluminio do Brasil Indústria e Comércio Ltda. | |
§ | Aluminum Company of Malaysia Berhad | |
§ | Eurofoil, Inc. | |
§ | Isytec GmbH i.L. | |
§ | Novelis Aluminium Beteiligungs GmbH | |
§ | Novelis Automotive UK Ltd. | |
§ | Novelis Belgique SA | |
§ | Novelis Benelux N.V. | |
§ | Novelis de Mexico, S.A. de C.V. | |
§ | Novelis Italia S.p.A. | |
§ | Novelis Laminés France SAS | |
§ | Novelis PAE SAS | |
§ | Novelis Sweden AB |
BIRLA GROUP HOLDINGS PRIVATE LIMITED
BIRLA INSTITUTE OF TECHNOLOGY AND SCIENCE
GLOBAL HOLDINGS PRIVATE LIMITED
GRASIM INDUSTRIES LTD
HERITAGE HOUSING FINANCE LIMITED
IGH HOLDINGS PRIVATE LIMITED
MANAV INVESTMENT & TRADING CO. LTD.
MANGALAM SERVICES LIMITED
PILANI INVESTMENT & IND. CORP. LTD.
TGS INVESTMENT AND TRADE PRIVATE LIMITED
TRAPTI TRADING & INVESTMENTS PVT LTD
TRUSTEE
TURQUOISE INVESTMENT AND FINANCE P LIMITED
UMANG COMM. CO. LTD
ADITYA VIKRAM KUMAR MANGALAM BIRLA HUF
KUMAR MANGALAM BIRLA
KUMAR MANGALAM BIRLA F & N G OF ANANYASHREE BIRLA
KUMAR MANGALAM BIRLA KARTA OF AVKM BIRLA HUF
NEERJA BIRLA
VASAVADATTA BAJAJ
1
2
Entity | Bank | Benificiary | Expiry date | Currency | Amount | Amount(USD) | ||||||||||||
Novelis Inc | CITI | Kingston | February 28, 2008 | CAD | 573,137 | $ | 541,871 | |||||||||||
Novelis Inc | National city | Atlanta Property of GA | March 1, 2008 | USD | 200,000 | $ | 200,000 | |||||||||||
Novelis Corp. | National city | Liberty Mutual | January 1, 2008 | USD | 2,048,347 | $ | 2,048,347 | |||||||||||
Novelis Corp. | National city | Zurich Insurance | July 21, 2007 | USD | 10,134,786 | $ | 10,134,786 | |||||||||||
Novelis Corp. | National city | Commonwealth of Kentucky | May 29, 2008 | USD | 1,152,377 | $ | 1,152,377 | |||||||||||
Novelis Corp. | National city | Pennyrile Rural Electric Cooperative | May 29, 2008 | USD | 47,275 | $ | 47,275 | |||||||||||
Novelis Deutschland GmbH | CITI | Sistem Teknik | July 3, 2007 | EUR | 17,750 | $ | 24,126 | |||||||||||
Novelis Deutschland GmbH | CITI | Mechaterm International Ltd. | July 30, 2007 | GBP | 33,600 | $ | 67,526 | |||||||||||
Novelis Deutschland GmbH | CITI | Bharat Aluminum Company Ltd. | August 6, 2007 | EUR | 553,461 | $ | 752,264 | |||||||||||
Novelis Deutschland GmbH | CITI | Lanzhou Aluminum Co Ltd | September 13, 2007 | EUR | 73,000 | $ | 99,222 | |||||||||||
Novelis Deutschland GmbH | CITI | Lanzhou Aluminum Co Ltd | July 15, 2007 | EUR | 73,000 | $ | 99,222 | |||||||||||
Novelis Deutschland GmbH | CITI | Chalco Henan International Trading Co. Ltd. | September 30, 2007 | USD | 446,350 | $ | 446,350 | |||||||||||
Novelis Deutschland GmbH | CITI | China Aluminium International Trading Co. Ltd. | August 25, 2007 | EUR | 71,600 | $ | 97,319 | |||||||||||
Novelis Deutschland GmbH | CITI | Open-end Joint Stock Company Sibirsko-Urals | February 28, 2008 | EUR | 905,800 | $ | 1,231,163 | |||||||||||
Novelis Deutschland GmbH | CITI | Open-end Joint Stock Company Sibirsko-Urals | February 28, 2008 | EUR | 1,358,700 | $ | 1,846,745 | |||||||||||
Novelis Deutschland GmbH | CITI | Assan Aluminyum Sanayi Ve Ticaret | August 16, 2008 | EUR | 1,650,000 | $ | 2,242,680 | |||||||||||
Novelis Deutschland GmbH | CITI | Assan Aluminyum Sanayi Ve Ticaret | December 31, 2008 | EUR | 324,000 | $ | 440,381 |
Entity | Bank | Beneficiary | Expiry date | Currency | Amount | Amount(USD) | ||||||||||||
Novelis Deutschland GmbH | CITI | Aluminum Konin — Impexmetal S.A. | October 15, 2007 | EUR | 61,500 | $ | 83,591 | |||||||||||
Novelis Deutschland GmbH | CITI | Aluminum of Greece S.A. | November 29, 2007 | EUR | 32,820 | $ | 44,609 | |||||||||||
Novelis Deutschland GmbH | CITI | Hydro Aluminium Deutschland GmbH | July 31, 2007 | EUR | 95,500 | $ | 129,804 | |||||||||||
Novelis Deutschland GmbH | CITI | SC ALRO SA | May 24, 2008 | EUR | 32,000 | $ | 43,494 | |||||||||||
Novelis Deutschland GmbH | Commerzbank | CEGEDEL SA | December 31, 2007 | EUR | 839,000 | $ | 1,140,369 | |||||||||||
Novelis Deutschland GmbH | Commerzbank | Kramer Verwaltungs GmbH&Co. KG | March 20, 2008 | EUR | 4,893 | $ | 6,651 | |||||||||||
Novelis Deutschland GmbH | Commerzbank | Hauptzollamt Braunschweig | March 1, 2008 | EUR | 400,000 | $ | 543,680 | |||||||||||
Novelis Deutschland GmbH | Commerzbank | China CNTC International Tendering Co. | September 16, 2007 | EUR | 20,000 | $ | 27,184 | |||||||||||
Novelis Deutschland GmbH | Commerzbank | Chongging Tendering | October 4, 2007 | EUR | 45,000 | $ | 61,164 | |||||||||||
Novelis Deutschland GmbH | Commerzbank | GHI | October 12, 2007 | EUR | 23,000 | $ | 31,262 | |||||||||||
Novelis Deutschland GmbH | Commerzbank | GHI | October 12, 2007 | EUR | 23,000 | $ | 31,262 | |||||||||||
Novelis Deutschland GmbH | Commerzbank | Henan Central Sun International | November 10, 2007 | EUR | 65,000 | $ | 88,348 | |||||||||||
Novelis Deutschland GmbH | Commerzbank | China CNTC International Tendering Co. | November 25, 2007 | USD | 110,000 | $ | 110,000 | |||||||||||
Novelis Deutschland GmbH | Commerzbank | Xinjinag Joinworld | April 25, 2008 | USD | 70,000 | $ | 70,000 | |||||||||||
Novelis Deutschland GmbH | Commerzbank | Hydro Aluminium Alucast GmbH | January 18, 2008 | EUR | 63,600 | $ | 86,445 | |||||||||||
Novelis Deutschland GmbH | Commerzbank | Shangdong Tendering Co. Ltd | November 15, 2007 | USD | 95,000 | $ | 95,000 | |||||||||||
Novelis Deutschland GmbH | Commerzbank | Shangdong Tendering Co. Ltd | November 5, 2007 | USD | 26,000 | $ | 26,000 | |||||||||||
$ | 24,090,515 |
Summary By Currency | USD | |||||||||||||
Exchange Rates Used to Convert to USD*: | USD | 14,330,135 | $ | 14,330,135 | ||||||||||
EUR/USD | 1.3592 | GBP | 33,600 | $ | 67,526 | |||||||||
GBP/USD | 2.0097 | EUR | 6,732,624 | $ | 9,150,983 | |||||||||
USD/CAD | 1.0577 | CAD | 573,137 | $ | 541,871 | |||||||||
$ | 24,090,515 |
* | Rates according to Reuters real time rates for 7/5/07 |
% of ABL Revolver | ||||||||
Lender | Amount (USD) | Canadian Tranche | ||||||
ABN AMRO Bank N.V. | 15,000,000.00 | 25 | % | |||||
Royal Bank of Canada | 10,000,000.00 | 16.66 | % | |||||
CIT Business Credit Canada Inc. | 35,000,000.00 | 58.33 | % | |||||
Total | 60,000,000.00 | 100.00 | % | |||||
1
SWISS QUALIFYING BANKS | SWISS NON-QUALIFYING BANKS | |
ABN AMRO Bank N.V. | General Electric Capital Corporation | |
LaSalle Bank National Association | The CIT Group/Business Credit, Inc. | |
UBS AG, Stamford Branch | Lloyds TSB Commercial Finance Limited | |
Bank of America, N.A. | State of California Public Employees’ Retirement System | |
Wachovia Bank N.A. | Wells Fargo Foothill, LLC | |
Royal Bank of Canada | HSBC Business Credit (USA) Inc. | |
Commerzbank AG, New York Branch | Siemens Financial Services, Inc. | |
Allied Irish Banks, P.L.C. | RBS Business Capital, a division of RBS Asset Finance, Inc. | |
PNC Bank, National Association | Citicorp North America, Inc. | |
Bayerische Landesbank, New York Branch | UPS Capital Corporation | |
National City Business Credit, Inc. | ||
Natixis |
§ | Novelis Inc. has filed an action against a Spanish affiliate of Alcoa, Inc. (“Alcoa”) that it believes is infringing on one of Novelis Inc.’s litho product pretreatment patents. Novelis Inc. owns a family of patents covering an electrolytic method for cleaning aluminum sheet that is used as a pretreatment for lithographic sheet, which includes European patent 0795048. This European patent was validated in Spain and corresponds to U.S. patent 5,997,721. Novelis Inc. became aware that the Spanish affiliate of Alcoa might be infringing this patent at its facility in Alicante, Spain, and has requested that a Spanish court appoint an expert to conduct a “Verification of facts” as permitted under Spanish law. Such expert conducted an inspection of the Alcoa facility and their related documents in the fourth quarter of 2006. The expert’s report indicates that Alcoa is using the patented process. Novelis has now filed an infringement action against Alcoa, and Alcoa has counterclaimed that the patent in question is not valid. |
§ | Novelis Inc. and/or its affiliated, subsidiary and associated companies and/or corporations and the Insured’s interest in partnerships and joint ventures as now exist or may hereafter be constituted or acquired and any party in interest which the Insured is responsible to insure. | ||
§ | Including the Insured’s interest in the following joint ventures: |
o | Logan Aluminum Inc. | ||
o | Aluminium Norf GmbH (to be insured 100%) |
§ | All property in which the Insured has an insurable interest including but not limited to property owned, used, leased or intended for use by the Insured, or hereafter constructed, erected, installed, or acquired. In the event of loss or damage, the Insurers agree to accept and consider the Insured as sole and unconditional owner of improvements and betterments, notwithstanding any contract or leases to the contrary. | ||
§ | All property of others in the Insured’s care, custody and control and/or for which the Insured may be legally liable and/or under an obligation and/or has assumed responsibility to provide insurance. | ||
§ | All property which is required to be specifically insured by reason of any statute. |
§ | All Perils of direct physical loss or damage including Machinery Breakdown and Business Interruption, to the Property Insured by any cause whatsoever including Earthquake, Windstorm, and Flood. |
§ | Combined for Property Damage, including Machinery Breakdown and Business Interruption excess of the DEDUCTIBLE LEVELS and subject to the following ground-up sub-limits, where applicable, as described below: |
Contingent Business Interruption and Contingent Extra Expense (Direct Suppliers and/or Customers) | $ | 200,000,000 | each and every occurrence for BI. except, | |||
$ | 25,000,000 | each and every occurrence combined for PD & BI from interruption emanating from earthquake in the New Madrid zone. | ||||
Course of Construction | $ | 100,000,000 | each and every occurrence combined for PD & BI including Advance loss of Profits. | |||
Debris Removal | $ | 50,000,000 | each and every occurrence for PD or 25% of the loss, whichever is greater. | |||
Decontamination Expenses | $ | 50,000,000 | each and every occurrence for PD. | |||
Defense Costs | $ | 5,000,000 | each and every occurrence combined for PD & BI. | |||
Demolition and Increased Cost of Construction | $ | 100,000,000 | each and every occurrence combined for PD & BI. | |||
Earthquake | $ | 750,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate, except |
$ | 100,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for Chile. | ||||
$ | 300,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for China. | ||||
$ | 100,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for Columbia. | ||||
$ | 100,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for Guam. | ||||
$ | 100,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for Indonesia. | ||||
$ | 100,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for Israel. | ||||
$ | 300,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for Mexico. | ||||
$ | 100,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for Peru. | ||||
$ | 100,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for Portugal. | ||||
$ | 100,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for Taiwan. | ||||
$ | 100,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for Venezuela. |
$ | 100,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for Turkey | ||||
$ | 25,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for California. This sub-limit applies on a cumulative basis for all coverage triggered by earthquake in this zone. | ||||
$ | 25,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for Japan. This sub-limit applies on a cumulative basis for all coverage triggered by earthquake in this zone. | ||||
$ | 25,000,000 | each and every occurrence combined for PD &d BI and in the annual aggregate for New Zealand. This sub-limit applies on a cumulative basis for all coverage triggered by earthquake in this zone. | ||||
$ | 50,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for New Madrid (sub-limit does not apply to the Logan facility). | ||||
$ | 50,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for Pacific Northwest. | ||||
$ | 50,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for Philippines. | ||||
Extra / Expediting Expenses | $ | 200,000,000 | combined each and every occurrence for PD & BI. | |||
Fine Arts | $ | 25,000,000 | each and every occurrence for PD. | |||
Fire Fighting Expenses Including Cost of Extinguishing Materials | $ | 25,000,000 | each and every occurrence for PD. |
Flood | $ | 750,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate except, | |||
$ | 100,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for properties situated in a 100 year floodplain. | ||||
$ | 100,000,000 | each and every occurrence combined for PD & BI and in the annual aggregate for flood in the Netherlands. | ||||
Interruption By Civil or Military Authority | $ | 100,000,000 | each and every occurrence for PD & BI or 30 consecutive days, whichever is less. | |||
Interruption of Ingress and/or Egress | $ | 100,000,000 | each and every occurrence for PD & BI or 30 consecutive days, whichever is less. | |||
Impounded Water | $ | 100,000,000 | each and every occurrence combined for PD and BI. | |||
Land and Water Contaminant or Pollutant Cleanup, Removal and Disposal | $ | 100,000 | each and every occurrence for PD. | |||
Leasehold Interest | $ | 100,000,000 | each and every occurrence for BI. | |||
Neighbour’s Recourse Liability | $ | 15,000,000 | each and every occurrence combined for PD & BI. | |||
Newly Acquired Location | $ | 100,000,000 | each and every occurrence combined for PD & BI. | |||
Non-Admitted Tax Liability | $ | 150,000,000 | each and every occurrence. | |||
Pot Line Freeze Up | $ | 100,000,000 | each and every occurrence combined for PD and BI. | |||
Research & Development | $ | 25,000,000 | each and every occurrence combined for PD & BI. | |||
Recapture of Investment Incentives | $ | 50,000,000 | each and every occurrence. | |||
Royalties | $ | 10,000,000 | each and every occurrence |
Service Interruption | $ | 200,000,000 | each and every occurrence combined for PD & BI, except | |||
$ | 25,000,000 | each and every occurrence combined for PD & BI from interruption emanating from earthquake in the New Madrid zone. | ||||
Transit | $ | 25,000,000 | each and every occurrence combined for PD & BI. | |||
Transmission and Distribution Lines | $ | 10,000,000 | each and every occurrence combined for direct loss causing PD & BI. | |||
Unnamed Location | $ | 100,000,000 | each and every occurrence combined for PD & BI. |
§ | MARINE EXPORT SHIPMENTS | ||
§ | MARINE IMPORT SHIPMENTS | ||
§ | AIRCRAFT / WATERCRAFT | ||
§ | LAND/WATER | ||
§ | LABOUR DISTURBANCES | ||
§ | WAR / NUCLEAR DEVICE / REBELLION / SEIZURE BY PUBLIC | ||
§ | AUTHORITY / CONTRABAND OR ILLEGAL TRADE | ||
§ | NUCLEAR | ||
§ | FRAUD | ||
§ | WEAR AND TEAR | ||
§ | CROPS or STANDING TIMBER | ||
§ | CURRENCY / PREVIOUS METALS | ||
§ | OFFSHORE PROPERTY | ||
§ | VEHICLES | ||
§ | MYSTERIOUS DISAPPEARANCE | ||
§ | CHANGES IN TEMPERATURE | ||
§ | PROPERTY SOLD | ||
§ | UNDERGROUND MINES | ||
§ | satellites / spacecraft | ||
§ | manufacturing or processing errors | ||
§ | errors in design | ||
§ | cost of making good defective design or specifications | ||
§ | errors in processing / manufacturing product | ||
§ | settling, cracking, shrinkage | ||
§ | remote loss / delay or loss of market | ||
§ | VERMIN, INSECTS or animals | ||
§ | LOCAL, STATE OR NATIONAL GOVERNMENT CATASTROPHE POOLS | ||
§ | POLLUTION | ||
§ | FINES / PENALTIES | ||
§ | 10 YEAR FLOOD PLAIN (based on the renewal schedule of locations there are currently no locations situated in a 10 year flood plain) | ||
§ | MICRO ORGANISM | ||
§ | BIOLOGICAL / CHEMICAL MATERIALS |
U.S. DOLLARS
- Electronic Date Recognition Clarification Clause | |||
- Computer Virus Clause | |||
- War and Terrorism Exclusion Endorsement | |||
- Asbestos Exclusion Endorsement |
Insured: | Novelis Inc. | |
Insurer: | Zurich Insurance Company | |
Primary Policy Number: | LA 37’940B | |
Policy Period: | April 1, 2007, to April 1, 2008 | |
Limits Of Liability: | US $75,000,000 per claim made for all insured losses combined, including loss expense, subject to an annual aggregate of US $150,000,000 for all claims made within one insurance year irrespective of whether the claims are attributable to one or more than one occurrence. | |
Sub-Limits for Additional Coverages | ||
US $75,000,000 per claim made and in the aggregate per insurance year for the following Additional Coverages combined: | ||
a) Personal Injury Liability | ||
b) Advertiser’s Liability | ||
c) Employer’s Liability | ||
d) Employee Benefits Liability | ||
e) Loss of Use | ||
f) Pure financial loss | ||
g) Additional Coverage for Motor Vehicles |
The Indemnity of Zurich is limited to: | ||
a) US $50,000,000 per claim made and in the aggregate per insurance year for Product Recall Costs, and included in this sub-limit US $15,000,000 per claim made and in the aggregate per insurance year for Product Recall costs in the case of insured entities that maintain no certified quality management system under recognised standards (e.g. ISO 9001, et seq.); | ||
b) US $25,000,000 per claim made and in the aggregate per insurance year for Dismantling and Assembly Expenses; | ||
c) For Special Coverages according to (a) and (b) above, the maximum limit of indemnity per claim made and in the aggregate per insurance year remains US $50,000,000; | ||
d) US $400,000 per claim made and US $4,000,000 in the aggregate per insurance year for Legal Protection in criminal Proceedings; | ||
e) US $4,000,000 per claim made and in the aggregate per insurance year for claims in respect of losses relating to Contingent Watercraft. | ||
Deductibles: | The deductibles per claim made are as follows: | |
General Deductible for entities in Canada | ||
CAD $25,000 for Product Liability | ||
CAD $25,000 for other losses | ||
No deductible for bodily injury claims | ||
Germany | ||
EUR 50,000 for Product Liability | ||
In connection with the local environmental industrial liability insurance per insurance case 10% but a minimum of EUR 50,000 and a maximum of EUR 500,000 | ||
EUR 4,000 for other losses | ||
No deductible for bodily injury claims | ||
Italy | ||
EUR 50,000 | ||
South Korea | ||
US $20,000 | ||
No deductible for bodily injury claims | ||
Switzerland | ||
CHF 30,000 for Product Liability | ||
CHF 6,000 for other losses | ||
No deductible for bodily injury claims |
United Kingdom | ||
GBP 10,000 for Product Liability | ||
GBP 2,000 for other losses | ||
No deductible for bodily injury claims | ||
United States of America (USA) | ||
US $1,000,000 for losses which occur and/or are litigated in the USA only | ||
US $25,000 for other losses | ||
Belgium, France, Spain | ||
EUR 20,000 for Product Liability | ||
EUR 4,000 for other losses | ||
No deductible for bodily injury claims | ||
Other Countries | ||
US $20,000 for Product Liability | ||
US $4,000 for other losses | ||
No deductible for bodily injury claims | ||
Difference in Limits Coverage | ||
No deductible is applicable to Difference in Limits Coverage | ||
Deductible for Special Coverages | ||
Notwithstanding the other deductibles mentioned above, the deductibles for the Special Coverages amount to: | ||
US $1,000,000 in respect of Novelis Inc. and its subsidiaries for claims which are made and/or are litigated in the USA only US $810,000 for other losses / entities | ||
Novelis Inc. participates in the Program with an annual program deductible of US $950,000 per claim made in excess of the applicable deductible(s) with an annual aggregate of US $2,000,000. | ||
Territorial Limits: | Worldwide | |
Coverage: | The policy covers legal liability arising out of the companies and their activities, in respect of business premises, property, operations and product liability risks for bodily injury and property damage. |
Insuring and Defense Agreement: | The coverage provided by Zurich consists of the indemnity for justified insured claims and of any loss expense, including defense costs, against both justified and unjustified insured claims. Payments under these coverages will be made by Zurich, on behalf of the insureds. They will include but not be restricted to: | |
a) Interest on damages; | ||
b) Premiums on bonds to release attachments for an amount not in excess of the limit of indemnity of this contract as well as all premiums on appeal bonds required in any above defended claim; | ||
c) Loss reduction expenses; | ||
d) Cost of experts, lawyers, court, arbitration and mediation expenses | ||
e) Litigation costs of an opposing party; | ||
f) Loss prevention expenses, And will be limited by the limit of indemnity of this contract. | ||
Principal Extensions: | Comprehensive General Liability Manuscript Policy Form which includes: | |
§ Additional coverage for Motor Vehicles – limited to the Limit of Indemnity and applies excess of the greater of US $2,000,000 or the limit of indemnity of the locally existing basic motor vehicle coverage; | ||
§ Advertisers’ Liability; | ||
§ Agreed Waiver of Liability; | ||
§ Assumption of Legal Third-Party Liability; | ||
§ Condominium Owners; | ||
§ Cross Liability; | ||
§ Damage to Property in the Custody of or Worked Upon by the Insured; | ||
§ Effects of Ionizing Radiation; | ||
§ Employee Benefits Liability; | ||
§ Employer’s Liability – limited to the Limit of Indemnity and applies excess of: | ||
§ US $100,000 for the USA | ||
§ CDN $1,000,000 for other countries | ||
§ Extension of the Statutory Time-Limits; | ||
§ Fault on the Part of Independent Contractors; | ||
§ Identification or Elimination of Defects and Damage; | ||
§ Insured Ancillary Risks; | ||
§ Joint Ventures; | ||
§ Leased Telecommunications Installations; | ||
§ Leasehold Property; | ||
§ Legal liability arising from the granting of licenses conferring rights in respect of intangible goods; | ||
§ Legal Protection in Criminal Proceedings; | ||
§ Loss of Use; | ||
§ Loss during Loading and Unloading; |
§ Losses Incurred in Mixing, Combining and Further Processing; | ||
§ Losses Relating to Environmental Damage Caused by Installations for the Storage, Treatment or Disposal of Waste or Waste Products; | ||
§ Machinery Clause; | ||
§ Non Owned Aviation Liability / Airport Premises — limited to the Limit of Indemnity and applies excess of CDN $5,000,000; | ||
§ Objection of Late Complaints; | ||
§ Personal Injury Liability; | ||
§ Personal Liability; | ||
§ Pure Financial Loss; | ||
§ Railroad Branch Lines and Sidetracks and Related Installations and Rolling Stock; | ||
§ Real Estate and Installations not Used for Business Purposes; | ||
§ Use of Public Highways for Internal Works Traffic. | ||
Special Coverages: | Special coverages shall mean the following additional coverages; | |
§ Dismantling and assembly expenses; | ||
§ Product recall costs; | ||
§ Loss prevention expenses; | ||
§ Testing and sorting costs. | ||
Principal Exclusions: | The policy excludes the following: | |
§ Own Damages; | ||
§ Bodily injury to employees; | ||
§ Employment-related practices; | ||
§ Workers’ Compensation and Occupational Disease; | ||
§ Charterers’ Liability; | ||
§ Damage to property in the custody of or worked upon by the Insured; | ||
§ Radioactivity; | ||
§ Civil War; | ||
§ Special Substances and Risks; | ||
§ Intentional Act; | ||
§ Terrorism in the USA; | ||
§ Losses relating to environmental damage except for (1) consequences of a sudden event (2) losses relating to environmental damage caused by installations for composting or short-term storage on waste products or purification of waste water. |
(i) | Each Acquisition Document |
§ | Arrangement Agreement, dated as of February 10, 2007, by and among Hindalco Industries Limited, AV Aluminum Inc. and Novelis Inc. | ||
§ | Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934, dated April 5, 2007, by Novelis Inc. | ||
§ | Final Order Approving the Arrangment, dated May 14, 2007, by the Ontario Superior Court of Justice | ||
§ | Articles of Arrangement, dated May 15, 2007, by and among Novelis Inc., AV Metals Inc. and Hindalco Industries Limited |
(ii) | Each material Senior Note Document |
§ | Indenture, relating to the 71/4% Senior Notes due 2015, dated as of February 3, 2005, between Novelis Inc., the guarantors named on the signature pages thereto and The Bank of New York Trust Company, N.A., as trustee (the “Indenture”) | ||
§ | Registration Rights Agreement, dated as of February 3, 2005, among Novelis Inc., the guarantors named on the signature pages thereto, Citigroup Global Markets Inc., Morgan Stanley & Co. Incorporated and UBS Securities LLC, as Representatives of the Initial Purchasers | ||
§ | Supplemental Indenture, dated as of November 29, 2006, between Novelis Inc., Novelis Finances USA LLC, Novelis South America Holdings LLC, Aluminum Upstream Holdings LLC and the Bank of New York Trust Company, N.A. | ||
§ | Supplemental Indenture, dated as of May 14, 2007, between Novelis Inc., Novelis No. 1 Limited Partnership, the guarantors named on the signature pages on the Indenture and The Bank of New York Trust Company, N.A., as trustee |
(iii) | Each material Term Loan Document |
§ | Term Loan Credit Agreement, dated July 6, 2007 among Novelis Inc., as Canadian Borrower, Novelis Corporation, as U.S. Borrower, AV Aluminum Inc. as Parent Guarantor, and the other guarantors party thereto, the Lenders party thereto, UBS AG, Stamford Branch, as Administrative Agent and as Collateral Agent and UBS Securities LLC and ABN AMRO Incorporated, as Joint Lead Arrangers and Joint Bookmanagers (the “Term Loan”). | ||
§ | The Security Documents as defined in the Term Loan |
(iv) | Each material agreement, certificate, instrument, letter or other document delivered pursuant to the Subordinated Debt Loan |
§ | Promissory Note, dated May 15, 2007, between AV Aluminum Inc. as “Debtor” and AV Metals Inc. as “Lender” |
(v) | Each material agreement, certificate, instrument, letter or other document delivered pursuant to any other Material Indebtedness: |
Company | Description | Bank Name | Issue Date | Due date | US$ Amount | |||||||
Novelis Inc. | Bond | N/A | February 3, 2005 | February 3, 2015 | $ | 1,399,159,000 | ||||||
Novelis Korea Ltd. | Loan | Korea Exchange Bank | December 28, 2004 | December 28, 2007 | $ | 70,000,000 | ||||||
Novelis Inc. | Hedging Obligation | N/A | N/A | N/A | $ | 81,936,375 |
Subject to | ||||||
Bailee/Landlord | ||||||
Loan Party | Address | Owned/Leased | Letter | |||
Novelis Inc. | 7307 Meadow Avenue Burnaby, British Columbia V5J 4Z2 Canada | Leased | No | |||
1 Lappan’s Lane, P.O. Box 2000 Kingston, Ontario K7L 4Z5 Canada | Owned | N/A | ||||
Kingston Research and Development Center 945 Princess Street, P.O. Box 8400 Kingston, Ontario K7L 5L9 Canada | Owned | N/A | ||||
2040 rue Fay, P.O. Box 1010 Saguenay, Quebec G7S 4K6 Canada | Owned | N/A | ||||
1909 (2150) rue Onésine-Gagnon Lachine, Quebec, H8T 3M8 Canada | Leased | No |
Subject to | ||||||
Bailee/Landlord | ||||||
Loan Party | Address | Owned/Leased | Letter | |||
Novelis Corporation | Foil Products Division: Executive Office: | Leased | No | |||
15 13 Redding Drive LaGrange, Georgia 30240 USA | ||||||
Global Automotive Products Division: | Leased | No | ||||
Executive Office: | ||||||
28970 Cabot Drive | ||||||
Suite 500 | ||||||
Novi, Michigan 48377 | ||||||
USA | ||||||
Rolled Products North America Division: | Leased | No | ||||
Aurora Research and Development: | ||||||
535 North Exchange Court Aurora, Illinois 60504 USA | ||||||
Berea Recycling Plant: 302 Mayde Road Berea, Kentucky 40403 USA | Owned | N/A | ||||
Fairmont Light Gauge Plant: 1800 Speedway Fairmont, West Virginia 26554 USA | Owned | N/A | ||||
Greensboro Recycling Plant: 1261 Willow Run Road Greensboro, Georgia 30642 USA | Owned | N/A | ||||
Light Gauge Sales Office: 7421 Camel Executive Park Charlotte NC 28226-0415 USA | Home office, de minimis annual rent | N/A | ||||
Louisville Light Gauge Plant: 1430 South 13th Street Louisville, Kentucky 40210 USA | Owned | N/A | ||||
Oswego Sheet Products Plant: Lake Road North Oswego, New York 13126 USA | Owned | N/A |
Subject to | ||||||
Bailee/Landlord | ||||||
Loan Party | Address | Owned/Leased | Letter | |||
Terre Haute Light Gauge Plant: 5901 North 13th Street Terre Haute, Indiana 47805 USA | Owned | N/A | ||||
Warren Sheet Products Plant: 390 Griswold Avenue, NE Warren, Ohio 44483 | Owned | N/A | ||||
USA | ||||||
Other: | ||||||
1022 1 E. Montgomery Suite A, | Lease, de minimis | No | ||||
Spokane, WA 99206 | annual rent | |||||
USA | ||||||
2408 Zurlo Ct. | Home office, de | No | ||||
Santa Rosa, California 95403 | minimis annual rent | |||||
USA | ||||||
475 Jennifer Lane | Home office, de | No | ||||
Grayslake, Illinois 60030 | minimis annual rent | |||||
USA | ||||||
14 Ledgewood Drive | Home office, de | No | ||||
Bedford, Massachusetts 01730 | minimis annual rent | |||||
USA | ||||||
9 Davidson Avenue | Home office, de | No | ||||
Jamesburg, New Jersey 08831 | minimis annual rent | |||||
USA | ||||||
1616 Westgate Circle | Sales office, de | No | ||||
Suite 105 | minimis annual rent | |||||
Brentwood, Tennessee 37027 | ||||||
USA | ||||||
Novelis UK Ltd. | Bridgnorth: Stourbridge Road Bridgnorth WV 5 6AW United Kingdom | Leased | No | |||
Latchford: | Owned | N/A | ||||
Thelwall Lane | ||||||
Warrington, Cheshire | ||||||
WA41NP | ||||||
United Kingdom | ||||||
Banbury: | Leased | No | ||||
5th Floor | ||||||
Beaumont House, Southam Road |
Subject to | ||||||
Bailee/Landlord | ||||||
Loan Party | Address | Owned/Leased | Letter | |||
Banbury, Oxfordshire | ||||||
United Kingdom | ||||||
Bilston: | Leased | No | ||||
Unit 13 Bilston Business Centre, | ||||||
Dudley Street | ||||||
Bilston | ||||||
Wolverhampton | ||||||
WV14 0LA | ||||||
United Kingdom | ||||||
Novelis do | Candeias: | N/A for Brazil | N/A for Brazil | |||
Brasil Ltda. | Via das Torres, S/N° — Centro | |||||
Industrial de Aratu | ||||||
Candeias, BA | ||||||
CEP 43800-000 | ||||||
Brazil | ||||||
Ouro Preto: | ||||||
Av. Américo R. Gianetti, 521 — | ||||||
Saramenha | ||||||
Ouro Preto, MG | ||||||
CEP 35400-000 | ||||||
Brazil | ||||||
Pindamonhangaba: | ||||||
Av. Buriti, 1087 — Feital | ||||||
Pindamonhangaba, SP | ||||||
CEP 12441-270 | ||||||
Brazil | ||||||
Santo André: | ||||||
R. Felipe Camarão, 414 — Utinga | ||||||
Santo André, SP | ||||||
CEP 09220-902 | ||||||
Brazil | ||||||
Belo Horizonte: | ||||||
Av. do Contorno, 8.000, sala 702 | ||||||
Centro — Belo Horizonte, MG | ||||||
CEP | ||||||
Brazil | ||||||
Hydropower Plant — Fumaça: | ||||||
Est. Miguel Rodrigues a Barroca | ||||||
S/N° — Cachoeira do Brumado | ||||||
Mariana, MG | ||||||
CEP 35424-000 | ||||||
Brazil | ||||||
Hydropower Plant — Furquim: |
Subject to | ||||||
Bailee/Landlord | ||||||
Loan Party | Address | Owned/Leased | Letter | |||
Estrada Acesso à Usina de Furquim | ||||||
S/N° | ||||||
Mariana, MG | ||||||
CEP 35426-000 | ||||||
Brazil | ||||||
Hydropower Plant — Brecha: | ||||||
Fazenda Usina da Brecha, S/N° — | ||||||
Piranga, Guaraciaba, MG | ||||||
CEP 35436-000 | ||||||
Brazil | ||||||
Hydropower Plant — Salto: | ||||||
Usina Santo Antonio do Salto S/N° | ||||||
Ouro Preto, MG | ||||||
CEP 35430-000 | ||||||
Brazil | ||||||
Hydropower Plant — Brito: | ||||||
Usina Estrada do Brito S/N° — Brito | ||||||
Ponte Nova, MG | ||||||
CEP 35301-970 | ||||||
Brazil | ||||||
Bauxite Mine —Fazenda Vargem: | ||||||
Mina Fazenda da Vargem, S/N° | ||||||
Santa Bárbara, MG | ||||||
CEP 35960-000 | ||||||
Brazil | ||||||
Bauxite Mine —Antonio Pereira: | ||||||
Est. de Acesso a Serra Antonio | ||||||
Pereira, S/N° | ||||||
Ouro Preto, MG | ||||||
CEP 35411-000 | ||||||
Brazil | ||||||
Bauxite Mine — Monjolo: | ||||||
Mina Jazida Monjolo S/N° | ||||||
Mariana, MG | ||||||
CEP 35420-000 | ||||||
Brazil | ||||||
Bauxite Mine — Fazenda do Lopes | ||||||
Fazenda do Lopes, S/N° | ||||||
Caeté, MG | ||||||
CEP 34800-000 | ||||||
Brazil | ||||||
Bauxite Mine — Serra do Maquiné | ||||||
Mina Serra do Maquiné S/N° |
Subject to | ||||||
Bailee/Landlord | ||||||
Loan Party | Address | Owned/Leased | Letter | |||
Caeté, MG | ||||||
CEP 34800-000 | ||||||
Brazil | ||||||
Bauxite Mine — Fazenda Gandarela e | ||||||
Mato Grosso | ||||||
Fazenda Gandarela e Mato Grosso | ||||||
S/N°, Santa Bárbara, MG | ||||||
CEP 35960-000 | ||||||
Brazil | ||||||
Bauxite Mine — Galo | ||||||
Fazenda Mina Galo S/N° — Distrito | ||||||
de Carfanaum | ||||||
Faria Lemos, MG | ||||||
CEP 36840-000 | ||||||
Brazil | ||||||
Bauxite Mine Lagoa Seca | ||||||
Estrada de Acesso à Mina Lagoa | ||||||
Seca, S/N° — Itabirito — MG | ||||||
CEP 35450-000 | ||||||
Brazil | ||||||
Consórcio Candonga (a consortium | ||||||
with CVRD — Cia. Vale Rio Doce) | ||||||
Estrada Acesso a Santana do | ||||||
Deserto, km 12 | ||||||
Rio Doce, MG | ||||||
CEP 35442-000 | ||||||
Brazil | ||||||
Warehouse — Aratu | ||||||
Via Matoim S/N° — Aratu | ||||||
Candeias, BA | ||||||
Brazil | ||||||
CEP 43800-000 | ||||||
Warehouse — Acuruí | ||||||
Estrada de Capanema a Acuruí | ||||||
S/N° | ||||||
Itabirito, MG | ||||||
CEP 35340-000 | ||||||
Bazil | ||||||
Novelis | Novelis Packaging Benelux: | |||||
Deutschland | Venuslaan 14 | |||||
GmbH | 3318 JX Dordrecht | |||||
Netherlands | ||||||
Novelis Deutschland GmbH | ||||||
Sales Office France: |
Subject to | ||||||
Bailee/Landlord | ||||||
Loan Party | Address | Owned/Leased | Letter | |||
26, rue Rennequin — B12 | ||||||
75017 Paris | ||||||
France | ||||||
Novelis Deutschland GmbH | ||||||
Werk Berlin | ||||||
Holzhauser Strasse 96-1 00 | ||||||
13509 Berlin | ||||||
Germany | ||||||
Novelis Deutschland GmbH | ||||||
Nordic Office Denmark | ||||||
Ringager 4A | ||||||
2605 Brondby | ||||||
Denmark | ||||||
Novelis Deutschland GmbH | ||||||
Nordic Office Finland | ||||||
P.O. Box 6 1 | ||||||
Kapelitie 6D | ||||||
02201 Espoo | ||||||
Finland | ||||||
Novelis Market Centre Spain | ||||||
Canada Real de las Merinas | ||||||
3 — Planta Baja | ||||||
Centro de Negocios Eisenhower | ||||||
28042 Madrid | ||||||
Spain | ||||||
Novelis Deutschland GmbH | ||||||
Market Centre Austria | ||||||
Uchatiusgasse 4/3 | ||||||
1030 Wien | ||||||
Österreich | ||||||
Novelis Deutschland GmbH | ||||||
Market Centre Hong Kong | ||||||
39th Floor, One Exchange Square, 8 | ||||||
Connaught Place | ||||||
Hong Kong | ||||||
Novelis Deutschland GmbH | ||||||
Market Center Hungary | ||||||
Balogh Adam Koez 6 | ||||||
1026 Budapest | ||||||
Hungary | ||||||
Novelis Deutschland GmbH | ||||||
Werk Göttingen | ||||||
Hannoversche Strasse 1 |
Subject to | ||||||
Bailee/Landlord | ||||||
Loan Party | Address | Owned/Leased | Letter | |||
37075 Göttingen Germany | ||||||
Novelis Deutschland GmbH Werk Luedenscheid Wiesenstrasse 24-30 58507 Luedenscheid Germany | ||||||
Novelis Deutschland GmbH Werk Nachterstedt Gaterslebener Strasse 1 06469 Nachterstedt Germany | ||||||
Sales Office Dahenfeld | ||||||
(part of Werk Nachterstedt) | ||||||
Industriestrasse 12/13 | ||||||
74172 Neckarsulm | ||||||
Germany | ||||||
Novelis Deutschland GmbH | ||||||
Am Eisenwerk 30 | ||||||
58840 Ohle | ||||||
Germany | ||||||
Novelis Deutschland GmbH | ||||||
Representative Office | ||||||
ul, Zeromskiego 38 | ||||||
81-826 Sopot | ||||||
Poland |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Novelis Inc. | Building #1104 | Bailee Letter | ||
14 Kenview Boulevard | ||||
Brampton, Ontario | ||||
L6T 5S1 | ||||
Canada | ||||
205 Industrial Drive | Bailee Letter | |||
Mount Forest, Ontario | ||||
N0G 1Z0 | ||||
Canada | ||||
Novelis | Rexam Beverage | No | ||
Corporation | 124 Carson Road | |||
Birmingham, Alabama 35215 |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
USA | ||||
Precision Strip | No | |||
36000 Alabama Hwy 21 | ||||
Talladega, Alabama | ||||
USA | ||||
Rexam Beverage | No | |||
211 No. 51st Avenue | ||||
Phoenix, Arizona 85043 | ||||
USA | ||||
Total Warehousing | No | |||
4411 W. Roosevelt | ||||
Phoenix, Arizona 85043 | ||||
USA | ||||
Rexam Beverage Can Co. | No | |||
20730 Prairie St. | ||||
Chatsworth, California 91311 | ||||
USA | ||||
Rexam Beverage Can Co. | No | |||
2433 Crocker Circle | ||||
Fairfield, California 94533 | ||||
USA | ||||
Western Intermodal | No | |||
2801 Giant Road | ||||
Richmond, California 94806 | ||||
USA | ||||
CMI Freight-Trans. Inc. | No | |||
4900 S. Boyle Avenue | ||||
Vernon, California 90058 | ||||
USA | ||||
TMSI Warehouse | No | |||
16600 Table Mountain | ||||
Golden, Colorado 80403 | ||||
USA | ||||
TMSI Warehouse | No | |||
7725 East 88th Avenue | ||||
Henderson, Colorado 80640 | ||||
USA | ||||
TMSI Warehouse | No | |||
900 Metal Container Court | ||||
Windsor, Colorado 80550 | ||||
USA |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Rexam Beverage Can Co. | No | |||
Forest Park Plant 055, | ||||
48 Royal Drive | ||||
Forest Park, Georgia 30297 | ||||
USA | ||||
Rexam Beverage Can Co. | No | |||
1120 Industrial Blvd. | ||||
Greensboro, Georgia 30642 | ||||
USA | ||||
Rexam Beverage Can Co. | No | |||
480 Sibley Avenue | ||||
Union Point, Georgia 30669 | ||||
USA | ||||
Rexam Beverage Can Co. | No | |||
1101 W. 43rd Street | ||||
Chicago, Illinois 60609 | ||||
USA | ||||
C.M.I. Steel Wheel Warehouse | No | |||
Chicago, Illinois | ||||
USA | ||||
American Nickeloid | No | |||
2900 West Main Street | ||||
Peru, Illinois 61354 | ||||
USA | ||||
Wayne Steel | No | |||
21901 Cottage Grove | ||||
Sauk Village, Illinois 60411 | ||||
USA | ||||
Wells Warehouse | No | |||
932 Eastern Avenue | ||||
Connersville, Indiana 47331 | ||||
USA | ||||
Eagle Steel Products | No | |||
5150 Loop Road | ||||
Jefferson, Indiana | ||||
USA | ||||
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Precoat | No | |||
US Highway #12 Indiana Rte. 249 | ||||
Portage, Indiana | ||||
USA | ||||
Triumph Industries | No | |||
115 E. Pennsylvania | ||||
Rockville, Indiana 47872 | ||||
USA | ||||
City Welding | No | |||
193 North Dormeyer Avenue | ||||
Rockville, Indiana 47872 | ||||
USA | ||||
Aleris Blanking & Rim Products | No | |||
1140 Crawford Street | ||||
Terre Haute, Indiana 47807 | ||||
USA | ||||
Rexam Beverage Can Warehouse | No | |||
4001 Montdale Park Drive | ||||
Valparaiso, Indiana 46383 | ||||
USA | ||||
Ball Metal Container | No | |||
4700 Whiteway Drive | ||||
Tampa, Florida 33617 | ||||
USA | ||||
Owl’s Head | No | |||
187 Mitch McConnell Way | ||||
Bowling Green, Kentucky 42101 | ||||
USA | ||||
Aleris | No | |||
609 Gardner Camp Road | ||||
Morgantown, Kentucky 42261 | ||||
USA | ||||
Ryerson, Inc. | No | |||
920 Old Brunerstown Road | ||||
Shelbyville, Kentucky 40065 | ||||
USA | ||||
RJ Corman | No | |||
444 N. Hardison | ||||
South Union, Kentucky | ||||
USA |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Precision Strip Inc. | No | |||
446 N. Hardison Road | ||||
Woodburn, Kentucky 42170 | ||||
USA | ||||
Steinweg | No | |||
2101 East Firt Avenue | ||||
Baltimore, Maryland 21230 | ||||
USA | ||||
D & S Delivery Service | No | |||
32925 Schoolcraft Road | ||||
Livonia, Michigan 48150 | ||||
USA | ||||
Aluminum Blanking | No | |||
360 West Sheffield Avenue | ||||
Pontiac, Michigan 48340 | ||||
USA | ||||
Michigan Metal Transport | No | |||
36253 Michigan Avenue | ||||
Wayne, Michigan 48184 | ||||
USA | ||||
Rexam Beverage Can Co. | No | |||
139 Eva Street | ||||
St. Paul, Minnesota 55107 | ||||
USA | ||||
Precoat | No | |||
1095 Mendell Davis Drive | ||||
Jackson, Mississippi 39272 | ||||
USA | ||||
Rexam Beverage | No | |||
10800 Marina Drive | ||||
Olive Branch, Mississippi 38654 | ||||
USA | ||||
Precoat Metals | No | |||
3900 Bingham St. | ||||
St. Louis, Missouri 63116 | ||||
USA | ||||
Oswego Industries | No | |||
7 Morrill Place | ||||
Fulton, New York 13069 | ||||
USA |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Valeo Inc. Engine Cooling Truck Div. | No | |||
2258 Allen Street | ||||
Jamestown, New York 14701 | ||||
USA | ||||
Ball Corp Metal Beverage | No | |||
95 Ballard Road | ||||
Middletown, New York 10940 | ||||
USA | ||||
Oswego Warehousing Inc. | No | |||
193 East Seneca Street | ||||
Oswego, New York 13126 | ||||
USA | ||||
Scepter, Inc. | No | |||
11 Lamb Road | ||||
Seneca Falls, New York 13148 | ||||
USA | ||||
Triangle Warehouse | No | |||
8400 Triad Drive | ||||
Greensboro, North Carolina 27409 | ||||
USA | ||||
Rexam Beverage Can Co. | No | |||
4000 Old Milwaukee Lane | ||||
Winston-Salem, North Carolina 27107 | ||||
USA | ||||
Precision Strip Inc. | No | |||
88 S. Ohio Street | ||||
Minster, Ohio 45865 | ||||
USA | ||||
American Utility Processors | No | |||
1246 Princeton St. | ||||
Akron, Ohio 44301 | ||||
Specialty Metals | No | |||
1100 Home Avenue | ||||
Akron, Ohio 44310 | ||||
USA | ||||
Midwest Iron & Metal | No | |||
463 Homestead Avenue | ||||
Dayton, Ohio 45408 | ||||
USA |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Highway Logistics Warehouse | No | |||
1800 Production Drive | ||||
Findlay, Ohio 45840 | ||||
USA | ||||
Rexam Beverage Can | No | |||
2145 Cedar Street | ||||
Fremont, Ohio | ||||
USA | ||||
MISA Metal Processing | No | |||
1501 Made Drive | ||||
Middletown, Ohio | ||||
USA | ||||
Precision Strip Inc. | No | |||
86 South Ohio Street | ||||
Minster, Ohio 45865 | ||||
USA | ||||
Precision Strip Inc. | No | |||
315 Park Avenue | ||||
Tipp City, Ohio 45371 | ||||
USA | ||||
Rexam Beverage Can | No | |||
10444 Waterville | ||||
Whitehouse, Ohio 43571 | ||||
USA | ||||
Main Steel Polishing | No | |||
3805 B. Hendricks Road | ||||
Youngstown, Ohio 44515 | ||||
D&M Warehouse | No | |||
2700 SW 15th St. | ||||
Oklahoma City, Oklahoma 73108 | ||||
USA | ||||
Rexam Beverage Can Co. | No | |||
3400 South Council Road | ||||
Oklahoma City, Oklahoma 73179 | ||||
USA | ||||
Rexam Beverage Can Co. | No | |||
609 Cousar St. | ||||
Bishopville, South Carolina 29010 | ||||
USA |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Smelter Service | No | |||
400 Arrow Mines Road | ||||
Mt. Pleasant, Tennessee 38474 | ||||
USA | ||||
TAP | No | |||
7207 Hoover Mason Road | ||||
Mt. Pleasant, Tennessee 38474 | ||||
USA | ||||
Big G Warehouse | No | |||
190 Hawkins Drive | ||||
Shelbyville, Tennessee 37160 | ||||
USA | ||||
Scepter, Inc. | No | |||
1485 Scepter Lane | ||||
Waverly, Tennessee 37185 | ||||
USA | ||||
El Paso Distribution Center | No | |||
1301 Joe Battle | ||||
El Paso, Texas | ||||
USA | ||||
Rexam Beverage Can Co. | No | |||
1001 Fisher Road | ||||
Longview, Texas | ||||
USA | ||||
Gulf Winds | No | |||
1200 E. Barbours Cut Blvd. | ||||
Morgan’s Point, Texas 77571 | ||||
USA | ||||
CMI Freight-Trans. Inc. | No | |||
4401 D Street NW, Suite C | ||||
Auburn, Washington 98001 | ||||
USA | ||||
Rexam Plant | No | |||
1220 North 2nd Avenue | ||||
Kent, Washington 98032 | ||||
USA | ||||
Novelis UK | Alloa Community Enterprises Ltd | No | ||
Ltd. | Unit 1 Block 1 | |||
Ward Street | ||||
Alloa |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Scotland | ||||
FK10 1ET | ||||
United Kingdom | ||||
Teeside Transfer & Aggregation Centre | No | |||
(Abitibi Consolidated Recyling Europe Transfer & Aggregation Centre) | ||||
Puddlers Road | ||||
South Tees Industrial Park | ||||
Middlesborough | ||||
Cleveland | ||||
TS6 6TX | ||||
United Kingdom | ||||
Howcan | No | |||
245 Oldham Road | ||||
Manchester | ||||
M40 7PT | ||||
United Kingdom | ||||
Alutrade | No | |||
Langley Forge House | ||||
Tat Bank Road | ||||
Oldbury | ||||
West Midlands | ||||
B69 4NN | ||||
United Kingdom | ||||
Richard Freeths Waste Merchant | No | |||
Kingshill | ||||
Cricklade | ||||
Swindon | ||||
SN6 6JR | ||||
United Kingdom | ||||
Dunstable Waste Group | No | |||
Blackburn Road | ||||
Houghton Regis | ||||
Nr Dunstable | ||||
LU5 5BQ | ||||
United Kingdom | ||||
Universal Recycling Co | No | |||
London Wiper Co Ltd T/A | ||||
Wharf Road | ||||
Kilnhurst | ||||
Mexborough | ||||
South Yorkshire | ||||
S64 5SY | ||||
United Kingdom |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
FDB Distribution Ltd | No | |||
Building 38 | ||||
2nd Avenue | ||||
Pensnett Industrial Estate | ||||
Kingswinford | ||||
West Midlands | ||||
DY6 7UN | ||||
United Kingdom | ||||
Inventory with consignment customers | ||||
(Bridgnorth): | ||||
Coppice Alupack Ltd | No | |||
Isfryn Industrial Estate | ||||
Blackmill | ||||
Bridgend | ||||
CF35 6EB | ||||
United Kingdom | ||||
BSK Materials Ltd | No | |||
Commissioners Road | ||||
Strood | ||||
Kent | ||||
ME2 4ED | ||||
United Kingdom | ||||
Vaassen Flexible Packaging BV | No | |||
PO Box 2 | ||||
Vaassen | ||||
8170 AA | ||||
Netherlands | ||||
Alcan Packaging Tenningen Tschuelin Rothal | No | |||
GMBH | ||||
Friedrich Myer Strasse 23 | ||||
79331 | ||||
Germany | ||||
Rogers Induflex | No | |||
Ottergemse Steenweg 801 | ||||
Gent | ||||
9000 | ||||
Belgium | ||||
CC Pack | No | |||
Box 2 | ||||
Tibro | ||||
54321 | ||||
Sweden |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Novelis | Third Party in Possession regarding Berlin: | N/A for Germany | ||
Deutschland | ||||
GmbH | Schenker Deutschland AG | |||
Logistikzenttum Nord | ||||
Montanstr. 8-16 | ||||
D-13407 Berlin | ||||
Germany | ||||
Pohland-Speditionsges. mbH | ||||
Industriestr. 6 | ||||
D-95182 Dohlau | ||||
Germany | ||||
Third Party in Possession regarding | ||||
GottingenNorf | ||||
(inventory under Norf is property of Novelis Deutschland GmbH): | ||||
Inventory at forwarding agencies: | ||||
Friedrich Zufall GmbH & Co. KG, | ||||
Internationale Spedition, | ||||
Robert-Bosch-Breite 9, | ||||
D-37079 Gottingen | ||||
Germany | ||||
Schenker Deutschland AG, | ||||
Nordhoffstr. 4, | ||||
D-37077 Gottingen | ||||
Germany | ||||
Erich Schmelz GmbH & Co. KG, | ||||
Internationale Spedition, | ||||
MiramstraDe 75, | ||||
D-34123 Kassel | ||||
Germany | ||||
Benneckenstein Transporte GmbH Sped., | ||||
Mittelweg 2 1, | ||||
D-37154 Northeim | ||||
Germany | ||||
Warehouses for raw material: | ||||
Trimet Aluminium AG, | ||||
Aluminiumallee 1, | ||||
D-45356 Essen | ||||
Germany |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
UCT UmschlagContainer Terminal GmbH, | ||||
Sachtlebenstrasse 34, | ||||
41541 Dormagen | ||||
Germany | ||||
Agfa-Gevaert AG, | ||||
Grafische Systeme, | ||||
Werk Kalle-Albert, | ||||
Postfach 3540, | ||||
65025 Wiesbaden | ||||
Germany | ||||
Agfa-Gevaert UK Manufacturing, | ||||
Coal Road, | ||||
Leeds LS14 2AL West Yorkshire, | ||||
United Kingdom | ||||
Kodak Polychrome Graphics GmbH, | ||||
An der Bahn 80, | ||||
37520 Osterode | ||||
Germany | ||||
Ball Packaging Europe GmbH, | ||||
Zweigniederlassung Braunschweig, | ||||
Hamburger Str. 36-41, | ||||
38114 Braunschweig | ||||
Germany | ||||
Karl Achenbach GmbH & Co. KG, | ||||
Zinzinger Str. 1 I, | ||||
66117 Saarbriicken | ||||
Germany | ||||
NE Deckensysteme GmbH, | ||||
Industriestr. 16, | ||||
45739 Oer-Erkenschwick | ||||
Germany | ||||
MKG Metall- und Kunststoff-Verarbeitungs-Ges. mbH, | ||||
Daimlerstr. 13-15, | ||||
49504 Lotte | ||||
Germany | ||||
Warehouses for finished goods: | ||||
R.M.S. Europe Ltd., | ||||
Boothfeny Terminal, | ||||
Bridge Street, |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Goole, | ||||
East Yorkshire, DN14 5SS | ||||
United Kingdom | ||||
Third Party in Possession regarding | ||||
Ludenscheid: | ||||
Schenker Deutschland GmbH | ||||
Logistikzentrum Nord | ||||
Montanstr. 8-16 | ||||
D-13407 Berlin | ||||
Germany | ||||
Pirelli Cables Limited | ||||
Industrial Cables Division | ||||
Plant 11 | ||||
Chickenhall Lane | ||||
Eastleigh | ||||
Southhampton — SO5 5XA | ||||
United Kingdom | ||||
Pirelli Telekom Cables & Systems UK Ltd. | ||||
Store 39 | ||||
Chickenhall Lane | ||||
Eastleigh | ||||
Hampshire — SO50 6YU | ||||
United Kingdom | ||||
Reuther Verpackung | ||||
Elisabethstr. 6 | ||||
D-56564 Neuwied | ||||
Germany | ||||
Draka Comteq Finland Oy | ||||
Local Network Cables LNC | ||||
Johdintie 5 | ||||
FIN-90630 Oulu | ||||
Finland | ||||
SIG Combibloc GmbH | ||||
Rurstr. 58 | ||||
D-52441 Linnich | ||||
Germany | ||||
Spedition Fahmer GmbH | ||||
Plettenberger Str. 12 | ||||
D-58791 Werdohl | ||||
Germany | ||||
Third Party in Possession regarding Nachterstedt |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Inventory with consignment customers: | ||||
M. Preymesser GmbH & Co. KG | ||||
Anton-Tucher-Str 1 | ||||
D-28309 Bremen | ||||
Germany | ||||
Innomotive Systems Europe GmbH | ||||
Othestr. 19 | ||||
D-51702 Bergneustadt | ||||
Germany | ||||
Jaguar Cars Ltd. | ||||
Central Accounts Payable | ||||
R.4013 10 | ||||
Trafford House, Station Way | ||||
Basildon, SS16 5XX | ||||
United Kingdom | ||||
M. Preymesser GmbH & Co. KG | ||||
Hafenstr. 95 | ||||
D-74078 Heilbronn | ||||
Germany | ||||
M. Preymesser GmbH & Co. KG | ||||
Industriestr. 3 | ||||
D-84 180 Loiching | ||||
Germany | ||||
Ball Packaging Europe GmbH | ||||
Hamburger Str. 36 - 41 | ||||
D-38 114 Braunschweig | ||||
Germany | ||||
M. Preymesser GmbH & Co. KG | ||||
Otto-Lilienthal-Str. 34 | ||||
D-71034 Boblingen | ||||
Germany | ||||
GE Hungary RT | ||||
Vaci ut. 77 | ||||
Budapest | ||||
Hungary | ||||
Stahl Zentrurn Glauchau GmbH & Co. KG | ||||
Peniger Str. 17 | ||||
D-0837 I Glauchau | ||||
Germany |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
W. Hartrnann & CO. | ||||
Rodingsmarkt 39 | ||||
D-20459 Hamburg | ||||
Germany | ||||
Lapple Blechverarbeitung GmbH & Co. KG | ||||
Bayern | ||||
Maxhiitter Str. 16 | ||||
D-93 I58 Teublitz | ||||
Germany | ||||
Alcan Alluminio S.P.A. | ||||
Via Bruno Buozzi 12 | ||||
Fizzonasco di Pieve | ||||
Italy | ||||
Panopa Logistik GmbH | ||||
Max-von-Laue Weg 2 | ||||
D-38448 Wolfsburg | ||||
Germany | ||||
ThyssenKmpp Schulte GmbH | ||||
Robert-Bosch-Str. 1 | ||||
D-38112 Braunschweig | ||||
Germany | ||||
ThyssenKrupp Metallcenter GmbH | ||||
Am Storrenacker 4 | ||||
D-76139 Karlsruhe | ||||
Germany | ||||
SMK Stahlmagazin GmbH | ||||
Von-Miller Str. 3 1 | ||||
D-6766 I Kaiserslautern | ||||
Germany | ||||
Inventory with commission processor | ||||
(Lohnveredler) | ||||
LTI Metalltechnik GmbH | ||||
Im Fliirlein 16 | ||||
D-742 14 Schontal-Berlichingen | ||||
Germany | ||||
Coils Anodizing N.V. | ||||
Industriezone 5 | ||||
Landen | ||||
Belgium |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Decomecc Co. | ||||
Bilzer Weg 8 | ||||
3600 Genk | ||||
Belgium | ||||
Rede | ||||
Rue de la Libtration | ||||
60530 Le Mesnil en Thelle | ||||
France | ||||
Jaguar Cars Ltd. | ||||
Central Accounts Payable | ||||
R.40/3 10 | ||||
Trafford House, Station Way | ||||
Basildon, SS16 5XX | ||||
United Kingdom | ||||
Inventory with customers who purchase on approval (gutbefund) | ||||
Tirsan Anhangerproduktion u. Handel Goch | ||||
GmbH | ||||
Siemensstr. 74 | ||||
approval (Gutbefund) | ||||
D-47574 Goch | ||||
Germany | ||||
Alutech Ges.mbH | ||||
Untersbergstr. 1 | ||||
Austria | ||||
Behr Motorradtechnik Reichenbach GmbH | ||||
Gewerbering 2 | ||||
D-08468 Reichenbach | ||||
Germany | ||||
Becker Plastics GmbH | ||||
Am Bahnhof 3 | ||||
D-45711 Datteln | ||||
Germany | ||||
Alfun AS. | ||||
Zahradni 1610/40 | ||||
79201 Bruntal | ||||
Czech Republic | ||||
Aries S.P.A. | ||||
Strada Torino 23 | ||||
10092 Beinasco (To) Italy |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Lapple Blechverarbeitung GmbH & Co. KG | ||||
Bayern | ||||
Maxhutter Str. 16 | ||||
D-93 158 Teublitz | ||||
Germany | ||||
Jaguar Cars Ltd. | ||||
Central Accounts Payable | ||||
R.4013 10 | ||||
Trafford House, Station Way | ||||
Basildon, SS16 5XX | ||||
United Kingdom | ||||
Alcan Singen GmbH | ||||
Ahsingen-Platz 1 | ||||
D-78221 Singen | ||||
Germany | ||||
Third Party in Possession regarding Plettenberg Ohle: | ||||
Inventory and consignment arrangements: | ||||
ContiTech TechnoChemie | ||||
D-61184 Karben | ||||
Germany | ||||
ContiTech TechnoChemie GmbH | ||||
D-3829 Salzgitter | ||||
Germany | ||||
Continental Industrias | ||||
E-28820 Coslada-Madrid | ||||
Spain | ||||
Sped. Muller (Dura) | ||||
D-54552 Mehren | ||||
Germany | ||||
Dura Shifter Systems | ||||
GB-Llangennech, SA14 8DZ | ||||
United Kingdom | ||||
Sped. Hermann Merkel (Eaton) | ||||
D-76456 Kuppenheim | ||||
Germany |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Eaton Fluid Power | ||||
Brierley Hill | ||||
West Midlands DY5 2LB | ||||
England | ||||
United Kingdom | ||||
Inventory at forwarding agency: | ||||
Excel GmbH | ||||
D-Meinerzhagen | ||||
Inventory under consignment arrangements: | ||||
Baars | ||||
Kattenberg 52a | ||||
D-18273 Gustrow | ||||
Germany | ||||
Dewitz | ||||
Nicolaistrasse 32 | ||||
D-12247 Berlin | ||||
Germany | ||||
Moller | ||||
Alter Hellweg 62 | ||||
D-44064 Dortmund | ||||
Germany | ||||
Pohl | ||||
Erich — Zeigner — Allee 69/73 | ||||
D-04229 Leipzig | ||||
Germany | ||||
Zable | ||||
Gateforth Lane | ||||
GB-YO8 9HP Hambleton Selby | ||||
United Kingdom | ||||
Zaiser | ||||
Neuwiesen 9 | ||||
D-73312 Geislingen | ||||
Germany | ||||
A.F.V. Emballages | ||||
28 Grande Rue | ||||
F-78790 Hargeville | ||||
France |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Inventory at external storage area: | ||||
ARG | ||||
Am Stadthafen 51 - 65 | ||||
D-45881 Gelsenkirchen | ||||
Germany | ||||
Boon Weets Industriezone Webbekom 2/16 B-3290 Diest Belgium | ||||
Compackt | ||||
Kalver Strasse 20 | ||||
D-585 15 Liidenscheid | ||||
Germany | ||||
Fahmer | ||||
Plettenberger Str. 12 | ||||
D-58791 Werdohl | ||||
Germany | ||||
Trimet | ||||
Am Stadthafen 51 - 65 | ||||
D-45881 Gelsenkirchen | ||||
Germany | ||||
Schmitt | ||||
Ebbetalstrasse 63a | ||||
D-58840 Plettenberg | ||||
Germany | ||||
Sperrlager OV-APO | ||||
Bahnhofstr. 27 | ||||
CH-6890 Lustenau | ||||
Switzerland | ||||
Schneider Maschinenbau | ||||
Maumker Strasse 13 | ||||
D-57368 Lennestadt | ||||
Germany | ||||
Cordes & Simon | ||||
Spannstiftstr. 1 - 39 | ||||
D-58 119 Hagen | ||||
Germany | ||||
Novelis do | Inventory stored with customers under consignment arrangements: | |||
Brasil Ltda. |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
Cabreúva | N/A | |||
Crown Embalagens S/A | ||||
Rod. Dom Gabriel P. B. Couto, Km 80.24 | ||||
Cabreúva, SP | ||||
CEP 13315-000 | ||||
Brazil |
§ | Lawson Lundell LLP, as special British Columbia and Alberta counsel to the Loan Parties | |
§ | Desjardins Ducharme L.L.P., as special Quebec counsel to the Loan Parties | |
§ | Macfarlanes, as UK counsel to the Loan Parties | |
§ | Norr StiefenHofer Lutz, as German counsel to the Loan Parties | |
§ | Ernst & Young Societe d’Avocats, as French counsel to the Loan Parties | |
§ | Levy & Salomao Advogados, as Brazilian counsel to the Loan Parties | |
§ | A&L Goodbody, as Irish counsel to the Loan Parties | |
§ | Homburger, as Swiss counsel to the Loan Parties | |
§ | Studio Legale Tributario, as Italian counsel to the Loan Parties | |
§ | Kim & Chang, as Korean counsel to the Loan Parties | |
§ | Van Olmen — Wynant, as Belgian counsel to the Loan Parties | |
§ | Elvinger Dessoy Dennewald, as Luxembourg counsel to the Loan Parties | |
§ | Jones Day, as Georgia, Ohio and Texas counsel to the Loan Parties | |
§ | Jackson Kelly PLLC, as West Virginia counsel to Loan Parties | |
§ | Ice Miller, as Indiana counsel to Loan Parties | |
§ | Taft Stettinius & Hollister LLP, as Kentucky counsel to Loan Parties |
Amount | % | |||||||
New Term Loan | $ | 960.0 | 75 | % | ||||
New ABL Revolver* | $ | 324.0 | 25 | % | ||||
Total | $ | 1,284.0 | 100 | % | ||||
Amount | % | |||||||
Refinance Term Loan | $ | 822.0 | 64 | % | ||||
Refinance Revolver | $ | 443.0 | 35 | % | ||||
Fees and expenses | $ | 19.0 | 1 | % | ||||
$ | 1,284.0 | 100 | % | |||||
* | After giving effect to the borrowing and repayment to occur on the Closing Date pursuant to the Credit Agreement in an aggregate amount of approximately $226 million |
Facility | Amount | |||
Greensboro, Georgia | $ | 8,110,000 | ||
Terre Haute, Indiana | $ | 24,450,000 | ||
Berea, Kentucky | $ | 16,500,000 | ||
Louisville, Kentucky | $ | 11,000,000 | ||
Scriba, New York | $ | 28,920,000 | ||
Warren, Ohio | $ | 13,670,000 | ||
Fairmont, West Virginia | $ | 22,300,000 | ||
Kingston, Ontario | C$ | 50,710,000 | ||
Saguenay, Quebec | C$ | 20,980,000 |
1. | Within 30 days (or such longer period as may be agreed to by the Funding Agent in its sole discretion), Novelis Europe Holdings Limited shall deliver to the Funding Agent a Pledge Agreement Over Shares in favor of the Secured Parties whereby Novelis Europe Holding Limited pledges 100% of the share capital of Novelis Italia S.p.A. | |
2. | Within 30 days (or such longer period as may be agreed to by the Funding Agent in its sole discretion) Borrowers shall deliver to the Funding Agent share certificates representing, individually, (i) 84,393,463 ordinary shares issued by Novelis Europe Holdings Limited to Novelis Inc.; (ii) 1 ordinary share issued by Novelis Europe Holdings Limited to Novelis Inc.; and (iii) 144,928,900 preferred shares issued by Novelis Europe Holdings Limited to Novelis Inc. If Borrowers are not able to locate such share certificates, Borrower shall cause to be executed lost stock affidavits and shall cause Novelis Europe Holdings Limited to reissue such certificates, with such certificates to be delivered to the Funding Agent within the time period proscribed in this paragraph 2. | |
3. | Within 3 Business Days after the date hereof, Borrowers shall deliver to the Funding Agent an executed final copy, with an original to follow via next-business-day-delivery, of an opinion letter from Taft, Stettinius & Hollister LLP concerning the enforceability of the mortgages and fixture filings with respect to the real property located in each of Madison County and Jefferson County, Kentucky. | |
4. | Within 10 Business Days (or such longer period as may be agreed to by the Funding Agent in its sole discretion) the Borrowers shall deliver to the Term Loan Administrative Agent replacements for the Pledged Intercompany Notes listed onSchedule 11 on the Perfection Certificate other than those entered into on the Closing Date in the form of Intercompany Note found inExhibit P together with endorsements. | |
5. | Within forty-five (45) days of closing (or such longer period as may be agreed to by the Funding Agent in its sole discretion) each Guarantor will, subject to the proviso below, execute, deliver, and submit to the relevant government office(s) for filing or registration, and pay the requisite fee for such filing or registration, all documents reasonably requested by the Collateral Agent and necessary to validate or perfect the Lien of the Collateral Agent, for the ratable benefit of the Secured Parties, in any material Intellectual Property that such Guarantor owns in Germany, Switzerland, Canada, the UK and the US. In particular: |
6. | Within 1 Business Day of the Closing Date (or such longer period as may be agreed to by the Funding Agent in its sole discretion) a Share Pledge of 100% of the capital stock of Novelis Deutschland GmbH for the Term Lenders and one such Share Pledge for the ABL Lenders accompanied by an opinion of A&L Goodbody covering such Share Pledges. | |
7. | Transfer of Title to Movable Assets to be provided within 5 Business Days of the Closing Date (or such longer period as may be agreed to by the Funding Agent in its sole discretion). | |
8. | Negative pledge over real estate in Germany with undertaking not to transfer the real estate within 5 Business Days of the Closing Date (or such longer period as may be agreed to by the Funding Agent in its sole discretion, including, at the election of the Funding Agent, entry into the land register of respective encumbrances securing the negative pledge and no-transfer (within 2 months from the election)). | |
9. | Evidence that the land charges have been effectively transferred to Novelis Deutschland GmbH within 2 months, or such longer period acceptable to the Funding Agent. |
10. | Copy of Trust Agreement between Novelis AG and Novelis Deutschland GmbH, within one Business Day. | |
11. | Commerzbank Receipt of Trust Agreement and issuance of Lien Waiver (or subordination) Agreement Over All Pledged Bank Accounts within 5 Business Days of the Closing Date (or such longer period as may be agreed to by the Funding Agent in its sole discretion). | |
12. | Global Assignment of Receivables and Insurance Claims (Globalzession) by Novelis Deutschland GmbH within 10 Business Days of the Closing Date (or such longer period as may be agreed to by the Funding Agent in its sole discretion). | |
13. | Ten (10) notarized originals and 190 simple originals of executed assignment notices by Novelis AG within 10 Business Days of the Closing Date (or such longer period as may be agreed to by the Funding Agent in its sole discretion), and two hundred Novelis Deutschland GmbH executed notices of assignment within 1 Business Day of the Closing Date (or such longer period as may be agreed to by the Funding Agent in its sole discretion). | |
14. | Security transfer agreements over all IP rights of Novelis Deutschland GmbH. |
Bank Name/ | US$ | |||||||||||
Company | Description | Noteholder | Issue Date | Due date | Amount | |||||||
Novelis Korea Ltd. | Loan | Korea Exchange Bank | December 28, 2004 | December 28, 2007 | $ | 70,000,000 | ||||||
Novelis Korea Ltd. | Loan | Shinhan Bank | November 17, 2004 | November 17, 2007 | $ | 42,539,615 | ||||||
Novelis Korea Ltd. | Loan | Shinhan Bank | December 24, 2004 | December 24, 2007 | $ | 26,587,259 | ||||||
Novelis Korea Ltd. | Loan | Korea Exchange Bank | November 9, 2000 | September 15, 2008 | $ | 246,942 | ||||||
Novelis Korea Ltd. | Loan | Korea Exchange Bank | August 14, 2002 | September 15, 2010 | $ | 402,903 | ||||||
Novelis Korea Ltd. | Loan | Shinhan Bank | December 18, 2003 | June 15, 2011 | $ | 318,196 | ||||||
Novelis AG | Capital lease | Leasing Company | August 17, 2005 | August 17, 2011 | $ | 3,315,855 | ||||||
Novelis AG | Capital lease | Alcan | December 30, 2004 | Q4, 2019 | $ | 46,321,440 | ||||||
Novelis Foil France SAS | Loan | C.I.L | December 31, 1992 | December 31, 2012 | $ | 305,395 | ||||||
Novelis Foil France SAS | Loan | C.I.L | December 31, 1991 | December 31, 2011 | $ | 305,190 | ||||||
Novelis Luxembourg | Loan | SNCI | November 27, 2003 | March 31, 2009 | $ | 1,226,912 | ||||||
Novelis Italia SpA | Loan | Ministero del Tesoro | April 14, 2000 | April 14, 2009 | $ | 306,935 | ||||||
Novelis AG | Loan | Commerzbank, Berlin | N/A | N/A | $ | 45,842 | ||||||
Novelis Foil France SAS | Loan | Societe Generale | N/A | N/A | $ | 15,208 | ||||||
Novelis Italia SpA | Loan | Credito Artigiano SPA | N/A | N/A | $ | 1,830,815 | ||||||
Novelis Italia SpA | Loan | Banca lntesa SPA | N/A | N/A | $ | 2,007,564 | ||||||
Novelis Italia SpA | Loan | San Paolo Imi SPA | N/A | N/A | $ | 34,384 | ||||||
Novelis Italia SpA | Loan | Banca Popolare di Bergamo SPA | N/A | N/A | $ | 129,176 | ||||||
Novelis Italia SpA | Loan | Unicredit Banca SPA | N/A | N/A | $ | 172,873 |
Registration/ | ||||||||
File No. and | Renewal Period | Collateral | ||||||
Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Description | ||||
NOVELIS CORPORATION PO BOX 6977 CLEVELAND, OHIO 44101-1977 | AIR LIQUIDE INDUSTRIAL US LP 12800 WEST LITTLE YORK ROAD HOUSTON, TEXAS 77041 | 05-0021329284 JULY 8, 2005 AMENDMENT 05-00265681 AUGUST 24, 2005 | 5 YEARS | VERTICAL VESSEL 9000 GALLON SERIAL #L1348 VERTICAL VESSEL 13000 GALLON SERIAL #S1154 AND S1155 (LOCATION: ALCAN ALUMINUM 448 COUNTY ROUTE 1A, OSWEGO, NY 13126) | ||||
VERTICAL VESSEL: 11000 GALLON SERIAL # 318 (LOCATION: CHASE CITY, VA) | ||||||||
NOVELIS CORPORATION 6060 PARKLAND BLVD. CLEVELAND, OHIO 44124 | MARUBENI AMERICA CORPORATION 450 LEXINGTON AVENUE NEW YORK, NY 10017 | 06-0002744609 JANUARY 25, 2006 | 5 YEARS | PURCHASE MONEY SECURITY INTEREST IN ALL PRIMARY ALUMINUM TEE BARS SHIPPED TO DEBTOR AND ALL PROCEEDS ARISING FROM THE SALE OF PRIMARY ALUMINUM TEE BARS. | ||||
NOVELIS CORPORATION 3399 PEACHTREE ROAD ATLANTA, GA 30326-1120 | IOS CAPITAL 1738 BASS ROAD MACON, GA 31210-1043 | 06-0004965040 FEBRUARY 13, 2006 | 5 YEARS | All equipment now or hereafter leased in an equipment leasing transaction in connection with that certain Master Agreement No. 1799592, and all additions, improvements, |
Registration/ | ||||||||
File No. and | Renewal Period | Collateral | ||||||
Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Description | ||||
attachments, accessories, accessions, upgrades and replacements related thereto, and any and all substitutions or exchanges, and any and all products, insurance and/or other proceeds (cash and non-cash) there from. | ||||||||
NOVELIS CORPORATION 6060 PARKLAND BLVD. CLEVELAND, OHIO 44124 | THOMPSON TRACTOR CO., INC. PO BOX 10367 BIRMINGHAM, AL 35202 | 06-0017582291 MAY 23, 2006 | 5 YEARS | ONE (1) GC55, S/N AT88A00191, INCLUDING PROCEEDS. | ||||
NOVELIS CORPORATION 448 COUNTY ROUTE 1A OSWEGO, NY 131263962 | DE LAGE LANDEN FINANCIAL SERVICES INC. 1111 OLD EAGLE SCHOOL ROAD WAYNE, PA 19087 | 06-0032929798 OCTOBER 3, 2006 | 5 YEARS | UCC-1 WITH A SCHEDULE A, INCLUDING ALL COMPONENTS, ADDITIONS, UPGRADES, ATTACHMENTS, ACCESSIONS, SUBSTITUTIONS, REPLACEMENT AND PROCEEDS OF THE FOREGOING. THIS FILING IS FOR PRECAUTIONARY PURPOSES IN CONNECTION WITH AN EQUIPMENT LEASING TRANSACTION AND IS NOT TO BE CONSTRUED AS INDICATING THAT THE TRANSACTION IS OTHER THAN A TRUE LEASE. | ||||
NOVELIS CORPORATION 6060 PARKLAND BLVD. CLEVELAND, OHIO 44124 | GLENCORE LTD. 3 STAMFORD PLAZA 301 TRESSOR BLVD. STAMFORD, CT 06901-3244 | 06-0033941541 OCTOBER 12, 2006 | 5 YEARS | All of Glencore Ltd.’s A7E, A71, P1020 (ingot) AND/OR ITS EQUIVALENT stored from time to time at storage facilities of Novelis Corporation located at four Novelis locations. |
July 9, 2007 (the“NP Note”).
TYPE OF | BANK OR | ACCOUNT | ||||||
OWNER | ACCOUNT | JURISDICTION | INTERMEDIARY | NUMBERS | ||||
Novelis Corporation | Disbursement -US | U.S. | Citibank Delaware | 3869-9988 | ||||
Novelis Corporation | Concentration | U.S. | National City Bank | 983075782 | ||||
Novelis Corporation | Lockbox -Trade | U.S. | Bank of America | 3284734433 | ||||
Novelis Corporation | Lockbox -Misc | U.S. | Bank of America | 3344885994 |
TYPE OF | BANK OR | ACCOUNT | ||||||
OWNER | ACCOUNT | JURISDICTION | INTERMEDIARY | NUMBERS | ||||
Novelis Inc. | Overdraft | Canada | Citibank -Canada | 2-015044-017 | ||||
Novelis Inc. | Overdraft | Canada | Citibank -Canada | 2-015044-001 | ||||
Novelis Inc. | Lockbox, Consolidation | Canada | RBC | 114-743-8 | ||||
Novelis Inc. | Lockbox, Consolidation | Canada | RBC | 403-820-4 | ||||
Novelis Inc. Novelis Inc. Novelis Inc. Novelis Inc. Novelis Inc. | Lockbox Lockbox Lockbox Lockbox Lockbox | Canada Canada Canada Canada Canada | RBC RBC RBC RBC RBC | TO 7864C MO 7864C CO 7864C VO 7864C TO 8978U |
TYPE OF | BANK OR | |||||||
OWNER | ACCOUNT | JURISDICTION | INTERMEDIARY | ACCOUNT NUMBERS | ||||
Novelis AG | Treasury Account | Switzerland | Credit Suisse Zürich-Paradeplatz | 0835 492976 82 2 | ||||
Novelis AG | Treasury Account | Switzerland | Credit Suisse Zürich-Paradeplatz | 0835 492976 81 0 | ||||
Novelis AG | Treasury Account | Switzerland | Credit Suisse Zürich-Paradeplatz | 0835 492976 82 0 | ||||
Novelis AG | Treasury Account | Switzerland | Credit Suisse Zürich-Paradeplatz | 0835 492976 81 1 | ||||
Novelis AG | Treasury Account | Switzerland | Credit Suisse Zürich-Paradeplatz | 0835 492976 82 9 | ||||
Novelis AG | Treasury Account | Switzerland | Credit Suisse Zürich-Paradeplatz | 0835 492976 82 11 | ||||
Novelis AG | Treasury Account | Switzerland | Credit Suisse Zürich-Paradeplatz | 0835 492976 821 | ||||
Novelis AG | Treasury Account | Switzerland | Credit Suisse Zürich-Paradeplatz | 0835 492976 82 12 | ||||
Novelis AG | Master Cash Pool Accounts | Germany | Commerzbank Berlin | 100/4 205990500DKK | ||||
Novelis AG | Master Cash Pool Accounts | Germany | Commerzbank Berlin | 100/4 205990500EUR |
TYPE OF | BANK OR | |||||||
OWNER | ACCOUNT | JURISDICTION | INTERMEDIARY | ACCOUNT NUMBERS | ||||
Novelis AG | Master Cash Pool Accounts | Germany | Commerzbank Berlin | 100/4 205990500NOK | ||||
Novelis AG | Master Cash Pool Accounts | Germany | Commerzbank Berlin | 100/4 205990500SEK | ||||
Novelis AG | Master Cash Pool Accounts | Germany | Commerzbank Berlin | 100/4 205990500GBP | ||||
Novelis AG | Master Cash Pool Accounts | Germany | Commerzbank Berlin | 100/4 205990500USD | ||||
Novelis AG | Master Cash Pool Accounts | Germany | Commerzbank Berlin | 100/4 205990500CHF | ||||
Novelis AG | Master Cash Pool Accounts | Germany | Commerzbank Berlin | 100/4 205990500AUD | ||||
Novelis AG | Master Cash Pool Accounts | Germany | Commerzbank Berlin | 100/4 205990500CAD | ||||
Novelis Switzerland SA | Account Receivable / Payable | Switzerland | Credit Suisse | CH21 0483 5089 4273 4100 0 | ||||
Novelis Switzerland SA | Account Receivable / Payable | Switzerland | Credit Suisse | CH84 0483 5089 4273 4200 0 | ||||
Novelis Switzerland SA | Account Receivable / Payable | Switzerland | Credit Suisse | CH57 0483 5089 4273 4200 1 | ||||
Novelis Switzerland SA | Account Receivable / Payable | Switzerland | Credit Suisse | CH30 0483 5089 4273 4200 2 | ||||
Novelis Technology AG | Account Receivable / Payable | Switzerland | Credit Suisse Zürich | 0835 110381 92 1 | ||||
Novelis Technology AG | Account Receivable / Payable | Switzerland | Credit Suisse Zürich | 0835 110381 91 | ||||
Novelis Technology AG | Account Receivable / Payable | Switzerland | Credit Suisse Zürich | 0835 110381 92 |
BANK OR | ||||||||
OWNER | TYPE OF ACCOUNT | JURISDICTION | INTERMEDIARY | ACCOUNT NUMBERS | ||||
Novelis Deutschland GmbH | Account Receivable / Payable | Germany | Commerzbank | 100 400 00 205991300 | ||||
Novelis Deutschland GmbH | Account Receivable / Payable | Germany | Commerzbank | 100 400 00 205991300 | ||||
Novelis Deutschland GmbH | Account Receivable / Payable | Germany | Commerzbank | 100 400 00 205991300 | ||||
Novelis Deutschland GmbH | Account Receivable / Payable | Germany | Commerzbank | 100 400 00 205991300 | ||||
Novelis Deutschland GmbH | Account Receivable / Payable | Germany | Commerzbank | 100 400 00 205991300 | ||||
Novelis Deutschland GmbH | Account Receivable / Payable | Germany | Commerzbank | 100 400 00 205991300 |
BANK OR | ||||||||
OWNER | TYPE OF ACCOUNT | JURISDICTION | INTERMEDIARY | ACCOUNT NUMBERS | ||||
Novelis Deutschland GmbH | Account Receivable / Payable | Germany | Commerzbank | 100 400 00 205991300 | ||||
Novelis Deutschland GmbH | Main Account | Germany | Commerzbank | 100 400 00 205991302 | ||||
Novelis Deutschland GmbH | Main Account | Germany | Commerzbank | 100 400 00 205991302 | ||||
Novelis Deutschland GmbH | Main Account | Germany | Commerzbank | 100 400 00 205991302 | ||||
Novelis Deutschland GmbH | Main Account | Germany | Commerzbank | 100 400 00 205991302 | ||||
Novelis Deutschland GmbH | Main Account | Germany | Commerzbank | 100 400 00 205991302 | ||||
Novelis Deutschland GmbH | Main Account | Germany | Commerzbank | 100 400 00 205991302 | ||||
Novelis Deutschland GmbH | Main Account | Germany | Commerzbank | 100 400 00 205991302 | ||||
Novelis Deutschland GmbH | Payable Metal Account | Germany | Commerzbank | 100 400 00 205991301 | ||||
Novelis Deutschland GmbH | Pension Account | Germany | Commerzbank | 100 400 00 205991301 | ||||
Novelis Deutschland GmbH | Fees Account | Germany | Commerzbank | 100 400 00 205995400 | ||||
Novelis Deutschland GmbH | Security and Reserve Account | Germany | Commerzbank | 100 400 00 205995408 | ||||
Novelis Deutschland GmbH | Deposit Account | Germany | Commerzbank | 100 400 00 205991309 | ||||
Novelis Deutschland GmbH | Deposit Account | Germany | Commerzbank | 100 400 00 205991309 | ||||
Novelis Deutschland GmbH | Deposit Account | Germany | Commerzbank | 100 400 00 1766005 | ||||
Novelis Deutschland GmbH | Account Receivable / Payable | Germany | Commerzbank | 458 400 26 6208870 | ||||
Novelis Deutschland GmbH | Account Receivable / Payable | Germany | Commerzbank | 458 410 31 8203200 | ||||
Novelis Deutschland GmbH | Account Receivable / Payable | Germany | Commerzbank | 810 400 00 6526172 |
BANK OR | ||||||||
OWNER | TYPE OF ACCOUNT | JURISDICTION | INTERMEDIARY | ACCOUNT NUMBERS | ||||
Novelis Deutschland GmbH | Pension Account | Germany | Commerzbank | 760 400 61 521823501 | ||||
Novelis Deutschland GmbH | Account Receivable / Payable | Spain | Commerzbank | COBAESM 3631686 | ||||
Novelis Deutschland GmbH | Account Receivable / Payable | United Kingdom | Commerzbank | COBAGB2 1152214 | ||||
Novelis Deutschland GmbH | Account Payable | Finland | Nordea Pamki Suomi Oyi | NDEAFIHHXXX 15713027756 | ||||
Novelis Deutschland GmbH | Account Payable | Denmark | Den Danske Bank | DABADKKKXXX 3326147966 | ||||
Novelis Deutschland GmbH | Account Payable | France | Societe Generale | SOGEFRPP 00020491387 | ||||
Novelis Deutschland GmbH | Account Payable | Netherlands | Postbank | PSTBNL21 1775145 | ||||
Novelis Deutschland GmbH | Account Payable | Belgium | Fortis Bank | GEBABEBB 210073796440 | ||||
Novelis Deutschland GmbH | Account Payable | Netherlands | ABN AMRO Bank NV | ABNANL2A 417007310 |
Security Account | ||||||
Account Bank | Jurisdiction | Security Account Numbers | name | |||
HSBC Bank plc | U.K. | 51050176 (Bridgnorth — GBP) | Novelis UK Ltd | |||
City of London | 51269313 (Rogerstone — GBP) | Novelis UK Ltd | ||||
Corporate Office | 1272284 | Novelis Europe | ||||
Canary Wharf | Holdings Limited | |||||
London | ||||||
E14 5HQ | ||||||
Sort Code: 40-02-50 | ||||||
HSBC Bank plc | U.K. | 36650238 (Bridgnorth — CAD) | Novelis UK Ltd. | |||
City of London | 59081939 Rogerstone — CAD) | |||||
Corporate Office | 57166067 (Bridgnorth EUR) | |||||
Canary Wharf | 59081947 (Rogerstone EUR) | |||||
London | 57478406 (Bridgnorth CHF) | |||||
E14 5HQ | 67178848 (Rogerstone CHF) | |||||
Sort Code: 40-05-15 | 57478371 (Bridgnorth SEK) | |||||
59081971 (Rogerstone SEK) | ||||||
59081963 (Rogerstone DKK) | ||||||
36658094 (Bridgnorth USD) | ||||||
59081955 (Rogerstone USD) | ||||||
59241725 (EUR) | Novelis Europe |
Security Account | ||||||
Account Bank | Jurisdiction | Security Account Numbers | name | |||
59241733 (USD) | Holdings Limited | |||||
Commerzbank AG, London Branch 60 Gracechurch Street | U.K. | 30119391 (Rogerstone EUR) 30119392 (Bridgnorth EUR) | Novelis UK Ltd. | |||
London EC3V 0HR | ||||||
Sort Code: 40-62-01 |
NOVELIS INC.
Agent Address: | LaSalle Business Credit, LLC 135 South LaSalle Street, Suite 425 Chicago, Illinois 60603 | Return form to: Steven Friedlander Telephone: (312) 992-2487 Facsimile: 312-992-1501 E-mail: steven.friedlander@abnamro.com |
Signature Block Information: | ||||
• | Signing Credit Agreement | o | Yes | o | No | |||||
• | Coming in via Assignment | o | Yes | o | No | |||||
• | Swiss Qualifying Bank | o | Yes | o | No | |||||
• | Canadian Resident | o | Yes | o | No | |||||
• | Specified Foreign Currency Capacity | o | Yes | o | No |
Type of Lender: | ||||||
Lender Parent: | ||||
Domestic Address | Eurocurrency or EURIBOR Address | |||||
Canadian Address | ||||||||
Primary Credit Contact | Secondary Credit Contact | |||||||
Name: | ||||||||
Company: | ||||||||
Title: | ||||||||
Address: | ||||||||
Telephone: | ||||||||
Facsimile: | ||||||||
E-Mail Address: | ||||||||
Primary Operations Contact | Secondary Operations Contact | |||||||
Name: | ||||||||
Company: | ||||||||
Title: | ||||||||
Address: | ||||||||
Telephone: | ||||||||
Facsimile: | ||||||||
E-Mail Address: | ||||||||
Bid Contact | L/C Contact | |||||||
Name: | ||||||||
Company: | ||||||||
Title: | ||||||||
Address: | ||||||||
Telephone: | ||||||||
Facsimile: | ||||||||
E-Mail Address: | ||||||||
Bank Name: | ||||
ABA/Routing No.: | ||||
Account Name: | ||||
Account No.: | ||||
FFC Account Name: | ||||
FFC Account No.: | ||||
Attention: | ||||
Reference: | ||||
Lender’s Foreign Wire Instructions | ||||
Currency: | ||||
Bank Name: | ||||
Swift/Routing No.: | ||||
Account Name: | ||||
Account No.: | ||||
FFC Account Name: | ||||
FFC Account No.: | ||||
Attention: | ||||
Reference: | ||||
Agent’s Wire Instructions | ||||
Bank Name: | ||||
ABA/Routing No.: | ||||
Account Name: | ||||
Account No.: | ||||
FFC Account Name: | ||||
FFC Account No.: | ||||
Attention: | ||||
Reference: | ||||
Assignment and Assumption
1. | Assignor: | |||||
2. | Assignee: | |||||
3. | Borrower(s): | [Novelis, Inc.][Novelis Corporation, Novelis PAE Corporation, Novelis Finances USA LLC, Novelis South America Holdings LLC and Aluminum Upstream Holdings LLC][Novelis UK Ltd][Novelis AG] | ||||
4. | Funding Agent: | LaSalle Business Credit, LLC, as the funding agent under the Credit Agreement | ||||
5. | Credit Agreement: | The Credit Agreement, dated as of July 6, 2007 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among |
1 | Select as applicable. |
Aggregate Amount | ||||||
of [U.S./European | ||||||
Commitments/U.S./ | Amount of | Percentage Assigned | ||||
European | [U.S./European | of [U.S./European | ||||
Revolving | Commitments/U.S./ | Commitments/U.S./ | ||||
Loans][Canadian | European Revolving | European Revolving | ||||
Commitments/Canadian | Loans][Canadian | Loans][Canadian | ||||
Revolving | Commitments/Canadian | Commitments/Canadian | ||||
Loans] for all | Revolving | Revolving | ||||
Facility Assigned | Lenders2 | Loans] Assigned2 | Loans]3 | |||
[U.S. Revolving | $ | $ | % | |||
Loans][Swiss Revolving Loans][U.K. Revolving Loans] [Canadian Revolving Loans] [European Swingline Loans] |
2 | Set forth in Dollar Equivalent. | |
3 | Set forth, to at least 9 decimals, as a percentage of the applicable Commitment/Loans of all Lenders thereunder. |
4 | To be completed if the Assignor and Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. |
ASSIGNOR [NAME OF ASSIGNOR] | ||||||
By: | ||||||
ASSIGNEE [NAME OF ASSIGNEE] | ||||||
By: | ||||||
Consented to and Accepted: | ||||
[NOVELIS INC., as Administrative Borrower]6 | ||||
By: | ||||
Title: | ||||
LASALLE BUSINESS CREDIT, LLC, as Funding Agent | ||||
By: | ||||
Title: |
5 | This date may not be fewer than 5 Business days after the date of assignment unless the Funding Agent otherwise agrees. | |
6 | To be added only if the approval of such person is required by the terms of the Credit Agreement. |
[ABN AMRO BANK N.V., as U.S./European Issuing Bank and as Swingline Lenter]6 | ||||
By: | ||||
Title: | ||||
[ABN AMRO BANK N.V., as Canadian Issuing Bank]6 | ||||
By: | ||||
Title: |
CREDIT AGREEMENT
ASSIGNMENT AND ASSUMPTION
BORROWING REQUEST
as Funding Agent for
the Lenders referred to below,
135 South LaSalle Street, Suite 425
Chicago, Illinois 60603
(A) | Borrowing | [U.S. Revolving Loans] | ||||
[Canadian Revolving Loans] | ||||||
[U.K. Revolving Loans] | ||||||
[Swiss Revolving Loans] | ||||||
[U.S. Swingline Loans] | ||||||
[European Swingline Loans] | ||||||
(B) | Approved Currency of Borrowing | |||||
(C) | Principal amount of Borrowing1 | |||||
(D) | Date of Borrowing (which is a Business Day) | |||||
(E) | Type of Borrowing | [ABR] [Eurocurrency] [EURIBOR] [Canadian Base Rate] [BA Rate]2 | ||||
(F) | Interest Period and the last day thereof3 | |||||
(G) | Funds are requested to be disbursed to Borrower’s account with [ ] (Account No. ). |
1 | Dollar Denominated Loans must be in an amount that is (i) an integral multiple of $1.0 million and not less than $5.0 million for ABR Loans and (ii) an integral multiple of $1.0 million and not less than $5.0 million for Eurocurrency Loans. Canadian Dollar Denominated Loans must be in an amount that is (i) an integral multiple of Cdn.$1.0 million and not less than Cdn.$5.0 million for Canadian Base Rate Loans and (ii) an integral multiple of Cdn.$1.0 million and not less than Cdn.$5.0 million for BA Rate Loans. Euro Denominated Loans must be in amount that is (i) an integral multiple of €1.0 million and not less than €5.0 million. GBP Denominated Loans must be in an amount that is at least GBP2.5 million and, if greater, an integral multiple of GBP1.0 million. U.S. Swingline Loans must be in an amount that is not less than $1.0 million and integral multiples of $500,000 above such amount. European Swingline Loans must be in an amount that is not less than €1.0 million (for Loans denominated in Euros), GBP1.0 million (for Loans denominated in GBP), or CHF1.0 million (for Loans denominated in Swiss Francs) and integral multiples of €500,000, GBP500,000 or CHF500,000, respectively, above such amount. | |
2 | Shall be ABR for U.S. Swingline Loans and Eurocurrency or EURIBOR for European Swingline Loans. | |
3 | Shall be subject to the definition of “Eurocurrency Interest Period”, “EURIBOR Interest Period” or “BA Rate Interest Period”, as applicable, set in the Credit Agreement. |
NOVELIS INC., as Administrative Borrower | ||||
By: | ||||
Name: | ||||
Title: | ||||
COMPLIANCE CERTIFICATE
1 | Calculations shall be in reasonable details satisfactory to the Funding Agent (including a breakdown of such computations on a quarterly basis). | |
2 | To accompany annual financial statements only, to the extent permitted under applicable accounting guidelines. The report must opine or certify that, with respect to its regular audit of such financial statements, which audit was conducted in accordance with GAAP, the accounting firm obtained no knowledge that any Default has occurred or, if in the opinion of such accounting firm such a Default has occurred, specifying the nature and extent thereof. | |
3 | If a Default shall have occurred, an explanation specifying the nature and extent of such Default shall be provided on a separate page together with an explanation of the corrective action taken or proposed to be taken with respect thereto (include, as applicable, information regarding actions, if any, taken since prior certificate). |
[ ] | ||||||
By: | ||||||
Title: [Financial Officer] |
[See attached]
[See attached]
INTEREST ELECTION REQUEST
as Funding Agent
135 South LaSalle Street, Suite 425
Chicago, Illinois 60603
EXHIBIT E-1
1 | Shall be a Business Day that is (i) three Business Days following the date of this Interest Election Request in the case of conversion into/continuation of Eurocurrency Loans to the extent this Interest Election Request is delivered to the Funding Agent not later than 11:00 a.m., Chicago time on the date hereof, otherwise the fourth Business Day following the date of delivery hereof, (ii) two Business Days following the date of this Interest Election Request in the case of conversion into/continuation of BA Rate Loans to the extent this Interest Election Request is delivered to the Funding Agent not later than 11:00 a.m., Chicago time on the date hereof, otherwise the third Business Day following the date of delivery hereof, (iii) three Business Days following the date of this Interest Election Request in the case of conversion into/continuation of EURIBOR Loans to the extent this Interest Election Request is delivered to the Funding Agent not later than 11:00 a.m., Chicago time on the date hereof, otherwise the fourth Business Day following the date of delivery hereof, (iv) one Business Day following the date of this Interest Election Request in the case of conversion into/continuation of Canadian Base Rate Loans to the extent this Interest Election Request is delivered to the Funding Agent not later than 11:00 a.m., Chicago time on the date hereof, otherwise the second Business Day following the date of delivery hereof, or (v) the date of this Interest Election Request in the case of a conversion into ABR Loans to the extent this Interest Election Request is delivered to the Funding Agent not later than 9:00 a.m., Chicago time on the date hereof, otherwise the Business Day following the date of delivery hereof. | |
2 | Specify Alternate Currency of Borrowing. |
EXHIBIT E-2
NOVELIS INC.,as Administrative Borrower | ||||
By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT E-3
JOINDER AGREEMENT
EXHIBIT F-1
EXHIBIT F-2
[NEW GUARANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Address for Notices: LASALLE BUSINESS CREDIT, LLC, as Funding Agent and as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
Address for Notices: LaSalle Business Credit, LLC 135 South LaSalle Street, Suite 425 Chicago, Illinois 60603 Attention: Steven Friedlander |
EXHIBIT F-3
EXHIBIT F-4
EXHIBIT G-1
1 | If Lessee is not the borrower under the Credit Agreement, this recital will be included. Also, Recital B will change so that Lessee and Borrower are not the same party, and Recital C will change. | |
2 | Include this Recital if the Lessee is not the borrower under the Credit Agreement. |
3 | Include bracketed language if Leased Premises are to be mortgaged. |
-2-
4 | Include bracketed language if Leased Premises are to be mortgaged. | |
5 | Include bracketed language if Leased Premises are to be mortgaged. |
-3-
-4-
6 | Include bracketed language if Leased Premises are to be mortgaged. |
-5-
, as Landlord | ||||
By: | ||||
Name: | ||||
Title: | ||||
LASALLE BUSINESS CREDIT, LLC, as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
Location/ | ||||||||
Lessor | Lessee | Dated | Modification | Property Address | ||||
[U.S./EUROPEAN] [CANADIAN]LC REQUEST[AMENDMENT]
15 | Note that if the LC Request is for (i) a U.S. Letter of Credit for a Loan Party that is not the U.S. Borrower, the U.S. Borrower shall be a co-applicant, and be jointly and severally liable, with respect to each U.S. Letter of Credit issued for the account or in favor of any such Loan Party, (ii) a European Letter of Credit for the account of another Subsidiary of Holdings that is not the European Administrative Borrower, the European Administrative Borrower shall be a co-applicant, and be jointly and severally liable, with respect to each European Letter of Credit issued for the account of such other Subsidiary of Holdings, and (iii) a Canadian Letter of Credit for the account of another Canadian Subsidiary of Holdings that is not the Administrative Borrower, the Administrative Borrower shall be a co-applicant, and be jointly and severally liable, with respect to each Canadian Letter of Credit issued for the account of such other Canadian Subsidiary of Holdings. | |
16 | Date of Issuance [Amendment] [Renewal] [Extension] must be at least three Business Days after the date of this LC Request, assuming this LC Request is delivered to the Issuing Bank by 11:00 a.m., New York City time (or such shorter period as is acceptable to the Issuing Bank). | |
17 | Aggregate initial stated amount of Letter of Credit. |
EXHIBIT H-1
18 | Insert name and address of beneficiary. | |
19 | Insert description of the obligation to which it relates in the case of Standby Letters of Credit and a description of the commercial transaction which is being supported in the case of Commercial Letters of Credit. | |
20 | Insert last date upon which drafts may be presented which may not be later than (i) in the case of a Standby Letter of Credit, (x) the date which is one year after the date of the issuance of such Standby Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (y) the Letter of Credit Expiration Date and (ii) in the case of a Commercial Letter of Credit, (x) the date that is 180 days after the date of issuance of such Commercial Letter of Credit (or, in the case of any renewal or extension thereof, 180 days after such renewal or extension) and (y) the Letter of Credit Expiration Date. |
EXHIBIT H-2
[ ] | ||||
By: | ||||
Name: | ||||
Title: |
EXHIBIT H-3
LENDER ADDENDUM
EXHIBIT I-1
as a Lender [Please type legal name of Lender above] | ||||
By: | ||||
Name: | ||||
Title: | ||||
[If second signature is necessary:] | ||||
By: | ||||
Name: | ||||
Title: |
EXHIBIT I-2
By: | | |||
Title: |
Funding Agent
By: | | |||
Title: |
EXHIBIT I-3
1. | Name of Lender: | |||
Notice Address: | ||||
Attention: | ||||
Telephone: | ||||
Facsimile: | ||||
2. | Commitment: |
EXHIBIT I-4
MORTGAGE
EXHIBIT J-1
$[ ].]1
SECURITY AGREEMENT AND FIXTURE FILING
[ ],
[ ]
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, CA 90071
1 | TO BE INCLUDED ONLY IN MORTGAGE RECORDING TAX STATES. |
Page | ||||
PREAMBLE | 1 | |||
RECITALS | 1 | |||
AGREEMENT | 2 | |||
ARTICLE I. | ||||
DEFINITIONS AND INTERPRETATION | ||||
SECTION 1.1. Definitions | 2 | |||
SECTION 1.2. Interpretation | 5 | |||
ARTICLE II. | ||||
GRANTS AND SECURED OBLIGATIONS | ||||
SECTION 2.1. Grant of Mortgaged Property | 6 | |||
SECTION 2.2. Assignment of Leases and Rents | 7 | |||
SECTION 2.3. Secured Obligations | 7 | |||
SECTION 2.4. Future Advances | 7 | |||
SECTION 2.5. Secured Amount | 7 | |||
SECTION 2.6. Last Dollar Secured | 8 | |||
SECTION 2.7. No Release | 8 | |||
ARTICLE III. | ||||
REPRESENTATIONS AND WARRANTIES OF MORTGAGOR | ||||
SECTION 3.1. Intentionally Omitted | 8 | |||
SECTION 3.2. Warranty of Title | 8 | |||
SECTION 3.3. Condition of Mortgaged Property | 9 | |||
SECTION 3.4. Property Charges | 10 | |||
ARTICLE IV. | ||||
CERTAIN COVENANTS OF MORTGAGOR | ||||
SECTION 4.1. Payment and Performance | 10 | |||
SECTION 4.2. Title | 10 | |||
SECTION 4.3. Inspection | 11 | |||
SECTION 4.4. Limitation on Liens; Transfer Restrictions | 11 | |||
SECTION 4.5. Insurance | 11 |
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Page | ||||
ARTICLE V. | ||||
CONCERNING ASSIGNMENT OF LEASES AND RENTS | ||||
SECTION 5.1. Present Assignment; License to the Mortgagor | 11 | |||
SECTION 5.2. Collection of Rents by the Mortgagee | 12 | |||
SECTION 5.3. Irrevocable Interest | 12 | |||
ARTICLE VI. | ||||
TAXES AND CERTAIN STATUTORY LIENS | ||||
SECTION 6.1. Payment of Property Charges | 13 | |||
SECTION 6.2. Stamp and Other Taxes | 13 | |||
SECTION 6.3. Certain Tax Law Changes | 13 | |||
SECTION 6.4. Proceeds of Tax Claim | 13 | |||
ARTICLE VII. | ||||
CASUALTY EVENTS AND RESTORATION | ||||
SECTION 7.1. Casualty Event | 13 | |||
SECTION 7.2. Condemnation | 14 | |||
SECTION 7.3. Restoration | 14 | |||
ARTICLE VIII. | ||||
EVENTS OF DEFAULT AND REMEDIES | ||||
SECTION 8.1. Remedies in Case of an Event of Default | 14 | |||
SECTION 8.2. Sale of Mortgaged Property if Event of Default Occurs; Proceeds of Sale | 15 | |||
SECTION 8.3. Additional Remedies in Case of an Event of Default | 16 | |||
SECTION 8.4. Legal Proceedings After an Event of Default | 17 | |||
SECTION 8.5. Remedies Not Exclusive | 18 | |||
ARTICLE IX. | ||||
SECURITY AGREEMENT AND FIXTURE FILING | ||||
SECTION 9.1. Security Agreement | 18 | |||
SECTION 9.2. Fixture Filing | 18 | |||
ARTICLE X. | ||||
FURTHER ASSURANCES | ||||
SECTION 10.1. Recording Documentation To Assure Security | 19 |
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Page | ||||
SECTION 10.2. Further Acts | 20 | |||
SECTION 10.3. Additional Security | 20 | |||
ARTICLE XI. | ||||
MISCELLANEOUS | ||||
SECTION 11.1. Covenants To Run with the Land | 20 | |||
SECTION 11.2. No Merger | 20 | |||
SECTION 11.3. Concerning Mortgagee | 21 | |||
SECTION 11.4. Mortgagee May Perform; Mortgagee Appointed Attorney-in-Fact | 22 | |||
SECTION 11.5. Continuing Security Interest; Assignment | 22 | |||
SECTION 11.6. Termination; Release | 22 | |||
SECTION 11.7. Modification in Writing | 23 | |||
SECTION 11.8. Notices | 23 | |||
SECTION 11.9. GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY TRIAL | 23 | |||
SECTION 11.10. Severability of Provisions | 24 | |||
SECTION 11.11. Relationship | 24 | |||
SECTION 11.12. No Credit for Payment of Taxes or Impositions | 24 | |||
SECTION 11.13. No Claims Against the Mortgagee | 24 | |||
SECTION 11.14. Mortgagee’s Right To Sever Indebtedness | 24 | |||
ARTICLE XII. | ||||
INTERCREDITOR AGREEMENT | ||||
SECTION 12.1. Intercreditor Agreement | 25 | |||
SECTION 12.2. Credit Agreement | 26 | |||
ARTICLE XIII. | ||||
LEASES | ||||
SECTION 13.1. Mortgagor’s Affirmative Covenants with Respect to Leases | 26 | |||
SECTION 13.2. Mortgagor’s Negative Covenants with Respect to Leases | 27 | |||
ARTICLE XIV. | ||||
LOCAL LAW PROVISIONS | ||||
SIGNATURE | ||||
ACKNOWLEDGMENTS | ||||
SCHEDULE A Legal Description |
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AGREEMENT AND FIXTURE FILING
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(i) | Land; | ||
(ii) | Improvements; | ||
(iii) | Fixtures; | ||
(iv) | Leases; | ||
(v) | Rents; | ||
(vi) | Permits; | ||
(vii) | Contracts; | ||
(viii) | Records; and | ||
(ix) | Proceeds; |
-6-
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2 | THE LOAN AMOUNT IS $800,000,000; IF STATE ALLOWS FOR MORTGAGES TO BE FOR MORE THAN THE LOAN AMOUNT IN CASE THE CREDIT AGREEMENT IS AMENDED, USE $975,000,000; IF STATE HAS MORTGAGE TAX, USE THE AGREED UPON VALUE OF THE PROPERTY. |
-8-
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Name and Address of the debtor: | Name and Address of the secured party: | |
The Mortgagor having the address described in the Preamble hereof. The Mortgagor is a corporation organized under the laws of the State of Texas whose Organization Number is 0800204347, and whose Taxpayer Identification Number is 41-2098321. | The Mortgagee having the address described in the Preamble hereof, from which address information concerning the security interest may be obtained. |
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(A) | in connection with the execution and delivery of such Lease (or of any amendment to such Lease), Rent thereunder may be collected and received in advance in an amount not in excess of three (3) months Rent; | ||
(B) | the amount held by Landlord as a reasonable security deposit thereunder; and | ||
(C) | any amount received and collected for escalation and other charges in accordance with the terms of such Lease; |
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[ ], a [ ] | ||||
By: | ||||
Name: | ||||
Title: |
State of | ) | |||||||||
) | ss.: | |||||||||
County of | ) |
U.S./EUROPEAN REVOLVING NOTE
$ | New York, New York [Date] |
EXHIBIT K-1-1
EXHIBIT K-1-2
NOVELIS CORPORATION, | ||||||||
as Borrower | ||||||||
By: | ||||||||
Title: | ||||||||
NOVELIS PAE CORPORATION, | ||||||||
as Borrower | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
NOVELIS FINANCES USA LLC, | ||||||||
as Borrower | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
NOVELIS SOUTH AMERICA HOLDINGS LLC, | ||||||||
as Borrower | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ALUMINUM UPSTREAM HOLDINGS LLC, | ||||||||
as Borrower | ||||||||
By: | ||||||||
Name: | ||||||||
Title: |
EXHIBIT K-1-3
NOVELIS UK LTD, | ||||||||
as Borrower | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
NOVELIS AG, | ||||||||
as Borrower | ||||||||
By: | ||||||||
Name: | ||||||||
Title: |
EXHIBIT K-1-4
CANADIAN REVOLVING NOTE
$ | New York, New York [Date] |
NOVELIS, INC., as Borrower | ||||
By: | ||||
Name: | ||||
Title: |
EUROPEAN SWINGLINE NOTE
$ | New York, New York [Date] |
NOVELIS UK LTD, as Borrower | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS AG, as Borrower | ||||
By: | ||||
Name: | ||||
Title: | ||||
PERFECTION CERTIFICATE
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NOVELIS CORPORATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS PAE CORPORATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
EUROFOIL, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS UK LIMITED | ||||
By: | ||||
Name: | ||||
Title: | ||||
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NOVELIS AG | ||||
By: | ||||
Name: | ||||
Title: | ||||
AV ALUMINUM INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS CAST HOUSE TECHNOLOGY LTD. | ||||
By: | ||||
Name: | ||||
Title: | ||||
4260848 CANADA INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
4260856 CANADA INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
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NOVELIS UK LTD. | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS DEUTSCHLAND GMBH | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS SWITZERLAND SA | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS TECHNOLOGY AG | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS ALUMINUM HOLDING COMPANY | ||||
By: | ||||
Name: | ||||
Title: | ||||
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NOVELIS DO BRASIL LTDA | ||||
By: | ||||
Name: | ||||
Title: | ||||
-8-
Federal Employer | ||||||||||
Registered Organization | Identification Number (or | |||||||||
Legal Name | Type of Entity | (Yes/No) | Organizational Numbera | equivalent)a | Jurisdiction of Organization | |||||
a | If none, so state. |
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Loan Party | Prior Name | Date of Change | ||
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List of All Other Names | ||||||||||
Date of | State of | Used During Past Five | ||||||||
Loan Party | Name of Entity | Action | Action | Formation | Years | |||||
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Loan Party | Address | County | State | Country | ||||
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Loan Party | Address | County | State | Country | ||||
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Loan Party | Address | County | State | Country | ||||
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Loan Party | Address | County | State | Country | ||||
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Name of Entity in | ||||||||||
Possession of | ||||||||||
Collateral/Capacity of | Address/Location of | |||||||||
Loan Party | such Entity | Collateral | County | State | Country | |||||
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Loan Party | Address | County | State | Country | ||||
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Loan Party | Description of Transaction Including Parties Thereto | Date of Transaction | ||
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Loan Party | Search Report dated | Prepared by | Jurisdiction | |||
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Applicable Security | ||||||
Document | ||||||
[Mortgage, Security | ||||||
Type of Filinga | Entity | Agreement of Other] | Jurisdictions | |||
a | UCC-1 financing statement, fixture filing, mortgage, intellectual property filing or other necessary filing. |
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Owned or | Landlord/Owner | Description of | ||||||
Entity of Record | Location Address | Leased | if Leased | Lease Documents | ||||
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Type of | Collateral | |||||||||||
Secured | Type of | Collateral Filing | Collateral | Filing | ||||||||
Debtor | Jurisdiction | Party | Collateral | [UCC-1, etc.] | Filing Date | Number | ||||||
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Record | No. | |||||||||||||||
Owner | No. of | No. of | Shares | |||||||||||||
(Beneficial | Shares or | Shares or | Covered by | |||||||||||||
Loan | Type of | Owner, if | Certificate | Interests | Interests | Percentage | Warrants; | |||||||||
Party | Issuer | Organization | different) | No. | Owned | Outstanding | Ownership | Options | ||||||||
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Entity | Principal Amount | Date of Issuance | Interest Rate | Maturity Date | ||||
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Principal | Date of | Maturity | ||||||
Noteholder | Obligor | Amount | Issuance | Date | ||||
Companies | ||
(Advanced to/Advanced by) | Amount of Advances | |
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REGISTRATION | ||||
OWNER | NUMBER | DESCRIPTION | ||
APPLICATION | ||||
OWNER | NUMBER | DESCRIPTION | ||
REGISTRATION/ | ||||||
APPLICATION | ||||||
LICENSEE | LICENSOR | NUMBER | DESCRIPTION | |||
REGISTRATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | DESCRIPTION | |||
APPLICATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | DESCRIPTION | |||
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REGISTRATION/ | ||||||||
APPLICATION | ||||||||
LICENSEE | LICENSOR | COUNTRY/STATE | NUMBER | DESCRIPTION | ||||
REGISTRATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | DESCRIPTION | |||
APPLICATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | DESCRIPTION | |||
REGISTRATION/ | ||||||||
APPLICATION | ||||||||
LICENSEE | LICENSOR | COUNTRY/STATE | NUMBER | DESCRIPTION | ||||
REGISTRATION | ||||
OWNER | NUMBER | TRADEMARK | ||
APPLICATION | ||||
OWNER | NUMBER | TRADEMARK | ||
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REGISTRATION/ | ||||||
APPLICATION | ||||||
LICENSEE | LICENSOR | NUMBER | TRADEMARK | |||
REGISTRATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | TRADEMARK | |||
APPLICATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | TRADEMARK | |||
REGISTRATION/ | ||||||||
APPLICATION | ||||||||
LICENSEE | LICENSOR | COUNTRY/STATE | NUMBER | TRADEMARK | ||||
REGISTRATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | TRADEMARK | |||
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APPLICATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | TRADEMARK | |||
REGISTRATION/ | ||||||||
APPLICATION | ||||||||
LICENSEE | LICENSOR | COUNTRY/STATE | NUMBER | TRADEMARK | ||||
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OWNER | TITLE | REGISTRATION NUMBER | ||
OWNER | APPLICATION NUMBER | |
REGISTRATION/ | ||||||
APPLICATION | ||||||
LICENSEE | LICENSOR | NUMBER | DESCRIPTION | |||
OWNER | COUNTRY/STATE | TITLE | REGISTRATION NUMBER | |||
OWNER | COUNTRY/STATE | APPLICATION NUMBER | ||
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REGISTRATION/ | ||||||||
APPLICATION | ||||||||
LICENSEE | LICENSOR | COUNTRY/STATE | NUMBER | DESCRIPTION | ||||
OWNER | COUNTRY/STATE | TITLE | REGISTRATION NUMBER | |||
OWNER | COUNTRY/STATE | APPLICATION NUMBER | ||
REGISTRATION/ | ||||||||
APPLICATION | ||||||||
LICENSEE | LICENSOR | COUNTRY/STATE | NUMBER | DESCRIPTION | ||||
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BANK OR | ||||||
OWNER | TYPE OF ACCOUNT | INTERMEDIARY | ACCOUNT NUMBERS | |||
-37-
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-39-
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PERFECTION CERTIFICATE SUPPLEMENT
-2-
-3-
-4-
-5-
NOVELIS CORPORATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS PAE CORPORATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
EUROFOIL, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS UK LIMITED | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS AG | ||||
By: | ||||
Name: | ||||
Title: |
-6-
AV ALUMINUM INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS CAST HOUSE TECHNOLOGY LTD. | ||||
By: | ||||
Name: | ||||
Title: | ||||
4260848 CANADA INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
4260856 CANADA INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS UK LTD. | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS DEUTSCHLAND GMBH | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS SWITZERLAND SA | ||||
By: | ||||
Name: | ||||
Title: |
-7-
NOVELIS TECHNOLOGY AG | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS ALUMINUM HOLDING COMPANY | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS DO BRASIL LTDA | ||||
By: | ||||
Name: | ||||
Title: | ||||
-8-
Federal Employer | ||||||||||
Registered Organization | Identification Number (or | |||||||||
Legal Name | Type of Entity | (Yes/No) | Organizational Numbera | equivalent)a | Jurisdiction of Organization | |||||
a | If none, so state. |
-9-
Loan Party | Prior Name | Date of Change | ||
List of All Other Names | ||||||||||
Date of | State of | Used During Past Five | ||||||||
Loan Party | Name of Entity | Action | Action | Formation | Years | |||||
Loan Party | Address | County | State | Country | ||||
Loan Party | Address | County | State | Country | ||||
Loan Party | Address | County | State | Country | ||||
Loan Party | Address | County | State | Country | ||||
Name of Entity in | ||||||||||
Possession of | ||||||||||
Collateral/Capacity of | Address/Location of | |||||||||
Loan Party | such Entity | Collateral | County | State | Country | |||||
Loan Party | Description of Transaction Including Parties Thereto | Date of Transaction | ||
Applicable Security | ||||||
Document | ||||||
[Mortgage, Security | ||||||
Type of Filinga | Entity | Agreement or Other] | Jurisdictions | |||
a | UCC-1 financing statement, fixture filing, mortgage, intellectual property filing or other necessary filing. |
Owned or | Landlord/Owner | Description of | ||||||
Entity of Record | Location Address | Leased | if Leased | Lease Documents | ||||
Collateral | ||||||||||
Type of Collateral | Collateral | Filing | ||||||||
Debtor | Jurisdiction | Secured Party | Filing [UCC-1, etc.] | Filing Date | Number | |||||
Record | No. | |||||||||||||||
Owner | No. of | No. of | Shares | |||||||||||||
(Beneficial | Shares or | Shares or | Covered | |||||||||||||
Loan | Type of | Owner, if | Certificate | Interests | Interests | By Warrants; | ||||||||||
Party | Issuer | Organization | different) | No. | Owned | Outstanding | Percentage Ownership | Options | ||||||||
Entity | Principal Amount | Date of Issuance | Interest Rate | Maturity Date | ||||
Principal | Date of | Maturity | ||||||
Noteholder | Obligor | Amount | Issuance | Date | ||||
Companies | ||
(Advanced to/Advanced by) | Amount of Advances | |
REGISTRATION | ||||
OWNER | NUMBER | DESCRIPTION | ||
APPLICATION | ||||
OWNER | NUMBER | DESCRIPTION | ||
REGISTRATION/ | ||||||
APPLICATION | ||||||
LICENSEE | LICENSOR | NUMBER | DESCRIPTION | |||
REGISTRATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | DESCRIPTION | |||
APPLICATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | DESCRIPTION | |||
REGISTRATION/ | ||||||||
APPLICATION | ||||||||
LICENSEE | LICENSOR | COUNTRY/STATE | NUMBER | DESCRIPTION | ||||
REGISTRATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | DESCRIPTION | |||
APPLICATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | DESCRIPTION | |||
REGISTRATION/ | ||||||||
APPLICATION | ||||||||
LICENSEE | LICENSOR | COUNTRY/STATE | NUMBER | DESCRIPTION | ||||
REGISTRATION | ||||
OWNER | NUMBER | TRADEMARK | ||
APPLICATION | ||||
OWNER | NUMBER | TRADEMARK | ||
REGISTRATION/ | ||||||
APPLICATION | ||||||
LICENSEE | LICENSOR | NUMBER | TRADEMARK | |||
REGISTRATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | TRADEMARK | |||
APPLICATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | TRADEMARK | |||
REGISTRATION/ | ||||||||
APPLICATION | ||||||||
LICENSEE | LICENSOR | COUNTRY/STATE | NUMBER | TRADEMARK | ||||
REGISTRATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | TRADEMARK | |||
APPLICATION | ||||||
OWNER | NUMBER | COUNTRY/STATE | TRADEMARK | |||
REGISTRATION/ | ||||||||
APPLICATION | ||||||||
LICENSEE | LICENSOR | COUNTRY/STATE | NUMBER | TRADEMARK | ||||
OWNER | TITLE | REGISTRATION NUMBER | ||
OWNER | APPLICATION NUMBER | |
REGISTRATION/ | ||||||
APPLICATION | ||||||
LICENSEE | LICENSOR | NUMBER | DESCRIPTION | |||
OWNER | COUNTRY/STATE | TITLE | REGISTRATION NUMBER | |||
OWNER | COUNTRY/STATE | APPLICATION NUMBER | ||
REGISTRATION/ | ||||||||
APPLICATION | ||||||||
LICENSEE | LICENSOR | COUNTRY/STATE | NUMBER | DESCRIPTION | ||||
OWNER | COUNTRY/STATE | TITLE | REGISTRATION NUMBER | |||
OWNER | COUNTRY/STATE | APPLICATION NUMBER | ||
REGISTRATION/ | ||||||||
APPLICATION | ||||||||
LICENSEE | LICENSOR | COUNTRY/STATE | NUMBER | DESCRIPTION | ||||
BANK OR | ||||||
OWNER | TYPE OF ACCOUNT | INTERMEDIARY | ACCOUNT NUMBERS | |||
U.S. SECURITY AGREEMENT
as Canadian Borrower,
NOVELIS PAE CORPORATION,
NOVELIS FINANCES USA LLC,
NOVELIS SOUTH AMERICA HOLDINGS LLC,
ALUMINUM UPSTREAM HOLDINGS LLC,
as U.S. Borrowers
as Collateral Agent
Page | ||||
PREAMBLE | 1 | |||
RECITALS | 1 | |||
AGREEMENT | 2 | |||
ARTICLE I | ||||
DEFINITIONS AND INTERPRETATION | ||||
SECTION 1.1. DEFINITIONS | 2 | |||
SECTION 1.2. INTERPRETATION | 9 | |||
SECTION 1.3. RESOLUTION OF DRAFTING AMBIGUITIES | 9 | |||
SECTION 1.4. PERFECTION CERTIFICATE | 10 | |||
ARTICLE II | ||||
GRANT OF SECURITY AND SECURED OBLIGATIONS | ||||
SECTION 2.1. GRANT OF SECURITY INTEREST | 10 | |||
SECTION 2.2. FILINGS | 11 | |||
ARTICLE III | ||||
PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES; | ||||
USE OF PLEDGED COLLATERAL | ||||
SECTION 3.1. DELIVERY OF CERTIFICATED SECURITIES COLLATERAL | 12 | |||
SECTION 3.2. PERFECTION OF UNCERTIFICATED SECURITIES COLLATERAL | 12 | |||
SECTION 3.3. FINANCING STATEMENTS AND OTHER FILINGS; MAINTENANCE OF PERFECTED SECURITY INTEREST | 13 | |||
SECTION 3.4. OTHER ACTIONS | 13 | |||
SECTION 3.5. JOINDER OF ADDITIONAL GUARANTORS | 16 | |||
SECTION 3.6. SUPPLEMENTS; FURTHER ASSURANCES | 17 | |||
ARTICLE IV | ||||
REPRESENTATIONS, WARRANTIES AND COVENANTS | ||||
SECTION 4.1. TITLE | 17 | |||
SECTION 4.2. VALIDITY OF SECURITY INTEREST | 18 |
Page | ||||
SECTION 4.3. DEFENSE OF CLAIMS; TRANSFERABILITY OF PLEDGED COLLATERAL | 18 | |||
SECTION 4.4. OTHER FINANCING STATEMENTS | 18 | |||
SECTION 4.5. INVENTORY AND EQUIPMENT | 18 | |||
SECTION 4.6. DUE AUTHORIZATION AND ISSUANCE | 19 | |||
SECTION 4.7. CONSENTS, ETC. | 19 | |||
SECTION 4.8. PLEDGED COLLATERAL | 19 | |||
SECTION 4.9. INSURANCE | 19 | |||
ARTICLE V | ||||
CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL | ||||
SECTION 5.1. PLEDGE OF ADDITIONAL SECURITIES COLLATERAL | 20 | |||
SECTION 5.2. VOTING RIGHTS; DISTRIBUTIONS; ETC. | 20 | |||
SECTION 5.3. DEFAULTS, ETC. | 21 | |||
SECTION 5.4. ORGANIZATIONAL DOCUMENTS | 21 | |||
SECTION 5.5. CERTAIN AGREEMENTS OF PLEDGORS AS ISSUERS AND HOLDERS OF EQUITY INTERESTS | 22 | |||
ARTICLE VI | ||||
CERTAIN PROVISIONS CONCERNING INTELLECTUAL | ||||
PROPERTY COLLATERAL | ||||
SECTION 6.1. GRANT OF INTELLECTUAL PROPERTY LICENSE | 22 | |||
SECTION 6.2. PROTECTION AND MAINTENANCE OF INTELLECTUAL PROPERTY COLLATERAL | 22 | |||
SECTION 6.3. AFTER-ACQUIRED PROPERTY | 23 | |||
SECTION 6.4. LITIGATION | 24 | |||
ARTICLE VII | ||||
CERTAIN PROVISIONS CONCERNING RECEIVABLES | ||||
SECTION 7.1. MAINTENANCE OF RECORDS | 24 | |||
SECTION 7.2. MODIFICATION OF TERMS, ETC. | 24 | |||
SECTION 7.3. COLLECTION | 25 | |||
SECTION 7.4. LEGEND | 25 | |||
SECTION 7.5. SPECIAL REPRESENTATIONS AND WARRANTIES AND COVENANTS | 25 |
Page | ||||
ARTICLE VIII | ||||
TRANSFERS | ||||
SECTION 8.1. TRANSFERS OF PLEDGED COLLATERAL | 26 | |||
ARTICLE IX | ||||
REMEDIES | ||||
SECTION 9.1. REMEDIES | 26 | |||
SECTION 9.2. NOTICE OF SALE | 28 | |||
SECTION 9.3. WAIVER OF NOTICE AND CLAIMS | 28 | |||
SECTION 9.4. CERTAIN SALES OF PLEDGED COLLATERAL | 28 | |||
SECTION 9.5. NO WAIVER; CUMULATIVE REMEDIES | 30 | |||
SECTION 9.6. CERTAIN ADDITIONAL ACTIONS REGARDING INTELLECTUAL PROPERTY | 30 | |||
ARTICLE X | ||||
APPLICATION OF PROCEEDS | ||||
SECTION 10.1. APPLICATION OF PROCEEDS | 30 | |||
ARTICLE XI | ||||
MISCELLANEOUS | ||||
SECTION 11.1. CONCERNING COLLATERAL AGENT | 31 | |||
SECTION 11.2. COLLATERAL AGENT MAY PERFORM; COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT | 32 | |||
SECTION 11.3. CONTINUING SECURITY INTEREST; ASSIGNMENT | 32 | |||
SECTION 11.4. TERMINATION; RELEASE | 33 | |||
SECTION 11.5. MODIFICATION IN WRITING | 33 | |||
SECTION 11.6. NOTICES | 33 | |||
SECTION 11.7. GOVERNING LAW, CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY TRIAL | 33 | |||
SECTION 11.8. SEVERABILITY OF PROVISIONS | 33 | |||
SECTION 11.9. EXECUTION IN COUNTERPARTS | 33 | |||
SECTION 11.10. BUSINESS DAYS | 34 | |||
SECTION 11.11. NO CREDIT FOR PAYMENT OF TAXES OR IMPOSITION | 34 | |||
SECTION 11.12. NO CLAIMS AGAINST COLLATERAL AGENT | 34 | |||
SECTION 11.13. NO RELEASE | 34 | |||
SECTION 11.14. OBLIGATIONS ABSOLUTE | 34 | |||
SECTION 11.15. INTERCREDITOR AGREEMENT GOVERNS | 35 | |||
SECTION 11.16. DELIVERY OF COLLATERAL | 35 |
Page | ||||
SECTION 11.17. MORTGAGES | 35 | |||
SECTION 11.18. CONFLICTS | 35 | |||
SIGNATURES | S-1 | |||
EXHIBIT 1 Form of Issuer’s Acknowledgment | ||||
EXHIBIT 2 Form of Securities Pledge Amendment | ||||
EXHIBIT 3 Form of Joinder Agreement | ||||
EXHIBIT 4 Form of Copyright Security Agreement | ||||
EXHIBIT 5 Form of Patent Security Agreement | ||||
EXHIBIT 6 Form of Trademark Security Agreement | ||||
EXHIBIT 7 Form of Bailee Letter |
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(i) | all Accounts; | ||
(ii) | all Equipment, Goods, Inventory and Fixtures; | ||
(iii) | all Documents, Instruments and Chattel Paper; | ||
(iv) | all Letters of Credit and Letter-of-Credit Rights; | ||
(v) | all Securities Collateral; | ||
(vi) | all Investment Property; | ||
(vii) | all Patents, Trademarks, Copyrights, Intellectual Property Licenses and Trade Secrets and Other Proprietary Rights; | ||
(viii) | the Commercial Tort Claims described onSchedule 13 to the Perfection Certificate; | ||
(ix) | all General Intangibles; | ||
(x) | all Money and all Deposit Accounts; | ||
(xi) | all Supporting Obligations; | ||
(xii) | all books and records relating to the Pledged Collateral; and | ||
(xiii) | to the extent not covered by clauses (i) through (xii) of this sentence, all other personal property of such Pledgor, whether tangible or intangible, and all Proceeds and products of each of the foregoing and all accessions to, substitutions and replacements for, and rents, profits and products of, each of the |
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foregoing, any and all Proceeds of any insurance, indemnity, warranty or guaranty payable to such Pledgor from time to time with respect to any of the foregoing. |
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USE OF PLEDGED COLLATERAL
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PROPERTY COLLATERAL
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NOVELIS INC., as a Pledgor | ||||
By: | /s/ Orville G. Lunking | |||
Name: | Orville G. Lunking | |||
Title: | Vice President and Treasurer | |||
NOVELIS CORPORATION, as a Pledgor | ||||
By: | /s/ Orville G. Lunking | |||
Name: | Orville G. Lunking | |||
Title: | Authorized Signatory | |||
NOVELIS PAE CORPORATION, as a Pledgor | ||||
By: | /s/ Orville G. Lunking | |||
Name: | Orville G. Lunking | |||
Title: | Authorized Signatory | |||
NOVELIS FINANCES USA LLC, as a Pledgor | ||||
By: | /s/ Orville G. Lunking | |||
Name: | Orville G. Lunking | |||
Title: | Authorized Signatory | |||
NOVELIS SOUTH AMERICA HOLDINGS LLC, as a Pledgor | ||||
By: | /s/ Orville G. Lunking | |||
Name: | Orville G. Lunking | |||
Title: | Vice President and Treasurer | |||
ALUMINUM UPSTREAM HOLDINGS LLC, as a Pledgor | ||||
By: | /s/ Orville G. Lunking | |||
Name: | Orville G. Lunking | |||
Title: | Vice President and Treasurer | |||
LASALLE BUSINESS CREDIT, LLC, as Collateral Agent | ||||
By: | /s/ Steve Friedbetter | |||
Name: | Steve Friedbetter | |||
Title: S.V.P. | ||||
[ ] | ||||
By: | ||||
Name: | ||||
Title: | ||||
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PERCENTAGE OF | ||||||||||
ALL ISSUED | ||||||||||
CLASS OF | NUMBER OF | CAPITAL OR OTHER | ||||||||
STOCK OR | PAR | CERTIFICATE | SHARES OR | EQUITY INTERESTS | ||||||
ISSUER | INTERESTS | VALUE | NO(S). | INTERESTS | OF ISSUER | |||||
PRINCIPAL | DATE OF | INTEREST | MATURITY | |||||
ISSUER | AMOUNT | ISSUANCE | RATE | DATE | ||||
[ ], as Pledgor | ||||
By: | ||||
Name: | ||||
Title: | ||||
AGREED TO AND ACCEPTED: LASALLE BUSINESS CREDIT, LLC, as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
[Address of New Pledgor]
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[NEW PLEDGOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
AGREED TO AND ACCEPTED: LASALLE BUSINESS CREDIT, LLC, as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
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[ASSIGNORS]1 | ||||
By: | ||||
Name: | ||||
Title: | ||||
Accepted and Agreed: LASALLE BUSINESS CREDIT, LLC, as Assignee | ||||
By: | ||||
Name: | ||||
Title: | ||||
1 | This document needs only to be executed by Pledgors that hold registered or applied-for Copyrights that are subject to the Lien of the Security Agreement. |
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to
COPYRIGHT SECURITY AGREEMENT
COPYRIGHT REGISTRATIONS AND COPYRIGHT APPLICATIONS
REGISTRATION | ||||
OWNER | NUMBER | TITLE OF WORK | ||
OWNER | TITLE OF WORK | |
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[ASSIGNORS]2 | ||||
By: | ||||
Name: | ||||
Title: | ||||
Accepted and Agreed: LASALLE BUSINESS CREDIT, LLC, as Assignee | ||||
By: | ||||
Name: | ||||
Title: | ||||
2 | This document needs only to be executed by Pledgors that hold registered or applied-for Patents that are subject to the Lien of the Security Agreement. |
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to
PATENT SECURITY AGREEMENT
PATENT REGISTRATIONS AND PATENT APPLICATIONS
REGISTRATION | ||||
OWNER | NUMBER | NAME | ||
APPLICATION | ||||
OWNER | NUMBER | NAME | ||
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[ASSIGNORS]3 | ||||
By: | ||||
Name: | ||||
Title: | ||||
Accepted and Agreed: LASALLE BUSINESS CREDIT, LLC, as Assignee | ||||
By: | ||||
Name: | ||||
Title: | ||||
3 | This document needs only to be executed by Pledgors that hold registered or applied-for Trademarks that are subject to the Lien of the Security Agreement. |
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to
TRADEMARK SECURITY AGREEMENT
TRADEMARK REGISTRATIONS AND TRADEMARK APPLICATIONS
REGISTRATION | ||||
OWNER | NUMBER | TRADEMARK | ||
APPLICATION | ||||
OWNER | NUMBER | TRADEMARK | ||
135 South LaSalle Street, Suite 425
Chicago, Illinois 60603
Attention: Account Officer
Facsimile No: 312-904-6450
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[ ] [Address] | ||||
By: | ||||
Name: | ||||
Title: | ||||
[Address]
By: | ||||
Title: |
135 South LaSalle Street, Suite 425
Chicago, Illinois 60603
Attention: Account Officer
Facsimile No: 312-904-6450
By: | ||||
Title: |
CANADIAN SECURITY AGREEMENT
July 6, 2007
(a) | The Agents and the Lenders have agreed to make certain credit facilities available to the Borrowers on the terms and conditions contained in the Credit Agreement; | ||
(b) | The Guarantors have guaranteed the obligations of the Borrowers on the terms and conditions contained in the Guarantee; and | ||
(c) | It is a condition precedent to the extension of credit to the Borrowers under the Credit Agreement that the Obligors execute and deliver this Agreement in favour of the Collateral Agent as security for the payment and performance of their obligations under the Credit Agreement, the Guarantee and the other Credit Documents to which they are a party. |
INTERPRETATION
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(a) | a document that is (i) issued in bearer, order or registered form, (ii) of a type commonly dealt in upon securities exchanges or markets or commonly recognized in any area in which it is issued or dealt in as a medium for investment, (iii) one of a class or series or by its terms is divisible into a class or series of documents, and (iv) evidence of a share, participation or other interest in property or in any enterprise or is evidence of an obligation of the issuer and includes an uncertificated security; and | ||
(b) | a share, participation or other interest in a Person; |
(c) | any ULC Shares. |
(1) | Terms defined in thePersonal Property Security Act(Ontario) and theSecurities Transfer Act(Ontario) and used but not otherwise defined in this Agreement have the same meanings. Capitalized terms used in this Agreement but not defined have the meanings given to them in the Credit Agreement. |
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(2) | Any reference in any Credit Document to Liens permitted by the Credit Agreement and any right of the Obligors to create or suffer to exist Liens permitted by the Credit Agreement are not intended to and do not and will not subordinate the Security Interest to any such Lien or give priority to any Person over the Secured Parties. | |
(3) | In this Agreement the words“including”, “includes”and“include”mean“including (or includes or include) without limitation”.The expressions“Article”, “Section”and other subdivision followed by a number mean and refer to the specified Article, Section or other subdivision of this Agreement. | |
(4) | Any reference in this Agreement to gender includes all genders. Words importing the singular number only include the plural and vice versa. | |
(5) | The division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenient reference only and do not affect its interpretation. | |
(6) | The schedules attached to this Agreement form an integral part of it for all purposes of it. | |
(7) | Any reference to this Agreement, any Credit Document or any Security Document refers to this Agreement or such Credit Document or Security Document as the same may have been or may from time to time be amended, modified, extended, renewed, restated, replaced or supplemented and includes all schedules attached to it. Except as otherwise provided in this Agreement, any reference in this Agreement to a statute refers to such statute and all rules and regulations made under it as the same may have been or may from time to time be amended or re-enacted. |
SECURITY
(a) | present and after-acquired personal property; |
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(b) | inventory including goods held for sale, lease or resale, goods furnished or to be furnished to third parties under contracts of lease, consignment or service, goods which are raw materials or work in process, goods used in or procured for packing and materials used or consumed in the businesses of the Obligor; | ||
(c) | equipment, machinery, furniture, fixtures, plant, vehicles and other goods of every kind and description and all licences and other rights and all related records, files, charts, plans, drawings, specifications, manuals and documents; | ||
(d) | accounts due or accruing and all related agreements, books, accounts, invoices, letters, documents and papers recording, evidencing or relating to them; | ||
(e) | money, documents of title and chattel paper; | ||
(f) | Instruments and Securities, including the Instruments and Securities listed in Schedule “A”; | ||
(g) | intangibles including all security interests, goodwill, choses in action, contracts, contract rights, licenses and other contractual benefits; | ||
(h) | Intellectual Property including the Registrable Intellectual Property listed in the Perfection Certificate; | ||
(i) | all substitutions and replacements of and increases, additions and, where applicable, accessions to the property described in Section 2.1(a) through Section 2.1(h) inclusive; and | ||
(j) | all proceeds in any form derived directly or indirectly from any dealing with all or any part of the property described in Section 2.1(a) through Section 2.1(i) inclusive, including the proceeds of such proceeds. |
(a) | the obligations of the Borrowers and the other Loan Parties from time to time arising under or in respect of the due and punctual payment of (i) the principal of and premium, if any, and interest (including interest accruing (and interest that would have accrued but for such |
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proceeding) during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrowers and the other Loan Parties under the Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of Reimbursement Obligations, interest thereon and obligations to provide cash collateral and (iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Borrowers and the other Loan Parties under the Credit Agreement and the other Loan Documents; | |||
(b) | the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrowers and the other Loan Parties under or pursuant to the Credit Agreement and the other Loan Documents; | ||
(c) | the due and punctual payment and performance of all obligations of the Borrowers and the other Loan Parties (including overdrafts and related liabilities) under each Treasury Services Agreement entered into with any counterparty that is a Secured Party; and | ||
(d) | all expenses, costs and charges incurred by or on behalf of the Secured Parties in connection with this Agreement, the Security Interest or the Collateral, including all legal fees, court costs, receiver’s or agent’s remuneration and other expenses of taking possession of, repairing, protecting, insuring, preparing for disposition, realizing, collecting, selling, transferring, delivering or obtaining payment for the Collateral, and of taking, defending or participating in any action or proceeding in connection with any of the foregoing matters or otherwise in connection with the Secured Parties’ interest in any Collateral, whether or not directly relating to the enforcement of this Agreement or any other Credit Document (collectively, the“Expenses”). |
(1) | Each Obligor acknowledges that (i) value has been given, (ii) it has rights in the applicable Collateral (other than after-acquired Collateral), (iii) it has not |
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agreed to postpone the time of attachment of the Security Interest, and (iv) it has received a copy of this Agreement. | ||
(2) | If any Securities or Instruments are now or at any time become evidenced, in whole or in part, by uncertificated securities registered or recorded in records maintained by or on behalf of the issuer thereof in the name of a clearing agency or a custodian or of a nominee of either, the applicable Obligor will, at the request and option of the Collateral Agent, (i) cause an appropriate entry to be made in the records of the clearing agency or custodian to record the interest of the Collateral Agent in such Securities or Instruments created pursuant to this Agreement or (ii) cause the Collateral Agent to have control over such Securities or Instruments, other than with respect to Securities and Instruments held in an Excluded Securities Account. | |
(3) | Each Obligor delivers to and deposits with the Collateral Agent any and all certificates evidencing the Securities listed in Schedule “A”, to the extent such Securities are certificated, together with, in each case, a stock power duly endorsed in blank for transfer and grants control over such Securities to the Collateral Agent, as applicable. Each Obligor also delivers to and deposits with the Collateral Agent the Instruments listed in Schedule “A”, as applicable. | |
(4) | If any Obligor acquires any Securities or any Instruments, such Obligor will notify the Collateral Agent in writing and provide the Collateral Agent with a revised Schedule “A” recording the acquisition and particulars of such Instruments or Securities within 15 days after such acquisition. Upon request by the Collateral Agent, such Obligor will promptly (but in any event within 30 days after receipt by such Obligor or such longer period as may be determined by the Collateral Agent in its sole discretion) deliver to and deposit with the Collateral Agent, or cause the Collateral Agent to have control over, such Securities or Instruments other than (i) Instruments evidencing amounts payable of less than $1,000,000 in the aggregate for all Obligors or evidencing any rights to goods having a value of less than $1,000,000 in the aggregate for all Obligors and (ii) Securities or Instruments representing or evidencing Equity Interests in an Excluded Collateral Subsidiary which is not a Loan Party, as security for the Secured Obligations. The applicable Obligor will also promptly inform the Collateral Agent in writing of the acquisition by it of any ULC Shares. | |
(5) | At the request of the Collateral Agent, the Obligors, as applicable will (i) cause the transfer of any Securities or Instruments (other than Securities or Instruments representing or evidencing Equity Interests in an Excluded Collateral Subsidiary which is not a Loan Party) to the Collateral Agent to be registered wherever such registration may be required or advisable in the |
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reasonable opinion of the Collateral Agent, (ii) duly endorse any such Securities or Instruments for transfer in blank or register them in the name of the Collateral Agent or its nominee or otherwise as the Collateral Agent may reasonably direct, (iii) immediately deliver to the Collateral Agent any and all consents or other documents which may be necessary to effect the transfer of any such Securities or Instruments to the Collateral Agent or any third party and (iv) deliver to or otherwise cause the Collateral Agent to have control over such Securities or Instruments. | ||
(6) | Each Obligor will promptly notify the Collateral Agent in writing of the acquisition by it of any Registrable Intellectual Property and will provide the Collateral Agent with a revised Perfection Certificate recording the acquisition and particulars of such additional Intellectual Property. |
(1) | To the extent that an assignment of amounts payable and other proceeds arising under or in connection with, or the grant of a security interest in any agreement, licence, lease, permit or quota of any Obligor would constitute a default under or a breach of or would result in the termination of such agreement, licence, lease, permit or quota (each, a“Restricted Asset”),the Security Interest with respect to each Restricted Asset will constitute a trust created in favour of the Collateral Agent, for the benefit of the Secured Parties, pursuant to which the applicable Obligor holds as trustee all proceeds arising under or in connection with the Restricted Asset in trust for the Collateral Agent, for the benefit of the Secured Parties, on the following basis: |
(a) | subject to the Credit Agreement, until the Security Interest is enforceable the Obligor is entitled to receive all such proceeds; and | ||
(b) | whenever the Security Interest is enforceable, (i) all rights of such Obligor to receive such proceeds cease and all such proceeds will be immediately paid over to the Collateral Agent for the benefit of the Secured Parties, and (ii) such Obligor will take all actions requested by the Collateral Agent to collect and enforce payment and other rights arising under the Restricted Asset. |
Upon request by the Collateral Agent, the Obligors will use all commercially reasonable efforts to obtain the consent of each other party to any and all Restricted Assets to the assignment of such Restricted Asset to the Collateral Agent in accordance with this Agreement. The Obligors will also use all commercially reasonable efforts to ensure that all agreements entered into on and after the date of this Agreement expressly permit assignments of the benefits of such agreements as collateral security to the Collateral Agent in accordance with the terms of this Agreement. |
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(2) | The Security Interest with respect to trade-marks and Intellectual Property established under the laws of the United States, including any state, territory or political subdivision thereof, constitutes a lien on and security interest in, and a charge, hypothecation and pledge of, such Collateral in favour of the Collateral Agent for the benefit of the Secured Parties, but does not constitute an assignment or mortgage of such Collateral to the Collateral Agent or any Secured Party. | |
(3) | Until the Security Interest is enforceable, the grant of the Security Interest in the Intellectual Property does not affect in any way the Obligors’ rights to commercially exploit the Intellectual Property, defend it, enforce such Obligor’s rights in it or with respect to it against third parties in any court or claim and be entitled to receive any damages with respect to any infringement of it. | |
(4) | The Security Interest does not extend to consumer goods or ULC Shares. | |
(5) | The Security Interest does not extend or apply to the last day of the term of any lease or sublease of real property or any agreement for a lease or sublease of real property, now held or hereafter acquired by any of the Obligors, but the Obligors will stand possessed of any such last day upon trust to assign and dispose of it as the Collateral Agent may reasonably direct. | |
(6) | The Security Interest does not extend to Excluded Property. |
(1) | The Secured Parties have no obligation to keep Collateral in their possession identifiable. | |
(2) | The Collateral Agent may upon the occurrence and during the continuance of an Event of Default, (i) notify any Person obligated on an Instrument, |
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Security or account to make payments to the Collateral Agent, whether or not the Obligors were previously making collections on such accounts, chattel paper, instruments, and (ii) assume control of any proceeds arising from the Collateral. | ||
(3) | The Collateral Agent has no obligation to collect dividends, distributions or interest payable on, or exercise any option or right in connection with, any Securities or Instruments. The Collateral Agent has no obligation to protect or preserve any Securities or Instruments from depreciating in value or becoming worthless and is released from all responsibility for any loss of value. In the physical keeping of any Securities, the Collateral Agent is only obliged to exercise the same degree of care as it would exercise with respect to its own Securities kept at the same place. |
(1) | Until the occurrence of an Event of Default which is continuing, each Obligor, as applicable, is entitled to vote the Securities that are part of the Collateral and to receive dividends and distributions on such Securities, as may be permitted by the Credit Agreement. Upon the occurrence and during the continuance of an Event of Default, all rights of the Obligors to vote (under any proxy given by the Collateral Agent (or its nominee) or otherwise) or to receive distributions or dividends cease and all such rights become vested solely and absolutely in the Collateral Agent. | |
(2) | Any distributions or dividends received by any of the Obligors contrary to Section 2.7(1) or any other moneys or property received by any of the Obligors after the Security Interest is enforceable will be received as trustee for the Collateral Agent and the Secured Parties and shall be immediately paid over to the Collateral Agent. |
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ENFORCEMENT
(a) | entry onto any premises where Collateral consisting of tangible personal property may be located; | ||
(b) | entry into possession of the Collateral by any method permitted by law; | ||
(c) | sale, grant of options to purchase, or lease of all or any part of the Collateral; | ||
(d) | holding, storing and keeping idle or operating all or any part of the Collateral; | ||
(e) | exercising and enforcing all rights and remedies of a holder of the Securities and Instruments as if the Collateral Agent were the absolute owner thereof (including, if necessary, causing the Collateral to be registered in the name of the Collateral Agent or its nominee if not already done); | ||
(f) | collection of any proceeds arising in respect of the Collateral; | ||
(g) | collection, realization or sale of, or other dealing with, accounts; | ||
(h) | license or sublicense, whether on an exclusive or nonexclusive basis, of any Intellectual Property for such term and on such conditions and in such manner as the Collateral Agent in its sole judgment determines (taking into account such provisions as may be necessary to protect and preserve such Intellectual Property); | ||
(i) | instruction to any bank which has entered into a control agreement with the Collateral Agent to transfer all moneys, Securities and Instruments held by such depositary bank to an account maintained with or by the Collateral Agent; |
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(j) | application of any moneys constituting Collateral or proceeds thereof in accordance with Section 5.11; | ||
(k) | appointment by instrument in writing of a receiver (which term as used in this Agreement includes a receiver and manager) or agent of all or any part of the Collateral and removal or replacement from time to time of any receiver or agent; | ||
(1) | institution of proceedings in any court of competent jurisdiction for the appointment of a receiver of all or any part of the Collateral; | ||
(m) | institution of proceedings in any court of competent jurisdiction for sale or foreclosure of all or any part of the Collateral; | ||
(n) | filing of proofs of claim and other documents to establish claims to the Collateral in any proceeding relating to the Obligors; and | ||
(o) | any other remedy or proceeding authorized or permitted under thePersonal Property Security Act(Ontario). |
(a) | require any of the Obligors, at such Obligor’s expense, to assemble the Collateral at a place or places designated by notice in writing and each of the Obligors agree to so assemble the Collateral immediately upon receipt of such notice; | ||
(b) | require the Obligors, by notice in writing, to disclose to the Collateral Agent the location or locations of the Collateral and the Obligors agree to promptly make such disclosure when so required; | ||
(c) | repair, process, modify, complete or otherwise deal with the Collateral and prepare for the disposition of the Collateral, whether on the premises of the Obligors or otherwise; | ||
(d) | redeem any prior security interest against any Collateral, procure the transfer of such security interest to itself, or settle and pass the accounts of the prior mortgagee, chargee or encumbrancer (any accounts to be conclusive and binding on the applicable Obligor); | ||
(e) | pay any liability secured by any Lien against any Collateral (the Obligors will immediately on demand reimburse the Collateral Agent for all such payments); |
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(f) | carry on all or any part of the business of the Obligors and, to the exclusion of all others including the Obligors, enter upon, occupy and use all or any of the premises, buildings, and other property of or used by any of the Obligor for such time as the Collateral Agent sees fit, free of charge, and the Collateral Agent and the Secured Parties are not liable to the Obligors for any act, omission or negligence in so doing or for any rent, charges, depreciation or damages incurred in connection with or resulting from such action; | ||
(g) | borrow for the purpose of carrying on any of the businesses of the Obligors or for the maintenance, preservation or protection of the Collateral and grant a security interest in the Collateral, whether or not in priority to the Security Interest, to secure repayment; | ||
(h) | commence, continue or defend any judicial or administrative proceedings for the purpose of protecting, seizing, collecting, realizing or obtaining possession or payment of the Collateral, and give good and valid receipts and discharges in respect of the Collateral and compromise or give time for the payment or performance of all or any part of the accounts or any other obligation of any third party to the Obligors; and | ||
(i) | at any public sale, and to the extent permitted by law on any private sale, bid for and purchase any or all of the Collateral offered for sale and upon compliance with the terms of such sale, hold, retain and dispose of such Collateral without any further accountability to the Obligors or any other Person with respect to such holding, retention or disposition, except as required by law. In any such sale to the Collateral Agent, the Collateral Agent may, for the purpose of making payment for all or any part of the Collateral so purchased, use any claim for Secured Obligations then due and payable to it as a credit against the purchase price. |
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(1) | Any receiver appointed by the Collateral Agent is vested with the rights and remedies which could have been exercised by the Collateral Agent in respect of the Obligors or the Collateral and such other powers and discretions as are granted in the instrument of appointment and any supplemental instruments. The identity of the receiver, its replacement and its remuneration are within the sole and unfettered discretion of the Collateral Agent. | |
(2) | Any receiver appointed by the Collateral Agent will act as agent for the Collateral Agent for the purposes of taking possession of the Collateral, but otherwise and for all other purposes (except as provided below), as agent for the Obligors. The receiver may sell, lease, or otherwise dispose of Collateral as agent for the Obligors or as agent for the Collateral Agent as the Collateral Agent may determine in its discretion. The Obligors agree to ratify and confirm all actions of the receiver acting as agent for the Obligors, and to release and indemnify the receiver in respect of all such actions. | |
(3) | The Collateral Agent, in appointing or refraining from appointing any receiver, does not incur liability to the receiver, the Obligors or otherwise and is not responsible for any misconduct or negligence of such receiver. |
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(1) | The Collateral Agent and the Secured Parties are not obliged to exhaust their recourse against the Obligors or any other Person or against any other security they may hold in respect of the Secured Obligations before realizing upon or otherwise dealing with the Collateral in such manner as the Collateral Agent may consider desirable. | |
(2) | The Collateral Agent and the Secured Parties may grant extensions or other indulgences, take and give up securities, accept compositions, grant releases and discharges and otherwise deal with the Obligors and with other Persons, sureties or securities as they may see fit without prejudice to the Secured Obligations, the liability of the Obligors or the rights of the Collateral Agent and the Secured Parties in respect of the Collateral. | |
(3) | Except as otherwise provided by law or this Agreement, the Collateral Agent and the Secured Parties are not (i) liable or accountable for any failure to collect, realize or obtain payment in respect of the Collateral, (ii) bound to institute proceedings for the purpose of collecting, enforcing, realizing or obtaining payment of the Collateral or for the purpose of preserving any rights of any Persons in respect of the Collateral, (iii) responsible for any loss occasioned by any sale or other dealing with the Collateral or by the retention of or failure to sell or otherwise deal with the Collateral, or (iv) bound to protect the Collateral from depreciating in value or becoming worthless. |
(a) | the Collateral may be disposed of in whole or in part; | ||
(b) | the Collateral may be disposed of by public auction, public tender or private contract, with or without advertising and without any other formality; | ||
(c) | any assignee of such Collateral may be the Collateral Agent, a Secured Party or a customer of any such Person; | ||
(d) | any sale conducted by the Collateral Agent will be at such time and place, on such notice and in accordance with such procedures as the Collateral Agent, in its sole discretion, may deem advantageous; | ||
(e) | the Collateral may be disposed of in any manner and on any terms necessary to avoid violation of applicable law (including compliance |
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with such procedures as may restrict the number of prospective bidders and purchasers, require that the prospective bidders and purchasers have certain qualifications, and restrict the prospective bidders and purchasers to Persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of the Collateral) or in order to obtain any required approval of the disposition (or of the resulting purchase) by any governmental or regulatory authority or official; | |||
(f) | a disposition of the Collateral may be on such terms and conditions as to credit or otherwise as the Collateral Agent, in its sole discretion, may deem advantageous; and | ||
(g) | the Collateral Agent may establish an upset or reserve bid or price in respect of the Collateral. |
(1) | No Person dealing with the Collateral Agent, any of the Secured Parties or an agent or receiver is required to determine (i) whether the Security Interest has become enforceable, (ii) whether the powers which such Person is purporting to exercise have become exercisable, (iii) whether any money remains due to the Collateral Agent or the Secured Parties by the Obligors, (iv) the necessity or expediency of the stipulations and conditions subject to which any sale or lease is made, (v) the propriety or regularity of any sale or other dealing by the Collateral Agent or any Secured Party with the Collateral, or (vi) how any money paid to the Collateral Agent or the Secured Parties have been applied. | |
(2) | Any bona fide purchaser of all or any part of the Collateral from the Collateral Agent or any receiver or agent will hold the Collateral absolutely, free from any claim or right of whatever kind, including any equity of redemption, of any of the Obligors, which it specifically waives (to the fullest extent permitted by law) as against any such purchaser together with all rights of redemption, stay or appraisal which such Obligor has or may have under any rule of law or statute now existing or hereafter adopted. |
REPRESENTATIONS, WARRANTIES AND COVENANTS
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(a) | Continuous Perfection.The Perfection Certificate sets out each of the Obligor’s place of business or, if more than one, each Obligor’s chief executive office. Other than in the case of Novelis No. 1 Limited Partnership, such place of business or chief executive office, as the case may be, has been located at such address for the 60 days immediately preceding the date of this Agreement. The Perfection Certificate also sets out the address at which the books and records of the Obligor are located, the address at which senior management of the Obligor are located and conduct their deliberations and make their decisions with respect to the business of each Obligor and the address from which the invoices and accounts of each Obligor are issued. | |
(b) | Additional Security Perfection and Protection of Security Interest. The Obligors will grant to the Collateral Agent, for the benefit of the Secured Parties, security interests, assignments, mortgages, charges, hypothecations and pledges in such property and undertaking of such Obligor that is not subject to a valid and perfected first ranking security interest (subject only to Permitted Liens), other than Excluded Securities Accounts in respect of which a securities intermediary may have a prior ranking interest, constituted by the Security Documents, in each relevant jurisdiction as determined by the Collateral Agent. The Obligors will perform all acts, execute and deliver all agreements, documents and instruments and take such other steps as are requested by the Collateral Agent at any time to register, file, signify, publish, perfect, maintain, protect, and enforce the Security Interest including: (i) executing, recording and filing of financing or other statements, and paying all taxes, fees and other charges payable, (ii) placing notations on its books of account to disclose the Security Interest, (iii) delivering or using its commercially reasonable efforts to deliver, as applicable, acknowledgements, confirmations and subordinations that may be necessary to ensure that the Security Documents constitute a valid and perfected first ranking security interest (subject only to Permitted Liens), other than Excluded Securities Accounts in respect of which a securities intermediary may have a prior ranking interest, (iv) executing and delivering any agreements, documents and instruments that may be needed as a result of the coming into force of theSecurities Transfer Act(Ontario), and (v) delivering opinions of counsel in respect of matters contemplated by this paragraph. The documents and opinions contemplated by this paragraph must be in form and substance satisfactory to the Collateral Agent. | |
(c) | Confirmation of Registerable Intellectual Property.The Perfection Certificate lists all Registerable Intellectual Property that is owned by |
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each of the Obligors on the date of this Agreement. Upon the request of the Collateral Agent, the Obligors shall deliver to the Collateral Agent a Confirmation of Security Interest in the form of Schedule “C” in respect of all Registerable Intellectual Property now owned, and subsequently when acquired after the date hereof, confirming the assignment for security of such Registerable Intellectual Property to the Collateral Agent and shall within 30 days or such longer period as may be determined by the Collateral Agent in its sole discretion make all filings, registrations and recordings as are necessary or appropriate to perfect the Security Interest granted to the Collateral Agent in the Registerable Intellectual Property. | ||
(d) | Location of Property.None of the Obligors other than the Canadian Borrower and 4260848 Canada Inc., in its capacity as general partner of Novelis No. 1 Limited Partnership has any tangible property located outside of Ontario. The Canadian Borrower does not hold any tangible property outside of Ontario, Quebec, British Columbia and Alberta. 4260848 Canada Inc., in its capacity as general partner of Novelis No. 1 Limited Partnership does not hold any tangible property outside of Quebec and Ontario. | |
(e) | Control Agreements.Other than as contemplated by Section 4.1(b), none of the Obligors will grant control to any party other than the Collateral Agent and, subject to the terms of the Intercreditor Agreement, the Revolving Credit Agents, in respect of any investment property. |
GENERAL
- 22 -
- 23 -
(1) | No consent or waiver by the Collateral Agent or the Secured Parties in respect of this Agreement is binding unless made in writing and signed by an authorized officer of the Collateral Agent (with the consent of the Required |
- 24 -
Secured Parties). Any consent or waiver given under this Agreement is effective only in the specific instance and for the specific purpose for which given. No waiver of any of the provisions of this Agreement constitutes a waiver of any other provision. | ||
(2) | A failure or delay on the part of the Collateral Agent or the Secured Parties in exercising a right under this Agreement does not operate as a waiver of, or impair, any right of the Collateral Agent or the Secured Parties however arising. A single or partial exercise of a right on the part of the Collateral Agent or the Secured Parties does not preclude any other or further exercise of that right or the exercise of any other right by the Collateral Agent or the Secured Parties. |
(1) | Subject to Subsection (2) below, in the event of any conflict between the provisions of this Agreement and the provisions of the Credit Agreement which cannot be resolved by both provisions being complied with, the provisions contained in the Credit Agreement will prevail to the extent of such conflict. | |
(2) | NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO THE COLLATERAL AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT TO THIS AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT AND THE OTHER SECURED PARTIES HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT, DATED AS OF JULY 6, 2007 (AS AMENDED, RESTATED, AMENDED AND RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE“INTERCREDITOR AGREEMENT”,AMONG NOVELIS INC., A CORPORATION FORMED UNDER THE CANADA BUSINESS CORPORATIONS ACT, NOVELIS CORPORATION, A TEXAS |
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CORPORATION, NOVELIS PAE CORPORATION, A DELAWARE CORPORATION, NOVELIS FINANCES USA LLC, A DELAWARE LIMITED LIABILITY COMPANY, NOVELIS SOUTH AMERICA HOLDINGS LLC, A DELAWARE LIMITED LIABILITY COMPANY, ALUMINUM UPSTREAM HOLDINGS LLC, A DELAWARE LIMITED LIABILITY COMPANY, NOVELIS UK LTD, A LIMITED LIABILITY COMPANY INCORPORATED UNDER THE LAWS OF ENGLAND AND WALES WITH REGISTERED NUMBER 00279596, AND NOVELIS AG, A STOCK CORPORATION (AG) ORGANIZED UNDER THE LAWS OF SWITZERLAND, HOLDINGS, THE SUBSIDIARIES OF HOLDINGS FROM TIME TO TIME PARTY THERETO, ABN AMRO BANK N.V., AS ADMINISTRATIVE AGENT, FOR THE REVOLVING CREDIT LENDERS (AS DEFINED IN THE INTERCREDITOR AGREEMENT), LASALLE BUSINESS CREDIT, LLC, AS COLLATERAL AGENT FOR THE REVOLVING CREDIT CLAIMHOLDERS (AS DEFINED IN THE INTERCREDITOR AGREEMENT) AND AS FUNDING AGENT, ABN AMRO BANK N.V., ACTING THROUGH ITS CANADIAN BRANCH, AS CANADIAN ADMINISTRATIVE AGENT FOR THE REVOLVING CREDIT LENDERS AND AS CANADIAN FUNDING AGENT, AND UBS AG, STAMFORD BRANCH, AS ADMINISTRATIVE AGENT FOR THE TERM LOAN LENDERS (AS DEFINED IN THE INTERCREDITOR AGREEMENT), AND AS COLLATERAL AGENT FOR THE TERM LOAN CLAIMHOLDERS (AS DEFINED IN THE INTERCREDITOR AGREEMENT) AND CERTAIN OTHER PERSONS WHICH MAY BE OR BECOME PARTIES THERETO OR BECOME BOUND THERETO FROM TIME TO TIME. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THIS AGREEMENT, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL. |
AV ALUMINUM INC. | ||||
By: | ![]() | |||
Authorized Signing Officer | ||||
NOVELIS INC. | ||||
By: | ![]() | |||
Authorized Signing Officer | ||||
NOVELIS CAST HOUSE TECHNOLOGY LTD. | ||||
By: | ![]() | |||
Authorized Signing Officer | ||||
4260848 CANADA INC. | ||||
By: | ![]() | |||
Authorized Signing Officer | ||||
4260856 CANADA INC. | ||||
By: | ![]() | |||
Authorized Signing Officer | ||||
NOVELIS NO. 1 LIMITED PARTNERSHIP, by its general partner, 4260848 CANADA INC. | ||||
By: | ![]() | |||
Authorized Signing Officer | ||||
Record | ||||||||||||||||||
Owner | No. of | No. of | No. Shares | |||||||||||||||
(Beneficial | Shares or | Shares or | Covered by | |||||||||||||||
Type of | Owner, if | Certificate | Interests | Interests | Percentage | Warrants; | ||||||||||||
Issuer | Organization | different) | No. | Owned | Outstanding | Ownership | Options | |||||||||||
Novelis Inc. | Canadian Corporation | AV Aluminum Inc. | ZQ937639 | 75,415,536 common shares | 77,459,658 common shares | 100 | % | None | ||||||||||
1 | 2,044,122 common shares | |||||||||||||||||
Novelis Corporation | Texas Corporation | Novelis Inc. | 7 | 4,945 common shares | 4,945 common shares | 100 | % | None | ||||||||||
Novelis Cast House Technology Ltd. | Ontario Corporation | Novelis Inc. | 6 | 200 common shares | 200 common shares | 100 | % | None | ||||||||||
Novelis Finances USA LLC | Delaware Limited Liability Company | Novelis Inc. | 1 | 1 share | 1 share | 100 | % | None | ||||||||||
Novelis Foil France SAS | French Société par Action Simplifiée | Novelis Inc. | N/A | 3,127,500 shares | 3,127,500 shares | 100 | % | None | ||||||||||
Novelis Europe Holdings Limited | Private company limited by shares | Novelis Inc. | 10 | 61,238,501 ordinary shares | 165,631,965 ordinary shares | 100 | % | None | ||||||||||
[tbd] | 84,393,463 ordinary shares | 144,928,900 preferred shares | ||||||||||||||||
[tbd] | 1 ordinary share | |||||||||||||||||
20,000,000 ordinary shares1 | ||||||||||||||||||
[tbd] | 144,928,900 preferred shares |
1 | To be issued on closing |
Record | ||||||||||||||||
Owner | No. of | No. of | No. Shares | |||||||||||||
(Beneficial | Shares or | Shares or | Covered by | |||||||||||||
Type of | Owner, if | Certificate | Interests | Interests | Percentage | Warrants; | ||||||||||
Issuer | Organization | different) | No. | Owned | Outstanding | Ownership | Options | |||||||||
Novelis Aluminium Beteiligungs GmbH | German GmbH | Novelis Inc. | N/A | 25,000 common shares | 25,000 common shares | 100 | % | None | ||||||||
Novelis Laminés France SAS | French Société par Action Simplifiée | Novelis Inc. | N/A | 200,000 shares | 200,000 shares | 100 | % | None | ||||||||
Novelis PAE SAS | French Société par Action Simplifiée | Novelis Inc. | N/A | 8,000 shares | 8,000 shares | 100 | % | None | ||||||||
Novelis No. 1 Limited Partnership | Québec Limited Partnership | Novelis Inc. (Limited Partner) | N/A | N/A | N/A | 99.99 0.01 | % % | None | ||||||||
4260848 Canada Inc. (General Partner) | ||||||||||||||||
4260848 Canada Inc. | Canadian Corporation | Novelis Inc. | C-5 | 100 common shares | 100 common shares | 100 | % | None | ||||||||
4260856 Canada Inc. | Canadian Corporation | Novelis Inc. | C-5 | 100 common shares | 100 common shares | 100 | % | None | ||||||||
Aluminum Company of Malaysia Berhad | Malaysian Public Company limited by shares listed on the Malaysian Stock Exchange | Novelis Inc. | N/A | 78,234,054 ordinary shares | 134,330,848 ordinary shares | 58.24 | % | None | ||||||||
Novelis do Brasil Ltda. | Brazilian Limited Liability Quota Company | Novelis Inc. | N/A | 120,130,999 quotas | 120,131,000 quotas | 99.99 | % | None |
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Record | ||||||||||||||||
Owner | No. of | No. of | No. Shares | |||||||||||||
(Beneficial | Shares or | Shares or | Covered by | |||||||||||||
Type of | Owner, if | Certificate | Interests | Interests | Percentage | Warrants; | ||||||||||
Issuer | Organization | different) | No. | Owned | Outstanding | Ownership | Options | |||||||||
Novelis South America Holdings LLC | Delaware Limited Liability Company | Novelis Inc. | N/A | 1 share | 1 share | 100 | % | None | ||||||||
Novelis Korea Limited | Korean Company, Limited | 4260856 Canada Inc. | Ahje00006~9 | 47,631 shares | 136,640 shares | 40.74 | % | None | ||||||||
Saje000 017~23 Maje00 0030~35 | (including 19,735 Treasury Stock) | (except Treasury Stock) | ||||||||||||||
4260848 Canada Inc. | Daje000032~34 | 31,755 shares | 27.16% (except Treasury Stock) | |||||||||||||
Gaje000065 | ||||||||||||||||
Ahje00003~5 | ||||||||||||||||
Saje000016 | ||||||||||||||||
Maje000023~29 | ||||||||||||||||
Daje000027~31 | ||||||||||||||||
Gaje000060~64 |
- 4 -
US$ | ||||||||||
Debtor | Noteholder | Issue Date | Due date | Amount | ||||||
Novelis Deutschland GmbH | Novelis Aluminium Holding Company | Jan. 6, 2005 | Jan. 6, 2015 | $ | 172,255,970 | |||||
Novelis Deutschland GmbH | Novelis Aluminium Holding Company | Jan. 6, 2005 | Jan. 6, 2015 | $ | 188,561,280 | |||||
Novelis Corporation | Novelis Deutschland GmbH | Feb. 28, 2007 | Feb. 28, 2008 | $ | 11,000,000 | |||||
Novelis UK Ltd. | Novelis Deutschland GmbH | Feb. 25, 2006 | Dec. 30, 2014 | $ | 39,970,000 | |||||
Novelis Italia SpA | Novelis Deutschland GmbH | Feb. 25, 2006 | Dec. 30, 2014 | $ | 49,050,000 | |||||
Novelis Corporation | Novelis Deutschland GmbH | Sept. 29, 2006 | Sept. 28, 2007 | $ | 53,137,500 | |||||
Novelis Corporation | Novelis Deutschland GmbH | Sept. 29, 2006 | Sept. 28, 2007 | $ | 70,850,000 | |||||
Novelis Corporation | Novelis do Brasil Ltda. | Sept. 28, 2006 | Sept. 28, 2007 | $ | 20,000,000 | |||||
Novelis do Brasil Ltda. | Novelis Inc. | Feb. 22, 2007 | Aug. 24, 2007 | $ | 5,000,000 | |||||
Novelis PAE SAS | Novelis Inc. | Feb. 3, 2005 | Feb. 3, 2015 | $ | 8,680,680 | |||||
Novelis do Brasil Ltda. | Novelis Inc. | Aug. 4, 1998 | Aug. 4, 2007 | $ | 20,000,000 | |||||
Novelis Luxembourg S.A. | Novelis Inc. | Feb. 3, 2005 | Feb. 3, 2015 | $ | 20,437,500 | |||||
Novelis do Brasil Ltda. | Novelis Inc. | Feb. 22, 2007 | Aug. 24, 2007 | $ | 25,000,000 | |||||
Novelis do Brasil Ltda. | Novelis Inc. | Feb. 22, 2007 | Aug. 24, 2007 | $ | 25,000,000 | |||||
Novelis Switzerland S.A. | Novelis Inc. | Feb. 3, 2005 | Feb. 3, 2015 | $ | 29,261,933 | |||||
Novelis do Brasil Ltda. | Novelis Inc. | Feb. 2, 1998 | Aug. 4, 2007 | $ | 30,000,000 | |||||
Novelis do Brasil Ltda. | Novelis Inc. | Mar. 20, 1998 | Aug. 4, 2007 | $ | 30,000,000 | |||||
Novelis Foil France | Novelis Inc. | Feb. 3, 2005 | Feb. 3, 2015 | $ | 51,775,000 | |||||
Novelis Luxembourg S.A. | Novelis Inc. | Feb. 3, 2005 | Feb. 3, 2015 | $ | 123,457,338 | |||||
Novelis Aluminium Holding Company | Novelis Inc. | Jan. 7, 2005 | Jan. 7, 2015 | $ | 188,561,280 | |||||
Novelis Aluminium Holding Company | Novelis Inc. | Feb. 3, 2005 | Feb. 3, 2015 | $ | 196,597,304 | |||||
Novelis AG | Novelis Inc. | Jan. 13, 2005 | Jan. 13, 2015 | $ | 198,033,974 | |||||
Novelis Aluminium Holding Company | Novelis Inc. | Jan. 7, 2005 | Jan. 6, 2015 | $ | 400,349,972 | |||||
Novelis UK Ltd. | Novelis Luxembourg Participations S.A. | Feb. 3, 2005 | Feb. 3, 2015 | $ | 123,457,338 | |||||
Novelis Specialites France | Novelis Inc. | February 3, 2005 | February 3, 2015 | EUR | 6,108,189 | |||||
Novelis AG | Novelis Inc. | March 31, 2005 | March 31, 2010 | US$ | 16,000,000 | |||||
Novelis Aluminium Holding Company | Novelis AG | June 29, 2007 | Sep. 28, 2007 | EUR | 18,379,739.24 |
- 5 -
US$ | ||||||||||
Debtor | Noteholder | Issue Date | Due date | Amount | ||||||
Novelis AG | Novelis Lamines France SAS | June 10, 2007 | July 10, 2007 | EUR | 700,000.00 | |||||
Novelis Foil France | Novelis AG | June 11, 2007 | July 11, 2007 | EUR | 22,000,000.00 | |||||
Novelis AG | Novelis PAE SAS | June 19, 2007 | July 9, 2007 | EUR | 4,800,000.00 | |||||
Novelis AG | Novelis Technology SA | June 29, 2007 | July 31, 2007 | EUR | 605,730.78 | |||||
Novelis Aluminium Holding Company | Novelis AG | June 27, 2007 | Sep. 28, 2007 | EUR | 5,400,000.00 | |||||
Novelis Corporation | Novelis do Brasil Ltda. | June 29, 2007 | June 28, 2008 | $ | 15,000,000 | |||||
Novelis Corporation | Novelis Inc. | June 28, 2007 | June 27, 2008 | $ | 40,000,000 | |||||
Novelis Corporation | Novelis Inc. | June 29, 2007 | June 28, 2008 | $ | 25,000,000 | |||||
Novelis Deutschland GmbH | Novelis AG | July 6, 2007 | July 3, 2008 | EUR | 30,115,675.00 | |||||
Novelis Corporation | Novelis Deutschland GmbH | July 6, 2007 | July 3, 2008 | $ | 37,947,495.76 | |||||
Novelis AG | Novelis Inc. | July 6, 2007 | July 3, 2008 | $ | 226,176,631.12 | |||||
Novelis Inc. | Novelis Corporation | July 6, 2007 | July 3, 2008 | $ | 226,176,631.12 |
- 6 -
1. | Novelis do Brasil Ltda. | |
Nil. | ||
2. | Novelis Europe Holdings Ltd. (UK) | |
There are no restrictions on transfer where the transfer is to a bank or a financial institution. | ||
3. | Novelis Laminés France SAS, Novelis PAE SAS, Novelis Foil France SAS | |
Nil. | ||
4. | 4260848 Canada Inc., 4260856 Canada Inc., Cast House Technology Ltd., Novelis Inc. | |
4260848 Canada Inc.:The shares of the Corporation shall not be transferred without the consent of either (i) the directors evidenced by a resolution passed or signed by them and recorded in the books of the Corporation or (ii) the holders of a majority in number of the outstanding voting shares of the Corporation. | ||
4260856 Canada Inc.:The shares of the Corporation shall not be transferred without the consent of either (i) the directors evidenced by a resolution passed or signed by them and recorded in the books of the Corporation or (ii) the holders of a majority in number of the outstanding voting shares of the Corporation. | ||
Cast House Technology Ltd.:The issue or transfer of shares of the Corporation shall require the express sanction of the Board of Directors signified by a resolution passed by the Board. | ||
Novelis Inc.:No restrictions on transfer. | ||
5. | Novelis Corporation, Novelis Finances USA LLC, Novelis South America Holdings LLC | |
Nil. |
PERFECTION CERTIFICATE
FORM OF CONFIRMATION OF SECURITY INTEREST IN INTELLECTUAL
PROPERTY
[NAME OF RELEVANT OBLIGOR] | ||||
Per: | ||||
TRADE-MARKS/PATENTS/COPYRIGHTS/INDUSTRIAL DESIGNS
U.K. SECURITY AGREEMENT
the terms of a Credit Agreement
and an Intercreditor Agreement dated
on or about the date hereof
40 Bank Street
Canary Wharf
London E14 5DS
Clause | Page | |
1. INTERPRETATION | 1 | |
2. GUARANTEE | 7 | |
3. CREATION OF SECURITY | 10 | |
4. REPRESENTATIONS - GENERAL | 14 | |
5. RESTRICTIONS ON DEALINGS | 15 | |
6. LAND | 15 | |
7. INVESTMENTS | 19 | |
8. INTELLECTUAL PROPERTY | 23 | |
9. ACCOUNTS | 24 | |
10. RELEVANT CONTRACTS | 26 | |
11. PLANT AND MACHINERY | 27 | |
12. WHEN SECURITY BECOMES ENFORCEABLE | 28 | |
13. ENFORCEMENT OF SECURITY | 28 | |
14. ADMINISTRATOR | 30 | |
15. RECEIVER | 30 | |
16. POWERS OF RECEIVER | 31 | |
17. APPLICATION OF PROCEEDS | 34 | |
18. TAXES, EXPENSES AND INDEMNITY | 34 | |
19. DELEGATION | 34 | |
20. FURTHER ASSURANCES | 34 | |
21. POWER OF ATTORNEY | 35 | |
22. PRESERVATION OF SECURITY | 35 | |
23. MISCELLANEOUS | 38 | |
24. LOAN PARTIES | 39 | |
25. RELEASE | 39 | |
26. COUNTERPARTS | 40 | |
27. NOTICES | 40 | |
28. GOVERNING LAW | 41 | |
29. ENFORCEMENT | 41 | |
SCHEDULE 1Security Assets | 43 | |
PART 1 Real Property | 43 | |
PART 2 Charged Shares | 45 | |
PART 3 Specific Plant and Machinery | 45 | |
PART 4 Security Contracts | 45 | |
PART 5 Specific Intellectual Property | 46 | |
PART 6 Security Accounts | 46 | |
SCHEDULE 2Forms of Letter for Security Accounts | 48 | |
PART 1 Notice to Account Bank | 48 | |
PART 2 Acknowledgement of Account Bank | 50 | |
PART 3 Letter for Operation of Security Accounts | 52 | |
SCHEDULE 3Forms of Letter for Insurance Policies | 54 | |
PART 1 Form of Notice of Assignment | 54 | |
PART 2 Form of Letter of Undertaking | 56 | |
SCHEDULE 4Forms of Letter for Primary Contracts | 58 | |
PART 1 Notice to Counterparty | 58 |
ii
Clause | Page | |
PART 2 Acknowledgement of Counterparty | 60 | |
SCHEDULE 5Form of Deed of Accession | 61 | |
SCHEDULE | 63 | |
PART 1 Real Property | 63 | |
PART 2 Charged Shares | 63 | |
PART 3 Specific Plant and Machinery | 63 | |
PART 4 Security Contracts | 63 | |
PART 5 Specific Intellectual Property | 63 | |
PART 6 Security Accounts | 64 |
iii
(1) | NOVELIS UK LTD(registered number 00279596) with its registered office at Castle Works, Rogerstone, Newport, NP10 9 YD(Novelis UK); | |
(2) | NOVELIS EUROPE HOLDINGS LIMITED(registered number 05308334) with its registered office at Castle Works, Rogerstone, Newport, NP10 9YD (Novelis Europeand together with Novelis UK, theOriginal Chargors); and | |
(3) | LASALLE BUSINESS CREDIT, LLCas agent and trustee for the Secured Parties referred to below (the Collateral Agent). |
(A) | Each Chargor enters into this Deed in connection with the Credit Agreement (as defined below). | |
(B) | It is Intended that this document takes effect as a deed notwithstanding the fact that a party may only execute this document under hand. |
![(STAMP)](https://capedge.com/proxy/S-4A/0000950123-09-051624/g20430a1g2043020.gif)
1. | INTERPRETATION | |
1.1 | Definitions |
1
(a) | the freehold property specified in Part 1B of Schedule 1 (Security Assets) opposite its name; | ||
(b) | its Excluded Leasehold Property; and | ||
(c) | any real property acquired by that Chargor after the date of this Deed which that Chargor and the Collateral Agent have designated an Excluded Real Property. |
(a) | the Charged Shares; and | ||
(b) | all other shares, stocks, debentures, bonds, warrants, coupons and other securities and investments, |
2
(a) | any agreement specified in Part 4A of Schedule 1 (Security Assets) opposite its name or in Part 4A of the schedule to any Deed of Accession by which it became party to this Deed; | ||
(b) | any other agreement to which that Chargor is a party and which that Chargor and the Collateral Agent have designated a Primary Contract; | ||
(c) | any Acquisition Document; | ||
(d) | any Cash Management Document; | ||
(e) | any Hedging Agreement; | ||
(f) | any Intercompany Document; | ||
(g) | any letter of credit issued in its favour under which the aggregate consideration payable at anytime is in excess of £100,000; or | ||
(h) | any bill of exchange or other negotiable instrument held by it. |
(a) | the proceeds of sale of the whole or any part of that asset or any monies and proceeds paid or payable in respect of that asset; | ||
(b) | all rights under any licence, agreement for sale, option or lease in respect of that asset; and | ||
(c) | all rights, benefits, claims, contracts, warranties, remedies, security indemnities or covenants for title | ||
(d) | in respect of that asset. |
(a) | any agreement specified in Part 4B of Schedule 1 (Security Assets) opposite its name or in Part 4B of the schedule to any Deed of Accession by which it became party to this Deed; |
3
(b) | any other agreement to which that Chargor is a party and which that Chargor and the Collateral Agent have designated a Secondary Contract; and | ||
(c) | any other agreement (other than a Primary Contract) entered into after the date of this Deed under which the aggregate consideration payable at anytime is in excess of £250,000. |
(a) | any account specified in Part 6 of Schedule 1 (Security Assets) opposite its name or in Part 6 of the schedule to any Deed of Accession by which it became party to this Deed; and | ||
(b) | any other account which it purports to charge under this Deed. |
1.2 | Construction |
(a) | Capitalisedterms defined in the Credit Agreement have, unless expressly defined in this Deed, the same meaning in this Deed. | ||
(b) | an “agreement” includes any legally binding arrangement, agreement, contract, deed or instrument (in each case whether oral or written); |
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(c) | an“amendment” includes any amendment, supplement, variation, waiver, novation, modification, replacement or restatement (however fundamental) and“amend” and“amended” shall be construed accordingly; | ||
(d) | “assets” includes properties, assets, businesses, undertakings, revenues and rights of every kind (including uncalled share capital), present or future, actual or contingent, and any interest in any of the above; | ||
(e) | a“consent” includes an authorisation, permit, approval, consent, exemption, licence, order, filing, registration, recording, notarisation, permission or waiver; | ||
(f) | references to an Event of Default being“continuing” means that such Event of Default has occurred or arisen and has not been expressly waived in writing by the by the Collateral Agent or Funding Agent (as appropriate); | ||
(g) | a“disposal” includes any sale, transfer, grant, lease, licence or other disposal, whether voluntary or involuntary and“dispose” will be construed accordingly; | ||
(h) | “including” means including without limitation and“includes” and“Included” shall be construed accordingly; | ||
(i) | “Indebtedness” includes any obligation (whether incurred as principal, guarantor or surety and whether present or future, actual or contingent) for the payment or repayment of money; | ||
(j) | “losses” includes losses, actions, damages, payments, claims, proceedings, costs, demands, expenses (including legal and other fees) and liabilities of any kind and“loss” shall be construed accordingly; | ||
(k) | a“person” includes any individual, trust, firm, fund, company, corporation, partnership, joint venture, government, state or agency of a state or any undertaking or other association (whether or not having separate legal personality) or any two or more of the foregoing; and | ||
(l) | a“regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but if not having the force of law compliance with which is customary) of any governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation. | ||
(m) | In this Deed, unless a contrary intention appears: |
(i) | a reference to any person includes a reference to that person’s permitted successors, assignees and transferees and, in the case of the Collateral Agent and the Funding Agent, any person for the time being appointed as Collateral Agent or Funding Agent (as appropriate) in accordance with the Loan Documents, and in the case of the Collateral Agent and any Receiver, any Delegate of the Collateral Agent or Receiver (as appropriate); | ||
(ii) | references to Clauses, Subclauses and Schedules are references to, respectively, clauses and subclauses of and schedules to this Deed and references to this Deed include its schedules; |
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(iii) | a reference to (or to any specified provision of) any agreement is to that agreement (or that provision) as amended from time to time; | ||
(iv) | a reference to a statute, statutory instrument or provision of law is to that statute, statutory instrument or provision of law, as it may be applied, amended or re-enacted from time to time; | ||
(v) | the index to and the headings in this Deed are for convenience only and are to be ignored in construing this Deed; | ||
(vi) | references to “with full title guarantee” are to be construed as provided for in the Law of Property (Miscellaneous Provisions) Act 1994; and | ||
(vii) | words imparting the singular include the plural and vice versa. |
(n) | The term: | ||
certificatedhas the meaning given to it in the Uncertificated Securities Regulations 2001; and | |||
clearance systemmeans a person whose business is or includes the provision of clearance services or security accounts or any nominee or depository for that person. | |||
(o) | Any covenant of a Chargor under this Deed (other than a payment obligation) remains in force during the Security Period and is given for the benefit of each Secured Party. | ||
(p) | The terms of the other Loan Documents and of any side letters between any Parties in relation to any Loan Document (as the case may be) are incorporated in this Deed to the extent required to ensure that any purported disposition of any freehold or leasehold property contained in this Deed is a valid disposition in accordance with section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989. | ||
(q) | Without prejudice to any other provision of this Deed, the Collateral Agent shall be entitled to retain this Deed and not to release any of the Security Assets if the Collateral Agent, acting reasonably, considers that an amount paid to a Secured Party under a Loan Document is capable of being avoided or otherwise set aside on the liquidation or administration of the payer or otherwise, and any amount so paid will not be considered to have been irrevocably paid for the purposes of this Deed. | ||
(r) | Unless the context otherwise requires, a reference to a Security Asset or any type or description of a Security Asset includes: |
(i) | any part of that Security Asset; and | ||
(ii) | any present and future assets of that type. |
1.3 | Third Party Rights |
(a) | Unless expressly provided to the contrary in this Deed, a person who is not a party to this Deed may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999. |
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(b) | Notwithstanding any term of this Deed, the consent of any third party is not required to rescind, vary, amend or terminate this Deed at any time. |
1.4 | Intercreditor Agreement Governs |
2. | GUARANTEE | |
2.1 | Guarantee |
(i) | guarantees as principal obligor to the Collateral Agent due and punctual performance by each Loan Party of all of the Secured Obligations now or in the future due, owing or incurred by it; | ||
(ii) | undertakes with the Collateral Agent that whenever another Loan Party does not pay or discharge any Secured Obligation now or in the future due, owing or incurred by that Loan Party, it shall immediately on the Collateral Agent’s written demand pay or discharge such Secured Obligation as if it was the principal obligor; and | ||
(iii) | indemnifies the Collateral Agent immediately on written demand against any cost, loss or liability suffered by the Collateral Agent or other Secured Party if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the amount which the Collateral Agent or other Secured Party would otherwise have been entitled to recover. |
2.2 | Continuing Guarantee |
2.3 | Reinstatement |
(a) | the liability of each Loan Party shall continue as if the payment, discharge, avoidance or reduction had not occurred; and |
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(b) | the Collateral Agent and each other Secured Party shall be entitled to recover the value or amount of that security or payment from each Loan Party, as if the payment, discharge, avoidance or reduction had not occurred. |
2.4 | Waiver of defences |
(i) | any time, waiver or consent granted to, or composition with, any Loan Party or other person; | ||
(ii) | the release of any other Loan Party or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; | ||
(iii) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Loan Party or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; | ||
(iv) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of a Loan Party or any other person; | ||
(v) | any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature) or replacement of a Loan Document or any other document or security; | ||
(vi) | any unenforceability, illegality or invalidity of any obligation of any person under any Loan Document or any other document or security; or | ||
(vii) | any insolvency or similar proceedings. |
2.5 | Demands |
(a) | The making of one demand under Clause 2.1(Guarantee)shall not preclude the Collateral Agent from making any further demands. | ||
(b) | Any delay of the Collateral Agent in making a demand under Clause 2.1(Guarantee)shall not be treated as a waiver of its rights to make such demand. |
2.6 | Chargor Intent |
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2.7 | Immediate recourse |
2.8 | Deferral of Chargors’ rights |
(a) | Until all amounts which may be or become payable by the Loan Parties under or in connection with the Loan Documents have been irrevocably paid in full and unless the Collateral Agent otherwise directs (in which case it shall take such action as it is directed), no Chargor will exercise any rights which it may have by reason of performance by it of its obligations under the Loan Documents: |
(i) | to be indemnified by a Loan Party; | ||
(ii) | to claim any contribution from any other Chargor of any Loan Party’s obligations under the Loan Documents; and/or | ||
(iii) | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of any Secured Party under the Loan Documents or of any other guarantee or security taken pursuant to, or in connection with, the Loan Documents by any Secured Party. |
(b) | If a Chargor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Secured Parties by the Loan Parties under or in connection with the Loan Documents to be repaid in full on trust for the Secured Parties and shall promptly pay or transfer the same to the Collateral Agent or as the Collateral Agent may direct. |
2.9 | Additional security | |
This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Secured Party. | ||
2.10 | Credit Agreement | |
The provisions of Sections 2.06(j), 2.12 (with respect to Taxes), 2.15, 2.20, 2.22, 2.23 and 7.10 of the Credit Agreement are hereby incorporated,mutatis mutandi,and shall apply to this Agreement, the Chargors, the Lenders, the Collateral Agent and the Funding Agent as if set forth herein. |
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3. | CREATION OF SECURITY | |
3.1 | General |
(a) | All this Security; |
(i) | is created in favour of the Collateral Agent; | ||
(ii) | is security for the payment, discharge and performance of all the Secured Obligations; and | ||
(iii) | is made with full title guarantee in accordance with the Law of Property (Miscellaneous Provisions) Act 1994. |
(b) | If a Chargor assigns or charges an agreement under this Deed and the assignment or charge breaches a term of that agreement because a third party’s consent has not been obtained: |
(i) | the Chargor must notify the Collateral Agent immediately; | ||
(ii) | unless the Collateral Agent otherwise requires, the Chargor must, and each other Chargor must ensure that the Chargor will, use all reasonable endeavours to obtain the consent as soon as practicable; and | ||
(iii) | the Chargor must promptly supply to the Collateral Agent a copy of the consent obtained by it. |
(c) | Each Chargor hereby acknowledges that all assets, right, interests and benefits which are now or in the future granted to the Collateral Agent pursuant to this Clause 3 or otherwise mortgaged, charged, assigned or otherwise granted to it under this Deed (or any other document in connection herewith) and all other rights, powers and discretions granted to or conferred upon the Collateral Agent under this Deed or the Loan Documents (or any other document in connection therewith) shall be held by the Collateral Agent on trust for the Secured Parties from time to time in accordance with the provisions of the Security Trust Deed. | ||
(d) | The fact that no or incomplete details of any Security Asset are inserted in Schedule 1(Security Assets)or in the schedule to any Deed of Accession (if any) by which any Chargor became party to this Deed does not affect the validity or enforceability of this Security. |
3.2 | Land |
(a) | Each Chargor charges: |
(i) | by way of a legal mortgage all estates or interests in any freehold or leasehold property owned by it (save for the Excluded Real Property) and all rights under any licence or other agreement or document which gives that Chargor a right to occupy or use property; this includes any specified in Part 1 of Schedule 1(Security Assets)opposite its name or in Part 1 of the schedule to any Deed of Accession by which it became party to this Deed; and | ||
(ii) | (to the extent that they are not the subject of a mortgage under sub-paragraph (i) above) by way of fixed charge all estates or interests |
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(b) | A reference in this Deed to any freehold or leasehold property includes: |
(i) | all buildings, erections, fixtures and fittings (including trade fixtures and fittings) and fixed plant and machinery on that property owned by the relevant Chargor; and | ||
(ii) | the benefit of any covenants for title given or entered into by any predecessor in title of the relevant Chargor in respect of that property and any moneys paid or payable in respect of those covenants. |
3.3 | Investments |
(a) | Each Chargor charges: |
(i) | by way of a first legal mortgage the Charged Shares; this includes any Charged Shares specified in Part 2 of Schedule 1(Security Assets)opposite its name or in Part 2 of the schedule to any Deed of Accession by which it became party to this Deed; and | ||
(ii) | (to the extent that they are not the subject of a mortgage under sub-paragraph (i) above) by way of a fixed charge its interest in all shares, stocks, debentures, bonds, warrants, coupons or other securities and investments (including all Cash Equivalents) owned by it or held by any nominee on its behalf. |
(b) | A reference in this Deed to any share, stock, debenture, bond, warrant, coupon or other security or investment includes: |
(i) | any dividend, interest or other distribution paid or payable; | ||
(ii) | any right, money or property accruing, derived, incidental or offered at any time by way of redemption, substitution, exchange, bonus or preference, under option rights or otherwise; | ||
(iii) | any right against any clearance system; | ||
(iv) | any Related Rights; and | ||
(v) | any right under any custodian or other agreement, |
3.4 | Plant and machinery |
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3.5 | Credit balances |
3.6 | Book debts etc. |
(a) | all of its book and other debts; | ||
(b) | all other moneys due and owing to it; and | ||
(c) | the benefit of all rights, securities and guarantees of any nature enjoyed or held by it in relation to any item under paragraph (a) or (b) above. |
3.7 | Insurance Policies |
(a) | Each Chargor assigns absolutely, subject to a proviso for re-assignment on redemption, all amounts payable to it under or in connection with each of its Insurance Policies and all of its rights in connection with those amounts. | ||
(b) | To the extent that they are not effectively assigned under paragraph (a) above, each Chargor charges by way of fixed charge all amounts and rights described in paragraph (a) above. | ||
(c) | A reference in this Subclause to any amounts excludes all amounts received or receivable under or in connection with any third party liability Insurance and required to settle a liability of a Loan Party to a third party. |
3.8 | Other contracts |
(a) | Each Chargor assigns absolutely, subject to a proviso for re-assignment on redemption, all of its rights in respect of its Primary Contracts. | ||
(b) | Without prejudice to the obligations of the Chargor under Clause 3.1 (b), to the extent that any such right described in paragraph (a) above is not assignable or capable of assignment, the assignment of that right purported to be effected by paragraph (a) shall operate as an assignment of any damages, compensation, remuneration, profit, rent or income which that Chargor may derive from that right or be awarded or entitled to in respect of that right. | ||
(c) | To the extent that they do not fall within any other Subclause of this Clause and are not effectively assigned under paragraph (a) or (b) above, each Chargor charges by way of fixed charge all of its rights under each agreement and document to which it is a party, including, without limitation, its Secondary Contracts. |
3.9 | Intellectual property |
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3.10 | Miscellaneous |
(a) | any beneficial interest, claim or entitlement it has to any assets of any pension fund; | ||
(b) | its goodwill; | ||
(c) | the benefit of any authorisation (statutory or otherwise) held in connection with its business or the use of any Security Asset; | ||
(d) | the right to recover and receive compensation which may be payable to it in respect of any authorisation referred to in paragraph (c) above; and | ||
(e) | its uncalled capital. |
3.11 | Floating charge |
(a) | Each Chargor charges by way of a floating charge all of its assets whatsoever and wheresoever not otherwise effectively mortgaged, charged or assigned under this Deed. | ||
(b) | Except as provided below, the Collateral Agent may by notice to a Chargor convert the floating charge created by that Chargor under this Deed into a fixed charge as regards any of that Chargor’s assets specified in that notice, if: |
(i) | an Event of Default is continuing; | ||
(ii) | the Collateral Agent considers those assets to be in danger of being seized or sold under any form of distress, attachment, execution or other legal process or to be otherwise in jeopardy; or | ||
(iii) | that Chargor fails to comply, or takes or threatens to take any action which, in the reasonable opinion of the Collateral Agent, is likely to result in it failing to comply with its obligations under paragraph (a) of Clause 5 (Restrictions on dealing). |
(c) | The floating charge created under this Deed may not be converted into a fixed charge solely by reason of: |
(i) | the obtaining of a moratorium; or | ||
(ii) | anything done with a view to obtaining a moratorium, |
(d) | The floating charge created under this Deed will (in addition to the circumstances in which the same will occur under general law) automatically convert into a fixed charge over all of each Chargor’s assets: |
(i) | if an administrator is appointed or the Collateral Agent receives notice of an intention to appoint an administrator; or |
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(ii) | on the convening of any meeting of the members of that Chargor to consider a resolution to wind that Chargor up (or not to wind that Chargor up). |
(e) | The floating charge created under this Deed is a qualifying floating charge for the purpose of paragraph 14 of Schedule B1 to the Insolvency Act 1986. | ||
(f) | The giving by the Collateral Agent of a notice under paragraph (b) above in relation to any asset of a Chargor will not be construed as a waiver or abandonment of the Collateral Agent’s rights to give any other notice in respect of any other asset or of any other right of any other Secured Party under this Deed or any other Loan Document. | ||
(g) | Any charge which has been converted into a fixed charge in accordance with paragraphs (b) or (d) above may, by notice in writing given at any time by the Collateral Agent to the relevant Chargor, be reconverted into a floating charge in relation to the Security Assets specified in such notice. |
4. | REPRESENTATIONS - GENERAL | |
4.1 | Nature of security |
(a) | this Deed creates those Security Interests it purports to create (save that the legal mortgage created in Clause 3.3(a)(i) will take effect in equity until such time as the Collateral Agent exercises its discretion under Clause 7.2(b)) and is not liable to be avoided or otherwise set aside on its liquidation or administration or otherwise; | ||
(b) | this Deed is its legal, valid and binding obligation and is enforceable against it in accordance with its terms; | ||
(c) | no authorisation, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for either: |
(i) | the pledge or grant by the Chargor of the Security purported to be created in favour of the Collateral Agent under this Deed; or | ||
(ii) | the exercise by the Collateral Agent of any rights or remedies in respect of the Security Assets (whether specifically granted or created under this Deed or created or provided for by applicable law); and |
(d) | all actions and consents, including all filings, notices, registrations and recordings necessary for the exercise by the Collateral Agent of the voting or other rights provided for in this Deed or the exercise of remedies in respect of the Security Assets have been made or will be obtained within periods required to perfect the Security as against any third party. |
4.2 | Times for making representations and warranties |
(a) | The representations and warranties set out in this Deed (including in this Clause) are made by each Chargor. | ||
(b) | Each representation and warranty under this Deed is deemed to be repeated by: |
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(i) | each Chargor which becomes party to this Deed of Accession, on the date on which that Chargor becomes a Chargor; and | ||
(ii) | each Chargor on each date during the Security Period. |
(c) | When a representation and warranty is deemed to be repeated, it is deemed to be made by reference to the circumstances existing at the time of repetition. |
5. | RESTRICTIONS ON DEALINGS |
(a) | create or permit to subsist any Security Interest on any of its assets; or | ||
(b) | either in a single transaction or in a series of transactions and whether related or not and whether voluntarily or involuntarily sell, lease, transfer, redeem or otherwise dispose of all or any part of its assets, |
6. | LAND | |
6.1 | Information for Report on Title |
(a) | the information supplied by it or on its behalf to the lawyers who prepared any Report on Title relating to any of its Mortgaged Property for the purpose of that Report on Title was true in all material respects at the date it was expressed to be given; and | ||
(b) | the information referred to in paragraph (a) above was at the date it was expressed to be given complete and did not omit any information which, if disclosed would make that information untrue or misleading in any material respect; | ||
(c) | the Excluded Leasehold Properties are rack rent leases granted to a Chargor at a rent without a fine or premium from time to time. |
6.2 | Title |
(a) | it is the legal and beneficial owner of its Mortgaged Property; | ||
(b) | no breach of any law, regulation or covenant is outstanding which affects or would be reasonably likely to affect materially the value, saleability or use of its Mortgaged Property; | ||
(c) | there are no covenants, agreements, stipulations, reservations, conditions, interests, rights or other matters whatsoever affecting its Mortgaged Property which conflict with its present use or adversely affect the value, saleability or use of any of the Mortgaged Property, in each case to any material extent; |
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(d) | nothing has arisen or has been created or is subsisting which would be an overriding interest or an unregistered interest which overrides first registration or registered dispositions over its Mortgaged Property and which would be reasonably likely to affect materially its value, saleability or use; | ||
(e) | all facilities (including access) necessary for the enjoyment and use of its Mortgaged Property (including those necessary for the carrying on of its business at the Mortgaged Property) are enjoyed by that Mortgaged Property and none of those facilities are on terms entitling any person to terminate or curtail its use or on terms which conflict with or restrict its use, where the lack of those facilities would be reasonably likely to affect materially its value, saleability or use; | ||
(f) | it has received no notice of any adverse claims by any person in respect of its Mortgaged Property which if adversely determined would or would be reasonably likely to materially adversely affect the value, saleability or use of any of its Mortgaged Property, nor has any acknowledgement of such been given to any person in respect of its Mortgaged Property; and | ||
(g) | its Mortgaged Property is held by it free from any Security Interest (other than as permitted by the Credit Agreement) or any lease or licence which would be reasonably likely to affect materially its value, saleability or use. |
6.3 | Repair |
(a) | its Premises in good and substantial repair and condition; and | ||
(b) | its Fixtures in a good state of repair and in good working order and condition. |
6.4 | Compliance with leases and covenants |
(a) | perform all the material terms on its part contained in any lease, agreement for lease, licence or other agreement or document which gives that Chargor a right to occupy or use property comprised in its Mortgaged Property; | ||
(b) | not do or allow to be done any act as a result of which any lease comprised in its Mortgaged Property may become liable to forfeiture or otherwise be terminated; and | ||
(c) | duly and punctually comply with all material covenants and stipulations affecting the Mortgaged Property or the facilities (including access) necessary for the enjoyment and use of the Mortgaged Property and indemnify each Secured Party in respect of any breach of those covenants and stipulations. |
6.5 | Acquisitions |
(a) | notify the Collateral Agent immediately; |
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(b) | immediately on request by the Collateral Agent and at the cost of that Chargor, execute and deliver to the Collateral Agent a legal mortgage in favour of the Collateral Agent of that property in any form (consistent with, and no more onerous than, this Deed) which the Collateral Agent may require; | ||
(c) | if the title to that freehold or leasehold property is registered at the Land Registry or required to be so registered, give the Land Registry written notice of this Security; and | ||
(d) | if applicable, ensure that this Security is correctly noted in the Register of Title against that title at the Land Registry. |
6.6 | Notices |
(a) | deliver a copy to the Collateral Agent; and | ||
(b) | inform the Collateral Agent of the steps taken or proposed to be taken to comply with the relevant requirement, |
6.7 | Leases |
(a) | grant or agree to grant (whether in exercise or independently of any statutory power) any lease or tenancy; | ||
(b) | agree to any amendment or waiver or surrender of any lease or tenancy; | ||
(c) | commence any forfeiture proceedings in respect of any lease or tenancy; | ||
(d) | confer upon any person any contractual licence or right to occupy; | ||
(e) | consent to any assignment of any tenant’s interest under any lease or tenancy; | ||
(f) | agree to any rent reviews in respect of any lease or tenancy; or | ||
(g) | serve any notice on any former tenant under any lease or tenancy (or any guarantor of that former tenant) which would entitle it to a new lease or tenancy. |
6.8 | The Land Registry |
(a) | Each Chargor consents to a restriction in the following terms being entered into on the Register of Title relating to any Mortgaged Property registered at the Land Registry: |
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(b) | Each Chargor applies to the Chief Land Registrar for a notice in the following terms to be entered on the Register of Title relating to any Mortgaged Property registered at the Land Registry: |
6.9 | Deposit of title deeds |
6.10 | Development |
(a) | make or permit others to make any application for planning permission in respect of any part of the Mortgaged Property; or | ||
(b) | carry out or permit to be carried out on any part of the Mortgaged Property any development for which the permission of the local planning authority is required, |
6.11 | Investigation of title |
(a) | carry out investigations of title to the Mortgaged Property; and | ||
(b) | make such enquiries in relation to any part of the Mortgaged Property as a prudent mortgagee might carry out. |
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6.12 | Report on Title |
6.13 | Power to remedy |
(a) | to enter any part of its Mortgaged Property; | ||
(b) | to comply with or object to any notice served on that Chargor in respect of its Mortgaged Property; and | ||
(c) | to take any action as the Collateral Agent may reasonably consider necessary or desirable to prevent or remedy any breach of any such covenant, stipulation or term or to comply with or object to any such notice. |
6.14 | Unregistered Property |
(a) | to provide a completed and signed Land Registry application form to complete the first registration of any unregistered real properties and registration of this Security at the Land Registry: and | ||
(b) | answer any requisitions raised by the Land Registry, |
7. | INVESTMENTS | |
7.1 | Investments |
(a) | its Investments are duly authorised, validly issued and fully paid; | ||
(b) | its Investments are not subject to any Security Interest (other than as permitted by the Credit Agreement), any option to purchase or similar right; | ||
(c) | it is the sole legal and beneficial owner of its Investments (save for any Investments acquired by or issued to that Chargor after the date of this Deed that |
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(d) | each Charged Company is a company incorporated with limited liability; | ||
(e) | the constitutional documents of each Charged Company do not and could not restrict or inhibit any transfer of those shares on creation or enforcement of this Security; and | ||
(f) | there are no agreements in force which provide for the issue or allotment of, or grant any person the right to call for the issue or allotment of, any share or loan capital of any Charged Company (including any option or right of pre-emption or conversion). |
7.2 | Certificated Investments |
(a) | Each Chargor must: |
(i) | deposit with the Collateral Agent, or as the Collateral Agent may direct, any bearer instrument, share certificate or other document of title or evidence of ownership in relation to any Investment, immediately in respect of any Investment subject to this Security on the date of this Deed and thereafter immediately following the acquisition by, or the issue to, that Chargor of any certificated Investment (unless the same is required for registering any transfer, in which case the relevant Chargor must deposit the same immediately after such registration is completed); and | ||
(ii) | immediately take any action and execute and deliver to the Collateral Agent any share transfer or other document which may be requested by the Collateral Agent in order to enable the transferee to be registered as the owner or otherwise obtain a legal title to that Investment; this includes: |
(1) | delivering executed and (unless exempt from stamp duty), pre-stamped share transfers in favour of the Collateral Agent or any of its nominees as transferee or, if the Collateral Agent so directs, with the transferee left blank; and | ||
(2) | procuring that those share transfers are registered by the Charged Company in which the Investments are held in the share register of that Charged Company and that share certificates in the name of the transferee are delivered to the Collateral Agent. |
(b) | The Collateral Agent may, at any time, complete the instruments of transfer on behalf of the Chargor in favour of itself or such other person as it shall select. |
7.3 | Changes to rights |
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7.4 | Calls |
(a) | Each Chargor must pay all calls and other payments due and payable in respect of any of its Investments. | ||
(b) | If a Chargor fails to do so, the Collateral Agent may (at its discretion) pay those calls or other payments on behalf of that Chargor. That Chargor must immediately on request reimburse the Collateral Agent for any payment made by the Collateral Agent under this Subclause and, pending reimbursement, that payment will constitute part of the Secured Obligations. |
7.5 | Other obligations in respect of Investments |
(a) | Each Chargor must comply with all requests for information which is within its knowledge and which it is required to comply with by law (including section 212 of the Companies Act 1985) or under the constitutional documents relating to any of its Investments. If a Chargor fails to do so, the Collateral Agent may elect to provide any information which it may have on behalf of that Chargor. | ||
(b) | Each Chargor must promptly supply a copy to the Collateral Agent of any information referred to in sub-paragraph (a) above. | ||
(c) | It is acknowledged and agreed that notwithstanding anything to the contrary contained in this Deed, each Chargor shall remain liable to observe and perform all of the conditions and obligations assumed by it in respect of any of its Investments. | ||
(d) | No Secured Party will be required in any manner to: |
(i) | perform or fulfil any obligation of a Chargor; | ||
(ii) | make any payment; | ||
(iii) | make any enquiry as to the nature or sufficiency of any payment received by it or a Chargor; | ||
(iv) | present or file any claim or take any other action to collect or enforce the payment of any amount; or | ||
(v) | take any action in connection with the taking up of any (or any offer of any) stocks, shares, rights, monies or other property paid, distributed, accruing or offered at any time by way of interest, dividend, redemption, bonus, rights, preference, option, warrant or otherwise, |
7.6 | Voting rights |
(a) | Unless and until the service of a notice by the Collateral Agent or an Event of Default is continuing, each Chargor may continue to exercise the voting rights, powers and other rights in respect of its Investments, provided that (x) it shall deliver copies of any minutes shareholder meeting in respect of the Investments |
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(b) | Unless and until the service of a notice by the Collateral Agent or an Event of Default is continuing, if the relevant Investments have been registered in the name of the Collateral Agent or its nominee, the Collateral Agent (or that nominee) must exercise the voting rights, powers and other rights in respect of the Investments in any manner which the relevant Chargor may direct in writing. The Collateral Agent (or that nominee) will execute any form of proxy or other document which the relevant Chargor may reasonably require for this purpose. | ||
(c) | Subject to the terms of the Credit Agreement and the Intercreditor Agreement, unless and until the service of a notice by the Collateral Agent or an Event of Default is continuing, all dividends or other income or distributions paid or payable in relation to any Investments must be paid to the relevant Chargor. To achieve this: |
(i) | the Collateral Agent or its nominee will promptly execute any dividend mandate necessary to ensure that payment is made direct to the relevant Chargor;) or | ||
(ii) | if payment is made directly to the Collateral Agent (or its nominee) before the service of a notice by the Collateral Agent or at a time when an Event of Default is not continuing, the Collateral Agent (or that nominee) will promptly pay that amount to the relevant Chargor. |
(d) | Unless and until the service of a notice by the Collateral Agent or an Event of Default is continuing, the Collateral Agent shall use its reasonable endeavours to promptly forward to the relevant Chargor all material notices, correspondence and/or other communication it receives in relation to the Investments. | ||
(e) | Following the service of a notice by the Collateral Agent or so long as an Event of Default is continuing, the Collateral Agent or its nominee may exercise or refrain from exercising: |
(i) | any voting rights; and | ||
(ii) | any other powers or rights which maybe exercised by the legal or beneficial owner of any Investment, any person who is the holder of any Investment or otherwise |
(f) | To the extent that the Investments remain registered in the names of the Chargors, each Chargor irrevocably appoints the Collateral Agent or its nominee |
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(g) | Each Chargor must indemnify the Collateral Agent against any loss or liability incurred by the Collateral Agent as a consequence of the Collateral Agent acting in respect of its Investments on the direction of that Chargor. |
7.7 | Clearance systems |
(a) | Each Chargor must, if so requested by the Collateral Agent: |
(i) | instruct any clearance system to transfer any Investment held by it for that Chargor or its nominee to an account of the Collateral Agent or its nominee with that clearance system; and | ||
(ii) | take whatever action the Collateral Agent may request for the dematerialisation or rematerialisation of any Investments held in a clearance system. |
(b) | Without prejudice to the rest of this Subclause the Collateral Agent may, at the expense of the relevant Chargor, take whatever action is required for the dematerialisation or rematerialisation of the Investments as necessary. |
7.8 | Custodian arrangements |
(a) | promptly give notice of this Deed to any custodian of any Investment in any form which the Collateral Agent may reasonably require; and | ||
(b) | use reasonable endeavours to ensure that the custodian acknowledges that notice in any form which the Collateral Agent may reasonably require. |
8. | INTELLECTUAL PROPERTY | |
8.1 | Representations |
(a) | all Intellectual Property which is material to its business is identified in Part 5 of Schedule 1(Security Assets)opposite its name or in Part 5 of the schedule to any Deed of Accession by which it became party to this Deed; and | ||
(b) | it is not aware of any circumstances relating to the validity, subsistence or use of any of its Intellectual Property which could reasonably be expected to have a Material Adverse Effect. |
8.2 | Preservation |
(a) | Each Chargor must promptly, if requested to do so by the Collateral Agent, sign or procure the signature of, and comply with all instructions of the Collateral Agent in respect of, any document required to make entries in any public register of Intellectual Property (including the United Kingdom Trade Marks Register) |
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(b) | No Chargor may, without the prior consent of the Collateral Agent or unless permitted by the Credit Agreement: |
(i) | amend or waive or terminate, any of its rights in respect of its Intellectual Property; or | ||
(ii) | take any action which might jeopardise the existence or enforceability of any of its rights in respect of its Intellectual Property. |
9. | ACCOUNTS | |
9.1 | Accounts |
9.2 | Change of Account Bank |
(a) | Any Account Bank may be changed to another bank and additional banks may be appointed as Account Banks if the Company and the Collateral Agent so agree. | ||
(b) | Without prejudice to Clause 9.2(a), a Chargor may only open an account with a new Account Bank after the proposed new Account Bank agrees with the Collateral Agent and the relevant Chargors, in a manner satisfactory to the Collateral Agent, to fulfil the role of the Account Bank under this Deed. | ||
(c) | If there is a change of Account Bank, the net amount (if any) standing to the credit of the Security Accounts maintained with the old Account Bank will be transferred to the corresponding Security Accounts maintained with the new Account Bank immediately upon the appointment taking effect and each Chargor and the Collateral Agent hereby irrevocably gives all authorisations and instructions necessary for any such transfer to be made. | ||
(d) | Each Chargor; |
(i) | must take any action which the Collateral Agent may require to facilitate a change of Account Bank in accordance with the preceding provisions of Clause 9.2 and any transfer of credit balances (including the execution of bank mandate forms); and | ||
(ii) | irrevocably appoints the Collateral Agent as its attorney to take any such action if that Chargor should fail to do so. | ||
(iii) | No Chargor shall, during the subsistence of this Deed, without the Collateral Agent’s prior consent, permit or agree to any variation of the rights attaching to any Security Account or close any Security Account. |
9.3 | Book debts and receipts |
(a) | Each Chargor must immediately deposit and direct their respective Account Debtors to directly remit all payments on Accounts and all payments |
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(b) | To the extent not deposited or remitted to a Security Account under Clause 9.3(a), each Chargor must promptly get in and realise its; |
(i) | securities to the extent held by way of temporary investment; | ||
(ii) | book and other debts and other moneys owed to it; and | ||
(iii) | royalties, fees and income of any nature owed to it, |
(c) | Each Chargor must, except to the extent that the Collateral Agent otherwise agrees, pay all the proceeds of the getting in and realisation under Clause 9.3(b) into a Security Account as soon as practicable on receipt. |
9.4 | Withdrawals |
(a) | The Collateral Agent (or a Receiver) may (subject to the payment of any claims having priority to this Security and subject to the Intercreditor Agreement) withdraw amounts standing to the credit of any Security Account for application in accordance with the Loan Documents. | ||
(b) | No Chargor shall be entitled to receive, withdraw or otherwise transfer any credit balance from time to time standing to the credit of any Security Account except with the prior consent of the Collateral Agent. | ||
(c) | Each Chargor must ensure that none of its Security Accounts is overdrawn at any time. | ||
(d) | Each Chargor must ensure that each Account Bank operates each Security Account in accordance with the terms of this Deed and the notices given under Clause 9.5 or as permitted by the Credit Agreement. |
9.5 | Notices of charge |
(a) | Each Chargor must: |
(i) | immediately give notice to each relevant Account Bank substantially in the form of Part 1 of Schedule 2(Forms of letter for Security Accounts);and | ||
(ii) | use all reasonable endeavours to procure that each relevant Account Bank acknowledges that notice substantially in the form of Part 2 of Schedule 2(Forms of letter for Security Accounts). |
(b) | As soon as practicable after receipt by the Collateral Agent of the acknowledgement in paragraph (a)(ii) above from an Account Bank and provided that no Default is outstanding, the Collateral Agent will send a letter to |
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10. | RELEVANT CONTRACTS | |
10.1 | Representations |
(a) | each of its Security Contracts is its legally binding, valid, and enforceable obligation; | ||
(b) | it is not in default of any of its obligations under any of its Security Contracts; | ||
(c) | (save as otherwise agreed with the Collateral Agent) there is no prohibition on assignment in any of its Primary Contracts; and | ||
(d) | its entry into and performance of this Deed will not conflict with any term of any of its Primary Contracts. |
10.2 | Preservation |
(a) | No Chargor may, without the prior consent of the Collateral Agent or unless expressly permitted by the Credit Agreement: |
(i) | amend or waive any term of, or terminate, any of its Secondary Contracts; or | ||
(ii) | take any action which might jeopardise the existence or enforceability of any of its Secondary Contracts, |
(b) | No Chargor may, without the prior consent of the Collateral Agent or unless expressly permitted by the Credit Agreement: |
(i) | amend or waive any term of, or terminate, any of its Primary Contracts; or | ||
(ii) | take any action which might jeopardise the existence or enforceability of any of its Primary Contracts. |
10.3 | Other undertaking |
(a) | duly and promptly perform its obligations under each of its Security Contracts; and | ||
(b) | supply the Collateral Agent and any Receiver with copies of each of its Security Contracts and any information and documentation relating to any of its Security Contracts requested by the Collateral Agent or any Receiver. |
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10.4 | Rights |
(a) | Subject to the rights of the Collateral Agent under paragraph (b) below, each Chargor must diligently pursue its rights under each of its Security Contracts, but only if and to the extent that the exercise of those rights in the manner proposed would not result in a Default under the terms of the Credit Agreement. | ||
(b) | If an Event of Default is continuing, the Collateral Agent may exercise (without any further consent or authority on the part of the relevant Chargor and irrespective of any direction given by the Chargor) any of that Chargor’s rights under its Security Contracts. |
10.5 | Notices of assignment |
(a) | following the Term Loan Collateral Discharge Date immediately serve a notice of assignment, substantially in the form of Part 1 of Schedule 4(Forms of letter for Primary Contracts),on each of the other parties to each of its Primary Contracts (unless notice is given to those parties under the Loan Documents); and | ||
(b) | use all reasonable endeavours to procure that each of those other parties acknowledges that notice, substantially in the form of Part 2 of Schedule 4(Forms of letter for Primary Contracts) within 14 days of the date of Term Loan Collateral Discharge Date or any Deed of Accession by which it became party to this Deed after the Term Loan Collateral Discharge Date or, if later, the date of entry into that Primary Contract (as appropriate). |
11. | PLANT AND MACHINERY | |
11.1 | Maintenance |
11.2 | Nameplates |
(a) | the Plant and Machinery is charged in favour of the Collateral Agent; and | ||
(b) | the Plant and Machinery must not be disposed of without the prior consent of the Collateral Agent unless permitted under the Credit Agreement. |
11.3 | INSURANCE POLICIES | |
11.4 | Rights |
(a) | Subject to the rights of the Collateral Agent under paragraph (b) below, each Chargor must diligently pursue its rights under each of its Insurance Policies, but |
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(b) | If an Event of Default is continuing: |
(i) | the Collateral Agent may exercise (without any further consent or authority on the part of any Chargor and irrespective of any direction given by any Chargor) any of the rights of any Chargor in connection with any amounts payable to it under any of its Insurance Policies; | ||
(ii) | each Chargor must take such steps (at its own cost) as the Collateral Agent may require to enforce those rights; this includes initiating and pursuing legal or arbitration proceedings in the name of that Chargor; and | ||
(iii) | each Chargor must hold any payment received by it under any of its Insurance Policies on trust for the Collateral Agent. |
11.5 | Notice |
(a) | Following the Term Loan Collateral Discharge Date immediately give notice of this Deed to each of the other parties to each of the Insurance Policies by sending a notice substantially in the form of Part 1 of Schedule 3(Insurance Policies); and | ||
(b) | use all reasonable endeavours to procure that each such other party delivers a letter of undertaking to the Collateral Agent in the form of Part 2 of Schedule 3(Insurance Policies)within 14 days of the date of Term Loan Collateral Discharge Date or any Deed of Accession by which it became party to this Deed after the Term Loan Collateral Discharge Date or, if later, the date of entry into that Primary Contract (as appropriate). |
12. | WHEN SECURITY BECOMES ENFORCEABLE | |
12.1 | Timing |
12.2 | Enforcement |
13. | ENFORCEMENT OF SECURITY | |
13.1 | General |
(a) | The power of sale and any other power conferred on a mortgagee by law (including under section 101 of the Act) as varied or amended by this Deed will be immediately exercisable at any time after this Security has become enforceable. |
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(b) | For the purposes of all powers implied by law, the Secured Obligations are deemed to have become due and payable on the date of this Deed. | ||
(c) | Any restriction imposed by law on the power of sale (including under section 103 of the Act) or the right of a mortgagee to consolidate mortgages (including under section 93 of the Act) does not apply to this Security. | ||
(d) | Any powers of leasing conferred on the Collateral Agent by law are extended so as to authorise the Collateral Agent to lease, make agreements for leases, accept surrenders of leases and grant options as the Collateral Agent may think fit and without the need to comply with any restrictions conferred by law (including under section 99 or 100 of the Act). |
13.2 | No liability as mortgagee in possession |
(a) | to account as mortgagee in possession or for any loss on realisation; or | ||
(b) | for any default or omission for which a mortgagee in possession might be liable. |
13.3 | Privileges |
13.4 | Protection of third parties |
(a) | whether the Secured Obligations have become payable; | ||
(b) | whether any power which the Collateral Agent or a Receiver is purporting to exercise has become exercisable or is being properly exercised; | ||
(c) | whether any money remains due under the Loan Documents; or | ||
(d) | how any money paid to the Collateral Agent or to that Receiver is to be applied. |
13.5 | Redemption of prior mortgages |
(a) | At any time after this Security has become enforceable, the Collateral Agent may: |
(i) | redeem any prior Security Interest against any Security Asset; and/or | ||
(ii) | procure the transfer of that Security Interest to itself; and/or | ||
(iii) | settle and pass the accounts of the prior mortgagee, chargee or encumbrancer; any accounts so settled and passed will be, in the absence of manifest error, conclusive and binding on each Chargor. |
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(b) | Each Chargor must pay to the Collateral Agent, immediately on demand, the costs and expenses incurred by the Collateral Agent in connection with any such redemption and/or transfer, including the payment of any principal or interest. |
13.6 | Contingencies |
14. | ADMINISTRATOR | |
14.1 | Appointment of Administrator |
(a) | Subject to the Insolvency Act 1986, at any time and from time to time after this Security becomes enforceable in accordance with Clause 12.1, or if any Chargor so requests the Collateral Agent in writing from time to time, the Collateral Agent may appoint any one or more qualified persons to be an Administrator of that Chargor, to act together or independently of the other or others appointed (to the extent applicable). | ||
(b) | Any such appointment may be made pursuant to an application to court under paragraph 12 of Schedule B1 of the Insolvency Act 1986 (Administration application) or by filing specified documents with the court under paragraphs 14 – 21 of Schedule Bl of the Insolvency Act 1986 (Appointment of administrator by holder of floating charge). | ||
(c) | In this clause qualified person means a person who, under the Insolvency Act 1986, is qualified to act as an Administrator of any company with respect to which he is appointed. |
15. | RECEIVER | |
15.1 | Appointment of Receiver |
(a) | Except as provided below, the Collateral Agent may appoint any one or more persons to be a Receiver of all or any part of the Security Assets if: |
(i) | this Security has become enforceable; or | ||
(ii) | a Chargor so requests the Collateral Agent in writing at any time. |
(b) | Any appointment under paragraph (a) above may be by deed, under seal or in writing under its hand. | ||
(c) | Except as provided below, any restriction imposed by law on the right of a mortgagee to appoint a Receiver (including under section 109(1) of the Act) does not apply to this Deed. | ||
(d) | The Collateral Agent is not entitled to appoint a Receiver solely as a result of the obtaining of a moratorium (or anything done with a view to obtaining a moratorium) under the Insolvency Act 2000 except with the leave of the court. |
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(e) | The Collateral Agent may not appoint an administrative receiver (as defined in section 29(2) of the Insolvency Act 1986) over the Security Assets if the Collateral Agent is prohibited from so doing by section 72A of the Insolvency Act 1986 and no exception to the prohibition on appointing an administrative receiver applies. |
15.2 | Removal |
15.3 | Remuneration |
15.4 | Agent of each Chargor |
(a) | A Receiver will be deemed to be the agent of the relevant Chargor for all purposes and accordingly will be deemed to be in the same position as a Receiver duly appointed by a mortgagee under the Act. The relevant Chargor is solely responsible for the contracts, engagements, acts, omissions, defaults and losses of a Receiver and for liabilities incurred by a Receiver. | ||
(b) | No Secured Party will incur any liability (either to a Chargor or to any other person) by reason of the appointment of a Receiver or for any other reason. |
15.5 | Relationship with Collateral Agent |
16. | POWERS OF RECEIVER | |
16.1 | General |
(a) | A Receiver has all the rights, powers and discretions set out below in this Clause in addition to those conferred on it by any law. This includes: |
(i) | in the case of an administrative receiver, all the rights, powers and discretions conferred on an administrative receiver under the Insolvency Act 1986; and | ||
(ii) | otherwise, all the rights, powers and discretions conferred on a receiver (or a receiver and manager) under the Act and the Insolvency Act 1986. |
(b) | If there is more than one Receiver holding office at the same time; each Receiver may (unless the document appointing him states otherwise) exercise all the |
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16.2 | Possession |
16.3 | Carry on business |
16.4 | Employees |
(a) | A Receiver may appoint and discharge managers, officers, agents, accountants, servants, workmen and others for the purposes of this Deed upon such terms as to remuneration or otherwise as he thinks fit. | ||
(b) | A Receiver may discharge any person appointed by any Chargor. |
16.5 | Borrow money |
16.6 | Sale of assets |
(a) | A Receiver may sell, exchange, convert into money and realise any Security Asset by public auction or private contract and generally in any manner and on any terms which he thinks fit. | ||
(b) | The consideration for any such transaction may consist of cash, debentures or other obligations, shares, stock or other valuable consideration and any such consideration may be payable in a lump sum or by instalments spread over any period which he thinks fit. | ||
(c) | Fixtures may be severed and sold separately from the property containing them without the consent of the relevant Chargor. |
16.7 | Leases |
16.8 | Compromise |
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16.9 | Legal actions |
16.10 | Receipts |
16.11 | Subsidiaries |
16.12 | Delegation |
16.13 | Lending |
16.14 | Protection of assets |
(a) | effect any repair or insurance and do any other act which any Chargor might do in the ordinary conduct of its business to protect or improve any Security Asset; | ||
(b) | commence and/or complete any building operation; and | ||
(c) | apply for and maintain any planning permission, building regulation approval or any other authorisation, | ||
(d) | in each case as he thinks fit. |
16.15 | Other powers |
(a) | do all other acts and things which he may consider desirable or necessary for realising any Security Asset or incidental or conducive to any of the rights, powers or discretions conferred on a Receiver under or by virtue of this Deed or by law; | ||
(b) | exercise in relation to any Security Asset all the powers, authorities and things which he would be capable of exercising if he were the absolute beneficial owner of that Security Asset; and | ||
(c) | use the name of any Chargor for any of the above purposes. |
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17. | APPLICATION OF PROCEEDS |
(a) | All moneys from time to time received or recovered by the Collateral Agent or any Receiver in connection with the realisation or enforcement of all or any part of the Security shall be held by the Collateral Agent on trust for the Secured Parties from time to time in accordance with the provisions of the Security Trust Deed to apply them at such times as the Collateral Agent sees fit, to the extent permitted by applicable law (subject to the provisions of this Clause), in accordance with the terms of the Loan Documents. | ||
(b) | This Clause does not prejudice the right of any Secured Party to recover any shortfall from a Loan Party. |
18. | TAXES, EXPENSES AND INDEMNITY |
(a) | Each Chargor must immediately on demand pay, or on an indemnity basis reimburse, any and all amounts for which it is liable under Sections 2.06, 2.15, 2.16, 2.22, 7.10, 11.03 and 11.18 of the Credit Agreement. | ||
(b) | Any amount due but unpaid shall carry interest from the date of such demand until so reimbursed at the rate and on the basis mentioned in Clause 23.2(Interest). | ||
(c) | The Chargors shall pay and within three Business Days of demand, indemnify each Secured Party against any cost, liability or loss that Secured Party incurs in relation to all stamp, registration, notarial and other Taxes or fees to which this Deed, the Transaction Security or any judgment given in connection with them, is or at any time may be subject. |
19. | DELEGATION | |
19.1 | Power of Attorney |
19.2 | Terms |
19.3 | Liability |
20. | FURTHER ASSURANCES |
(a) | creating, perfecting or protecting any security intended to be created by or pursuant to this Deed (including procuring that any third party create a Security |
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(b) | facilitating the realisation of any Security Asset; | ||
(c) | facilitating the exercise of any right, power or discretion exercisable by the Collateral Agent or any Receiver in respect of any Security Asset; or | ||
(d) | creating and perfecting security in favour of the Collateral Agent (equivalent to the security intended to be created by this Deed) over any assets of any Chargor located in any jurisdiction outside England and Wales. |
(i) | the re-execution of this Deed; | ||
(ii) | the execution of any legal mortgage, charge, transfer, conveyance, assignment or assurance of any property, whether to the Collateral Agent or to its nominee; and | ||
(iii) | the giving of any notice, order or direction and the making of any filing or registration, |
21. | POWER OF ATTORNEY |
22. | PRESERVATION OF SECURITY | |
22.1 | Continuing security |
22.2 | Reinstatement |
(a) | If any discharge (whether in respect of the obligations of any Loan Party or any security for those obligations or otherwise) or arrangement is made in whole or in part on the faith of any payment, security or other disposition which is avoided or must be restored on insolvency, liquidation, administration or otherwise without limitation, the liability of each Chargor under this Deed will continue or be reinstated as if the discharge or arrangement had not occurred. | ||
(b) | Each Secured Party may concede or compromise any claim that any payment, security or other disposition is liable to avoidance or restoration. |
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22.3 | Waiver of defences |
(a) | any time or waiver granted to, or composition with, any person; | ||
(b) | any release of any person under the terms of any composition or arrangement: | ||
(c) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any person; | ||
(d) | any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; | ||
(e) | any incapacity lack of power, authority or legal personality of or dissolution or change in the members or status of any person; | ||
(f) | any amendment (however fundamental) of a Loan Document or any other document or security; or | ||
(g) | any unenforceability, illegality, invalidity or non-provability of any obligation of any person under any Loan Document or any other document or security or the failure by any member of the Group to enter into or be bound by any Loan Document. |
22.4 | Immediate recourse |
22.5 | Appropriations |
(a) | refrain from applying or enforcing any other moneys, security or rights held or received by that Secured Party (or any trustee or agent on its behalf) against those amounts; or | ||
(b) | apply and enforce them in such manner and order as it sees fit (whether against those amounts or otherwise; and | ||
(c) | hold in an interest-bearing suspense account any moneys received from any Chargor or on account of that Chargor’s liability under this Deed. |
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22.6 | Non-competition |
(a) | all amounts which may be or become payable by the Loan Parties under the Loan Documents have been irrevocably paid in full; or | ||
(b) | the Collateral Agent otherwise directs, |
(i) | be subrogated to any rights, security or moneys held, received or receivable by any Secured Party (or any trustee or agent on its behalf); | ||
(ii) | be entitled to any right of contribution or indemnity in respect of any payment made or moneys received on account of that Chargor’s liability under this Clause; | ||
(iii) | claim, rank, prove or vote as a creditor of any Loan Party or its estate in competition with any Secured Party (or any trustee or agent on its behalf); or | ||
(iv) | receive, claim or have the benefit of any payment, distribution or security from or on account of any Loan Party, or exercise any right of set-off as against any Loan Party. |
22.7 | Additional security |
(a) | This Deed is in addition to and is not in any way prejudiced by any other security now or subsequently held by any Secured Party; | ||
(b) | No prior security held by any Secured Party (in its capacity as such or otherwise) over any Security Asset will merge into this Security. |
22.8 | Delivery of documents |
22.9 | Security held by Chargor |
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23. | MISCELLANEOUS | |
23.1 | Covenant to pay |
23.2 | Interest |
23.3 | Tacking |
23.4 | New Accounts |
(a) | If any subsequent charge or other interest affects any Security Asset, any Secured Party may open a new account with any Loan Party. | ||
(b) | If a Secured Party does not open a new account, it will nevertheless be treated as if it had done so at the time when it received or was deemed to have received notice of that charge or other interest. | ||
(c) | As from that time all payments made to that Secured Party will be credited or be treated as having been credited to the new account and will not operate to reduce any Secured Liability. |
23.5 | Time deposits |
(a) | this Security has become enforceable; and | ||
(b) | no Secured Liability is due and payable, |
23.6 | Notice of assignment |
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23.7 | Perpetuity period |
23.8 | Financial Collateral |
(a) | To the extent that the assets mortgaged or charged under this Deed constitute “financial collateral” and this Deed and the obligations of the Chargors under this Deed constitute a “security financial collateral arrangement” (in each case for the purpose of and as defined in the Financial Collateral Arrangements (No. 2) Regulations 2003 (SI 2003 No. 3226)) the Collateral Agent shall have the right after this Security has become enforceable to appropriate all or any part of that financial collateral in or towards the satisfaction of the Secured Obligations. | ||
(b) | For the purpose of paragraph (a) above, the value of the financial collateral appropriated shall be such amount as the Collateral Agent reasonable determines having taken into account advice obtained by it from an independent investment or accountancy firm of national standing selected by it. |
24. | LOAN PARTIES |
(a) | All communications under this Deed to or from a Secured Party must be sent through the Collateral Agent or Funding Agent. | ||
(b) | Each Loan Party that is a Party to this Deed irrevocably appoints Novelis Europe to act as its agent; |
(i) | to give and receive all communications under the Security Documents or this Deed; | ||
(ii) | to supply all information concerning itself to any Secured Party; and | ||
(iii) | to agree and sign all documents under or in connection with this Deed without further reference to any Loan Party; this includes any amendment or waiver of this Deed which would otherwise have required the consent of the Loan Parties. |
(c) | Novelis Europe hereby accepts the appointment under Clause 24(b) | ||
(d) | Any communication given to Novelis Europe in connection with this Deed will be deemed to have been given also to the other Loan Parties that are Party to this Deed. | ||
(e) | The Collateral Agent may assume that any communication made by Novelis Europe is made with the consent of each Loan Party that is Party to this Deed. |
25. | RELEASE |
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26. | COUNTERPARTS |
27. | NOTICES | |
27.1 | Communications in Writing |
27.2 | Addresses |
(a) | Any notice or other communication herein required or permitted to be given to a party to this Deed shall be sent to the relevant party’s address set out in Clause 27.2(b) below or as set forth in the Credit Agreement or any substitute address, fax number or department or officer as the relevant party may notify to the Collateral Agent (or the Collateral Agent may notify to the other parties, if a change is made by the Collateral Agent) by not less than five business days’ notice. | ||
(b) | For the purposes of Clause 27.2(a) above, the address of each Chargor shall be: Novelis Europe Holdings Limited Castle Works Rogerstone Newport NP10 9YD Attention: David Sneddon, CFO. with a copy to Novelis Inc 3399 Peachtree Road NE, Suite 1500 Atlanta GA 30326 USA Attention; Orville Lunking, Treasurer. |
27.3 | Delivery |
(a) | Any communication or document made or delivered by one person to another under or in connection with this Deed will only be effective: |
(i) | if by way of fax, when received in legible form; or | ||
(ii) | if by way of letter, when it has been left at the relevant address or, as the case may be, five days after being deposited in the post postage prepaid in an envelope addressed to it at that address. |
(b) | Any communication or document to be made or delivered to the Collateral Agent under or in connection with this Deed shall be effective only when actually received by the Collateral Agent and then only if it is expressly marked for the attention of the department or officer identified with the Collateral |
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27.4 | Notification of address and fax number |
27.5 | English language |
(a) | Any notice given under or in connection with this Deed must be in English. | ||
(b) | All other documents provided under or in connection with this Deed must be: |
(i) | in English; or | ||
(ii) | if not in English, and if so required by the Collateral Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document. |
28. | GOVERNING LAW |
29. | ENFORCEMENT | |
29.1 | Jurisdiction |
(a) | The English courts have exclusive jurisdiction to settle any dispute in connection with this Deed, save that the Collateral Agent (and only the Collateral Agent) has the right to have any dispute settled by the New York courts, in which case the New York courts have exclusive jurisdiction in respect of that dispute, and any proceedings before the English courts in respect of that dispute shall be stayed with immediate effect. | ||
(b) | The English courts are the most appropriate and convenient courts to settle any such dispute in connection with this Agreement, save that, if the Collateral Agent invokes the jurisdiction of the New York courts in respect of any dispute, the New York courts are the most appropriate and convenient courts to settle such dispute, even if the jurisdiction of the English Courts has already been seised. Each Chargor agrees not to argue to the contrary and waives objection to the provisions of this clause on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with this Deed. | ||
(c) | This Clause is for the benefit of the Secured Parties only. To the extent allowed by law, a Secured Party may take: |
(i) | proceedings in any other court; and | ||
(ii) | concurrent proceedings in any number of jurisdictions. |
(d) | References in this Clause to a dispute in connection with this Deed include any dispute as to the existence, validity or termination of this Deed. |
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29.2 | Waiver of immunity |
(a) | Each Chargor irrevocably and unconditionally: | ||
(b) | agrees not to claim any immunity from proceedings brought by a Secured Party against it in relation to this Deed and to ensure that no such claim is made on its behalf; | ||
(c) | consents generally to the giving of any relief or the issue of any process in connection with those proceedings; and | ||
(d) | waives all rights of immunity in respect of it or its assets. |
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Legal Owner | Title No. | Description | ||
Novelis UK Ltd | WA915530 | Rogerstone Works, Rogerstone | ||
Novelis UK Ltd | CYM94747 | Land at Rogerstone Works (Triangle) | ||
Novelis UK Ltd | CYM94951 | Land at Tregwilym Road, Rogerstone | ||
Novelis UK Ltd | CYM94762 | 115, 117, 1198, 121 Tregwilym Road, Rogerstone | ||
Novelis UK Ltd | WA989793 | 127 Tregwilym Road, Rogerstone | ||
Novelis UK Ltd | WA989794 | The Cottage, Fieldsview, Tregwilym Road Rogerstone | ||
Novelis UK Ltd | 1, 2, 3 and 4 John’s Lane, Rogerstone, conveyed to the Northern Aluminium Company Limited pursuant to (i) (in relation to 1, 2 and 4 John’s Lane, Rogerstone) a conveyance dated 2nd May, 1957 made between Northern Aluminium Company Limited and Josiah Williams and (ii) (in relation to 3 John’s Lane, Rogerstone) a conveyance dated 16th May, 1957 made between Northern Aluminium Company Limited and Idris Whatley. | |||
Novelis UK Ltd | CH449717 | Latchford Works, Thelwall Lane, Warrington | ||
Novelis UK Ltd | CH492388 | Land lying to the north west of Thelwall Lane, Warrington | ||
Novelis UK Ltd | CH469667 | Land on the north side of Thelwall Lane, Latchford | ||
Novelis UK Ltd | CH469669 | Land and buildings lying to the north of Thelwall Lane, Warrington | ||
Novelis UK Ltd | Such of the land conveyed by the following conveyances which remains in the ownership of the Novelis UK Ltd at the date hereof, subject to, but with the benefit of the leases dated 1 July 2001 and 10 December 2002 made between Novelis UK Ltd (in its then name Lawson Marden Star Limited) and Bridgenorth Aluminium Limited | |||
(i) conveyance dated 24 February 1955 and made between Edgar Clifford Marsland (1) and Star Aluminium Company Limited (2); (ii) conveyance dated 25 February 1955 and made between James Alfred Wright (1) and Star Aluminium Company Limited (2); and | ||||
(iii) conveyance dated 25 February 1955 and made between Thomas Corbett Rochelle and Jessie Vera Rochelle (1) and Star Aluminium Company Limited |
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Legal Owner | Title No. | Description | ||
(2); | ||||
(iv) conveyance dated 25 September 1955 and made between Thomas Corbette Rochelle and Jessie Vera Rochelle (1) and Star Aluminium Company Limited (2). | ||||
For the avoidance of doubt this property does not include the land the subject of the transfer 10 December 2002 made between Novelis UK Ltd (in its then name Lawson Marden Star Limited) and Bridgenorth Aluminium Limited title to which freehold is registered under title number SL 150811 |
Legal Owner | Title No. | Description | Term | |||
A Banbury | ||||||
Novelis UK Ltd | Unregistered title | Leasehold property known as Fifth Floor, Beaumont House, Southam, Road, Banbury, Oxfordshire as demised by a Lease dated 8 August 2003 made between Beryland Limited (1) and British Alcan Aluminium Plc (2) | 31 July 2003 and expiring on 30 July 2013 | |||
B Latchford | ||||||
Novelis UK Ltd | CH469668 | Leasehold property known as land on the north side of Thelwall Lane, Warrington | 29th April, 1991 to 29th April 2021 | |||
C West Bromwich | ||||||
Novelis UK Ltd | N/A | Leasehold premises at Golds Hill, Hill Top, West Bromwich, Shropshire as demised by a lease dated 14 December 1973 made between Murphy Brothers Ltd and High Star Limited more commonly known as Unit 1D Hilltop Industrial Estate | 1st November 1973 to 1 November 2008 | |||
D Bilston | ||||||
Novelis UK Ltd | N/A | Leasehold premises at Unit 13, Imex Business Centre, Dudley Road, Bilston | 8th December 2005 to 8th December 2008 | |||
E. Bridgenorth |
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Legal Owner | Title No. | Description | Term | |||
Novelis UK Ltd | SL66977 | Freehold land on the south side of the Bridgenorth bypass | N/A |
CHARGED SHARES
Name of | ||||||||||
Name of | nominee (if any) | |||||||||
Charged | by whom shares | Class of shares | Number of | |||||||
Chargor | Company | are held | held | shares held | ||||||
Novelis Europe Holdings Limited | Novelis UK Ltd | Ordinary | 70,976,500 | |||||||
Novelis UK Ltd | Novelis Automotive UK Ltd | Ordinary | 20,000 |
Chargor | Description |
Chargor | Description | |
Novelis UK Ltd | Intercompany term promissory note issued to Novelis Deutschland GmbH | |
Novelis UK Ltd | Intercompany term promissory note issued to Novelis Luxembourg Participations SA | |
Novelis UK Ltd | Cash management agreement dated 1 February 2007 between, inter alios, Novelis AG and Novelis UK Ltd |
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Novelis Europe Holdings Limited | Cash management agreement dated 1 February 2007 between, inter alios, Novelis AG and Novelis Europe Holdings Limited | |
Novelis UK Ltd | ACMS agreement dated 15 January 2007 between, inter alios, Commerzbank AG, Novelis AG and Novelis UK Ltd | |
B. Secondary Contracts |
Owner | ||||||||||||||||
Named on | Registration | Expiry | ||||||||||||||
Trademark | Register | Class | No | CTM | Filing Date | Date | ||||||||||
ALI CAN & DEVICE | Alcan Aluminium UK Limited | 16, 39, 40, 41 | 2215385 | X | 26 Nov 1999 | 26 Nov 2009 | ||||||||||
ALI-CAN & DEVICE (Series of 3) | Alcan Aluminium UK Limited | 39 | 1521958 | X | 22 Dec 1992 | 22 Dec 2009 | ||||||||||
ALLIGATOR DEVICE | Alcan Aluminium UK Limited | 39 | 1551249 | X | 20 Oct 1993 | 20 Oct 2010 | ||||||||||
THINKCANS & DEVICE | Novelis UK Ltd (Latchford) | 35 | 2392058 | X | 16 May 2005 | 16 May 2015 |
Account Bank | Security Account number(s) | Security Account name | ||
HSBC Bank plc | 51050176 (Bridgnorth — GBP) | Novelis UK Ltd | ||
City of London Corporate Office |
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Account Bank | Security Account number(s) | Security Account name | ||
Canary Wharf | ||||
London | ||||
E14 5HQ | ||||
Sort Code: 40-02-50 | ||||
Novelis UK Ltd | ||||
51269313 (Rogerstone — GBP) | ||||
Novelis Europe | ||||
1272284 | Holdings Limited | |||
HSBC Bank plc | 36650238 (Bridgnorth — CAD) | Novelis UK Ltd. | ||
City of London Corporate | 59081939 (Rogerstone — CAD) | |||
Office | 57166067 (Bridgnorth EUR) | |||
Canary Wharf | 59081947 (Rogerstone EUR) | |||
London | 57478406 (Bridgnorth CHF) | |||
El4 5HQ | 67178848 (Rogerstone CHF) | |||
Sort Code: 40-05-15 | 57478371 (Bridgnorth SEK) | |||
59081971 (Rogerstone SEK) | ||||
59081963 (Rogerstone DKK) | ||||
36658094 (Bridgnorth USD) | ||||
59081955 (Rogerstone USD) | ||||
Novelis Europe | ||||
59241725 (EUR) | Holdings Limited | |||
59241733 (USD) | ||||
Commerzbank AG, | Novelis UK Ltd. | |||
London Branch | ||||
60 Gracechurch Street | 30119391 (Rogerstone EUR) | |||
London EC3V 0HR | 30119392 (Bridgnorth EUR) | |||
Sort Code: 40-62-01 |
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To: | [Account Bank] |
(a) | disclose to the Collateral Agent any information relating to any Security Account requested from you by the Collateral Agent; | ||
(b) | comply with the terms of any written notice or instruction relating to any Security Account received by you from the Collateral Agent; | ||
(c) | hold all sums standing to the credit of any Security Account to the order of the Collateral Agent; | ||
(d) | pay or release any sum standing to the credit of any Security Account in accordance with the written instructions of the Collateral Agent issued from time to time; and | ||
(e) | pay all sums received by you for the account of the Chargor to the credit of each Security Account of the Chargor with you. |
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To: | [Collateral Agent] |
(a) | accept the instructions contained in the notice and agree to comply with the notice; | ||
(b) | have not received notice of any outstanding interest of any third party in any Security Account; | ||
(c) | hereby irrevocably and unconditionally waive our rights in respect of and agree not to make any set-off or deduction from the Security Accounts or invoke any right of retention in relation to the Security Accounts, other than in relation to our customary agreed charges or fees payable in connection with the operation or maintenance of the Security Accounts in the ordinary course of business; | ||
(d) | will disclose to you any information relating to any Security Account requested from us by you; | ||
(e) | will comply with the terms of any written notice or instruction relating to any Security Account received by us from you; | ||
(f) | will hold all sums standing to the credit of any Security Account to your order unless otherwise required by law; | ||
(g) | will pay or release any sum standing to the credit of any Security Account in accordance with your written instructions issued from time to time unless otherwise required by law; and | ||
(h) | will not permit any amount to be withdrawn from any Security Account without your prior written consent or unless otherwise required by law; and | ||
(i) | will pay all sums received by us for the account of the Chargor to a Security Account of the Chargor with us unless otherwise required by law or instructed by you. |
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To: | [Account Bank] |
1. | the Security Agreement; | |
2. | the notice to you dated [•] from [Chargor] concerning the accounts referred to in that notice (the Security Accounts); and | |
3. | the acknowledgement dated [•] issued by you to in response to the notice (the “Acknowledgement”). |
(a) | you may make payments on the instructions of the Chargor and debit the amounts involved to any Security Account of the Chargor; | |
(b) | you may debit to any Security Account of the Chargor amounts due to you by that Chargor; and | |
(c) | in order to enable you to make available net overdraft, balance offset, netting or pooling facilities to the Chargor you may set-off debit balances on any Security Account against credit balances on any other Security Account with that Chargor if those Security Accounts are included in group netting arrangements operated by you for the Chargor. |
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Receipt acknowledged | ||
[Date] |
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(a) | the Chargor will remain liable under [the] [each] Insurance to perform all the obligations assumed by it under [the] [that] Insurance; and | |
(b) | none of the Collateral Agent, its agents, any receiver or any other person will at any time be under any obligation or liability to you under or in respect of [the] [any] Insurance. |
(a) | all amounts payable to the Chargor under [the] [each] Insurance must be paid to the Collateral Agent; and | |
(b) | any rights of the Chargor in connection with those amounts will be exercisable by, and notices must be given to, the Collateral Agent or as it directs. |
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1. | accept the instructions contained in the notice and agree to comply with the notice; | |
2. | confirm that we have not received notice of the interest of any third party in those amounts and rights; | |
3. | undertake to note on the relevant contracts your interest as loss payee and as first priority assignee of those amounts and rights; | |
4. | undertake to disclose to you without any reference to or further authority from the Chargor any information relating to those contracts which you may at any time request; | |
5. | undertake to notify you of any breach by the Chargor of any of those contracts and to allow you or any of the other Secured Parties (as defined in the Security Agreement) to remedy that breach; and | |
6. | undertake not to amend or waive any term of or terminate any of those contracts on request by the Chargor without your prior written consent. |
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(a) | the Chargor will remain liable under [the] [each] Primary Contract to perform all the obligations assumed by it under [the] [that] Primary Contract; and |
(b) | none of the Collateral Agent, its agents, any receiver or any other person will at any time be under any obligation or liability to you under or in respect of [the] [any] Primary Contract. |
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Yours faithfully, | ||
For [Chargor] |
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1. | accept the instructions contained in the notice and agree to comply with the notice; | |
2. | have not received notice of the interest of any third party in [any of] the Primary Contract[s]; | |
3. | undertake to disclose to you without any reference to or further authority from the Chargor any information relating to [the][those] Primary Contract[s] which you may at any time request; | |
4. | [undertake to notify you of any breach by the Chargor of [the] [any of those] Primary Contract[s] and to allow you or any of the other Secured Parties (as defined in the Security Agreement) to remedy that breach;] and | |
5. | undertake not to amend or waive any term of or terminate [the] [any of those] Primary Contract[s] on request by the Chargor without your prior written consent. |
Yours faithfully, | ||
[Counterparty] |
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(1) | [•] (registered number [•]) with its registered office at [•] (the Additional Chargor); | |
(2) | [•] for itself and as agent for each of the Chargors under and as defined in the Security Agreement referred to below; and | |
(3) | [•] as agent and trustee for the Secured Parties under and as defined in the Security Agreement referred to below (the Collateral Agent). |
(A) | The Additional Chargor is a subsidiary of Novelis Inc. | |
(B) | The Chargors have entered into a guarantee and security agreement dated [•], 200[•] with the Collateral Agent (the Security Agreement). | |
(C) | The Additional Chargor has agreed to enter into this Deed and to become a Chargor under the Security Agreement and the Security Trust Deed. | |
(D) | The Additional Chargor will also, by execution of a separate instruments, become a party to the Intercreditor Agreement as a Loan Party and the Security Trust Deed as a Chargor (as defined in the Security Agreement). | |
(E) | It is intended that this document takes effect as a deed notwithstanding the fact that a party may only execute this document under hand. |
1. | Interpretation | |
Terms defined in the Security Agreement have the same meaning in this Deed unless given a different meaning in this Deed. This Deed is a Loan Document. |
2. | Accession |
(a) | With effect from the date of this Deed the Additional Chargor: |
(i) | will become a party to the Security Agreement as a Chargor; and | ||
(ii) | will be bound by all the terms of the Security Agreement which are expressed to be binding on a Chargor, including without limitation, the guarantee contained in Section 2 of the Security Agreement. |
3. | Security | |
Without limiting the generality of the other provisions of this Deed and the Security Agreement, the Additional Chargor: |
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(a) | charges by way of a first legal mortgage all estates or interests in any freehold or leasehold property owned by it (save for Excluded Real Property) and specified in Part 1 of the schedule to this Deed; | ||
(b) | charges by way of a first legal mortgage all shares owned by it and specified in Part 2 of the schedule to this Deed; | ||
(c) | charges by way of a fixed charge all plant, machinery, computers, office equipment or vehicles specified in Part 3 of the schedule to this Deed; | ||
(d) | assigns absolutely, subject to a proviso for re-assignment on redemption, all of its rights in respect of the agreements specified in Part 4 of the schedule to this Deed; | ||
(e) | charges by way of a fixed charge all of its rights in respect of any Intellectual Property specified in Part 5 of the schedule to this Deed; and | ||
(f) | charges by way of a fixed charge all of its rights in respect of any amount standing to the credit of any Security Account specified in Part 6 of the schedule to this Deed. |
4. | Miscellaneous | |
With effect from the date of this Deed: |
(a) | the Security Agreement will be read and construed for all purposes, and the Additional Chargor will take all steps and actions (including serving any notices), as if the Additional Chargor had been an original party in the capacity of Chargor (but so that the security created on this accession will be created on the date of this Deed); | ||
(b) | any reference in the Security Agreement to this Deed and similar phrases will include this Deed and all references in the Security Agreement to Schedule 1 (or any part of it) will include a reference to the schedule to this Deed (or relevant part of it); and | ||
(c) | Novelis Europe Holdings Limited, for itself and as agent for each of the Chargors under the Security Agreement, agrees to all matters provided for in this Deed. |
5. | Law | |
This Deed is governed by English law. | ||
This Deed has been executed and delivered as a deed on the date stated at the beginning of this Deed. |
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PART | 1 | |||
REAL PROPERTY |
PART | 2 | |||
SHARES |
Name of | ||||||
company in | Name of nominee (if | |||||
which shares | any) by whom shares | Class of | Number of shares | |||
are held | are held | shares held | held | |||
[ ] | [ ] | [ ] | [ ] |
PART | 3 | |||
SPECIFIC PLANT AND MACHINERY |
PART | 4 | |||
SECURITY CONTRACTS |
PART | 5 | |||
SPECIFIC INTELLECTUAL PROPERTY RIGHTS |
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[PART | 6 | |||
SECURITY ACCOUNTS |
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Executed as a deed by | ) | Director | ||||||
[ ] | ) | |||||||
acting by | ) | Director/Secretary | ||||||
and | ) | |||||||
Novelis Europe Holdings Limited | ||||||||
Executed as a deed by | ) | |||||||
[ ] | ) | Director | ||||||
(for itself and as agent for each) | ||||||||
of the Chargors party to) | ||||||||
the Security Agreement | ) | |||||||
referred to in this Deed) | ) | Director/Secretary | ||||||
acting by | ) |
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SIGNED as a Deed by | ) | /s/ E. Faust | Director | |||||
NOVELIS UK LIMITED acting by | ) | |||||||
a director and a director/its secretary: | ) | |||||||
) | P-11e | Secretary |
SIGNED as a Deed by | ) | /s/ E. Faust | Director | |||||
NOVELIS EUROPE HOLDINGS | ) | |||||||
LIMITEDacting by a director and a | ) | |||||||
director/its secretary: | ) | P-11e | Secretary |
SIGNED as a deed by | ||
LASALLE BUSINESS CREDIT, LLC | ||
in its capacity as Collateral Agent | ||
acting by authorised signatory: | ||
![]() | ||
SWISS SECURITY AGREEMENT
Execution Copy
as Pledgor
as Funding Agent, Collateral Agent and Original Pledgee 1
as US/European Issuing Bank, Swingline Lender, Administrative Agent,
and Original Pledgee 2
as Syndication Agent and Original Pledgee 3
acting through its Canadian branch,
as Canadian Issuing Bank, Canadian Administrative Agent, Canadian Funding Agent
and Original Pledgee 4
as one of the Documentation Agents and Original Pledgee 5
as further Documentation Agent and Original Pledgee 6
as further Documentation Agent and Original Pledgee 7
as one of the Joint Lead Arrangers and Joint Bookmanagers and Original Pledgee 8
as further Joint Lead Arranger and Joint Bookmanager and Original Pledgee 9
as Pledgees
(VERPFÄNDUNG VON BANKKONTEN)
PAGE | ||||||
1. | DEFINITIONS AND LANGUAGE | 3 | ||||
2. | CREATION OF PLEDGES | 5 | ||||
3. | SECURED OBLIGATIONS | 6 | ||||
4. | DISPOSALS OVER ACCOUNTS | 6 | ||||
5. | REALISATION OF THE PLEDGES | 7 | ||||
6. | WAIVER OF PLEDGORS’ DEFENCES AND OF SUBROGATION RIGHTS | 9 | ||||
7. | RELEASE OF THE PLEDGES | 9 | ||||
8. | DURATION AND INDEPENDENCE | 10 | ||||
9. | REPRESENTATIONS AND WARRANTIES | 10 | ||||
10. | UNDERTAKINGS OF THE PLEDGOR | 11 | ||||
11. | LIMITATION OF ENFORCEMENT | 13 | ||||
12. | ECONOMIC OWNERSHIP OF THE ACCOUNTS | 13 | ||||
13. | INTERCREDITOR AGREEMENT | 14 | ||||
14. | NOTICES | 14 | ||||
15. | WAIVER | 15 | ||||
16. | COUNTERPARTS | 15 | ||||
17. | GOVERNING LAW AND JURISDICTION | 16 | ||||
18. | LIABILITY AND INDEMNIFICATION | 16 | ||||
19. | AMENDMENTS | 17 | ||||
20. | ANNEXES, SCHEDULES | 17 | ||||
21. | SEVERABILITY | 17 | ||||
SCHEDULE 1 LIST OF LENDERS | 18 | |||||
SCHEDULE 2 LIST OF BANK ACCOUNTS OF PLEDGOR | 1 | |||||
SCHEDULE 3 NOTICE OF PLEDGE | 1 | |||||
SCHEDULE 4 FORM OF ACKNOWLEDGEMENT | 3 |
(1) | Novelis AG,a stock corporation organized under the laws of Switzerland, having its business address at Bellerivestrasse 36, 8034 Zurich, Switzerland (the“Pledgor”); | |
(2) | LaSalle Business Credit, LLC,a company organised under the laws of Delaware, having its business address at 135 South LaSalle Street, Suite 425, Chicago, IL 60603, USA (the“Original Pledgee1”, and, in its capacity as collateral agent under the Credit Agreement (as defined below), the“Collateral Agent”as applicable); | |
(3) | ABN Amro Bank N.V., a company organised under the laws of the Netherlands, having its business address at Gustav Mahlerlaanl0, 1082 PP Amsterdam, The Netherlands (the“Original Pledgee 2”, and, in its capacity as administrative agent under the Credit Agreement (as defined below), the“Administrative Agent”as applicable); | |
(4) | UBS SECURITIES LLC,a company organized under the laws of Delaware, having its business address at 677 Washington Blvd, Stamford, CT 06901 (the“Original Pledgee 3”); | |
(5) | ABN Amro Bank N.V., acting through its Canadian branch, a company organized under the laws of the Netherlands, having its business address at 79 Wellington St. W., 15th Floor TD Waterhouse Tower, Toronto, Ontario, Canada M5K 1G8 (the“Original Pledgee 4”); | |
(6) | BANK OF AMERICA,N.A., a company organized under the laws of the United States of America, having its business address at 300 Galleria Parkway, Suite 800, Atlanta, Georgia 30339, U.S.A. (the“Original Pledgee 5”); | |
(7) | NATIONAL CITY BUSINESS CREDIT, INC.,a company organized under the laws of Ohio, having its business address at 1965 East 6th Street, 4th Floor, Cleveland, Ohio, 44114 (the“Original Pledgee 6”); | |
(8) | CIT BUSINESS CREDIT CANADA INC., a company organized under the laws of Canada, having its business address at 207 Queens Quay West, Suite 700, Toronto, Ontario, Canada M5J 1A7 (the“Original Pledgee 7”); | |
(9) | ABN AMRO INCORPORATED,a company organized under the laws of New York, having its business address at 55 E 52nd Street, New York, NY 10055 (the“Original Pledgee 8”); |
(10) | UBS SECURITIES LLC,,a company organized under the laws of Delaware, having its business address at 677 Washington Blvd, Stamford, CT 06901 (the“Original Pledgee 9”); | |
(12) | the institutions listed in Schedule 1 (List of Original Lenders) hereto in their capacity as lenders or other secured parties under or in connection with the Credit Agreement (as defined below), (together with the Original Pledgee 1, the Original Pledgee 2, the Original Pledgee 3, the Original Pledgee 4, the Original Pledgee 5, the Original Pledgee 6, the Original Pledgee 7, the Original Pledgee 8 and the Original Pledgee 9, the“Original Pledgees”);and | |
(13) | theFuture Pledgees,as defined herein. |
(A) | Pursuant to a credit agreement dated as of July 6, 2007 (the“Credit Agreement”)among the Borrowers (as defined below), AV ALUMINUM INC., a corporation formed under the Canada Business Corporations Act, as Parent Guarantor(“Holdings”or“Parent Guarantor”),the other Guarantors party thereto, the Lenders party thereto, ABN AMRO BANK N.V., as U.S./European Issuing Bank, U.S. Swingline Lender and Administrative Agent, LASALLE BUSINESS CREDIT, LLC as Collateral Agent and Funding Agent, UBS SECURITIES LLC, as Syndication Agent, BANK OF AMERICA N.A., NATIONAL CITY BUSINESS CREDIT, INC. and CIT BUSINESS CREDIT CANADA INC., as Documentation Agents, ABN AMRO BANK N.V., acting through its Canadian branch, as Canadian Issuing Bank, Canadian Funding Agent and Canadian Administrative Agent, and ABN AMRO INCORPORATED and UBS SECURITIES LLC, as Joint Lead Arrangers and Joint Bookmanagers, the Lenders have agreed to grant a revolving loan (the“Loan”)to the Borrowers. | |
(B) | It is one of the conditions for granting the Loan that the Pledgor enters into this Agreement. | |
(C) | The Pledgor has entered into an agreement on the abstract acknowledgement of indebtedness(Abstraktes Schuldanerkenntnis)with,inter alia,the Collateral Agent on or about the date hereof (the“Abstract Acknowledgement of Debt”). | |
(D) | It is one of the conditions for granting the Loan that the Pledgor enters into this Agreement. |
(E) | The Pledgor has agreed to grant a first ranking pledge the Pledgees over its respective Accounts as security for the Pledgees’ respective claims in connection with the Credit Agreement and the Receivables Purchase Agreement. | |
(A) | The Pledgor has agreed to grant a second ranking pledge over its respective Accounts as security for the Pledgees’ respective claims against the Loan Parties under or in connection with the Credit Agreement. | |
(B) | Pursuant to a trust agreement between the Pledgor and Novelis Deutschland GmbH (the “Account Trustee”), the Pledgor is the beneficiary of some or all of the German accounts of the Account Trustee (the“Trust Agreement”). | |
1. | DEFINITIONS AND LANGUAGE | |
1.1 | In this Agreement: |
1.2 | In this Agreement, references to a person include its successors and assigns, and references to a document are references to that document as amended, restated, novated and/or supplemented from time to time. | |
1.3 | Capitalized terms not otherwise defined in this Agreement shall have the same meaning as given in the Credit Agreement. | |
1.4 | Unless otherwise indicated, the definition of a term in the singular shall include the definition of such term in the plural and vice versa. | |
1.5 | This Agreement is made in the English language. For the avoidance of doubt, the English language version of this Agreement shall prevail over any translation of |
this Agreement. However, where a German translation of a word or phrase appears in the text of this Agreement, the German translation of such word or phrase shall prevail. | ||
1.6 | Any reference in this Agreement to a“Clause”,“sub-clause”or“Schedule”shall, subject to any contrary indication, be construed as a reference to a clause, a sub-clause or a schedule hereof. | |
2. | CREATION OF PLEDGES | |
2.1 | The Pledgor hereby pledges to each of the Pledgees: | |
2.1.1 | any present and future credit balances, including interest, standing from time to time to the credit of, | |
(A) | its Accounts; | |
(B) | any present and future replacement accounts, sub-accounts, re-designated accounts and renumbered accounts which are opened or will be opened in the future in replacement of, or in connection with, its Accounts; and | |
2.1.2 | all other present and future rights to receive payments in connection with its Accounts, including claims for damages or unjust enrichment. | |
2.2 | Each of the Original Pledgees hereby accepts the Pledges for itself. | |
2.3 | The Collateral Agent accepts, as representative without power of attorney(Vertreter ohne Vertretungsmacht)the respective Pledges for and on behalf of each Future Pledgee. Each Future Pledgee will ratify and confirm the declarations and acts so made by the Collateral Agent on its behalf by accepting the transfer or assignment (including by way of novation or assumption(Vertragsübernahme))of the Secured Obligations (or part of them) from a Pledgee or by becoming party to any Loan Document or by executing a Term Loan Collateral Agent Appointment Letter. Upon such ratification(Genehmigung)such Future Pledgee becomes a party to this Agreement, it being understood that any future or conditional claim(zukünftiger oder bedingter Anspruch)of such Future Pledgee arising under the Credit Agreement shall be secured by the Pledges constituted hereunder. |
2.4 | All parties hereby confirm that the validity of the Pledges granted hereunder shall not be affected by the Collateral Agent acting as representative without power of attorney for each Future Pledgee. | |
2.5 | The validity and effect of each of the Pledges shall be independent of the validity and the effect of the other Pledges created hereunder. The Pledges to each of the Pledgees shall be separate and individual pledges rankingpari passuwith the other Pledges created hereunder. | |
2.6 | The Pledges created hereunder shall rank ahead of any other security interest or third party right currently in existence or created in the future over any of the Accounts, including the Account Bank’s pledges. | |
2.7 | Each of the Pledges is in addition, and without prejudice, to any other security the Pledgees may now or hereafter hold in respect of the Secured Obligations. | |
2.8 | For the avoidance of doubt, the parties agree that nothing in this Agreement shall exclude a transfer of all or part of the Pledges created hereunder by operation of law upon the transfer or assignment (including by way of novation or assumption(Vertragsübernahme))of all or part of the Secured Obligations by any Pledgee to a Future Pledgee. | |
3. | SECURED OBLIGATIONS | |
3.1 | The security created hereunder secures the payment of (a) all Secured Obligations of the Borrowers and the other Loan Parties arising under or in connection with the Credit Agreement and the other Loan Documents and (b) the obligations under the Abstract Acknowledgement of Indebtedness. | |
4. | DISPOSALS OVER ACCOUNTS | |
4.1 | In relation to the Account Banks, the Pledgor shall be authorized to dispose over(verfügen) its respective Accounts in the ordinary course of business. This authorization shall, in particular, include the right to withdraw and transfer funds from its respective Accounts. Each Account may only be closed with the prior written consent of the Collateral Agent, acting on behalf of the Pledgees. The Pledgees, acting through the Collateral Agent, shall be entitled to revoke the |
authorization granted under this Clause 4 at any time after any of the events described in Clauses 5.1 or 5.4 has occurred. | ||
4.2 | Upon the occurrence of an Event of Default which is continuing, unremedied and unwaived, the Collateral Agent, on behalf of the Pledgees, shall irrevocably and at any and all times be entitled to (i) notify any Account Bank of the forthcoming enforcement of the Pledges and (ii) instruct each and every Account Bank that as of receipt of such notice it shall no longer allow any dispositions by the Pledgor over any amounts standing to the credit on the respective Account. The Collateral Agent shall notify the Pledgor accordingly. | |
5. | REALISATION OF THE PLEDGES | |
5.1 | The Pledges shall become enforceable if an Event of Default is continuing, unremedied and unwaived, the requirements set forth in Section 1273 para. 2, 1204et seq.of the German Civil Code with regard to the enforcement of any of the Pledges are met(Pfandreife)and the Collateral Agent, acting on behalf of the Pledgees, gives notice to the Pledgor that the Pledges in question are enforceable. After the Pledges have become enforceable, the Collateral Agent may in its absolute discretion enforce all or any part of these Pledges in any manner it sees fit. | |
5.2 | The realization of the Pledges (or any part thereof) shall not require a prior court ruling or any other enforceable title(vollstreckbarer Titel).Section 1277 of the German Civil Code(Bürgerliches Gesetzbuch)is thus excluded. | |
5.3 | The Collateral Agent, acting on behalf of the Pledgees, shall be entitled to realize the Pledges — either in whole or in part — in any legally permissible manner. | |
5.4 | The Collateral Agent shall give the Pledgor at least 10 (ten) Business Days prior written notice of the intention to realize any of the Pledges (the “Realization Notice”). Such Realization Notice is not necessary if the observance of the notice period will have a materially adversely affect the security interests of the Pledgees. Such Realization Notice shall in particular not be required, if: | |
5.4.1 | the Pledgor ceases to make payments to third parties generally within the meaning of Section 190 para. 1 no. 2 of the Swiss Debt Collection and Bankruptcy Act); |
5.4.2 | the Pledgor becomes over-indebted within the meaning of Section 725 para 2 of the Swiss Code of Obligations; | |
5.4.3 | the Pledgor files an application for the institution of insolvency proceedings or similar proceedings over its assets; | |
5.4.4 | any third party files an application for the institution of insolvency proceedings or similar proceedings over the assets of the Pledgor, provided such application is not unfounded; or | |
5.4.5 | a preliminary insolvency administrator or an insolvency administrator or any similar kind of receiver, liquidator or administrator has been appointed over the assets of the Pledgor. | |
5.5 | If the Collateral Agent, acting on behalf of the Pledgees, decides not to enforce the Pledges over all of the Accounts, it shall be entitled to determine, in its sole discretion, which of the Accounts shall be realized. | |
5.6 | The Collateral Agent, acting on behalf of the Pledgees, may take all measures and enter into all agreements with the Account Banks or any third-party creditor which it considers necessary or expedient in connection with the realization of the balances on the Accounts, taking into account the legitimate interests of the Pledgor. In particular, the Collateral Agent may, on behalf of the Pledgor, declare the termination of time deposits or similar contractual arrangements made in respect of the Accounts. | |
5.7 | For the purpose of realizing the balances on the Accounts, the Pledgor shall, upon the Collateral Agent’s request, acting on behalf of the Pledgees, promptly(unverzüglich)furnish the Collateral Agent with all documents of title and other relevant documents held by the Pledgor, and shall, at its own expense, forthwith render all assistance which is necessary or expedient in respect of the realization of the balances on the Accounts. | |
5.8 | Following the realization of all or part of the Pledges, the net proceeds (net proceeds shall mean proceeds less any taxes and costs) shall be used to satisfy the Secured Obligations. |
6. | WAIVER OF PLEDGORS’ DEFENCES AND OF SUBROGATION RIGHTS | |
6.1 | The Pledgor hereby waives all defenses against enforcement that may be raised on the basis of potential avoidance(Anfechtbarkeit)and set-off pursuant to Sections 1211,770 of the German Civil Code. This waiver shall not apply to a set-off with counterclaims that are (i) uncontested(unbestritten)or (ii) based on a binding non- appealable court decision(rechtskräftig festgestellt). | |
6.2 | If the Pledges are enforced, or if the Pledgor has discharged any of the Secured Obligations (or any part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor —Forderungsübergang auf den Verpfander)shall not apply, and no rights of the Pledgees shall pass to the Pledgor by subrogation or otherwise. Further, the Pledgor shall not at any time before, on or after an enforcement of the Pledges and as a result of the Pledgor entering into this Agreement, be entitled to demand indemnification or compensation from any Borrower, any Guarantor or any of its affiliates or to assign any of these claims. | |
7. | RELEASE OF THE PLEDGES | |
7.1 | Upon full and final satisfaction of all Secured Obligations, the Collateral Agent, acting on behalf of the Pledgees, shall at the cost and expense of the Pledgor confirm to the Pledgor in writing the release of the Pledges, do everything necessary to effect that release, and surrender the surplus proceeds, if any, resulting from any realization of the Pledges to the Pledgor. This shall not apply to the extent that the Pledgees have to surrender the Accounts or such proceeds to a third party who is entitled to the Accounts or to such proceeds. For the avoidance of doubt, the Parties are aware that, upon the complete and final satisfaction of all Secured Obligations, the Pledges will expire and cease to exist due to their accessory nature(Akzessorietät)by operation of German law. | |
7.2 | At any time when the total value of the aggregate security granted by the Pledgor to secure the Secured Obligations (the“Security”)which can be expected to be realised in the event of an enforcement of the Security(realisierbarer Wert)exceeds 110% of the Secured Obligations (the“Limit”)not only temporarily, the Pledgees shall on demand of the Pledgor release such part of the Security(Sicherheitenfreigabe)as the Pledgees may in their reasonable discretion determine so as to reduce the realisable value of the Security to the Limit. |
8. | DURATION AND INDEPENDENCE | |
8.1 | Without prejudice to Clause 8.2, in no event shall the Pledges expire before and unless all Secured Obligations have been fully and finally discharged and there is no amount outstanding under the Secured Obligations, whether for principal, interest, fees, discounts or other costs, expenses, charges or otherwise. | |
8.2 | The Pledges shall provide a continuing security and, to the largest extent possible under applicable law, no change or amendment whatsoever in and to the Secured Obligations and to any document relating to the Secured Obligations shall affect the validity of this Agreement nor shall it limit the obligations which are imposed on the Pledgor hereunder. | |
8.3 | This Agreement is in addition to, and independent of, any other security or guarantee the Pledgees may now or hereafter hold in respect of the Secured Obligations. None of such security or guarantee shall prejudice, or shall be prejudiced by, the Pledges in any way. | |
9. | REPRESENTATIONS AND WARRANTIES |
9.1 | it is the unrestricted legal and economic owner of its respective German Accounts and is the unrestricted beneficial owner of the Trust Accounts; | |
9.2 | except for the foreign accounts listed in Exhibit 1 to Schedule 2, it does not own any other accounts in or outside the Federal Republic of Germany other than its respective German Accounts and is not the beneficial owner of any other accounts in or outside the Federal Republic of Germany other than its respective Trust Accounts; | |
9.3 | the information provided in this Agreement relating to its respective Accounts is accurate and complete in all material respects; | |
9.4 | its respective Accounts are free from any liens, rights of retention(Zurückbehaltungsrechte),other encumbrances and other third party rights (except the rights of Novelis Deutschland GmbH as owner of the Trust Accounts); |
9.5 | the Pledges granted to the Original Pledgees will have (upon effectiveness of this Agreement but subject to receipt of the executed schedule confirmation by the Account Banks) first-ranking priority and will rank ahead of any current or future third party security interest over the Accounts; | |
9.6 | the Pledges constituted hereunder are valid and enforceable without enforceable judgment or other instrument(vollstreckbarer Titel)subject to any qualification in the legal opinion to be issued by the law firm of Noerr Stiefenhofer Lutz in relation hereto; and | |
9.7 | it has not ceased payments within the meaning of Section 190 para. 1 no. 2 of the Swiss Debt Collection and Bankruptcy Act, nor is it over-indebted within the meaning of Section 725 para. no. 2 of the Swiss Code of obligations or in terms of the Swiss generally accepted accounting principles(Grundsätze ordnungsmäßliger Buchführung,nor it is unable, or has admitted inability, to pay its debts as they fall due and is not deemed to, or declared to be, unable to pay its debts. | |
10. | UNDERTAKINGS OF THE PLEDGOR |
10.1 | to notify promptly(unverzüglich),substantially in the form set out in Schedule 3 (Notice of Pledge), its Account Banks of the creation of the Pledges, and to obtain from each such Account Bank to confirm vis-à-vis the Original Pledgee the receipt of the notice; | |
10.2 | to ensure that its Account Banks release the Accounts from any charges (pledges, rights of retention, rights of set-off, etc.), including charges created pursuant to the respective Account Bank’s standard terms and conditions(Allgemeine Geschäftsbedingungen),or subordinate such rights, by the Account Bank signing a confirmation substantially in the form set out in Schedule 4 (Form of Acknowledgement). It is understood among the Parties that a failure by an Account Bank to submit such confirmation to the Original Pledgee does not affect the validity or enforceability of the Pledges; | |
10.3 | upon the occurrence of an Event of Default which is continuing, the Pledgor shall upon the request of the Collateral Agent, acting on behalf of the Pledgees, deliver to the Collateral Agent information on the current status of the Accounts; |
10.4 | to provide (and to instruct the Account Banks to provide) the Collateral Agent, on behalf of the Pledgees, with all information, evidence and documentation which the Collateral Agent, acting on behalf of the Pledgees, may reasonably request in connection with the administration and realization of the Accounts. After any of the events described in Clauses 5.1 or 5.4 has occurred, (i) the Collateral Agent, acting on behalf of the Pledgees, is hereby authorized to obtain all information and documents (including bank account extracts and other information on the current status of the Accounts) directly from the Account Banks in its own name and at the Pledgor’s costs, and (ii) the Pledgees and their designees are permitted to inspect, audit and make copies of, and extracts from, all records and all other papers in the possession of the Pledgor which pertain to the Accounts; | |
10.5 | at the request of the Collateral Agent, acting on behalf of the Pledgees, to promptly(unverzüglich)grant to the Collateral Agent, on behalf of the Pledgees, pledges (substantially in the form of this Agreement) over any new accounts governed by German law; | |
10.6 | not to close or to terminate the Accounts unless any remaining balance in the Account to be closed is transferred to another pledged Account prior to closure and the Collateral Agent is notified thereof; | |
10.7 | not to transfer any of the Accounts to another bank or relocate any of the Accounts to another branch of the Account Bank unless such transfer does not affect the Pledges; | |
10.8 | to obtain the Collateral Agent’s written consent prior to the establishment of a new account, including any sub-account, re-designated account or re-numbered account pursuant to Clause 2.1.1(B) above. Upon the Pledgees’ request, the Pledgor shall give all declarations and render all reasonable assistance which is necessary in order to perfect the Pledgees’ pledge over the so established account; | |
10.9 | not to create or permit to subsist any encumbrance, except for any Permitted Lien, over any of the Accounts, or knowingly do or permit to be done, anything which is likely to be expected to jeopardize or otherwise prejudice the existence, validity or ranking of the Pledges; | |
10.10 | to inform the Collateral Agent, on behalf of the Pledgees, promptly(unverzüglich)upon gaining knowledge of any attachments(Pfändungen)of third parties that relate to the Accounts or any other third-party measures, except for the creation of |
a Permitted Lien, which impair or jeopardize the Pledges. In the event of any such attachment, the Pledgor shall provide the Collateral Agent with a copy of the attachment and/or transfer order(Pfändungs- und/oder Überweisungsbeschluss)and any other documents which the Collateral Agent, on behalf of the Pledgees, requests that are necessary or expedient for a defense against such attachment. In addition, the Pledgor shall inform the third party promptly(unverzüglich)in writing of the Pledges and render, at its own expense, to the Collateral Agent, acting on behalf of the Pledgees, all assistance required or expedient to protect its Pledges; and | ||
10.11 | The Pledgor shall, at its own expense, execute and do all such assurances, acts and things as the Collateral Agent, acting on behalf of the Pledgees, may reasonably require |
10.11.1.1 | for perfecting or protecting the security under this Agreement; and | ||
10.11.1.2 | in the case of the enforcement of security, to facilitate the realization of all or any part of the collateral which is subject to this Agreement and the exercise of all powers, authorities and discretions vested in the Pledgees. |
11. | LIMITATION OF ENFORCEMENT | |
11.1 | If and to the extent (i) the obligations of the Pledgor under this Agreement are for the exclusive benefit of the Affiliates of the Pledgor (except for the (direct or indirect) Subsidiaries of the Pledgor) and (ii) that complying with such obligations would constitute a repayment of capital(“Kapitalrückzahlung”)or the payment of a (constructive) dividend(“Dividendenausschüttung”),then the limitations set forth in Section 7.12 (Swiss Guarantors) of the Credit Agreement shall apply to any enforcement of the Pledges and to the proceeds of such enforcement. | |
12. | ECONOMIC OWNERSHIP OF THE ACCOUNTS |
13. | INTERCREDITOR AGREEMENT |
14. | NOTICES | |
14.1 | Any notice or other communication in connection with this Agreement shall be in writing and shall be delivered personally, sent by registered mail or sent by fax (with confirmation copy by registered mail) to the following addresses: | |
14.1.1 | If to the Pledgees and Collateral Agent: |
Address: | LaSalle Business Credit, LLC, as Collateral Agent 135 South LaSalle Street, Suite 425 Chicago, IL 60603, USA |
Attention: | Account Officer | |
Fax: | +1.312.904-6450 |
with a copy to: | ||
Skadden, Arps, Slate, Meagher & Flom LLP 333 West Wacker Drive, Suite 2100 Chicago, IL 60606, USA Attention: Seth E. Jacobson Telecopier No.: (312) 407-8511 Phone No.: (312) 407-0889 |
14.1.2 | If to Pledgor: |
Address: | Novelis AG Bellerivestrasse 36,8034 Zurich, Switzerland | |
Attention: | Management | |
Fax: | +41 44 386 2151 |
or to such other address as the recipient may notify or may have notified to the other party in writing. | ||
14.2 | Any notice or other communication under this Agreement shall be in English or in German. If in German, such notice or communication shall be accompanied by a translation into English. | |
15. | WAIVER | |
15.1 | No failure to exercise or any delay in exercising any right or remedy hereunder by the Pledgees shall operate as a waiver hereunder. Nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any right or remedy. | |
15.2 | Any rights of the Pledgees pursuant to this Agreement, including the rights under this Clause, may be waived only in writing. | |
16. | COUNTERPARTS | |
16.1 | This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by telecopier shall be equally as effective as delivery of an original executed counterpart of this |
Agreement. Any party delivering an executed counterpart of this Agreement by telecopier also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement. | ||
17. | GOVERNING LAW AND JURISDICTION | |
17.1 | This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. | |
17.2 | For any disputes arising out of or in connection with this Agreement the courts in Frankfurt am Main, Federal Republic of Germany shall have exclusive jurisdiction. The Pledgees, however, shall also be entitled to take legal action against the Pledgor before any other court having jurisdiction over the Pledgor or any of the Pledgor’s assets. | |
18. | LIABILITY AND INDEMNIFICATION | |
18.1 | Without extending the Collateral Agent’s liability as set forth in Section 10.09 of the Credit Agreement, neither of the Pledgees nor the Collateral Agent shall be liable for any loss or damage suffered by the Pledgor except for such loss or damage which is incurred as a result of the willful misconduct or gross negligence of a Pledgee or the Collateral Agent. | |
18.2 | The Pledgor shall indemnify the Pledgees and the Collateral Agent and any person appointed by either the Pledgees or the Collateral Agent under this Agreement against any losses, actions, claims, expenses, demands and liabilities which are incurred by or made against the Pledgees and/ or the Collateral Agent for any action or omission in the exercise of the powers contained herein other than to the extent that such losses, actions, claims, expenses, demands and liabilities are incurred by or made against the Pledgees and/ or the Collateral Agent as a result of the gross negligence(grobe Fahrlässigkeit)or willful misconduct(Vorsatz)of the Pledgees and/ or the Collateral Agent, as the case may be. |
19. | AMENDMENTS |
20. | ANNEXES, SCHEDULES |
21. | SEVERABILITY | |
21.1 | Should any provision of this Agreement be or become invalid or unenforceable, or should this Agreement be accidentally incomplete or become incomplete, this shall not affect the validity or enforceability of the remaining provisions hereof. In lieu of the invalid or unenforceable provision or in order to remedy any incompleteness, a provision shall apply which comes as close as possible to that which the Parties had intended or would have intended if they had considered the matter. In the event that any Pledge granted under this Agreement shall be impaired or be or become invalid or unenforceable this shall not affect the validity or enforceability of any other Pledge granted under this Agreement. | |
21.2 | To the extent that the Pledges have not been properly created or, where applicable, their nominal denominations have not been made in Euro, the Pledgor undertakes that it will without promptly(unverzüglich)cure any legal defects, make all necessary acts, and (in the event that these legal defects render this Agreement invalid or otherwise affect the perfection and enforceability of the security interest created thereby) re-execute this Agreement. |
TYPE OF | ||||||||
ACCOUNT | JURISDICTION | BANK | ACCOUNT NUMBERS | CCY | ||||
Treasury A/C | Germany | Commerzbank Berlin | DE90100400000205990500 | CHF | ||||
Treasury A/C | Germany | Commerzbank Berlin | DE90100400000205990500 | EUR | ||||
Treasury A/C | Germany | Commerzbank Berlin | DE90100400000205990500 | DKK | ||||
Treasury A/C | Germany | Commerzbank Berlin | DE90100400000205990500 | SEK | ||||
Treasury A/C | Germany | Commerzbank Berlin | DE90100400000205990500 | NOK | ||||
Treasury A/C | Germany | Commerzbank Berlin | DE90100400000205990500 | GBP | ||||
Treasury A/C | Germany | Commerzbank Berlin | DE90100400000205990500 | USD | ||||
Treasury A/C | Germany | Commerzbank Berlin | DE90100400000205990500 | AUD | ||||
Treasury A/C | Germany | Commerzbank Berlin | DE90100400000205990500 | CAD | ||||
Treasury A/C | Germany | Commerzbank Berlin | DE631004000002059900501 | CHF | ||||
Treasury A/C | Germany | Commerzbank Berlin | DE631004000002059900501 | EUR | ||||
Treasury A/C | Germany | Commerzbank Berlin | DE631004000002059900501 | DKK | ||||
Treasury A/C | Germany | Commerzbank Berlin | DE631004000002059900501 | SEK | ||||
Treasury A/C | Germany | Commerzbank Berlin | DE631004000002059900501 | GBP | ||||
Treasury A/C | Germany | Commerzbank Berlin | DE631004000002059900501 | USD |
Bank Sort | Account | |||||||||||||
Ort | Bank | Code (BLZ) | Nr. | Currency | Owner | |||||||||
Berlin | Commerzbank | 100 400 00 | 205991300 | EUR | Novelis Germany GmbH | |||||||||
Berlin | Commerzbank | 100 400 00 | 205991300 | CAD | Novelis Germany GmbH | |||||||||
Berlin | Commerzbank | 100 400 00 | 205991300 | CHF | Novelis Germany GmbH | |||||||||
Berlin | Commerzbank | 100 400 00 | 205991300 | DKK | Novelis Germany GmbH | |||||||||
Berlin | Commerzbank | 100 400 00 | 205991300 | GBP | Novelis Germany GmbH | |||||||||
Berlin | Commerzbank | 100 400 00 | 205991300 | SEK | Novelis Germany GmbH | |||||||||
Berlin | Commerzbank | 100 400 00 | 205991300 | USD | Novelis Germany GmbH |
TYPE OF | ||||||||||
ACCOUNT | JURISDICTION | BANK | ACCOUNT NUMBERS | CCY | ||||||
Treasury A/C | Switzerland | Credit Suisse Zürich | 0835 0492976 81 000 | CHF | ||||||
Treasury A/C | Switzerland | Credit Suisse Zürich | 0835 0492976 81 001 | CHF | ||||||
Treasury A/C | Switzerland | Credit Suisse Zürich | 0835 049297682-000 | USD | ||||||
Treasury A/C | Switzerland | Credit Suisse Zürich | 0835 0492976 82 010 | USD | ||||||
Treasury A/C | Switzerland | Credit Suisse Zürich | 0835 0492976 82 001 | EUR | ||||||
Treasury A/C | Switzerland | Credit Suisse Zürich | 0835 0492976 82 009 | EUR | ||||||
Treasury A/C | Switzerland | Credit Suisse Zürich | 0835 0492976 82 002 | GBP | ||||||
Treasury A/C | Switzerland | Credit Suisse Zürich | 0835 0492976 82 011 | GBP |
From: | Novelis AG | |
Bellerivestrasse 36, 8034 Zurich, Switzerland | ||
To: | [ ] | |
[ ] Germany | ||
Date: | [ ] | |
Re: | Accounts Nos. [ ] (the “Accounts”) |
Novelis AG
From: | Commerzbank AG | |
(the Account Bank) | ||
To: | LaSalle Business Credit, LLC | |
as Collateral Agent | ||
135 South LaSalle Street, Suite 425, Chicago, IL 60603, USA | ||
Fax: + 1-312-904-6450 | ||
Attention: Account Officer | ||
Copy to: | Novelis AG Bellerivestrasse 36, 8034 Zurich, Switzerland |
GKE Ost
Potsdamer Str. 125
10783 Berlin
Fax: + 49 30 / 2653-2720
Pledgor | ||||
NOVELIS AG | ||||
![]() | ||||
Name: | ||||
Title: |
LASALLE BUSINESS CREDIT, LLC | ||||
/s/ Thomas J. Brennan | ||||
Name: | Thomas J. Brennan | |||
Title: | FIRST VICE PRESIDENT |
Original Pledgee 2 | ||||||||
ABN Amro Bank N.V. | ||||||||
/s/ Scott Donaldson | /s/ J. Westrick | |||||||
Name: Scott Donaldson | J. Westrick | |||||||
Title: Director | Vice President | |||||||
Original Pledgee 3 | ||||||||
UBS SECURITIES LLC | ||||||||
/s/ Mary E. Evans | /s/ David B. Julie | |||||||
Name: | Mary E. Evans | David B. Julie | ||||||
Title: | Associate Director Banking Products Services, US | Associate Director Banking Products Services, US | ||||||
Original Pledgee 4 | ||||||||
ABN AMRO BANK N.V. | ||||||||
/s/ Scott Donaldson | /s/ J. Westrick | |||||||
Name: Scott Donaldson | J. Westrick | |||||||
Title: Director | Vice President | |||||||
Original Pledgee 5 | ||||||||
BANK OF AMERICA, N.A. | ||||||||
/s/ Stephen Y. McGehee | ||||||||
Name: Stephen Y. McGehee | ||||||||
Title: Senior Vice President |
NATIONAL CITY BUSINESS CREDIT, INC.
/s/ Robert Bartkowski | ||||||||
Title: Director | ||||||||
Original Pledgee 7 CIT BUSINESS CREDIT CANADA INC. | ||||||||
/s/ E. Dennis McCluskey | /s/ Darryl Lalach | |||||||
Name: | E. Dennis McCluskey | Darryl Lalach, C.A. | ||||||
Title: | President & CEO | Treasurer & V.P. Operations | ||||||
Original Pledgee 8 ABN AMRO INCORPORATED | ||||||||
/s/ David Wood | ||||||||
Title: Managing Director | ||||||||
Original Pledgee 9 UBS SECURITIES LLC | ||||||||
/s/ Mary E. Evans | /s/ David B. Julie | |||||||
Name: | Mary E. Evans | David B. Julie | ||||||
Title: | Associate Director Banking Products Services, US | Associate Director Banking Products Services, US |
GERMAN SECURITY AGREEMENT
as Assignor
as Collateral Agent
AND INSURANCE CLAIMS
(GLOBALZESSION)
TABLE OF CONTENT | PAGE | |||
1. DEFINITIONS AND LANGUAGE | 3 | |||
2. ASSIGNMENT OF RECEIVABLES | 6 | |||
3. ASSIGNMENT AND TRANSFER OF ANCILLARY RIGHTS | 8 | |||
4. DELIVERY OF UPDATED RECEIVABLES LISTS AND INSURANCE LIST | 9 | |||
5. BLANK NOTIFICATION LETTERS | 10 | |||
6. ASSIGNMENT OF RECEIVABLES SUBJECT TO EXTENDED RETENTION OF TITLE | 10 | |||
7. SECURED OBLIGATIONS | 11 | |||
8. DISPOSALS OVER RECEIVABLES | 11 | |||
9. REALISATION OF THE COLLATERAL | 11 | |||
10. LIMITATION OF ENFORCEMENT | 13 | |||
11. WAIVER OF ASSIGNOR’S DEFENSES AND OF SUBROGATION RIGHTS | 16 | |||
12. RELEASE OF THE COLLATERAL | 16 | |||
13. DURATION AND INDEPENDENCE | 17 | |||
14. REPRESENTATIONS AND WARRANTIES | 18 | |||
15. UNDERTAKINGS OF THE ASSIGNOR | 20 | |||
16. INTERCREDITOR AGREEMENT | 21 | |||
17. NOTICES | 22 | |||
18. WAIVER | 23 | |||
19. COUNTERPARTS | 23 | |||
20. GOVERNING LAW AND JURISDICTION | 24 | |||
21. LIABILITY AND INDEMNIFICATION | 24 | |||
22. AMENDMENTS | 24 | |||
23. ANNEXES, SCHEDULES | 24 | |||
24. SEVERABILITY | 25 | |||
SCHEDULE 1 | 27 | |||
SCHEDULE 2 | 30 | |||
SCHEDULE 3 | 33 |
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(1) | Novelis Deutschland GmbH,a limited liability company organized under the laws of Germany, having its business address at Hannoversche Strasse 1, 37075 Göttingen, Germany, which is registered in the commercial register at the local court(Amtsgericht)of Göttingen under HRB 772 (the “Assignor”); and | |
(2) | LaSalle Business Credit, LLC,a corporation organized under the laws of Delaware, having its business address 135 South LaSalle Street, Suite 425, Chicago, IL 60603, USA, (the “Collateral Agent”). |
(A) | Pursuant to a credit agreement dated as of July 6, 2007 (the“ABL Credit Agreement”) among the ABL Loan Borrowers (as defined below), AV ALUMINUM INC., a corporation formed under the Canada Business Corporations Act, as Parent Guarantor(“Holdings” or “Parent Guarantor”),the other Guarantors party thereto, the Lenders party thereto, ABN AMRO BANK N.V., as U.S./European Issuing Bank, U.S. Swingline Lender and Administrative Agent, LASALLE BUSINESS CREDIT, LLC as Collateral Agent and Funding Agent, UBS SECURITIES LLC, as Syndication Agent, BANK OF AMERICA N.A., NATIONAL CITY BUSINESS CREDIT, INC. and CIT BUSINESS CREDIT CANADA INC., as Documentation Agents, ABN AMRO BANK N.V., acting through its Canadian branch, as Canadian Issuing Bank, Canadian Funding Agent and Canadian Administrative Agent, and ABN AMRO INCORPORATED and UBS SECURITIES LLC, as Joint Lead Arrangers and Joint Bookmanagers, the lenders thereunder have agreed to grant a revolving loan (the“ABL Loan”)to the ABL Borrowers. | |
(B) | Pursuant to a credit agreement dated as of July 6, 2007 (the“Term Loan Credit Agreement”, together with the ABL Credit Agreement, the“Credit Agreements”)among NOVELIS INC., a corporation formed under the Canada Business Corporations Act (the“Canadian Borrower”), NOVELIS CORPORATION, a Texas corporation (the“U.S. Borrower”and, together with the Canadian Borrower, the“Term Loan Borrowers”),Holdings, the other guarantors party thereto, the lenders party thereto, UBS AG, STAMFORD BRANCH, as administrative agent (in such capacity, “Term |
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Loan Administrative Agent”) for the lenders, and as collateral agent (in such capacity, “Term Loan Collateral Agent”) for the secured parties, ABN AMRO INCORPORATED and UBS SECURITIES LLC, as joint lead arrangers and joint bookmanagers (in such capacities, “Term Loan Arrangers”), and the other agents party thereto, the lenders thereunder have agreed to extend credit in the form of Term Loans (the “Term Loan”, together with the ABL Loan, the “Loan”) to the Term Loan Borrowers. |
(C) | The Assignor has agreed to enter into a security assignment agreement over its receivables against customers, rights and claims pertaining to collection arrangements, the Profit and Loss Pooling Agreement (as defined below), inter-company loans and insurance claims as security for the Secured Parties’ respective claims against the Loan Parties under or in connection with the Credit Agreements. | |
(D) | The Assignor, in connection with the entering into the Credit Agreements, entered into a Receivables Purchase Agreement (as defined below) with Novelis AG. |
1. | DEFINITIONS AND LANGUAGE | |
1.1 | In this Agreement: | |
“ABL Loan Borrowers”means Novelis Inc., a corporation formed under the Canada Business Corporations Act; Novelis Corporation, a Texas corporation; Novelis PAE Corporation, a Delaware corporation, Novelis Finances USA LLC, a Delaware limited liability company, Novelis South America Holdings LLC, a Delaware limited liability company; Aluminum Upstream Holdings LLC, a Delaware limited liability company; Novelis UK Ltd, a limited liability company incorporated under the laws of England and Wales with registered number 00279596; and Novelis AG, a stock corporation (AG) organized under the laws of Switzerland(“Novelis AG”). | ||
“Abstract Acknowledgment of Indebtedness”means each of (i) the Abstract Acknowledgment of Indebtedness and Guarantee between Novelis Aluminium Holdings Company, Novelis Deutschland GmbH and the Collateral Agent and (ii) the Abstract Acknowledgment of Indebtedness and Guarantee between Novelis Aluminium Holdings Company, Novelis Deutschland GmbH and the Term Loan Collateral Agent. |
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“Aged Debtor List” means, for each Receivable, the aggregate face amount of such Receivables, the identification number of the relevant account debtor, the date and number of the related invoices and the order confirmation number for each related invoice, the due date of payments to be made by the relevant account debtor under the related invoices, the face amount of such Receivable, the name and address of each relevant account debtor, organized in numerical order by identification number and, upon request of the Collateral Agent, related Supply Contracts and purchase orders. | ||
“Blank Notification Letter”means a blank notification letter in the form set out in Schedule 1 (Blank Notification Letter). | ||
“Borrowers”means collectively the ABL Loan Borrowers and the Term Loan Borrowers. | ||
“Business Day”means a day (other than a Saturday or a Sunday) on which banks are open for general business in New York City, New York and Frankfurt am Main. | ||
“Event of Default”means any Event of Default as defined in the ABL Credit Agreement and any Event of Default as defined in the Term Loan Agreement. | ||
“Loan Parties”shall comprise the Loan Parties as defined in the ABL Credit Agreement and the Loan Parties as defined in the Term Loan Agreement. | ||
“Parties”means the Assignor and the Collateral Agent. | ||
“Permitted Lien”has the meaning given to such term in the ABL Credit Agreement. | ||
“Profit and Loss Pooling Agreement”means the profit and loss pooling agreement initially entered into by Alcan Deutschland Holdings GmbH & Co. KG and the Assignor, dated November 20, 2002 (notarial deed number 52/2002 of notary Prof. Dr. Alexander Riesenkampff) which was transferred by operation of law from Alcan Deutschland Holdings GmbH & Co. KG to Novelis Aluminium Holdings Company, an Irish limited liability company (“NAHCO”) in connection with a share transfer and withdrawal agreement dated December 15, 2004 and which now continues to be in existence between NAHCO and the Assignor. | ||
“Receivables Purchase Agreement”means the agreement between the Assignor and Novelis AG dated July 6, 2007 pursuant to which certain receivables owned or to be created by the Assignor under certain of its supply contracts have been sold and assigned to Novelis AG by way of a true sale. | ||
“Secured Obligations”shall comprise (I) (a) obligations of the ABL Loan Borrowers and the other Loan Parties from time to time arising under or in respect of the due and punctual payment of (i) the principal of and premium, if any, and interest (including |
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interest accruing (and interest that would have accrued but for such proceeding) during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, if allowed in such proceeding) on the ABL Loan, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the ABL Loan Borrowers and the other Loan Parties under the ABL Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of Reimbursement Obligations, interest thereon and obligations to provide cash collateral and (iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the ABL Loan Borrowers and the other Loan Parties under the ABL Credit Agreement and the other Loan Documents and (b) the due and punctual payment of all obligations of the ABL Loan Borrowers and the other Loan Parties (including overdrafts and related liabilities) under each Treasury Services Agreement entered into with any counterparty that is a Secured Party (for purposes of clause (I) “Loan Parties”, “Letter of Credit”, “Reimbursement Obligations”, Loan Documents” and “Treasury Services Agreement” have the meaning set forth in the ABL Credit Agreement) and (II) (a) obligations of the Term Loan Borrowers and the other Loan Parties from time to time arising under or in respect of the due and punctual payment of (i) the principal of and premium, if any, and interest (including interest accruing (and interest that would have accrued but for such proceeding) during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, if allowed in such proceeding) on the Term Loan, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise and (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Term Loan Borrowers and the other Loan Parties under the Term Loan Agreement and the other Loan Documents, and (b) the due and punctual payment of all obligations of the Term Loan Borrowers and the other Loan Parties under each Hedging Agreement entered into with any counterparty that is a Secured Party (for purposes of clause (II) “Loan Parties”, “Loan Documents” and “Hedging Agreements” have the meaning set forth in the Term Loan Agreement). |
“Secured Parties” means all Secured Parties as defined in the ABL Credit Agreement and all Secured Parties as defined in the Term Loan Credit Agreement. |
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“Supply Contract”means any and all contracts, instruments, agreements, invoices, notes or other writings (including an agreement evidenced by a purchase order or similar document) of, to or involving the supply of goods, merchandise or services by the Assignor. | |||
1.2 | Capitalized terms not otherwise defined in this Agreement shall have the same meaning as given in the ABL Credit Agreement. | ||
1.3 | Unless otherwise indicated, the definition of a term in the singular shall include the definition of such term in the plural and vice versa. | ||
1.4 | This Agreement is made in the English language. For the avoidance of doubt, the English language version of this Agreement shall prevail over any translation of this Agreement. However, where a German translation of a word or phrase appears in the text of this Agreement, the German translation of such word or phrase shall prevail. | ||
1.5 | Any reference in this Agreement to a“Clause”, “Sub-clause” or a “Schedule”shall, subject to any contrary indication, be construed as a reference to a clause, sub-clause or schedule hereof. |
2. | ASSIGNMENT OF RECEIVABLES | |
2.1. | Subject to Section 2.2, the Assignor hereby assigns(tritt ab)to the Collateral Agent: |
2.1.1 | all present and future amounts due from any party to the Assignor pursuant to, or under, a Supply Contract, including VAT and late payment interest and penalties; | ||
2.1.2 | any and all present and future rights and claims of the Assignor under any present or future collection arrangements including, without limitation those listed in Exhibit 1 toSchedule 2 hereof (the“Collection Arrangements”)in respect of receivables against collection agents (the“Collection Arrangement Receivables”); |
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2.1.3 | any and all present and future, actual and contingent, monetary claims of the Assignor under or in connection with the Profit and Loss Pooling Agreement (the “PLPA Receivables”); | ||
2.1.4 | any and all present and future, actual and contingent monies owed to the Assignor by any affiliate (including, without limitation, any claims vis-à-vis Aluminium Norf Gesellschaft mit beschränkter Haftung, a German limited liability company, registered with the commercial register of the local court(Amtsgericht)of Neuss under HRB 1271) under any and all inter-company loan agreements or other comparable financing transactions (including, without limitation, those listed (purely for purposes of evidence) in Exhibit 2 toSchedule 2) (collectively the “Inter-Company Loans”); | ||
2.1.5 | all claims arising under the insurance contracts specified inSchedule 3 (the “Insurance Contracts List”), with the exception of claims arising under insurance contracts of which the beneficiary is a third party (for example, third party liability insurance(Haftpflichtversicherung))(the “Excluded Claims”); | ||
2.1.6 | all present, future, actual or contingent claims, other than the Excluded Claims, owed to the Assignor under any present or future insurance contract (including, but not limited to the insurance contracts listed in the Insurance Contract List); and | ||
2.1.7 | all claims transferred to the Assignor by any third party and arising from any of the legal grounds(Rechtsgrund)set out under Clause 2.1.6. |
The present and future receivables set out in this Clause 2.1, except for the Excluded Receivables, are in this Agreement referred to as the “Receivables”. | ||
2.2 | The assignment under Section 2.1 does not extend to any and all of the claims and rights that are assigned by the Assignor to Novelis AG under the Receivables Purchase Agreement (the “Excluded Receivables”). Any rights that are not effectively transferred thereunder, whether as a result of a termination of the Receivables Purchase Agreement or otherwise, shall, however, remain and be assigned to the Collateral Agent under this Agreement. | |
2.3 | The Collateral Agent hereby accepts the assignment of the Receivables. |
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2.4 | Subject to Clause 8.1, the present Receivables existing at the date of this Agreement shall pass to the Collateral Agent on the date of this Agreement and any future Receivables shall pass to the Collateral Agent on the date such Receivables come into existence or are acquired by the Assignor (whichever is earlier in time). | |
2.5 | In the event that the Assignor maintains or will maintain a current account arrangement(Kontokorrent)with any debtor of the Receivables, the assignment by the Assignor includes all claims from any existing or future current account balances, the right to determine and demand payment of the net balance and the right to terminate the current account relationship. The Assignor shall not enter into any further current account arrangements without the prior written consent of the Collateral Agent, except for such current account arrangements in which the Assignor can demand payment of the net balance at any time. | |
2.6 | If payments in respect of the Receivables are made by cheque or bill of exchange, the ownership in the documents shall pass to the Collateral Agent upon the respective Assignor acquiring such ownership, and the Assignor hereby assigns to the Collateral Agent in advance any of its rights arising therefrom as security for the Secured Obligations. Physical delivery of cheques and bills of exchange to the Collateral Agent shall be replaced by an undertaking of the Assignor to hold such cheques and bills of exchange in gratuitous custody(unentgeltliche Verwahrung)for the Collateral Agent or, if the Assignor does not obtain actual possession of such documents, the Assignor hereby assigns to the Collateral Agent in advance all of its claims for delivery thereof against third parties as security for the Secured Obligations. | |
3. | ASSIGNMENT AND TRANSFER OF ANCILLARY RIGHTS | |
3.1 | All collateral securing the Receivables, any other ancillary rights in relation to the Receivables and all rights arising out of or in connection with the transactions underlying the Receivables (collectively the “Ancillary Rights” and collectively with the Receivables, the “Collateral”) shall hereby be transferred to the Collateral Agent upon the assignment as of the date specified in Clause 2.4, to the extent such rights are not automatically transferred to the Collateral Agent by operation of Section 401 of the German Civil Code(Bürgerliches Gesetzbuch). | |
3.2 | Upon request of the Collateral Agent, the Assignor shall take all reasonable actions and make all declarations to transfer the Ancillary Rights held by the Assignor to the Collateral Agent. |
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4. | DELIVERY OF UPDATED RECEIVABLES LISTS AND INSURANCE LIST | |
4.1 | The Assignor shall deliver to the Collateral Agent on the date hereof and subsequently upon request and, in any event, on each Reconciliation Date, an updated list of Receivables (the“Updated Receivables List”). The Assignor shall further deliver Aged Debtor’s Lists; the first Aged Debtor’s List, if it has not been provided before, shall be delivered by the Assignor within thirty (30) days hereof and thereafter Aged Debtor Lists shall be delivered by the Assignor to the Collateral Agent upon the request of the Agent and, in any event, at least annually. | |
4.2 | The Updated Receivables List shall be delivered in the same form as the Receivables List set out inSchedule 2 (Receivables List). | |
4.3 | Each delivery of an Updated Receivables List and an Aged Debtor’s List by the Assignor shall constitute an agreement as to the transfer(Abtretung)of the Receivables listed in such Updated Receivables List and the Aged Debtor’s List, as the case may be. The Updated Receivables List and the Aged Debtor’s List shall be delivered by email, or by an electronic data carrier (in such form as agreed between the Collateral Agent and Assignor). | |
4.4 | For the sake of clarification, the transfer under Clause 4.3 shall in no way limit the generality of the assignment under Clause 2. In particular, if for any reason whatsoever any Receivable has not been listed in the Updated Receivables List or the Aged Debtor’s List, then the assignment of the Receivables under Clause 2 shall not be affected thereby. | |
4.5 | Upon the occurrence of an Event of Default, the Assignor shall upon the request of the Collateral Agent deliver to the Collateral Agent an Updated Receivables List and Aged Debtor’s List. | |
4.6 | To the extent the Assignor has instructed a third party with its bookkeeping or data processing, it hereby authorizes the Collateral Agent to obtain the Updated Receivables Lists directly from such third party in its own name and at the Assignor’s costs. Assignor’s obligation to deliver the Updated Receivables List personally shall not be affected hereby. |
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4.7 | The Assignor may deliver any Updated Receivables Lists on a CD-ROM as a Microsoft Excel file or any other readable and compatible electronic medium satisfactory to the Collateral Agent. |
5. | BLANK NOTIFICATION LETTERS | |
5.1 | The Assignor hereby authorizes the Collateral Agent to notify any debtor on its behalf of the assignment of the Receivables. Subject to the provisions in the Receivables Purchase Agreement and other agreements involving the parties that relate to the notification of debtors, the Collateral Agent shall make use of such authorization only after any of the events described in Clause 9.1 below has occurred. | |
5.2 | The Assignor shall hand over to the Collateral Agent no later than 10 Business Days after the execution of this Agreement 20 (in words: twenty) duly signed Blank Notification Letters. The Collateral Agent is permitted to copy any Blank Notification Letters signed by the Assignor and to use such copy in order to notify the debtors pursuant to Clause 5.1. | |
6. | ASSIGNMENT OF RECEIVABLES SUBJECT TO EXTENDED RETENTION OF TITLE | |
6.1 | If Receivables are subject to extended retention of title arrangements(verlängerter Eigentumsvorbehalt),the assignment of such Receivables to the Collateral Agent shall only become effective upon extinction of the respective retention of title arrangements. As long as any person is only partly entitled to Receivables as a result of such person’s retention of title arrangements, the assignment of such Receivables to the Collateral Agent hereunder shall be limited to that part of the Receivables to which the Assignor is the holder. The other part of the Receivables will transfer to the Collateral Agent at such time as that part is no longer subject to any such retention of title arrangements. | |
6.2 | The Assignor hereby assigns to the German Agent, who accepts such assignments, its respective rights to reassignment of those Receivables that are assigned to a person on the basis of retention of title arrangements as well as any contingent claims to the transfer of all proceeds paid out to such person, together with all rights pertaining thereto. The same applies to any possible inchoate right(Anwartschaftsrecht)with respect to the assignment of any Receivables that is subject to a condition subsequent(auflösende Bedingung). |
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6.3 | Upon the time at which the Collateral Agent may revoke the authorization under Clause 8.1 the Collateral Agent shall be entitled to extinguish any retention of title arrangements by satisfying the holder thereof. | |
7. | SECURED OBLIGATIONS | |
The security created hereunder secures the payment of (a) all Secured Obligations of the Borrowers and the other Loan Parties owed to any of the Secured Parties, and (b) the obligations of the Assignor or Novelis Aluminium Holding Company, an entity under the laws of Ireland, under the Abstract Acknowledgements of Indebtedness. The assignment shall also cover any future extension of the Secured Obligations and the Assignor herewith expressly agrees that the assignment shall secure the Secured Obligations as extended or increased from time to time. | ||
8. | DISPOSALS OVER RECEIVABLES | |
8.1 | In relation to the debtors, the Assignor shall be authorized(ermächtigt)to collect(einziehen)the Receivables in its ordinary course of business, and to exercise the Ancillary Rights. The Collateral Agent shall be entitled to revoke the authorization granted under this Clause 8.1 at any time after any of the events described in Clauses 9.1 and 9.5, or if any of the Termination Events (as defined in Section 5.9 of the Receivables Purchase Agreement) has occurred. | |
8.2 | Except for the existing Collection Arrangements, the selling of Receivables by way of a sale factoring transaction regardless of whether on a recourse or on a non-recourse basis(unechtes und echtes Factoring)and similar types of transactions, including but not limited to securitizations, requires the Collateral Agent’s prior written consent, not to be unreasonably withheld. This does not apply to a sale under the Receivables Purchase Agreement to the extent the Assignor is entitled to sell and transfer Receivables thereunder pursuant to Clause 8.1. For the avoidance of doubt, any further restrictions imposed under the Loan Documents shall remain unaffected thereby. | |
9. | REALISATION OF THE COLLATERAL | |
9.1 | The Collateral shall become immediately enforceable if an Event of Default is continuing and the Collateral Agent gives notice to the Assignor that the Collateral in question is enforceable. After the Collateral has become enforceable, the Collateral |
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Agent may in its absolute discretion enforce all or any part of this Collateral in any manner it sees fit. |
9.2 | Upon revocation of the authorization granted pursuant to Clause 8.1 above, the Assignor shall be obligated, upon request of the Collateral Agent, to notify debtors, borrowers under Inter-Company Loans and insurers of the assignment in writing substantially in the form of Schedule 1. | |
9.3 | The realization(Verwertung)of the Collateral (or any part thereof) shall not require a prior court ruling or any other enforceable title(vollstreckbarer Titel). | |
9.4 | The Collateral Agent shall be entitled to realize the Collateral - either in whole or in part - in any legally permissible manner, in particular by collecting the Receivables. | |
9.5 | The Collateral Agent shall give the Assignor at least ten (10) Business Days prior written notice(Androhung) ofthe intention to realize any of the Collateral (the “Realization Notice”). Such Realization Notice is not necessary if the observance of the notice period will materially adversely affect the security interests of the Collateral Agent. Such Realization Notice shall in particular not be required, if: |
9.5.1 | the Assignor or any of the Borrowers ceases to make payments to third parties generally(“seine Zahlungen einstellt”within the meaning of Section 17 (2), Sentence 2 of the German Insolvency Regulation(Insolvenzordnung)); | ||
9.5.2 | the Assignor or any of the Borrowers becomes over-indebted(“überschuldet”within the meaning of Section 19 of the German Insolvency Regulation), or illiquid(“zahlungsunfähig”within the meaning of Section 17 of the German Insolvency Regulation), or its illiquidity is imminent(“drohende Zahlungsunfähigkeit”within the meaning of Section 18 of the German Insolvency Regulation); | ||
9.5.3 | the Assignor or any of the Borrowers files an application for the institution of insolvency proceedings or similar proceedings over its assets; | ||
9.5.4 | any third party files an application for the institution of insolvency proceedings or similar proceedings over the assets of the Assignor or any of the Borrowers, provided such application is not unfounded(unbegründet);or |
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9.5.5 | a preliminary insolvency administrator(vorläufiger Insolvenzverwalter)or an insolvency administrator(Insolvenzverwalter)or any similar kind of receiver, liquidator or administrator has been appointed over the assets of the Assignor or any of the Borrowers. |
9.6 | The Realization Notice pursuant to the first sentence of Clause 9.5 may be given to the Assignor at the same time any notice of acceleration in relation to any of the Secured Obligations is given to the Borrower. | |
9.7 | If the Collateral Agent decides not to enforce all of the Collateral, it shall be entitled to determine, in its sole discretion, which part of the Collateral shall be realized. | |
9.8 | The Collateral Agent may take all measures and enter into all agreements with debtors of the Assignor or any third-party creditor which it considers reasonably necessary or expedient in connection with the realization of the Collateral taking into account the legitimate interest of the Assignor. | |
9.9 | For the purpose of realizing the Collateral, the Assignor shall, upon the Collateral Agent’s request, promptly(unverzüglich)furnish the Collateral Agent with all documents of title and other relevant documents held by the Assignor and shall render all assistance which is necessary or expedient in respect of the realization of the Collateral. | |
9.10 | Following the realization of all or part of the Collateral, the net proceeds (net proceeds shall mean proceeds less any taxes and costs) shall be used to satisfy the Secured Obligations. | |
10. | LIMITATION OF ENFORCEMENT | |
10.1 | Subject to Clause 10.2 through Clause 10.5 below, the Collateral Agent shall not enforce the Collateral to the extent (i) the Collateral secures obligations of one of the Assignor’s shareholders or of an affiliated company(verbundenes Unternehmen)of a shareholder within the meaning of Section 15 of the German Stock Corporation Act(Aktiengesetz)(other than a Subsidiary of the Assignor or the Assignor itself), and (ii) the enforcement of the Collateral for such obligations would reduce, in violation of Section 30 of the German Limited Liability Companies Act(GmbHG),the net assets (assets minus liabilities minus provisions and liability reserves(Reinvermögen),in each case as calculated in accordance with generally accepted accounting principles in Germany(Grundsätze ordnungsmäßiger Buchführung)as consistently applied by the |
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Assignor in preparing its unconsolidated balance sheets(Jahresabschluß gemäß § 42 GmbHG, ff 242, 264 HGB))of the Assignor to an amount that is insufficient to maintain its registered share capital (Stammkapital) (or would increase an existing shortage in its net assets below its registered share capital); provided that for the purpose of determining the relevant registered share capital and the net assets, as the case may be: |
10.1.1 | the amount of any increase of the Assignor’s registered share capital (Stammkapital) implemented after the date of this Agreement that is effected without the prior written consent of the Collateral Agent shall be deducted from the registered share capital of the Assignor; | ||
10.1.2 | any loans provided to the Assignor by a direct or indirect shareholder or an affiliate thereof (other than a Subsidiary of the Assignor) shall be disregarded and not accounted for as a liability to the extent that such loans are subordinated or are considered subordinated under Section 32a GmbHG; | ||
10.1.3 | shareholder loans, other loans and contractual obligations and liabilities incurred by the Assignor in violation of the provisions of any of the Loan Documents shall be disregarded and not accounted for as liabilities; | ||
10.1.4 | any assets that are shown in the balance sheet with a book value that, in the opinion of the Collateral Agent, is significantly lower than their market value and that are not necessary for the business of the Assignor(nicht betriebsnotwendig)shall be accounted for with their market value; and | ||
10.1.5 | the assets of the Assignor will be assessed at liquidation values(Liquidationswerte)if, at the time the managing directors prepare the balance sheet in accordance with paragraph (b) below and absent the demand a positive going concern prognosis (positive Fortbestehensprognose) cannot be established. |
10.2 | The limitations set out in Clause 10.1 only apply: |
10.2.1 | if and to the extent that the managing directors of the Assignor have confirmed in writing to the Collateral Agent within ten (10) Business Days of receipt of the Realization Notice or the commencement of enforcement under this Agreement the value of the Collateral which cannot be enforced without causing the net assets of the Assignor to fall below its registered share capital, |
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or increase an existing shortage in net assets below its registered share capital (taking into account the adjustments set out above) and such confirmation is supported by a current balance sheet and other evidence satisfactory to the Collateral Agent and neither the Collateral Agent nor any of the Secured Parties raises any objections against that confirmation within five (5) Business Days after its receipt; or |
10.2.2 | if, within twenty (20) Business Days after an objection under paragraph (A) has been raised by the Collateral Agent or a Secured Party, the Collateral Agent receives a written audit report (“Auditor’s Determination”) prepared at the expense of the Assignor by a firm of auditors of international standing and reputation that is appointed by the Assignor and reasonably acceptable to the Collateral Agent, to the extent such report identifies the amount by which the net assets of the Assignor are necessary to maintain its registered share capital as at the date of the Realization Notice or the commencement of enforcement (taking into account the adjustments set out above). The Auditor’s Determination shall be prepared in accordance with generally accepted accounting principles applicable in Germany (Grundsätze ordnungsgemäßer Buchführung) as consistently applied by the Assignor in the preparation of its most recent annual balance sheet. The Auditor’s Determination shall be binding for all Parties except for manifest error. |
10.3 | In any event, the Collateral Agent, for and on behalf of the Secured Parties, shall be entitled to enforce the Collateral up to those amounts that are undisputed between them and the Assignor or determined in accordance with Clause 10.1 and Clause 10.2. In respect of the exceeding amounts, the Secured Parties shall be entitled to further pursue their claims (if any) and the Assignor shall be entitled to provide that the excess amounts are necessary to maintain its registered share capital (calculated as at the date of the Realization Notice or the commencement of enforcement and taking into account the adjustments set out above). The Secured Parties are entitled to pursue those parts of the Collateral that are not enforced by operation of Clause 10.1 above at any subsequent point in time. This Clause 10 shall apply again as of the time such additional enforcements are made. |
10.4 | Should it become legally permissible for managing directors of a German GmbH (Gesellschaft mit beschränkter Haftung,Limited Liability Company) to enter into guarantees in support of obligations of their shareholders without limitations, the limitations set forth in Clause 10.1 shall no longer apply. Should any such guarantees become subject to legal restrictions that are less stringent than the limitations set forth |
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in Clause 10.1 above, such less stringent limitations shall apply. Otherwise, Clause 10.1 shall remain unaffected by changes in applicable law. |
11. | WAIVER OF ASSIGNOR’S DEFENSES AND OF SUBROGATION RIGHTS | |
11.1 | The Assignor hereby waives all defenses against enforcement that may be raised on the basis of potential avoidance (Anfechtbarkeit) and set-off (Aufrechenbarkeit) of the Secured Obligations. This waiver shall not apply to a set-off with counterclaims that are (i) uncontested (unbestritten) or (ii) based on a binding non- appealable court decision (rechtskräftig festgestellt). | |
11.2 | If the Collateral is enforced, or if the Assignor has discharged any of the Secured Obligations (or any part of them), no rights of the Secured Parties shall pass to the Assignor by subrogation or otherwise. Further, the Assignor shall not at any time before, on or after an enforcement of the Collateral and as a result of the Assignor entering into this Agreement, be entitled to demand indemnification or compensation from any Borrower, Guarantor or any of its affiliates or to assign any of these claims. | |
12. | RELEASE OF THE COLLATERAL | |
12.1 | Upon full and final satisfaction of all Secured Obligations, the Collateral Agent shall at the cost and expense of the Assignor retransfer the Collateral to Assignor and surrender the surplus proceeds, if any, resulting from any realization of the Collateral to the Assignor. This shall not apply to the extent that the Collateral Agent has to surrender the Collateral or such proceeds to a third party who is entitled to the Collateral or to such proceeds. | |
12.2 | Prior to the full and final satisfaction of all the Secured Obligations, the Collateral Agent shall only be obligated to release or surrender the Collateral or any part thereof and/or the surplus proceeds, if any, resulting from any realization of the Collateral, if and to the extent, applicable law of the Federal Republic of Germany requires such release. If the Collateral Agent is required to release collateral under applicable law of the Federal Republic of Germany, it may, however, decide, in its reasonable discretion, to release other collateral than the Collateral in order to comply with such requirement. | |
12.3 | In addition to those valuation procedures stated in any other document constituting security interests in respect of the Secured Obligations, the Assignor and the Collateral Agent agree that solely for the purpose of determining the realizable value |
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of the Collateral the following valuation procedures shall apply: Purely for purposes of calculating the realizable value of Receivables, such Receivables which (i) are subject to a prohibition on assignment or require third party consent, (ii) are subject to set-off or to a defense because of non-performance or partial performance of the underlying contractual obligation or (iii) are governed by a law other than German law and have not been validly assigned to the Collateral Agent under such law shall not be taken into account. Receivables (other than the aforementioned) and Inter-Company Loans shall be valued at their nominal value minus 10% to account for the risk of non-recovery, provided, however, that the Assignor or the Collateral Agent may demand a reassessment of the realizable value of all or part of the Collateral if in their reasonable opinion there have been material changes (which are not temporary changes) with respect to the value of all or part of the Collateral which justify such reassessment. Where no realizable value of the Collateral is determined hereunder, the Assignor or the Collateral Agent may demand that an agreement on valuation of such Collateral for the purpose hereof is reached whereby the Assignor and the Collateral Agent shall base such valuation on the fair market value of such Collateral and shall take account in such assessment of any risk of a change in realizable value of such Collateral and of any loss on forced disposal of such Collateral by making reasonable deductions therefore. |
13. | DURATION AND INDEPENDENCE | |
13.1 | In no event shall the Collateral be released before and unless all Secured Obligations have been fully and finally discharged and there is no amount outstanding under the Secured Obligations, whether for principal, interest, fees or other costs, expenses, charges or otherwise. | |
13.2 | The Collateral shall provide a continuing security and, to the largest extent possible under applicable law, no change or amendment whatsoever in and to the Secured Obligations and to any document related to the Secured Obligations shall affect the validity of this Agreement nor shall it limit the obligations which are imposed on the Assignor hereunder. | |
13.3 | This Agreement is in addition to, and independent of, any other security or guarantee the Collateral Agent may now or hereafter hold in respect of the Secured Obligations. None of such security or guarantee shall prejudice, or shall be prejudiced by, the Collateral in any way. |
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14. | REPRESENTATIONS AND WARRANTIES | |
14.1 | The Assignor represents and warrants(sichert zu)to the Collateral Agent by way of an independent guarantee(selbständiges Garantieversprechen)that: |
14.1.1 | The Profit and Loss Pooling Agreement is in full force and effect between NAHCO and the Assignor in the form set forth in the notarial deed number 52/2002 of notary public Prof. Dr. Alexander Riesenkampff, as executed on December 02, 2002, and has not been terminated; and there are no shareholder resolutions or agreements amending the Profit and Loss Pooling Agreement and no side agreements with respect to the Profit and Loss Pooling Agreement. | ||
14.1.2 | The execution and performance hereof do not and will not (i) violate any provision of law or the articles of association of the Assignor, any order of any court or governmental agency to which it is bound, (ii) violate in a material way any provision of any agreement or other instrument to which any of the Assignor is bound, (iii) be in conflict with, result in a breach of or constitute (with notice or lapse of time or both) a default under any such agreement or other instrument, or (iv) result in the creation or imposition of any lien upon any property or assets of any of the Assignor, except for liens created hereby. | ||
14.1.3 | As long as this Agreement remains in force, the obligations of the Assignor hereunder are legal, valid, binding and enforceable against the Assignor in accordance with their terms, subject to any qualification in any legal opinion rendered in relation thereto by the law firm of Noerr Stiefenhofer Lutz on or about the date of this Agreement. | ||
14.1.4 | No consents, licenses, approvals or authorizations of, registrations with or declarations to any governmental authority are required in connection with the execution and performance hereof (other than any governmental authority that is a third party debtor of the Assignor). | ||
14.1.5 | The Assignor is the unrestricted and legal owner of the Receivables and has the valid rights in and good title to the Collateral and, except for Receivables under Clause 2.1.1, may freely dispose of the claims assigned under this Agreement and has full power and authority (corporate and otherwise) to grant to the Collateral Agent the security interest in the Collateral and to execute and perform its obligations in accordance with the terms hereof, without the consent or approval of any other person, except for consent requirements or |
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prohibitions of assignments contained in standard terms and conditions of insurance companies being subject to Section 354a of the German Commercial Code(HGB). |
14.1.6 | Save for Permitted Liens it is the unrestricted legal and economic owner of the Receivables specified in the Receivables List and the Insurance Contract List as at the date specified on such list; | ||
14.1.7 | Except as permitted under the Credit Agreements, the Receivables specified in the Receivables List and the Insurance Contract List are free from any right, claim, title, interest, pledge, lien or charge whatsoever or other encumbrances or any other third party rights as at the date specified on such list. | ||
14.1.8 | The Security Interest created hereby constitutes a valid security interest in the Collateral enforceable against the Assignor and third parties, and to the Assignor’s best knowledge no counterclaims as to which a right to set-off or a right of retention could be exercised exist to date except in the ordinary course of business and not exceeding the amount of 3% of the nominal value of the assigned Receivables or as otherwise permitted in accordance with the terms of the Credit Agreement, subject to any qualification in any legal opinion rendered in relation thereto by the law firm of Noerr Stiefenhofer Lutz on or about the date of this Agreement. | ||
14.1.9 | At the date hereof it has not ceased payments within the meaning of Section 17 (2), Sentence 2 of the German Insolvency Regulation (Insolvenzordnung), nor is it over-indebted within the meaning of Section 19 of the German Insolvency Regulation, of in terms of the German generally accepted accounting principles (Grundsätze ordnungsmäßiger Buchführung); nor is it illiquid within the meaning of Section 17 of the German Insolvency Regulation, nor is its illiquidity imminent within the meaning of Section 18 of the German Insolvency Regulation. | ||
14.1.10 | The Assignor has its “centre of main interest” (as that term is used in Article 3(1) of The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings in its jurisdiction of incorporation. |
14.2 | The Assignor represents and warrants to the Collateral Agent in the form of an independent guarantee(selbständiges Garantieversprechen)that at the date set out on |
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the Receivables List it has no other substantial receivables than those set out herein except for receivables sold under the Receivables Purchase Agreement. |
15. | UNDERTAKINGS OF THE ASSIGNOR |
15.1 | to promptly(unverzüglich)inform the Collateral Agent of the conclusion of new insurance contracts; | |
15.2 | except as to the Receivables sold and assigned under the Receivables Transfer Agreement, not to create or permit to subsist any encumbrance over any of the Receivables, or do or permit to be done, anything which is reasonably expected to jeopardize or otherwise directly prejudice the existence, validity or enforceability of the security created hereunder, except as permitted under the Credit Agreements; | |
15.3 | not to terminate, amend or modify the Profit and Loss Pooling Agreement without the prior written consent of the Collateral Agent; | |
15.4 | to furnish to the Collateral Agent such information concerning the Receivables as is available to the Assignor and as the Collateral Agent may reasonably request for the evaluation or collection of the claims, and upon occurrence of any of the events described in Clause 10.1 and notice being given to the Assignor, to permit the Collateral Agent and its designees to inspect, audit and make copies of and extracts from all records and all other papers in the possession of Assignor which pertain to the Receivables, and upon the reasonable request of the Collateral Agent, to deliver copies of all such records and papers; | |
15.5 | to inform the Collateral Agent promptly upon gaining knowledge of any attachments(Pfändungen) of third parties that relate to the Receivables or any other third-party measures, except for the creation of Permitted Liens, which impair or jeopardize the Collateral. In the event of any such attachment, the Assignor shall provide the Collateral Agent with a copy of the attachment and/or transfer order(Pfändungs-und/oder überweisungsbeschluss)and any other documents which the Collateral Agent requests that are necessary or expedient for a defense against such attachment. In addition, the Assignor shall inform the third party promptly(unverzüglich)in writing of the Collateral Agent’s security interest and render to the Collateral Agent all assistance required or expedient to defend the Receivables. All costs and expenses reasonably incurred for defense measures by the Collateral Agent shall be borne by |
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the Assignor. This shall also apply to the institution of legal action which the Collateral Agent considers necessary; |
15.6 | if the documents, books, records or electronic data systems evidencing Receivables are in the direct possession of a third party, to instruct such third party to allow the Collateral Agent to have access to those documents, books, records and electronic data systems. | |
15.7 | to ensure that the Collateral Agent is furnished with an insurance certificate(SicherungsscheinorSicherungsbestätigung)for each of the insurances maintained for the account of the Collateral Agent. | |
15.8 | to execute and do all such assurances, acts and things at its own expense, as the Collateral Agent may reasonably require |
15.8.1 | for perfecting or protecting the security and the first priority thereof, where applicable, under this Agreement; and | ||
15.8.2 | in the case of the enforcement of security, to facilitate the realization of all or any part of the Collateral which is subject to this Agreement and the exercise of all powers, authorities and discretions vested in the Collateral Agent. |
16. | INTERCREDITOR AGREEMENT |
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17. | NOTICES | |
17.1 | Any notice or other communication in connection with this Agreement shall be in writing and shall be delivered personally, sent by registered mail or sent by Fax (with confirmation copy by registered mail) to the following addresses: |
17.2 | If to the Collateral Agent: |
Chicago, IL 60603, USA
Fax: +1.312.904-6450
with a copy to: |
Chicago, IL 60606, USA
Fax: +1.312.407-8511
Phone: +1.312.407-0889
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17.3 | If to the Assignor: |
37075 Göttingen
Germany
Fax: +49. 551. 304-4902
17.4 | Any notice or other communication under this Agreement shall be in English or in German. If in German, such notice or communication shall be accompanied by a translation into English. | |
18. | WAIVER | |
18.1 | No failure to exercise or any delay in exercising any right or remedy hereunder shall operate as a waiver hereunder. Nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any right or remedy. | |
18.2 | Any rights pursuant to this Agreement, including the rights under this Clause, may be waived only in writing. | |
19. | COUNTERPARTS |
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20. | GOVERNING LAW AND JURISDICTION | |
20.1 | This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. | |
20.2 | For any disputes arising out of or in connection with this Agreement the courts in Frankfurt am Main, Federal Republic of Germany shall have exclusive jurisdiction. Which court will have jurisdiction to hear the case(sachliche Zuständigkeit),shall be determined in accordance with statutory provisions. The Collateral Agent, however, shall also be entitled to take legal action against the Assignor before any other court having jurisdiction over the Assignor or any of its assets. | |
21. | LIABILITY AND INDEMNIFICATION | |
21.1 | Without extending the Collateral Agent’s liability as set forth in any of the Credit Agreements, the Collateral Agent shall not be liable for any loss or damage suffered by the Assignor, save in respect of such loss or damage which is suffered as a result of any gross negligence(grobe Fahrlässigkeit)or willful misconduct(Vorsatz)of the Collateral Agent. | |
21.2 | The Assignor shall indemnify the Collateral Agent and any person appointed by the Collateral Agent under this Agreement, against any losses, actions, claims, expenses, demands and liabilities which are incurred by or made against the Collateral Agent for any action or omission in the exercise of the powers contained herein other than to the extent that such losses, actions, claims, expenses, demands and liabilities are incurred by or made against the Collateral Agent as a result of the gross negligence(grobe Fahrlässigkeit)or willful misconduct(Vorsatz)of the Collateral Agent. | |
22. | AMENDMENTS |
23. | ANNEXES, SCHEDULES |
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24. | SEVERABILITY | |
24.1 | Should any provision of this Agreement be or become invalid or unenforceable, or should this Agreement be accidentally incomplete or become incomplete, this shall not affect the validity or enforceability of the remaining provisions hereof. In lieu of the invalid or unenforceable provision or in order to remedy any incompleteness, a provision shall apply which comes as close as possible to that which the Parties had intended or would have intended if they had considered the matter. In the event that any rights granted under this Agreement shall be impaired or be or become invalid or unenforceable this shall not affect the validity or enforceability of any other rights granted under this Agreement. | |
24.2 | To the extent that Receivables have not been properly transferred, Assignor undertakes that it will promptly(unverzüglich)cure any legal defects, undertake all necessary acts and (in the event that these legal defects render this Agreement invalid or otherwise affect the perfection and enforceability of the security interest created thereby) re-execute this Agreement. |
[Letterhead of Novelis Deutschland GmbH]
(i) | the right to dispose over the Receivables and to receive payment in respect thereof is exclusively vested with the Collateral Agent; | |
(ii) | any payment made to us in respect of the Receivables will not discharge you from your obligations thereunder; | |
(iii) | all payments to be made by you in respect of the Receivables must be made in favor of the Collateral Agent to the following account: |
Name of Account Holder: | LaSalle Business Credit, LLC | |
Account Number: | 2321122 | |
Account Bank: | LaSalle Bank N.A., Chicago Illiniois | |
Bank Sort Code: | 71000505 |
(iv) | all remedies exercisable in connection with the Receivables are exercisable by the Collateral Agent only. |
Attention: Steven Friedlander
135 South LaSalle Street, Suite 425
Chicago, IL 60603,
USA
by: | ||||
Name: | ||||
Title: |
Enclosures: | Form of Acknowledgement |
To: | LaSalle Business Credit, LLC Attention: Steven Friedlander 135 South LaSalle Street, Suite 425 Chicago, IL 60603, USA |
Re: | Global Assignment Agreement |
Yours sincerely,
by: | ||||
Name: | ||||
Title: |
Collection Arrangements
Inter-Company Loan Receivables
[to be initialed by the signatories of this Agreement]
Type of insurance | Insurer & address | Policy number | |||||||||
LASALLE BUSINESS CREDIT, LLC
/s/ Steve Friedbetter | ||||
Name: | Steve Friedbetter | |||
Title: | S.V.P. |
Novelis Deutschland GmbH
NOVELIS DEUTSCHLAND GMBH
/s/ Gottfried Weindl | ||||
Name: | Gottfried Weindl | |||
Title: | Managing Director (Geschäftsführer) |
Execution Copy
as Pledgor
as Funding Agent, Collateral Agent and Original Pledgee 1
as US/European Issuing Bank, Swingline Lender, Administrative Agent,
and Original Pledgee 2
as Syndication Agent and Original Pledgee 3
acting through its Canadian branch,
as Canadian Issuing Bank, Canadian Administrative Agent, Canadian Funding Agent
and Original Pledgee 4
as one of the Documentation Agents and Original Pledgee 5
as further Documentation Agent and Original Pledgee 6
as further Documentation Agent and Original Pledgee 7
as one of the Joint Lead Arrangers and Joint Bookmanagers and Original Pledgee 8
as further Joint Lead Arranger and Joint Bookmanager and Original Pledgee 9
as Beneficiary and Original Pledgee 10
as Pledgees
(VERPFÄNDUNG VON BANKKONTEN)
TABLE OF CONTENTS | PAGE | |||
1. DEFINITIONS AND LANGUAGE | 3 | |||
2. CREATION OF PLEDGES | 5 | |||
3. SECURED OBLIGATIONS | 6 | |||
4. DISPOSALS OVER ACCOUNTS | 7 | |||
5. REALISATION OF THE PLEDGES | 7 | |||
6. WAIVER OF PLEDGORS’ DEFENCES AND OF SUBROGATION RIGHTS | 9 | |||
7. RELEASE OF THE PLEDGES | 9 | |||
8. DURATION AND INDEPENDENCE | 10 | |||
9. REPRESENTATIONS AND WARRANTIES | 10 | |||
10. UNDERTAKINGS OF THE PLEDGOR | 11 | |||
11. LIMITATION OF ENFORCEMENT | 13 | |||
12. ECONOMIC OWNERSHIP OF THE ACCOUNTS | 16 | |||
13. INTERCREDITOR AGREEMENT | 16 | |||
14. NOTICES | 17 | |||
15. WAIVER | 18 | |||
16. COUNTERPARTS | 18 | |||
17. GOVERNING LAW AND JURISDICTION | 18 | |||
18. LIABILITY AND INDEMNIFICATION | 19 | |||
19. AMENDMENTS | 19 | |||
20. ANNEXES, SCHEDULES | 19 | |||
21. SEVERABILITY | 19 | |||
SCHEDULE 1 LIST OF LENDERS | 21 | |||
SCHEDULE 2 LIST OF BANK ACCOUNTS OF PLEDGOR | 1 | |||
SCHEDULE 3 NOTICE OF PLEDGE | 1 | |||
SCHEDULE 4 FORM OF ACKNOWLEDGEMENT | 3 |
(1) | Novelis Deutschland GmbH,a limited liability company organized under the laws of Germany, having its business address at Hannoversche Strasse 1, 37075 Göttingen, Germany which is registered in the commercial register at the local court (Amtsgericht) of Göttingen under HRB 772 (the“Pledgor”); | |
(2) | LaSalle Business Credit, LLC,a company organised under the laws of Delaware, having its business address at 135 South LaSalle Street, Suite 425, Chicago, IL 60603, USA (the“Original Pledgee 1”,and, in its capacity as collateral agent under the Credit Agreement (as defined below), the“Collateral Agent”as applicable); | |
(3) | ABN Amro Bank N.V., a company organised under the laws of the Netherlands, having its business address at Gustav Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands (the“Original Pledgee 2”, and, in its capacity as administrative agent under the Credit Agreement (as defined below), the“Administrative Agent”as applicable); | |
(4) | UBS SECURITIES LLC,a company organized under the laws of Delaware, having its business address at 677 Washington Blvd, Stamford, CT 06901 (the“Original Pledgee 3”); | |
(5) | ABN Amro Bank N.V., acting through its Canadian branch, a company organized under the laws of the Netherlands, having its business address at 79 Wellington St. W., 15th Floor TD Waterhouse Tower, Toronto, Ontario, Canada M5K 1G8 (the“Original Pledgee 4”); | |
(6) | BANK OF AMERICA, N.A., a company organized under the laws of the United States of America, having its business address at 300 Galleria Parkway, Suite 800, Atlanta, Georgia 30339, U.S.A. (the“Original Pledgee 5”); | |
(7) | NATIONAL CITY BUSINESS CREDIT, INC.,a company organized under the laws of Ohio, having its business address at 1965 East 6th Street, 4th Floor, Cleveland, Ohio, 44114 (the“Original Pledgee 6”); | |
(8) | CIT BUSINESS CREDIT CANADA INC.,a company organized under the laws of Canada, having its business address at 207 Queens Quay West, Suite 700, Toronto, Ontario, Canada M5J 1A7 (the“Original Pledgee 7”); | |
(9) | ABN AMRO INCORPORATED,a company organized under the laws of New York, having its business address at 55 E 52nd Street, New York, NY 10055 (the“Original Pledgee 8”); |
(10) | UBS SECURITIES LLC,, a company organized under the laws of Delaware, having its business address at 677 Washington Blvd, Stamford, CT 06901 (the“Original Pledgee 9”); | |
(11) | NOVELIS AG,a stock corporation organized under the laws of Switzerland, having its business address at Bellerive 36, 8034 Zurich, Switzerland (the“Original Pledgee 10”); | |
(12) | the institutions listed in Schedule 1 (List of Original Lenders) hereto in their capacity as lenders or other secured parties under or in connection with the Credit Agreement (as defined below), (together with the Original Pledgee 1, the Original Pledgee 2, the Original Pledgee 3, the Original Pledgee 4, the Original Pledgee 5, the Original Pledgee 6, the Original Pledgee 7, the Original Pledgee 8, the Original Pledgee 9 and the Original Pledgee 10, the“Original Pledgees”);and | |
(13) | theFuture Pledgees,as defined herein. |
(A) | Pursuant to a credit agreement dated as of July 6, 2007 (the“Credit Agreement”)among the Borrowers (as defined below), AV ALUMINUM INC., a corporation formed under the Canada Business Corporations Act, as Parent Guarantor(“Holdings”or“Parent Guarantor”), the other Guarantors party thereto, the Lenders party thereto, ABN AMRO BANK N.V., as U.S./European Issuing Bank, U.S. Swingline Lender and Administrative Agent, LASALLE BUSINESS CREDIT, LLC as Collateral Agent and Funding Agent, UBS SECURITIES LLC, as Syndication Agent, BANK OF AMERICA N.A., NATIONAL CITY BUSINESS CREDIT, INC. and CIT BUSINESS CREDIT CANADA INC., as Documentation Agents, ABN AMRO BANK N.V., acting through its Canadian branch, as Canadian Issuing Bank, Canadian Funding Agent and Canadian Administrative Agent, and ABN AMRO INCORPORATED and UBS SECURITIES LLC, as Joint Lead Arrangers and Joint Bookmanagers, the Lenders have agreed to grant a revolving loan (the“Loan”) to the Borrowers. | |
(B) | It is one of the conditions for granting the Loan that the Pledgor enters into this Agreement. | |
(C) | The Pledgor has agreed to grant a first rank pledge to the Original Pledgee 10 and, subordinated to the Original Pledgee 10, the other Pledgees over its respective Trust Accounts and a first ranking pledge to all Pledgees except the Original Pledgee 10 over its respective Accounts other than the Trust Accounts as security for the Pledgees’ respective claims in connection with the Credit Agreement and the Receivables Purchase Agreement. |
(D) | The Pledgor entered into an agreement on the abstract acknowledgement of indebtedness (Abstraktes Schuldanerkenntnis) with,inter alia,the Collateral Agent on or about the date hereof (the“Abstract Acknowledgement of Indebtedness”). | |
(E) | Pursuant to a trust agreement between the Pledgor and the Original Pledgee 10, the Original Pledgee 10 is the beneficiary of some or all of the Accounts (as defined below) (the“Trust Agreement”). | |
(F) | Furthermore, in connection with a term loan agreement dated as of July 6, 2007 (the“Term Loan Agreement”), the Pledgor has agreed to grant a second rank pledge over its Accounts (as defined below) as security for the obligations arising under or in connection with the Term Loan Agreement. |
1. | DEFINITIONS AND LANGUAGE | |
1.1 | In this Agreement: |
1.2 | In this Agreement, references to a person include its successors and assigns, and references to a document are references to that document as amended, restated, novated and/or supplemented from time to time. | |
1.3 | Capitalized terms not otherwise defined in this Agreement shall have the same meaning as given in the Credit Agreement. |
1.4 | Unless otherwise indicated, the definition of a term in the singular shall include the definition of such term in the plural and vice versa. | |
1.5 | This Agreement is made in the English language. For the avoidance of doubt, the English language version of this Agreement shall prevail over any translation of this Agreement. However, where a German translation of a word or phrase appears in the text of this Agreement, the German translation of such word or phrase shall prevail. | |
1.6 | Any reference in this Agreement to a“Clause”,“sub-clause”or“Schedule”shall, subject to any contrary indication, be construed as a reference to a clause, a sub-clause or a schedule hereof. | |
2. | CREATION OF PLEDGES | |
2.1 | The Pledgor hereby pledges to each of the Pledgees: | |
2.1.1 | any present and future credit balances, including interest, standing from time to time to the credit of, | |
(A) | its Accounts provided, however, that the pledge to the Original Pledgee 10 shall be limited to the Trust Accounts; | |
(B) | any present and future replacement accounts, sub-accounts, re-designated accounts and renumbered accounts which are opened or will be opened in the future in replacement of, or in connection with, its Accounts; and | |
2.1.2 | all other present and future rights to receive payments in connection with its Accounts, including claims for damages or unjust enrichment. | |
2.2 | Each of the Original Pledgees hereby accepts the Pledges for itself. | |
2.3 | The Collateral Agent accepts, as representative without power of attorney (Vertreter ohne Vertretungsmacht) the respective Pledges for and on behalf of each Future Pledgee. Each Future Pledgee will ratify and confirm the declarations and acts so made by the Collateral Agent on its behalf by accepting the transfer or assignment (including by way of novation or assumption (Vertragsübernahme)) of the Secured Obligations (or part of them) from a Pledgee, by becoming party to any Loan Document or by executing a Revolving Credit Facility Collateral Agent Appointment Letter. Upon such ratification (Genehmigung) such Future Pledgee becomes a party to this Agreement, it being understood that any future or |
conditional claim (zukünftiger oder bedingter Anspruch) of such Future Pledgee arising under the Credit Agreement shall be secured by the Pledges constituted hereunder. | ||
2.4 | All parties hereby confirm that the validity of the Pledges granted hereunder shall not be affected by the Collateral Agent acting as representative without power of attorney for each Future Pledgee. | |
2.5 | The validity and effect of each of the Pledges shall be independent of the validity and the effect of the other Pledges created hereunder. The Pledges to each of the Pledgees shall be separate and individual pledges. | |
2.6 | The Pledges to the Original Pledgee 10 over the Trust Accounts shall rank ahead of the Pledges created in favor of the other Pledgees. Subject to the prior rank of the Pledges created in favor of the Original Pledgee 10 over the Trust Accounts, the Pledges to each of the other Pledgees over all Accounts, including the Trust Accounts, shall be rankingpari passuwith the other Pledges created hereunder. | |
2.7 | The Pledges created hereby shall rank ahead of the pledges created with respect to the Accounts in connection with the Term Loan Agreement and of any other security interest or third party right currently in existence or created in the future over any of the Accounts, including the Account Bank’s pledges. | |
2.8 | Each of the Pledges is in addition, and without prejudice, to any other security the Pledgees may now or hereafter hold in respect of the Secured Obligations. | |
2.9 | For the avoidance of doubt, the parties agree that nothing in this Agreement shall exclude a transfer of all or part of the Pledges created hereunder by operation of law upon the transfer or assignment (including by way of novation or assumption (Vertragsübernahme)) of all or part of the Secured Obligations by any Pledgee to a Future Pledgee. | |
3. | SECURED OBLIGATIONS | |
3.1 | The security created hereunder secures the payment of (a) all Secured Obligations of the Borrowers and the other Loan Parties arising under or in connection with the Credit Agreement and the other Loan Documents and (b) the obligations under the Abstract Acknowledgement of Indebtedness. |
3.2 | With respect to the Original Pledgee 10, the security created hereunder secures only the obligations of the Pledgor arising under or in connection with the Receivables Purchase Agreement (the“RPA Obligations”). | |
4. | DISPOSALS OVER ACCOUNTS | |
4.1 | In relation to the Account Banks, the Pledgor shall be authorized to dispose over (verfügen) its respective Accounts in the ordinary course of business. This authorization shall, in particular, include the right to withdraw and transfer funds from its respective Accounts. Each Account may only be closed with the prior written consent of the Collateral Agent, acting on behalf of the Pledgees. The Pledgees, acting through the Collateral Agent, shall be entitled to revoke the authorization granted under this Clause 4 at any time after any of the events described in Clauses 5.1 or 5.4 has occurred. | |
4.2 | Upon the occurrence of an Event of Default which is continuing, unremedied and unwaived, the Collateral Agent, on behalf of the Pledgees, shall irrevocably and at any and all times be entitled to (i) notify the Account Bank of the forthcoming enforcement of the Pledges and (ii) instruct each and every Account Bank that as of receipt of such notice it shall no longer allow any dispositions by the Pledgor over any amounts standing to the credit on the respective Account. The Collateral Agent shall notify the Pledgor accordingly. | |
5. | REALISATION OF THE PLEDGES | |
5.1 | The Pledges shall become enforceable if an Event of Default is continuing, unremedied and unwaived, the requirements set forth in Section 1273 para. 2, 1204et seq.of the German Civil Code with regard to the enforcement of any of the Pledges are met (Pfandreife) and the Collateral Agent, acting on behalf of the Pledgees, gives notice to the Pledgor that the Pledges in question are enforceable. After the Pledges have become enforceable, the Collateral Agent may in its absolute discretion enforce all or any part of these Pledges in any manner it sees fit. | |
5.2 | The realization of the Pledges (or any part thereof) shall not require a prior court ruling or any other enforceable title (vollstreckbarer Titel). Section 1277 of the German Civil Code (Bürgerliches Gesetzbuch) is thus excluded. | |
5.3 | The Collateral Agent, acting on behalf of the Pledgees, shall be entitled to realize the Pledges - either in whole or in part - in any legally permissible manner. |
5.4 | The Collateral Agent shall give the Pledgor at least 10 (ten) Business Days prior written notice of the intention to realize any of the Pledges (the“Realization Notice”). Such Realization Notice is not necessary if the observance of the notice period will have a materially adversely affect the security interests of the Pledgees. Such Realization Notice shall in particular not be required, if: | |
5.4.1 | the Pledgor ceases to make payments to third parties generally (within the meaning of Section 17 (2), Sentence 2 of the German Insolvency Regulation,Insolvenzordnung); | |
5.4.2 | the Pledgor becomes over-indebted (within the meaning of Section 19 of the German Insolvency Regulation), or illiquid (within the meaning of Section 17 of the German Insolvency Regulation); | |
5.4.3 | the Pledgor files an application for the institution of insolvency proceedings or similar proceedings over its assets; | |
5.4.4 | any third party files an application for the institution of insolvency proceedings or similar proceedings over the assets of the Pledgor, provided such application is not unfounded; or | |
5.4.5 | a preliminary insolvency administrator (vorläufiger Insolvenzverwalter) or an insolvency administrator or any similar kind of receiver, liquidator or administrator has been appointed over the assets of the Pledgor. | |
5.5 | If the Collateral Agent, acting on behalf of the Pledgees, decides not to enforce the Pledges over all of the Accounts, it shall be entitled to determine, in its sole discretion, which of the Accounts shall be realized. | |
5.6 | The Collateral Agent, acting on behalf of the Pledgees, may take all measures and enter into all agreements with the Account Banks or any third-party creditor which it considers necessary or expedient in connection with the realization of the balances on the Accounts, taking into account the legitimate interests of the Pledgor. In particular, the Collateral Agent may, on behalf of the Pledgor, declare the termination of time deposits or similar contractual arrangements made in respect of the Accounts. | |
5.7 | For the purpose of realizing the balances on the Accounts, the Pledgor shall, upon the Collateral Agent’s request, acting on behalf of the Pledgees, promptly (unverzüglich) furnish the Collateral Agent with all documents of title and other |
relevant documents held by the Pledgor, and shall, at its own expense, forthwith render all assistance which is necessary or expedient in respect of the realization of the balances on the Accounts. | ||
5.8 | Following the realization of all or part of the Pledges, the net proceeds (net proceeds shall mean proceeds less any taxes and costs) shall be used to satisfy the Secured Obligations and the RPA Obligations. | |
5.9 | With respect to the Original Pledgee 10, net proceeds from the realization of any or all of the Pledges shall be distributed to the Original Pledgee 10 only to the extent such proceeds are generated from the realization of Pledges over Accounts that are subject to the Trust Agreement. | |
6. | WAIVER OF PLEDGORS’ DEFENCES AND OF SUBROGATION RIGHTS | |
6.1 | The Pledgor hereby waives all defenses against enforcement that may be raised on the basis of potential avoidance (Anfechtbarkeit) and set-off pursuant to Sections 1211, 770 of the German Civil Code. This waiver shall not apply to a set-off with counterclaims that are (i) uncontested (unbestritten) or (ii) based on a binding non- appealable court decision(rechtskräftig festgestellt). | |
6.2 | If the Pledges are enforced, or if the Pledgor has discharged any of the Secured Obligations (or any part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor -Forderungsübergang auf den Verpfänder) shall not apply, and no rights of the Pledgees shall pass to the Pledgor by subrogation or otherwise. Further, the Pledgor shall not at any time before, on or after an enforcement of the Pledges and as a result of the Pledgor entering into this Agreement, be entitled to demand indemnification or compensation from any Borrower, any Guarantor or any of its affiliates or to assign any of these claims. | |
7. | RELEASE OF THE PLEDGES | |
7.1 | Upon full and final satisfaction of all Secured Obligations, the Collateral Agent, acting on behalf of the Pledgees, shall at the cost and expense of the Pledgor confirm to the Pledgor in writing the release of the Pledges, do everything necessary to effect that release, and surrender the surplus proceeds, if any, resulting from any realization of the Pledges to the Pledgor. This shall not apply to the extent that the Pledgees have to surrender the Accounts or such proceeds to a third party who is entitled to the Accounts or to such proceeds. For the |
avoidance of doubt, the Parties are aware that, upon the complete and final satisfaction of all Secured Obligations, the Pledges will expire and cease to exist due to their accessory nature (Akzessorietät) by operation of German law. | ||
7.2 | At any time when the total value of the aggregate security granted by the Pledgor to secure the Secured Obligations (the“Security”) which can be expected to be realised in the event of an enforcement of the Security (realisierbarer Wert) exceeds 110% of the Secured Obligations (the“Limit”)not only temporarily, the Pledgees shall on demand of the Pledgor release such part of the Security (Sicherheitenfreigabe) as the Pledgees may in their reasonable discretion determine so as to reduce the realisable value of the Security to the Limit. | |
8. | DURATION AND INDEPENDENCE | |
8.1 | Without prejudice to Clause 8.2, in no event shall the Pledges expire before and unless all Secured Obligations have been fully and finally discharged and there is no amount outstanding under the Secured Obligations, whether for principal, interest, fees, discounts or other costs, expenses, charges or otherwise. | |
8.2 | The Pledges shall provide a continuing security and, to the largest extent possible under applicable law, no change or amendment whatsoever in and to the Secured Obligations and to any document relating to the Secured Obligations shall affect the validity of this Agreement nor shall it limit the obligations which are imposed on the Pledgor hereunder. | |
8.3 | This Agreement is in addition to, and independent of, any other security or guarantee the Pledgees may now or hereafter hold in respect of the Secured Obligations. None of such security or guarantee shall prejudice, or shall be prejudiced by, the Pledges in any way. | |
9. | REPRESENTATIONS AND WARRANTIES |
9.1 | except the rights of the Original Pledgee 10 with respect to the Trust Accounts created under the Trust Agreement, it is the unrestricted legal and economic owner of its respective Accounts; |
9.2 | except for the foreign accounts listed in Exhibit 1 to Schedule2,it does not own any other accounts in or outside the Federal Republic of Germany other than its respective Accounts; | |
9.3 | the information provided in this Agreement relating to its respective Accounts is accurate and complete in all material respects; | |
9.4 | except the rights of the Original Pledgee 10 with respect to the Trust Accounts created under the Trust Agreement, its respective Accounts are free from any liens, rights of retention (Zurückbehaltungsrechte), other encumbrances and other third party rights; | |
9.5 | the Pledges granted to the Original Pledgee 10 will have (upon effectiveness of this Agreement but subject to receipt of the executed schedule confirmation by the Account Banks) first-ranking priority, and the Pledges granted to the other Pledgees will rank ahead of any current or future third party security interest over the Accounts; | |
9.6 | the Pledges constituted hereunder are valid and enforceable without enforceable judgment or other instrument (vollstreckbarer Titel)subject to any qualification in the legal opinion to be issued by the law firm of Noerr Stiefenhofer Lutz in relation hereto; and | |
9.7 | it has not ceased payments within the meaning of Section 17 (2), Sentence 2 of the German Insolvency Regulation, nor is it over-indebted within the meaning of Section 19 of the German Insolvency Regulation or in terms of the German generally accepted accounting principles (Grundsätze ordnungsmäßiger Buchführung), nor is it illiquid within the meaning of Section 17 of the German Insolvency Regulation, nor is its illiquidity imminent within the meaning of Section 18 of the German Insolvency Regulation. | |
10. | UNDERTAKINGS OF THE PLEDGOR |
10.1 | to notify promptly (unverzüglich), substantially in the form set out inSchedule 3 (Notice of Pledge), its Account Banks of the creation of the Pledges, and to obtain from each such Account Bank to confirm vis-à-vis the Original Pledgee the receipt of the notice; |
10.2 | to ensure that its Account Banks release the Accounts from any charges (pledges, rights of retention, rights of set-off, etc.), including charges created pursuant to the respective Account Bank’s standard terms and conditions (Allgemeine Geschäftsbedingungen), or subordinate such rights, by the Account Bank signing a confirmation substantially in the form set out inSchedule 4 (Form of Acknowledgement). It is understood among the Parties that a failure by an Account Bank to submit such confirmation to the Original Pledgee does not affect the validity or enforceability of the Pledges; | |
10.3 | upon the occurrence of an Event of Default which is continuing, the Pledgor shall upon the request of the Collateral Agent, acting on behalf of the Pledgees, deliver to the Collateral Agent information on the current status of the Accounts; | |
10.4 | to provide (and to instruct the Account Banks to provide) the Collateral Agent, on behalf of the Pledgees, with all information, evidence and documentation which the Collateral Agent, acting on behalf of the Pledgees, may reasonably request in connection with the administration and realization of the Accounts. After any of the events described in Clauses 5.1 or 5.4 has occurred, (i) the Collateral Agent, acting on behalf of the Pledgees, is hereby authorized to obtain all information and documents (including bank account extracts and other information on the current status of the Accounts) directly from the Account Banks in its own name and at the Pledgor’s costs, and (ii) the Pledgees and their designees are permitted to inspect, audit and make copies of, and extracts from, all records and all other papers in the possession of the Pledgor which pertain to the Accounts; | |
10.5 | and at the request of the Collateral Agent, acting on behalf of the Pledgees, to promptly (unverzüglich) grant to the Collateral Agent, on behalf of the Pledgees, pledges (substantially in the form of this Agreement) over any new accounts governed by German law; | |
10.6 | not to close or to terminate the Accounts unless any remaining balance in the Account to be closed is transferred to another pledged Account prior to closure and the Collateral Agent is notified thereof; | |
10.7 | not to transfer any of the Accounts to another bank or relocate any of the Accounts to another branch of the Account Bank unless such transfer does not affect the Pledges; | |
10.8 | to obtain the Collateral Agent’s written consent prior to the establishment of a new account, including any sub-account, re-designated account or re-numbered account pursuant to Clause 2.1.1(B) above. Upon the Pledgees’ request, the |
Pledgor shall give all declarations and render all reasonable assistance which is necessary in order to perfect the Pledgees’ pledge over the so established account; | ||
10.9 | not to create or permit to subsist any encumbrance, except for any Permitted Lien, over any of the Accounts, or knowingly do or permit to be done, anything which is likely to be expected to jeopardize or otherwise prejudice the existence, validity or ranking of the Pledges; | |
10.10 | to inform the Collateral Agent, on behalf of the Pledgees, promptly (unverzüglich) upon gaining knowledge of any attachments (Pfändungen) of third parties that relate to the Accounts or any other third-party measures, except for the creation of a Permitted Lien, which impair or jeopardize the Pledges. In the event of any such attachment, the Pledgor shall provide the Collateral Agent with a copy of the attachment and/or transfer order (Pfändungs-und/oder Überweisungsbeschluss) and any other documents which the Collateral Agent, on behalf of the Pledgees, requests that are necessary or expedient for a defense against such attachment. In addition, the Pledgor shall inform the third party promptly (unverzüglich) in writing of the Pledges and render, at its own expense, to the Collateral Agent, acting on behalf of the Pledgees, all assistance required or expedient to protect its Pledges; and | |
10.11 | The Pledgor shall, at its own expense, execute and do all such assurances, acts and things as the Collateral Agent, acting on behalf of the Pledgees, may reasonably require |
10.11.1 | for perfecting or protecting the security under this Agreement; and | ||
10.11.2 | in the case of the enforcement of security, to facilitate the realization of all or any part of the collateral which is subject to this Agreement and the exercise of all powers, authorities and discretions vested in the Pledgees. |
11. | LIMITATION OF ENFORCEMENT | |
11.1 | Subject to Clause 11.2 through Clause 11.4 below, the Collateral Agent shall not enforce the Pledges to the extent (i) the Pledges secure obligations of one of the Pledgor’s shareholders or of an affiliated company (verbundenes Unternehmen) of a shareholder within the meaning of Section 15 of the German Stock Corporation Act (Aktiengesetz) (other than a Subsidiary of the Pledgor or the Pledgor itself), and (ii) the enforcement of the Pledges for such obligations would reduce, in |
violation of Section 30 of the German Limited Liability Companies Act (GmbHG), the net assets (assets minus liabilities minus provisions and liability reserves (Reinverm��gen), in each case as calculated in accordance with generally accepted accounting principles in Germany (Grundsätze ordnungsmäßiger Buchführung) as consistently applied by the Pledgor in preparing its unconsolidated balance sheets (Jahresabschluß gemäß § 42 GmbHG, §§ 242, 264 HGB)) of the Pledgor to an amount that is insufficient to maintain its registered share capital (Stammkapital) (or would increase an existing shortage in its net assets below its registered share capital); provided that for the purpose of determining the relevant registered share capital and the net assets, as the case may be: |
11.1.1 | The amount of any increase of the Pledgor’s registered share capital (Stammkapital) implemented after the date of this Agreement that is effected without the prior written consent of the Collateral Agent shall be deducted from the registered share capital of the Pledgor; | ||
11.1.2 | any loans provided to the Pledgor by a direct or indirect shareholder or an affiliate thereof (other than a Subsidiary of the Pledgor) shall be disregarded and not accounted for as a liability to the extent that such loans are subordinated or are considered subordinated under Section 32a GmbHG; | ||
11.1.3 | shareholder loans, other loans and contractual obligations and liabilities incurred by the Pledgor in violation of the provisions of any of the Loan Documents shall be disregarded and not accounted for as liabilities; | ||
11.1.4 | any assets that are shown in the balance sheet with a book value that, in the opinion of the Collateral Agent, is significantly lower than their market value and that are not necessary for the business of the Pledgor (nicht betriebsnotwendig) shall be accounted for with their market value; and | ||
11.1.5 | the assets of the Pledgor will be assessed at liquidation values (Liquidationswerte) if, at the time the managing directors prepare the balance sheet in accordance with paragraph (b) below and absent the demand a positive going concern prognosis (positive Fortbestehensprognose) cannot be established. |
11.2 | The limitations set out in Clause 11.1 only apply: |
11.2.1 | If and to the extent that the managing directors of the Pledgor have confirmed in writing to the Collateral Agent within ten (10) Business Days of receipt of the Realization Notice or the commencement of enforcement under this Agreement the value of the Pledges which cannot be enforced without causing the net assets of the Pledgor to fall below its registered share capital, or increase an existing shortage in net assets below its registered share capital (taking into account the adjustments set out above) and such confirmation is supported by a current balance sheet and other evidence satisfactory to the Collateral Agent and neither the Collateral Agent nor any of the Secured Parties raises any objections against that confirmation within five (5) Business Days after its receipt; or | ||
11.2.2 | if, within twenty (20) Business Days after an objection under paragraph 11.2.1 has been raised by the Collateral Agent or a Secured Party, the Collateral Agent receives a written audit report (“Auditor’s Determination”) prepared at the expense of the Pledgor by a firm of auditors of international standing and reputation that is appointed by the Pledgor and reasonably acceptable to the Collateral Agent, to the extent such report identifies the amount by which the net assets of the Pledgor are necessary to maintain its registered share capital as at the date of the Realization Notice or the commencement of enforcement (taking into account the adjustments set out above). The Auditor’s Determination shall be prepared in accordance with generally accepted accounting principles applicable in Germany (Grundsätze ordnungsgemäßer Buchführung) as consistently applied by the Pledgor in the preparation of its most recent annual balance sheet. The Auditor’s Determination shall be binding for all Parties except for manifest error. |
11.3 | In any event, the Collateral Agent, for and on behalf of the Secured Parties, shall be entitled to enforce the Pledges up to those amounts that are undisputed between them and the Pledgor or determined in accordance with Clause 11.1 and Clause 11.2. In respect of the exceeding amounts, the Secured Parties shall be entitled to further pursue their claims (if any) and the Pledgor shall be entitled to provide that the excess amounts are necessary to maintain its registered share capital (calculated as at the date of the Realization Notice or the commencement of enforcement and taking into account the adjustments set out above). The Secured Parties are entitled to pursue those parts of the Pledges that are not enforced by operation of Clause 11.1 above at any subsequent point in time. This Clause 11 shall apply again as of the time such additional enforcements are made. |
11.4 | Should it become legally permissible for managing directors of a German GmbH (Gesellschaft mit beschränkter Haftung, Limited Liability Company) to enter into guarantees in support of obligations of their shareholders without limitations, the limitations set forth in Clause 11.1 shall no longer apply. Should any such guarantees become subject to legal restrictions that are less stringent than the limitations set forth in Clause 11.1 above, such less stringent limitations shall apply. Otherwise, Clause 11.1 shall remain unaffected by changes in applicable law. | |
12. | ECONOMIC OWNERSHIP OF THE ACCOUNTS |
The Pledgor hereby declares pursuant to Section 8 of the German Money Laundering Act (Geldwäschegesetz) (i) that it is the economic owner (wirtschaftlicher Berechtigter) of its Accounts other than the Trust Accounts and that it did not, and still does not, act for the account of third parties in connection with the establishment and the maintenance of such Accounts other than the Trust Accounts and (ii) that the Original Pledgee 10 is the economic owner (wirtschaftlicher Berechtigter) of its Trust Accounts. |
13. | INTERCREDITOR AGREEMENT |
14. | NOTICES | |
14.1 | Any notice or other communication in connection with this Agreement shall be in writing and shall be delivered personally, sent by registered mail or sent by fax (with confirmation copy by registered mail) to the following addresses: | |
14.1.1 | If to the Pledgees and Collateral Agent: |
LaSalle Business Credit, LLC,as Collateral Agent | ||||||
135 South LaSalle Street, Suite 425 | ||||||
Chicago, IL 60603, USA | ||||||
Attention: | Account Officer | |||||
Fax: | +1.312.992-1501 | |||||
with a copy to: | ||||||
Skadden, Arps, Slate, Meagher&Flom LLP | ||||||
333 West Wacker Drive, Suite 2100 | ||||||
Chicago, IL 60606, USA | ||||||
Attention: | Seth E. Jacobson | |||||
Fax: | +1.312.407-8511 | |||||
Phone: | +1.312.407-0889 |
14.1.2 | If to Pledgor: |
Address: | Novelis Deutschland GmbH | |||
Hannoversche Straße 1, | ||||
37075 Göttingen, Germany | ||||
Attention: | Geschäftsführung |
Fax: +49 551 304 4902 | ||
or to such other address as the recipient may notify or may have notified to the other party in writing. | ||
14.2 | Any notice or other communication under this Agreement shall be in English or in German. If in German, such notice or communication shall be accompanied by a translation into English. | |
15. | WAIVER | |
15.1 | No failure to exercise or any delay in exercising any right or remedy hereunder by the Pledgees shall operate as a waiver hereunder. Nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any right or remedy. | |
15.2 | Any rights of the Pledgees pursuant to this Agreement, including the rights under this Clause, may be waived only in writing. | |
16. | COUNTERPARTS | |
16.1 | This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by telecopier shall be equally as effective as delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by telecopier also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement. | |
17. | GOVERNING LAW AND JURISDICTION | |
17.1 | This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. |
17.2 | For any disputes arising out of or in connection with this Agreement the courts in Frankfurt am Main, Federal Republic of Germany shall have exclusive jurisdiction. The Pledgees, however, shall also be entitled to take legal action against the Pledgor before any other court having jurisdiction over the Pledgor or any of the Pledgor’s assets. | |
18. | LIABILITY AND INDEMNIFICATION | |
18.1 | Without extending the Collateral Agent’s liability as set forth in Section 10.09 of the Credit Agreement, neither of the Pledgees nor the Collateral Agent shall be liable for any loss or damage suffered by the Pledgor except for such loss or damage which is incurred as a result of the willful misconduct or gross negligence of a Pledgee or the Collateral Agent. | |
18.2 | The Pledgor shall indemnify the Pledgees and the Collateral Agent and any person appointed by either the Pledgees or the Collateral Agent under this Agreement against any losses, actions, claims, expenses, demands and liabilities which are incurred by or made against the Pledgees and/ or the Collateral Agent for any action or omission in the exercise of the powers contained herein other than to the extent that such losses, actions, claims, expenses, demands and liabilities are incurred by or made against the Pledgees and/ or the Collateral Agent as a result of the gross negligence (grobe Fahrlässigkeit) or willful misconduct (Vorsatz) of the Pledgees and/ or the Collateral Agent, as the case may be. | |
19. | AMENDMENTS |
20. | ANNEXES, SCHEDULES |
21. | SEVERABILITY | |
21.1 | Should any provision of this Agreement be or become invalid or unenforceable, or should this Agreement be accidentally incomplete or become incomplete, this shall not affect the validity or enforceability of the remaining provisions hereof. In lieu of the invalid or unenforceable provision or in order to remedy any |
incompleteness, a provision shall apply which comes as close as possible to that which the Parties had intended or would have intended if they had considered the matter. In the event that any Pledge granted under this Agreement shall be impaired or be or become invalid or unenforceable this shall not affect the validity or enforceability of any other Pledge granted under this Agreement. | ||
21.2 | To the extent that the Pledges have not been properly created or, where applicable, their nominal denominations have not been made in Euro, the Pledgor undertakes that it will without promptly (unverzüglich) cure any legal defects, make all necessary acts, and (in the event that these legal defects render this Agreement invalid or otherwise affect the perfection and enforceability of the security interest created thereby) re-execute this Agreement. |
Bank Sort | ||||||||||||||||||||
Country | Ort | Bank | Code (BLZ) | Account Nr. | Currency | Notes | Owner | Location | Contact | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991300* | EUR | One-Way Pool | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991300* | CAD | One-Way Pool | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991300* | CHF | One-Way Pool | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991300* | DKK | One-Way Pool | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991300* | GBP | One-Way Pool | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991300* | SEK | One-Way Pool | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991300* | USD | One-Way Pool | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald |
* | The Accounts marked with an Asterisk are the “Trust Accounts”, and the respective banks are the “Trust Account Banks” |
Bank Sort | ||||||||||||||||||||
Country | Ort | Bank | Code (BLZ) | Account Nr. | Currency | Notes | Owner | Location | Contact | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991302 | EUR | Hauptkonto Währung | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991302 | CAD | Hauptkonto Währung | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991302 | CHF | Hauptkonto Währung | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991302 | DKK | Hauptkonto Währung | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991302 | GBP | Hauptkonto Währung | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991302 | SEK | Hauptkonto Währung | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991302 | USD | Hauptkonto Währung | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991301 | USD | Metall | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991301 | EUR | Rentenkonto | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205995400 | EUR | ATZ- Gebührenbelastungen | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205995408 | EUR | Sicherheiten/Rücklagen ATZ | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald |
Bank Sort | ||||||||||||||||||||
Country | Ort | Bank | Code (BLZ) | Account Nr. | Currency | Notes | Owner | Location | Contact | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991309 | EUR | Festgelder | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991309 | GBP | Festgelder | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 209550300 | EUR | Holding | Novelis Aluminium Holding Co. | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 1766005 | EUR | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | ||||||||||||
Germany | Lüdenscheid | Commerzbank | 458 400 26 | 6208870 | EUR | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | ||||||||||||
Germany | Plettenberg | Commerzbank | 458 410 31 | 8203200 | EUR | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | ||||||||||||
Germany | Aschersleben | Commerzbank | 810 400 00 | 6526172 | EUR | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | ||||||||||||
Germany | Nürnberg | Commerzbank | 760 400 61 | 521823501 | EUR | Rentenkonto | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald |
Bank Sort | ||||||||||||||||||||
Country | Ort | Bank | Code (BLZ) | Account Nr. | Currency | Notes | Owner | Location | Contact | |||||||||||
Spain | Madrid | Commerzbank | COBAESM | 3631686 | EUR | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | ||||||||||||
Great Britain | London | Commerzbank | COBAGB2 | 1152214 | GBP | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | ||||||||||||
Finland | Espoo | Nordea Pamki Suomi Oyi | NDEAFIHH XXX | 15713027756 | EUR | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | ||||||||||||
Denmark | Ishoj | Den Danske Bank | DABADKK KXXX | 3326147966 | DKK | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | ||||||||||||
France | Levallois-Perret | Societe Generale | SOGEFRPP | 00020491387 | EUR | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | ||||||||||||
Netherlands | Amsterdam | Postbank | PSTBNL21 | 1775145 | EUR | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | ||||||||||||
Belgium | Brüssel | Fortis Bank | GEBABEBB | 210073796440 | EUR | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | ||||||||||||
Netherlands | Dordrecht | ABN AMRO Bank NV | ABNANL2A | 417007310 | EUR | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald |
From: | Novelis Deutschland | |
Hannoversche Straße 1 | ||
37075 Göttingen | ||
Germany | ||
To: | [ ] | |
[ ] | ||
Germany | ||
Date: | [ ] | |
Re: | Accounts Nos. [ ] (the “Accounts”) |
+ 1-312-904-6450, to the attention of Account Officer, in its capacity as Collateral Agent with a copy to ourselves.
Novelis Deutschland GmbH
From: | Commerzbank AG | |
(the Account Bank) | ||
To: | LaSalle Business Credit, LLC | |
as Collateral Agent | ||
135 South LaSalle Street, Suite 425, | ||
Chicago, IL 60603, | ||
USA | ||
Fax: + 1-312-904-6450 | ||
Attention: Account Officer | ||
Copy to: | Novelis Deutschland GmbH | |
Hannoversche Straße 1 | ||
37075 Göttingen | ||
Germany |
GKE Ost
Potsdamer Str. 125
10783 Berlin
Fax: + 49 30 / 2653-2720
Pledgor | ||
NOVELIS DEUTSCHLAND GMBH | ||
/s/ Gottfried Weindl | ||
Title: Managing Director (Geschäftsführer) |
Original Pledgee 1 and Collateral Agent | ||
LASALLE BUSINESS CREDIT, LLC | ||
/s/ StefalName: | ||
Title: |
Original Pledgee 2 | ||||||
ABN Amro Bank N.V. | ||||||
/s/ Scott Donaldson | /s/ J. Westrick | |||||
Name: Scott Donaldson | J. Westrick | |||||
Title: Director | Vice President | |||||
Original Pledgee 3 | ||||||
UBS SECURITIES LLC | ||||||
/s/ Mary E. Evans | /s/ David B. Julie | |||||
Title: Associate Director Banking Products Services, US | Associate Director Banking Products Services, US | |||||
Original Pledgee 4 | ||||||
ABN AMRO BANK N.V. | ||||||
/s/ Scott Donaldson | /s/ J. Westrick | |||||
Name: Scott Donaldson | J. Westrick | |||||
Title: Director | Vice President | |||||
Original Pledgee 5 | ||||||
BANK OF AMERICA, N.A. | ||||||
/s/ Stephen Y. McGehee | ||||||
Title: Senior Vice President |
Original Pledgee 6 | ||
NATIONAL CITY BUSINESS CREDIT, INC. | ||
/s/ Robert Bartkowski | ||
Title: Director | ||
Original Pledgee 7 | ||
CIT BUSINESS CREDIT CANADA INC. | ||
/s/ E. Dennis McCluskey | /s/ Darryl Lalach | |
Name: E. Dennis McCluskey | Darryl Lalach, C.A. | |
Title: President & CEO | Treasurer & V.P. Operations | |
Original Pledgee 8 | ||
ABN AMRO INCORPORATED | ||
/s/ David Wood | ||
Title: Managing Director | ||
Original Pledgee 9 | ||
UBS SECURITIES LLC | ||
/s/ Mary E. Evans | /s/ David B. Julie | |
David B. Julie | ||
Title: Associate Director Banking Products Services, US | Associate Director Banking Products Services, US |
Original Pledgee 10 | ||
NOVELIS AG | ||
/s/ P. Hen /s/ F. Floto | ||
Title: Officer Officer |
BRAZILIAN SECURITY AGREEMENT
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2.2. | For the purposes of Article 1,424 of the Brazilian Civil Code, the basic terms of the Secured Obligations are those described in | |
Schedule 2.2. hereof. | ||
2.3. | Under the terms of Article 1,452, sole paragraph, of the Brazilian Civil Code, the Pledgor is ensured the right to maintain possession of | |
the documentation evidencing the title of the Pledged Receivables, being responsible, however, for its conservation and maintenance. | ||
2.4. | In order to comply with Article 1,453 of the Brazilian Civil Code, Pledgor hereby agrees and undertakes to notify each of the banks in | |
which the Bank Accounts are held within 10 (ten) days as of the date of execution of this Agreement, in the form of the notice attached hereto asSchedule 2.4 (the“Notice”). |
(i) | Pledgor is the legal owner of the Pledged Receivables, which are free from any liens other than (i) those contemplated herein; and (ii) those created under the Receivables Pledge Agreement entered into by and between UBS AG Stamford Branch, as collateral agent and Novelis do Brasil Ltda., as of the same date hereof; | |
(ii) | Pledgor has full capacity to pledge the Pledged Receivables in favor of the Collateral Agent, and that the execution, delivery, performance and grant of the pledge created hereby have been duly authorized by all necessary corporate actions on the part of Pledgor, and do not and will not (i) violate any provision of the articles of association, charter or other organizational documents of Pledgor, or (ii) conflict with, result in a breach of, or constitute (or, with the giving of notice or lapse of time or both, would constitute) a default under, or, except for consents and approvals that have been obtained and are in full force and effect, require the approval or consent of any person pursuant to any material contractual obligation of Pledgor, or (iii) violate any applicable law binding on Pledgor; | |
(iii) | Upon completion of the registration and the delivery of the notice as required in Section 5 and Schedule 2.4. hereof, the pledge of the Pledged Receivables will constitute a legal, valid, and perfected security interest on the Pledged Receivables, enforceable in accordance with its terms against Pledgor and any third parties, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally; | |
(iv) | The disposal of the Pledged Receivables, judicially and/or out of court, under the terms of this Agreement, does not violate any law, rules, regulations, agreements, injunctions, decrees or court rulings binding upon Pledgor. There is no action, suit, proceeding, arbitration or governmental investigation pending or threatened in respect to the Pledged Receivables. There exists no impediment that would prevent the disposal of the Pledged Receivables, judicially and/or out of court, under the terms of this Agreement; | |
(v) | Pledgor has not sold or granted any rights of preemption over or agreed to sell or grant any right of preemption over or otherwise disposed of or agreed to dispose of the benefit of all or any of its rights, title and interest in and to all or any part of the Pledged Receivables; |
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(vi) | Pledgor has full knowledge of all terms and conditions of the Revolving Credit Agreement, and of the Intercreditor Agreement including but not limited to the basic terms of the Secured Obligations as described in Schedule 2.2 hereto; and | |
(vii) | The undertaking by Pledgor of the obligations provided herein will not, in any event, cause any material adverse effect upon or any material change to the business, operations, properties, equipment, condition (financial or otherwise) or prospects of Pledgor, or the impairment of the ability of Pledgor to perform and conduct its business in its normal course(“Material Adverse Effects”). |
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Avenida das Nações Unidas, 12.551 – 15th floor
Torre Empresarial World Trade Center
São Paulo S.P. Brasil
04578-000
Telefax: 55 11 5503-0714
Attention: Alexandre Moreira Martins de Almeida
135 South LaSalle Street, Suite 425
Chicago, Illinois 60603
Attention: Account Officer
Telecopier No.: 312-904-6450
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NOVELIS DO BRASIL LTDA. | ||||
/s/ Novelis Do Brasil | ||||
Name: | NOVELIS DO BRASIL | |||
Title: | Antonio Tadeu Coalho Nardocci Presidente | |||
/s/ Alexandre M. Almeida | ||||
Name: | Alexandre M. Almeida | |||
Title: | Director Financeiro | |||
de Servicos Corporativos | ||||
LASALLE BUSINESS CREDIT, LLC | ||||
/s/ Ana Carolina de Salles Freire Rutigliano | ||||
Name: | Ana Carolina de Salles Freire Rutigliano | |||
Title: | Attorney-in-fact |
/s/ Marilisa Mazzin | /s/ Maria Elegiani Damasceno | |||||||||
Name: | Marilisa Mazzin | Name: | Maria Elegiani Damasceno | |||||||
ID: | RG 9.077.267-2 SSP/SP | ID: | RG 14.231.792-2 SSP/SP | |||||||
CPF 006.903.408-77 | CPF 066.468.708-37 |
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TYPE OF | BANK OR | |||||
OWNER | ACCOUNT | INTERMEDIARY | ACCOUNT NUMBERS | |||
Novelis do Brasil Ltda. | Deposit Account | Banco Brasil | 1011-1 | |||
Novelis do Brasil Ltda. | Deposit Account | Bradesco | 60032-6 | |||
Novelis do Brasil Ltda. | Deposit Account | Bradesco | 175512-9 | |||
Novelis do Brasil Ltda. | Deposit Account | Itau S/A | 12-2 | |||
Novelis do Brasil Ltda. | Deposit Account | Safra | 1751-9 | |||
Novelis do Brasil Ltda. | Deposit Account | Caixa | 230-0 | |||
Novelis do Brasil Ltda. | Deposit Account | Citibank | 396 | |||
Novelis do Brasil Ltda. | Deposit Account | Citibank | 99705079 | |||
Novelis do Brasil Ltda. | Deposit Account | ABN Amro | 3703618 | |||
Novelis do Brasil Ltda. | Deposit Account | Unibanco AIG | 55 19 60200 501/502/510 | |||
Novelis do Brasil Ltda. | Deposit Account | Banco Brasil | 15999-9 | |||
Novelis do Brasil Ltda. | Deposit Account | Banco Real | 8707432-5 | |||
Novelis do Brasil Ltda. | Deposit Account | Bradesco | 73076-9 | |||
Novelis do Brasil Ltda. | Deposit Account | Bradesco | 3863-6 |
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NOVELIS DO BRASIL LTDA. | ||||
Name: | NOVELIS DO BRASIL | |||
Title:. | Antonio Tadeu Coalho Nardocci Presidente | |||
Name: | Alexandre M. Almeida | |||
Title: | Director Financeiro | |||
Serviços Corporativos |
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1. | Revolving Credit Facilities | |
a) | Principal Amount |
b) | Termination |
c) | Interest |
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[Name of Bank]
/s/ NOVELIS DO BRASIL | ||
Name: | NOVELIS DO BRASIL | |
Title: | Antonio Tadeu Coalho Nardocci Presidente | |
/s/ Alexandre M. Almeida | ||
Name: | Alexandre M. Almeida | |
Title: | Director Financeiro Serviços Corporativos |
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2
3
4
5
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Avenida das Nações Unidas, 12.551 — 15th floor
Torre Empresarial World Trade Center
São Paulo S.P. Brasil
04578-000
Telefax: 55 11 5503-0714
Attention: Alexandre Moreira Martins de Almeida
135 South LaSalle Street, Suite 425
Chicago, Illinois 60603
Attention: Account Officer
Telecopier No.: 312-904-6450
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São Paulo, July 6, 2007. | ||||||||||
�� | ||||||||||
NOVELIS DO BRASIL LTD. | ||||||||||
/s/ NOVELIS DO BRASIL | /s/ Alexandre M. Almeida | |||||||||
Name: | NOVELIS DO BRASIL | Name: | Alexandre M. Almeida | |||||||
Title: | Antonio Tadeu Coalho Nardocci Presidente | Title: | Diretor Financeiro e de Serviços Corporativos |
LASALLE BUSINESS CREDIT, LLC | ||
/s/ Ana Carolina de Salles Freire Rutigliano | ||
Name: | Ana Carolina de Salles Freire Rutigliano | |
Title: | Attorney-in-fact |
/s/Marilisa Mazzin | /s/Maria Elegiani Damasceno | |||||||||
Nome: | Marilisa Mazzin | Nome: | Maria Elegiani Damasceno | |||||||
RG: | RG 9.077.267-2 SSP / SP | RG: | RG 14.231.792-2 SSP / SP | |||||||
ID: | CPF 006.903.408-77 | ID: | CPF 066.468.708-37 |
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a) | São Paulo: Av. das Nações Unidas, 12551, 15th floor, Torre Empresarial World Trade Center de São Paulo São Paulo, SP 04578-000 Brazil | |
b) | Candeias: Via das Torres, s/no — Centro Industrial de Aratu Candeias, BA CEP 43800-000 Brazil | |
c) | Ouro Preto: Av. Américo R. Gianetti, 521 — Saramenha Ouro Preto, MG CEP 35400-000 Brazil | |
d) | Pindamonhangaba: Av. Buriti, 1087 — Feital Pindamonhangaba, SP CEP 12441-270 Brazil | |
e) | Santo André: Rua Felipe Camarão, 414 — Utinga Santo André, SP CEP 09220-902 Brazil | |
f) | Belo Horizonte: Avenida do Contorno, 8.000 — sala 702 Centro Belo Horizonte, MG CEP 30112-010 Brazil | |
g) | Hydropower Plant — Fumaça: Est. Miguel Rodrigues A Barroca S/no — Cachoeira do Brumado Mariana, MG CEP 35420-000 Brazil |
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h) | Hydropower Plant — Furquim: Fazenda Usina de Furquim S/no Mariana, MG CEP 35420-000 Brazil | |
i) | Hydropower Plant — Brecha: Fazenda Usina de Brecha S/no — Piranga Guaraciaba, MG CEP 35436-000 Brazil | |
j) | Hydropower Plant — Salto: Fazenda Usina de Salto S/no Ouro Preto, MG CEP 35400-000 Brazil | |
k) | Hydropower Plant — Brito: Estrada do Brito S/no — Brito Ponte Nova, MG CEP 35430-000 Brazil | |
I) | Bauxite Mine —Fazenda Vargem: Fazenda da Vargem Zona Rural Santa Bárbara, MG CEP 35960-000 Brazil | |
m) | Bauxite Mine —Antonio Pereira: Est. de Acesso a Serra Antonio Pereira Antonio Pereira, MG CEP 301 10-080 Brazil | |
n) | Bauxite Mine — Monjolo: Jazida Monjolo S/no — Distrito de Padre Veigas Mariana, MG CEP 35420-000 Brazil | |
o) | Bauxite Mine — Fazenda do Lopes Jazida Fazenda do Lopes S/no Caeté, MG CEP 34800-000 Brazil |
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p) | Bauxite Mine — Serra do Maquiné Mina Serra do Maquiné S/no Caeté, MG CEP 34800-000 Brazil | |
q) | Bauxite Mine — Fazenda Gandarela e Mato Grosso Fazenda Gandarela e Mato Grosso S/N°, Santa Bárbara, MG CEP 35960-000 Brazil | |
r) | Bauxite Mine — Galo Mina Galo S/no — Distrito de Carfanaum Faria Lemos, MG CEP 35960-000 Brazil | |
s) | Bauxite Mine Lagoa Seca Estrada de Acessoà Mina Lagoa Seca, S/No — Itabirito — MG CEP 35450-000 Brazil | |
t) | Consórcio Candonga (a consortium with CVRD — Cia. Vale Rio Doce) Estrada Acesso a Santana do Deserto, km 12 Rio Doce, MG CEP 35442-000 Brazil | |
u) | Warehouse — Aratu Via Matoim s/no — Aratu Candeias, BA CEP 43800-000 Brazil | |
v) | Warehouse — Acuruf Depósito de Bauxita s/no Itabirito, MG CEP 35340-000 Brazil | |
w) | Crown Embalagens S.A. Rod. Dom Gabriel P. B. Couto, Km 80.24 Cabreúva, São Paulo Brazil CEP 13315-000 |
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Name : | NOVELIS DO BRASIL | Name: | Alexandre M. Almeida | |||
Title: | Antonio Tadeu Coelho Nardocci Presidenté | Title: | Diretor Financeiro e de Serviços Corporativos |
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(a) | NOVELIS DO BRASIL LTDA.,Brazilian limited liability company, with its principal place of business in the City of São Paulo, State of São Paulo, at Avenida das Nações Unidas, 12.551, 15th floor, enrolled with the Taxpayers’ Registry of the Ministry of Finance (CNPJ/MF) under No. 60.561.800/0001-03, hereby represented in accordance with its articles of association by its undersigned legal representatives (hereinafter referred to as the “Pledgor” or “Novelis do Brasil”); and | |
(b) | LASALLE BUSINESS CREDIT, LLC,a financial institution organized and existing under the laws of Delaware, having its office at 135 South LaSalle Street, Suite 425 Chicago, Illinois, 60603, in its capacity as Collateral Agent under the Revolving Credit Agreement, hereby represented by its [attorney-in- fact/legal representative] (hereinafter referred to as the “LASALLE” or “Collateral Agent”); and |
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Name: | NOVELIS DO BRASIL | Name: | Alexandre M. Almeida | |||
Title: | Antonio Tadeu Coelho Nardocci Presidenté | Title: | Diretor Financeiro e de Serviços Corporativos |
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LASALLE BUSINESS CREDIT, LLC | ||||||||
Name: | Name: | |||||||
Title: | Title: | |||||||
Witnesses: | ||||||||
Nome: | Nome: | |||||||
RG: | RG: | |||||||
ID: | ID: |
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OPINION OF COMPANY COUNSEL
![]() | Suite 3000 79 Wellington St. W. Box 270, TD Centre Toronto, Ontario M5K 1N2 Canada TEL 416.865.0040 FAX 416.865.7380 www.torys.com July 6, 2007 |
on its own behalf and as Administrative Agent
135 South LaSalle Street, Suite 425
Chicago, IL 60603
on its own behalf and as Canadian Administrative Agent
79 Wellington Street West
TD Waterhouse Tower, 15th Floor
Toronto, ON M5K 1G8
Canada
on its own behalf and as Collateral Agent
135 South LaSalle Street, Suite 425
Chicago, IL 60603
Credit Agreement
(as defined below)
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(a) | the Organizational Documents, as applicable, of each of the Delaware Loan Parties and the Canadian Loan Parties; | ||
(b) | resolutions of the board of directors of each of the Delaware Loan Parties and the Canadian Loan Parties, authorizing, among other things, the execution, delivery and performance of the Documents to which each is a party; | ||
(c) | a certificate of status dated July 5, 2007, issued in respect of each of Cast House and Aluminum, pursuant to theBusiness Corporations Act(Ontario); | ||
(d) | a certificate of compliance dated July 5, 2007 issued in respect of each of the Canadian Borrower, 4260848 and 4260856, pursuant to theCanada Business Corporations Act(“CBCA”); | ||
(e) | a certificate of good standing dated July 5, 2007, issued in respect of each of the Delaware Loan Parties, by the Secretary of State of the State of Delaware (collectively, the“Good Standing Certificates”); and | ||
(f) | an officer’s certificate of each of the Delaware Loan Parties and the Canadian Loan Parties, with respect to certain factual matters, a copy of each of which has been delivered to you. |
(a) | with respect to all documents examined by us, the genuineness of all signatures, the legal capacity of individuals signing any documents, the authenticity of all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as certified, conformed, telecopied or photocopied copies, the |
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authenticity of such latter documents and the accuracy and completeness of all records and other information made available to us; | |||
(b) | each of the certificates of status and compliance with respect to the Canadian Loan Parties referred to above and the Good Standing Certificates continues to be accurate as of the date of this opinion as if issued on that date; | ||
(c) | each of the Documents has been duly authorized, executed and delivered by each of the parties thereto (other than the Relevant Loan Parties) and constitutes legal, valid and binding obligations of each of the parties thereto (other than the Relevant Loan Parties) enforceable against each of them in accordance with their respective terms; | ||
(d) | that Novelis LP is existing as a limited partnership under the laws of its jurisdiction of formation, Novelis LP has the power and capacity to perform its obligations under the Documents to which Novelis LP is a party, that, to the extent the laws of Quebec apply, the General Partner has in its capacity as General Partner on behalf of Novelis LP duly authorized the execution, delivery and performance of the obligations of Novelis LP under the Documents to which Novelis LP is a party and has duly executed and delivered the Documents to which Novelis LP is a party and that the execution, delivery and performance by the General Partner on behalf of Novelis LP of the Documents to which Novelis LP is a party do not breach or contravene the Organizational Documents of Novelis LP or its governing law; | ||
(e) | that each of the Foreign Loan Parties is incorporated and existing under the laws of its jurisdiction of incorporation, has the corporate power and capacity to perform its obligations under the NY Documents to which it is a party, has duly authorized the execution, delivery and performance of its respective obligations under the NY Documents to which it is a party, has duly executed and delivered the NY Documents to which it is a party and the execution, delivery and performance by each Foreign Loan Party of the NY Documents to which it is a party do not breach or contravene the Organizational Documents of such Foreign Loan Party or its respective governing law; | ||
(f) | that Novelis Corp. is incorporated and existing under the laws of its jurisdiction of incorporation, has the corporate power and capacity to perform its obligations under the NY Documents to which it is a party and has duly authorized the execution, delivery and performance of its obligations under the NY Documents to which it is a party and that the execution, delivery and performance by Novelis Corp. of the NY Documents to which it is a party do not breach or contravene the Organizational Documents of Novelis Corp. or its governing law; | ||
(g) | that the minute books of each of the Relevant Loan Parties made available to us are the original minute books of such companies, and contain records of all meetings, resolutions and proceedings of the shareholders, members, directors and committees of the board of directors of such companies and that such minute books are true, correct and complete in all respects and there have been no other meetings, resolutions or proceedings of the shareholders, members, board of directors or committees of the board of directors of such company not reflected in such minute books; | ||
(h) | that each of the Documents to which a Canadian Loan Party is a party has been duly executed and delivered in accordance with the terms of the applicable contract law of the |
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location where such execution and delivery took place, being Chicago, Illinois, except to the extent that the laws of the Province of Ontario are applicable thereto; | |||
(i) | the collateral charged in the Canadian Security Documents does not include consumer goods (as defined in thePersonal Property Security Act(Ontario) (the“PPSA”)); | ||
(j) | none of the Lenders, the Agents or the Collateral Agent is subject to Regulation T of the Board of Governors of the Federal Reserve System; | ||
(k) | the certificates representing the shares pledged pursuant to the US Security Agreement and the Ontario GSA have been delivered to the Collateral Agent or its agent (other than any Loan Party or its agent) in New York and are being held by the Collateral Agent or its agent (other than any Loan Party or its agent); | ||
(l) | the Lenders have acted in good faith and without notice of any defense against the enforcement of any rights created by the transactions contemplated by the Documents; | ||
(m) | there has not been any mutual mistake of fact or misunderstanding, fraud, duress or undue influence; and | ||
(n) | the choice of the laws of the State of New York as the governing law of the NY Documents was not procured by fraud, over-reaching, duress, undue influence or ignorance. |
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1. | Each of the Delaware Loan Parties is duly organized and validly existing under the laws of the State of Delaware and based solely on the Good Standing Certificates, in good standing in the State of Delaware. | ||
2. | Cast House is incorporated and existing under the laws of the Province of Ontario. | ||
3. | Each of the Canadian Borrower, Aluminum, 4260848 and 4260856 is incorporated and existing under the CBCA. | ||
4. | Each of the Relevant Loan Parties has all requisite corporate or limited liability company power and authority to carry on its business as now conducted and to own and lease its property and to enter into and perform its obligations under the Documents to which it is a party (and, in the case of 4260848, also in its capacity as general partner of Novelis LP (in such capacity, the “General Partner”) with respect to the Documents to which Novelis LP is a party), and each of the Relevant Loan Parties (and, in the case of 4260848, on its own behalf and as General Partner) has duly authorized by all necessary corporate or limited liability company action the execution and delivery of each of the Documents to which it is a party and the performance of its respective obligations thereunder and, in the case of the General Partner, the Documents to which Novelis LP is a party. | ||
5. | Each of the Documents has been duly executed and delivered by each Canadian Loan Party and, in the case of Novelis LP, by the General Partner, which is a party thereto, to the extent the laws of Ontario apply. | ||
6. | Each of the Documents has been duly executed and delivered by each US Loan Party that is a party thereto. | ||
7. | The execution, delivery and performance by each of the Relevant Loan Parties (and in the case of 4260848, on its own behalf and as General Partner) of each of the Documents to which it is a party and consummation of the transactions contemplated thereby (including the borrowing of Loans and issuance of Letters of Credit on the Closing Date and the granting of liens to secure the Secured Obligations), (a) will not violate the Organizational Documents of such Relevant Loan Party, (b) will not violate (i) any Ontario provincial law, rule or regulation or federal Canadian law, rule or regulation applicable in the Province of Ontario, the Delaware Limited Liability Company Act, the General Corporation Law of the State of Delaware or any New York State law or regulation or federal law of the United States, which in any case is applicable to the respective Relevant Loan Parties or (ii) any judgment, decree or order of any Governmental Authority of the Province of Ontario, State of New York or Her Majesty the Queen in the Right of Canada known to us to be applicable to any Relevant Loan Party, (c) will not violate or result in a default under the Term Loan Agreement and (d) will not violate, result in a default under or require or result in the granting of a Lien under the Senior Note Documents. |
8. | Each of the NY Documents constitutes the legal, valid and binding obligation of each of the Loan Parties that are party thereto, enforceable against each such party in accordance with its terms. |
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9. | Each of the Ontario Documents constitutes the legal, valid and binding obligation of the Canadian Loan Parties and Novelis LP that are party thereto, enforceable against such Canadian Loan Party and Novelis LP in accordance with its terms. | ||
10. | No consents or approvals of, registration or filing with, or any other action by, any Governmental Authority are required under the federal laws of the United States, the laws of the State of New York, the General Corporation Law of the State of Delaware, the Delaware Limited Liability Company Act, the laws of the Province of Ontario or the federal laws of Canada applicable in the Province of Ontario for the execution, delivery or performance of the Documents to which any Loan Party is a party except (i) such as have been obtained or made and are in full force and effect, and (ii) filings necessary to perfect Liens created by the Documents. | ||
11. | To our knowledge, there are no actions, suits or proceedings at law or in equity by or before any Governmental Authority now pending or threatened against or affecting any Loan Party or any business, property or rights of any Loan Party that involve any of the Documents or the Transactions. | ||
12. | Neither the execution, delivery and performance of the Documents, the making of the Loans or the issuance of Letters of Credit under the Credit Agreement, the use of proceeds therefrom or the pledge of the Securities Collateral (as defined in the US Security Agreement) pursuant to the US Security Agreement will violate or be inconsistent with the provisions of Regulation T, Regulation U or Regulation X. | ||
13. | No Relevant Loan Party is an “investment company” or a company “controlled” by an “investment company,” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended. |
14. | The US Security Agreement is effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable Liens on and security interests in the collateral therein described and which constituted property in which a security interest can be granted under Article 9 of the UCC (the“Article 9 Collateral”). | ||
15. | Each of the Ontario Security Documents creates in favour of the Collateral Agent a valid security interest in the collateral referred to therein to which the PPSA applies (the“PPSA Collateral”)in which each of the debtors party thereto now has rights, and is sufficient to create a valid security interest in favour of the Collateral Agent in PPSA Collateral in which each of the debtors party thereto hereafter acquires rights when those rights are so acquired, in each case to secure payment and performance of the Secured Obligations or the Obligations, as the case may be (as such terms are defined in the Ontario Security Documents). | ||
16. | Registration has been made in all public offices provided for under the laws of Ontario where such registration is necessary to preserve, protect or perfect the security interests created by each Ontario Security Document in favour of the Collateral Agent in the PPSA Collateral charged therein. | ||
17. | The Debenture is in proper form to be accepted for registration by the Land Registry Office for the Land Titles Division of Frontenac (the“LTO”). When registered in the LTO, the Debenture will constitute a good and valid charge of the right, title and interest of the Canadian Borrower in the Ontario Real Property (as defined below). |
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18. | The registration of the Debenture in the LTO is the only filing, registration or recording necessary to give constructive notice of the lien created by the Debenture on the real property located in Kingston, Ontario described therein (the“Ontario Real Property”) to subsequent purchasers and mortgagees of the Ontario Real property. No other registrations, recordings, filings, re-recordings or re-filings other than the registration of the Debenture in the LTO are necessary in order to maintain the validity or priority of the lien created by the Debenture on the Ontario Real Property. | ||
19. | Upon delivery to the Collateral Agent in the State of New York of the certificates representing the Securities Collateral that are required to be delivered to the Collateral Agent pursuant to the US Security Agreement and the Ontario Security Documents (the“Pledged Securities”) in registered form, endorsed in blank by an effective endorsement or accompanied by undated stock powers with respect thereto duly endorsed in blank by an effective endorsement, the Collateral Agent will have control (within the meaning of the UCC) of, and a perfected security interest in, the Pledged Securities for the benefit of the Secured Parties under the UCC. Subject to the Intercreditor Agreement, assuming neither the Collateral Agent nor any of the Secured Parties has notice of any adverse claim (within the meaning of the UCC) to the Pledged Securities, the Collateral Agent will acquire the security interest in the Pledged Securities for the benefit of the Secured Parties free of any adverse claim. | ||
20. | Upon the execution of the Control Agreement(s) the Collateral Agent shall have control (within the meaning of the UCC) of, and a perfected security interest in, that portion of the Security Agreement Collateral that is required to be subject to a Control Agreement pursuant to the terms of the US Security Agreement. | ||
21. | Each of the UCC Financing Statements listed inSchedule C is in the appropriate form for filing in the applicable filing office. Upon the proper filing and acceptance of such Financing Statements in the applicable filing offices and the payment of all filing fees due in connection therewith, the Collateral Agent on behalf of the Secured Parties will have a perfected security interest in the Article 9 Collateral to the extent that a security interest in such collateral can be perfected by the filing of a financing statement pursuant to the Delaware UCC or the District of Columbia UCC, as applicable. | ||
22. | Upon due filing of the Financing Statements in the applicable jurisdiction noted onSchedule C and payment of all filing and recordation fees associated therewith, and when the US Security Agreement or a short form thereof is filed in the United States Patent and Trademark Office and the United States Copyright Office, the Liens created by the US Security Agreement shall constitute fully perfected Liens on, and security interests in, all right, title and interest of the grantors thereunder in the Intellectual Property Collateral (as defined in the Security Agreement). | ||
23. | The Liens and the security interests created by the US Security Agreement on the Article 9 Collateral will validly secure the payment of all future advances pursuant to the Credit Agreement, whether or not at the time such advances are made, an Event of Default or other event not within the control of the Lenders has relieved or may relieve the Lenders from their obligations to make such advances, and are perfected to the extent set forth in paragraphs 14, 19, 20, 21 and 22 above with respect to such future advances. | ||
24. | Under Section 5-1401 of the General Obligations Law of the State of New York, a federal or state court sitting in New York would honor the parties’ choice of internal laws of the State of New York as the law applicable to the NY Documents (to the extent set forth in such NY Documents) in any action to enforce such NY Documents. |
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25. | The Obligations and the Guaranteed Obligations are “Senior Debt” within the meaning of the Senior Note Agreement. | ||
26. | No taxes or other charges, including, without limitation, intangible or documentary stamp taxes, mortgage or recording taxes, transfer taxes or similar taxes or charges, are payable under the laws of Ontario, the federal laws of Canada, or the laws of the State of New York, on account of the execution and delivery of the Documents or the creation of the indebtedness evidenced or secured by any of the Documents or the recording or filing of the Financing Statements or the NY Mortgage, or as a condition to the legality or enforceability of the NY Mortgage, except for nominal applicable filing, registration or recording fees and taxes (including in connection with any re-advance under the Credit Agreement). |
27. | The NY Mortgage (i) is in proper form to be accepted for recording by the County Recorder identified inSchedule D attached hereto, (ii) creates and constitutes (A) a valid mortgage lien on that portion of the Mortgaged Property (as defined in the NY Mortgage) that constitutes real property(“NY Real Property”) and (B) a valid security interest in such of the Mortgaged Property that constitutes fixtures (the“UCC Property”) and is subject to the provisions of Article 9 of the Uniform Commercial Code as in effect in the State of New York, each in favor of the Collateral Agent for the benefit of the Secured Parties (as defined in the NY Mortgage) securing the Secured Obligations (as defined in the NY Mortgage) and (iii) contains the terms and provisions necessary to enable Collateral Agent, following a default thereunder and the satisfaction of any procedural requirements (such as notice or time to cure), to exercise the remedies which are customarily available to a mortgage lienholder in the State of New York. | ||
28. | The recording of the NY Mortgage with the County Recorder identified inSchedule D attached hereto is the only filing or recording necessary to give constructive notice of the lien created by the NY Mortgage to subsequent purchasers and mortgagees of the NY Real Property. No other recordings, filings, re-recordings or refilings other than those identified inSchedule D are necessary in order to maintain the validity or priority of the lien created by the NY Mortgage on the NY Real Property. | ||
29. | Upon the proper filing and acceptance of the Financing Statements relating to the NY Mortgage with the offices identified inSchedule D attached hereto, the security interest, lien or pledge created by the NY Mortgage in that portion of the Mortgaged Property which constitutes fixtures and which are subject to the provisions of Article 9 of the UCC is duly perfected. Such Financing Statements adequately identify such Mortgaged Property described therein to provide sufficient notice to third parties of the security interest referenced therein (it being understood that we offer no opinion as to the accuracy of the legal description attached thereto). | ||
30. | The Collateral Agent is permitted under the laws of the State of New York without naming all of the Lenders in any applicable legal proceeding to exercise remedies under the NY Mortgage for the realization of any of the Collateral in its own name, as Collateral Agent. | ||
31. | Based solely on a certificate of good standing dated July 5, 2007, issued in respect of Novelis Corp. by the Department of State of the State of New York, Novelis Corp. is qualified to do business and is in good standing as a foreign corporation under the laws of the State of New York. |
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32. | If any provision in any NY Document to which a Canadian Loan Party or Novelis LP is a party is sought to be enforced against any Canadian Loan Party or Novelis LP in an action or proceeding brought before a court of competent jurisdiction in the Province of Ontario, such court in the Province of Ontario would (i) recognize the express choice of laws chosen by the parties in such Documents, provided that such choice of laws isbona fide,in the sense that it was not made with a view to avoiding the consequences of the laws of any other jurisdiction and provided further that such choice is not contrary to public policy, as that term is understood under the laws of the Province of Ontario; and (ii) if that choice of laws is recognized, apply the laws of the State of New York to all issues that are to be determined by those laws under Ontario conflict of laws rules in that action or proceeding, upon appropriate evidence as to those laws being adduced; however, an Ontario court will not apply any laws of the State of New York which are contrary to Ontario public policy. | ||
33. | A court in the Province of Ontario has, however, an inherent power to decline to hear such an action or proceeding if it is contrary to public policy, as such term is understood under the laws of the Province of Ontario, for it to do so, or if such court is not the proper forum to hear such action or proceeding, or if concurrent proceedings are being brought elsewhere. None of the terms of any NY Document to which a Canadian Loan Party or Novelis LP is a party are, insofar as we are aware, contrary to Ontario public policy, as such term is understood from case law decided in the Province of Ontario, and accordingly, it would not, insofar as we are aware based on our review of any NY Document to which a Canadian Loan Party or Novelis LP is a party and a consideration of the potential proceedings that may be brought in relation to them, be contrary to Ontario public policy for an Ontario court to hear an action or proceeding to enforce any of such NY Documents in the Province of Ontario. | ||
34. | A final and conclusivein personamjudgment against any Canadian Loan Party or Novelis LP under or in respect of the any NY Document obtained in any court of competent jurisdiction in the State of New York (including in any federal court of the United States sitting in the City of New York and otherwise having competent jurisdiction), for a definite sum of money, given on the merits, and which is not impeachable as void or voidable under the internal laws of New York, would be recognized and enforced by an Ontario court in an action by a judgment creditor (for example, the Collateral Agent) to enforce such judgment, provided that: |
(i) | such judgment was not obtained by fraud; | ||
(ii) | such judgment and the proceedings leading thereto did not involve the breach of and were not otherwise contrary to natural justice, including the fundamental right of a party to adequate notice and be heard fairly; | ||
(iii) | enforcement of such judgment would not be contrary to the public policy of the Province of Ontario (and we are not aware of any reason why enforcement of such judgment would be contrary to such public policy); | ||
(iv) | the enforcement of that judgment does not constitute, directly or indirectly, the enforcement of foreign revenue or penal laws; and | ||
(v) | the action is commenced within the time limitations set out in any applicable limitations statute. |
Qualifications | ||
The foregoing opinions are subject to the following qualifications: | ||
(a) | The enforceability of the Domestic Documents is subject to bankruptcy, insolvency, reorganization, arrangement, winding-up, moratorium and other similar laws of general application affecting the enforcement of creditors’ rights generally. | |
(b) | Our opinions are subject to the effect of general principles of equity, whether applied by a court of law or equity, including principles (i) governing the availability of specific performance, injunctive relief or other equitable remedies, which generally place the award of such remedies, subject to certain guidelines, in the discretion of the court to which application for such relief is made, (ii) affording equitable defenses (e.g., waiver, laches and estoppel) against a party seeking enforcement, (iii) requiring good faith and fair dealing in the performance and enforcement of a contract by the party seeking its enforcement, (iv) requiring reasonableness in the performance and enforcement of an agreement by the party seeking enforcement of the contract, (v) requiring consideration of the materiality of (A) a breach and (B) the consequences of the breach to the party seeking enforcement, (vi) requiring consideration of the commercial impracticability, illegality or impossibility of performance at the time of attempted enforcement, and (vii) affording defenses based upon the unconscionability of the enforcing party’s conduct after the parties have entered into the contract. | |
(c) | The Collateral Agent and the Secured Parties may be required to give the Loan Parties a reasonable time to repay following a demand for payment prior to taking any action to enforce its right of repayment or before exercising any of the rights and remedies expressed to be exercisable by the Collateral Agent or the Secured Parties in the Domestic Documents. | |
(d) | We have taken no steps to provide the notices or to obtain the acknowledgements prescribed in Part VII of theFinancial Administration Act(Canada) relating to the assignment of federal Crown debts. An assignment of federal Crown debts which does not comply with that Act is ineffective as between the assignor and the assignee and as against the Crown. Consequently, the Collateral Agent would not have a valid security interest in federal Crown debts unless that Act is complied with. | |
(e) | We express no opinion as to whether a security interest may be created in: |
(i) | property consisting of a receivable, license, approval, privilege, franchise, permit, lease or agreement (collectively, “Special Property”) to the extent that the terms of the Special Property or any applicable law prohibit its assignment or require, as a condition of its assignability, a consent, approval or other authorization or registration which has not been made or given, except to the extent such restrictions are rendered ineffective pursuant to Section 9-406 through 9-409 of the UCC or | ||
(ii) | permits, quotas or licenses which are held by or issued to the Relevant Loan Parties. |
(f) | We express no opinion as to any security interest created by the Security Documents with respect to any property of the Relevant Loan Parties that is transformed in such a way |
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that it is not identifiable or traceable or any proceeds of property of the Relevant Loan Parties that are not identifiable or traceable. | ||
(g) | We have not registered any of the Security Documents or notice thereof in any land registry office or under any land registry statutes even though the Security Documents may create a security interest in a Relevant Loan Party’s real property or leases of real property or in property which is now or may hereafter become a fixture or a right to payment under a lease, mortgage or charge of real property. | |
(h) | We have made no registrations under thePatent Act(Canada), theTrade-marks Act(Canada), theIndustrial Designs Act(Canada), theIntegrated Circuit Topography Act(Canada), theCopyright Act(Canada) and/or offices in connection with any Security Document. | |
(i) | We express no opinion as to whether any of the Relevant Loan Parties has title to or any rights in any real or personal property, including without limitation, any of the Article 9 Collateral, nor as to the priority of any security interest created by the Security Documents in any such property, except as set forth in paragraph 19. | |
(j) | We advise you that certain rights of debtors and duties of secured parties referred to in the PPSA, and in Sections 1-102(3) and 9-602 of the UCC, may not be waived, released, varied or disclaimed by agreement prior to a default and our opinions regarding any such waivers, releases, variations and disclaimers are limited accordingly. The PPSA and the UCC may also affect the enforcement of certain rights and remedies contained in the Security Documents to the extent that those rights and remedies are inconsistent with or contrary to the PPSA and the UCC. However, neither the PPSA nor the UCC render any of the Security Documents invalid as a whole, and there exist, in each Security Document or pursuant to applicable law, legally adequate remedies for realization of the principal benefits of the PPSA Collateral and the Security Agreement Collateral purported to be provided by such Security Document. | |
(k) | Notwithstanding any provision of any Domestic Document to the contrary, any certificate or determination provided for therein may be subject to challenge in a court on the grounds of fraud, collusion, mistake on the face of the certificate, or mistake on the basis that the certificate differed in a material respect from the certificate contemplated in such provision. | |
(1) | We express no opinion as to the enforceability of any provision of the Domestic Documents: |
(i) | which purports to waive all defences which might be available to, or constitute a discharge of the liability of, any of the Relevant Loan Parties; | ||
(ii) | which purports to release, exculpate or exempt a party, its agents or any receiver, manager or receiver-manager appointed by it from, or require indemnification of a party, its agents or any receiver, manager or receiver-manager appointed by it for, liability for its own action or inaction, to the extent the action or inaction involves gross negligence, recklessness, willful misconduct, unlawful conduct or fraud; or |
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(iii) | with respect to the laws of the Province of Ontario only, which states that amendments or waivers of or with respect to such Documents that are not in writing will not be effective. |
(m) | Provisions contained in any of the Domestic Documents which purport to sever from such Documents any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of such Document may be enforced only in the discretion of a court. | |
(n) | We express no opinion as to the enforceability of any provision of the Domestic Documents which requires any of the Relevant Loan Parties to pay, or to indemnify the Secured Parties, the Agents or the Collateral Agent for, the costs and expenses of the Secured Parties, the Agents or the Collateral Agent in connection with judicial proceedings, since those provisions may derogate from a court’s discretion to determine by whom and to what extent those costs should be paid. Nor do we express any opinion with respect to rules of law, statute, ordinance, rule, regulation, order, judgment or decree that governs and affords judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs. We advise you that the recoverability of costs and expenses may be limited to those a court considers to be reasonably incurred and the costs and expenses incidental to all court proceedings may be in the discretion of the court and the court may have the discretion to determine by whom and to what extent such costs shall be paid and our opinions herein are limited accordingly. | |
(o) | We express no opinion as to any provision of any Domestic Document which purports to waive, or to require waiver of, the obligations of good faith, fair dealing, diligence and reasonableness or that purport to define or dictate what is commercially reasonable. | |
(p) | We express no opinion as to the enforceability of any rights to contribution or indemnification provided for in the Domestic Documents which violate public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation). | |
(q) | We express no opinion as to the applicability or effect of any fraudulent transfer or similar law on the Documents or any transactions contemplated thereby. | |
(r) | We advise you that forum selection and choice of law clauses in contracts are not necessarily binding on the court(s) in the forum selected in the United States, if (i) their application to such contract would be adjudicated by a court of competent jurisdiction to (A) be unconstitutional or (B) involve fraud, in which case, common law choice of law and forum selection principles would be applicable or (ii) the choice of law would be contrary to Section 1-105(2) of the UCC, and our opinions are limited accordingly. | |
(s) | Our opinions regarding the creation and perfection of security interests are subject to the effect of (i) the limitations on the existence and perfection of security interests in proceeds resulting from the operation of Section 9-315 of any applicable Uniform Commercial Code; (ii) the limitations in favor of buyers, licensees and lessees imposed by Sections 9-320, 9-321 and 9-323 of any applicable Uniform Commercial Code; (iii) the limitations with respect to documents, instruments and securities imposed by Section 9-331 and 8-303 of any applicable Uniform Commercial Code; (iv) other rights of persons in possession of money, instruments and proceeds constituting certificated securities; and (v) section 547 of the Bankruptcy Code with respect to preferential |
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transfers and section 552 of the Bankruptcy Code with respect to any Security Agreement Collateral acquired by any Relevant Loan Party subsequent to the commencement of a case against or by such Loan Party under the Bankruptcy Code. | ||
(t) | In connection with New York only, we express no opinion with respect to any self-help remedies to the extent they vary from those available under the UCC or other applicable Uniform Commercial Code or with respect to any remedies otherwise inconsistent with the UCC (to the extent that the UCC is applicable thereto) or other applicable law (including, without limitation, any other applicable Uniform Commercial Code). | |
(u) | We express no opinion as to the effect on the opinions expressed herein of the compliance or non-compliance of the Lenders, the Agents, the Collateral Agent or any party (other than the Relevant Loan Parties) to the Documents with any state, federal or other laws or regulations applicable to them. | |
(v) | A receiver or receiver and manager appointed pursuant to any of the Security Documents may, for certain purposes, be treated as the agent of the Collateral Agent and not solely the agent of a Relevant Loan Party, notwithstanding any provision in such documents to the contrary. | |
(w) | We express no opinion regarding the perfection of a security interest in any real or personal property referred to in the Security Documents that is not subject to the PPSA, Article 9 or, to the extent applicable, Article 8 of the UCC. | |
(x) | Article 9 of the UCC requires the filing of continuation statements within 6 months of the lapse date (which date is 5 years after the original filing date) in order to maintain the effectiveness of the filings referred to in our letter. | |
(y) | Additional filings may be necessary if any of the Relevant Loan Parties changes its name, identity or corporate or organizational structure or the jurisdiction in which it is organized, any of its places of business, its chief executive office or any Article 9 Collateral is located. | |
(z) | To the extent that any opinion relates to the enforceability of the choice of New York law and choice of New York forum provisions of the NY Documents, our opinion is rendered in reliance upon N.Y. Gen. Oblig. Law §§ 5-1405, 5-1402 (McKinney 2001) and N.Y. CPLR 327(b) (McKinney 2001) and is subject to the qualifications that such enforceability may be limited by public policy considerations of any jurisdiction, other then the courts of the State of New York, in which enforcement of such provisions, or of a judgment upon an agreement containing such provisions, is sought. |
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![(TORYS LLP)](https://capedge.com/proxy/S-4A/0000950123-09-051624/g20430a1g2043026.gif)
a) | Novelis Cast House Technology Ltd.(“Cast House”) | ||
b) | 4260848 Canada Inc.(“4260848”) | ||
c) | 4260856 Canada Inc.(“4260856”) | ||
d) | AV Aluminum Inc.(“Aluminum”) |
a) | Novelis Finances USA LLC(“Novelis Finances”) | ||
b) | Novelis South America Holdings LLC(“Novelis South America”) | ||
c) | Aluminum Upstream Holdings LLC(“Aluminum Upstream”) | ||
d) | Novelis PAE Corporation(“Novelis PAE”) |
(a) | Novelis UK Ltd.(“Novelis UK”) | ||
(b) | Novelis AG | ||
(c) | Novelis Europe Holdings Ltd.(“Holdings UK”) | ||
(d) | Novelis Deutschland GMBH(“Novelis GMBH”) | ||
(e) | Novelis Switzerland SA | ||
(f) | Novelis Technology AG(“Technology”) | ||
(g) | Novelis Aluminum Holding Company(“NAHC”) | ||
(h) | Novelis Do Brasil Ltda.(“Novelis Brasil”) |
(a) | a Guarantee made by each of the Canadian Loan Parties and Novelis No.l Limited Partnership(“Novelis LP”)in favour of the Collateral Agent for the benefit of the Secured Parties; | ||
(b) | a Security Agreement made by the Canadian Borrower and each of the Canadian Guarantors and Novelis LP in favour of the Collateral Agent for the benefit of the Secured Parties (the“Ontario GSA”); | ||
(c) | a Demand Debenture made by the Canadian Borrower in favour of the Collateral Agent for the benefit of the Secured Parties; (the“Debenture”); | ||
(d) | a Debenture Delivery Agreement made by the Canadian Borrower in favour of the Collateral Agent for the benefit of the Secured Parties; | ||
(e) | a Blocked Account Control Agreement between Royal Bank of Canada, the Canadian Borrower, the Collateral Agent and UBS AG Stamford Branch; and | ||
(f) | a Deposit Account Control Agreement among Citibank Canada, LaSalle Business Credit LLC, UBS AG, Stamford Branch and Novelis Corporation; | ||
(g) | a Deed of Hypothec made by the Canadian Borrower in favour of the Collateral Agent acting as fonde de pouvoir of the bondholders (as defined therein); | ||
(h) | a Bond made by the Canadian Borrower in favour of the Collateral Agent for the benefit of the Secured Parties; | ||
(i) | a Bond Pledge Agreement made by the Canadian Borrower in favour of the Collateral Agent for the benefit of the Secured Parties; | ||
j) | a Deed of Hypothec made by Novelis LP in favour of the Collateral Agent acting as fonde de pouvoir of the bondholders (as defined therein); |
(a) | an Intercreditor Agreement made between the Administrative Agent, the Collateral Agent, UBS AG, Stamford Branch as administrative agent and collateral agent under the Term Loan Agreement and the Loan Parties (the“Intercreditor Agreement”); | ||
(b) | a Contribution, Intercompany, Contracting and Offset Agreement made between the Loan Parties; | ||
(c) | a Subordination Agreement made between the Loan Parties; |
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(d) | a Security Agreement made by the US Loan Parties in favour of the Collateral Agent for the benefit of the Lenders (the“US Security Agreement”); | ||
(e) | a Patent Security Agreement made by the Novelis Corp. and the Canadian Borrower in favour of the Collateral Agent for the benefit of the Lenders (the“Patent Security Agreement”); | ||
(f) | a Trademark Security Agreement made by Novelis Corp. and the Canadian Borrower in favour of the Collateral Agent for the benefit of the Lenders (the“Trademark Security Agreement”); | ||
(g) | an Intellectual Property Agreement made by Cast House in favour of the Collateral Agent for the benefit of the Lenders; | ||
(h) | an Amended, Restated and Consolidated Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing made by Novelis Corp. in favour of the Collateral Agent for the benefit of the Lenders and in favour of UBS AG, Stamford Branch in its capacity as collateral agent under the Term Loan Agreement with respect to the property located in Oswego County, New York (the“NY Mortgage”); | ||
(i) | a Deposit Account Control Agreement among Citibank Delaware, LaSalle Business Credit LLC, UBS AG, Stamford Branch and Novelis Corporation; | ||
(j) | a Deposit Account Control Agreement among Bank of America, N.A., LaSalle Business Credit LLC, UBS AG, Stamford Branch and Novelis Corporation; and | ||
(k) | a Deposit Account Control Agreement among National City Bank, LaSalle Business Credit LLC, UBS AG, Stamford Branch and Novelis Corporation. |
The documents listed in items to (d) through (g) are collectively referred to as the“US Security Documents”. The documents listed in items (a) through (k) and the Credit Agreement are collectively referred to as the“NY Documents”. The U.S. Security Documents and the Ontario Security Documents are collectively referred to as the“Security Documents”. The Ontario Documents and the NY Documents are collectively referred to as the“Domestic Documents”. |
(a) | a Share Kun-Pledge Agreement made by 4260848 and 4260856 in favour of the Collateral Agent for the benefit of the Lenders (governed by Korean law); | ||
(b) | a Share Mortgage made between the Canadian Borrower and the Collateral Agent with respect to the shares of Holdings UK (governed by English law); | ||
(c) | a Security Trust Deed made by the Canadian Borrower, among others, in favour of the Collateral Agent for the benefit of the Lenders (governed by English Law); | ||
(d) | a Quotas Pledge Agreement made by the Canadian Borrower in favour of the Collateral Agent for the benefit of the Lenders with respect to the quotas of Novelis Do Brasil Ltda (governed by Brazilian law); |
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(e) | a Second Priority Pledge Agreement made by the Canadian Borrower, among others, in favour of the Collateral Agent for the benefit of the lenders with respect to the shares of Novelis Lamines France, Novelis Foil France and Novelis PAE SAS (governed by French law ); |
1. | Novelis Inc, as indicated at item 2 of Appendix A; | |
2. | 4260848 Canada Inc., as indicated at item 3 of Appendix B; | |
3. | 4260856 Canada Inc., as indicated at item 2 of Appendix C; | |
4. | Novelis Cast House Technology Ltd., as indicated at item 2 of Appendix D; | |
5. | Novelis No. 1 Limited Partnership, as indicated at item 2 of Appendix E and item 4 of Appendix B; and | |
6. | AV Aluminum Inc., as indicated at item 2 of Appendix F. |
1. | Novelis Finances USA LLC | |
2. | Novelis South America Holdings LLC | |
3. | Aluminum Upstream Holdings LLC | |
4. | Novelis PAE Corporation |
1. | Security or other interests in the personal property registered under thePersonal Property Security Act(Ontario) as of June 27, 2007 for the following: |
- | Novelis Inc. — seeattached Appendix A | ||
- | Arcustarget Inc. —clear | ||
- | 4260848 Canada Inc. —see attached Appendix B | ||
- | 4260856 Canada Inc. —see attached Appendix C | ||
- | Novelis Cast House Technology Ltd. —see attached Appendix D | ||
- | Cast House Technology Ltd. —see attached Appendix D | ||
- | Novelis No. 1 Limited Partnership —see attached Appendix E | ||
- | Societe En Commandite Novelis No. 1 —see attached Appendix E | ||
- | Novelis No. 1 Limited Partnership Societe En Commandite Novelis No. 1 —see attached Appendix E | ||
- | Societe En Commandite Novelis No. 1 Novelis No. 1 Limited Partnership —see attached Appendix E |
- | AV Aluminum Inc. —see attached Appendix F | ||
- | 6703534 Canada Limited —clear |
2. | Notices of intention to give security under Section 427 of theBank Act(Canada) registered in the Bank of Canada at Toronto, Ontario as of June 25, 2007: |
- | Novelis Inc. —clear | ||
- | Arcustarget Inc. — clear | ||
- | 4260848 Canada Inc. —clear | ||
- | 4260856 Canada Inc. —clear | ||
- | Novelis Cast House Technology Ltd. —clear | ||
- | Cast House Technology Ltd. —clear | ||
- | Novelis No. 1 Limited Partnership —clear | ||
- | Societe En Commandite Novelis No. 1 —clear | ||
- | AV Aluminum Inc —clear | ||
- | 6703534 Canada Limited —clear |
3. | Judgments or Executions filed in the City of Toronto as of June 25, 2007: |
- | Novelis Inc. —clear | ||
- | Arcustarget Inc. —clear | ||
- | 4260848 Canada Inc. —clear | ||
- | 4260856 Canada Inc. —clear | ||
- | Novelis Cast House Technology Ltd. — clear | ||
- | Cast House Technology Ltd. —clear | ||
- | Novelis No. 1 Limited Partnership —clear | ||
- | Societe En Commandite Novelis No. 1 —clear | ||
- | AV Aluminum Inc —clear | ||
- | 6703534 Canada Limited —clear |
4. | Judgments or Executions filed in (i) the County of Frontenac (Kingston), (ii) Regional Municipality of Peel (Brampton) and (iii) County of Wellington (Guelph) as of June 25, 2007: |
- | Novelis Inc. —clear | ||
- | Arcustarget Inc. —clear | ||
- | 4260848 Canada Inc. —clear | ||
- | 4260856 Canada Inc. —clear | ||
- | Novelis Cast House Technology Ltd. —clear | ||
- | Cast House Technology Ltd. —clear | ||
- | Novelis No. 1 Limited Partnership —clear | ||
- | Societe En Commandite Novelis No. 1 —clear | ||
- | AV Aluminum Inc —clear | ||
- | 6703534 Canada Limited —clear |
5. | Assignments or proceedings under the Bankruptcy and Insolvency Act (Canada) as of June 20, 2007 recorded in the office of the Official Receiver: |
- | Novelis Inc. —clear | ||
- | Arcustarget Inc. —clear | ||
- | 4260848 Canada Inc. —clear | ||
- | 4260856 Canada Inc. —clear |
- | Novelis Cast House Technology Ltd. —clear | ||
- | Cast House Technology Ltd. —clear | ||
- | Novelis No. 1 Limited Partnership — clear | ||
- | Societe En Commandite Novelis No. 1 —clear | ||
- | AV Aluminum Inc. —clear | ||
- | 6703534 Canada Limited —clear |
Registration/ | ||||||||||||||||
File No. and | Renewal | |||||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||||
1 | 2 | NOVELIS INC. 3399 PEACHTREE ROAD, NE, SUITE 1500 ATLANTA, GEORGIA 30326 | UBS AG, STAMFORD BRANCH 677 WASHINGTON BOULEVARD STAMFORD, CONNECTICUT 068901 | 636803406 20070628145715301276 (JUNE 28, 2007) | 9 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A | |||||||||
2 | 3 | NOVELIS INC. 3399 PEACHTREE ROAD, NE, SUITE 1500 ATLANTA, GEORGIA 30326 | LASALLE BUSINESS CREDIT, LLC 135 SOUTH LASALLE STREET, SUITE 425 CHICAGO, ILLINOIS 60603 | 636803469 20070628145715301282 (JUNE 28, 2007) | 7 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A | |||||||||
3 | 4-6 | NOVELIS NO. 1 LIMITED PARTNERSHIP SOCIETE EN COMMANDITE NOVELIS NO. 1 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | CITICORP NORTH AMERICA, INC. 388 GREENWICH STREET 19TH FLOOR NEW YORK, NEW YORK 10013 | 635400351 20070517092718626018 (MAY 17, 2007) | 10 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER MOTOR VEHICLE INCLUDED | N/A | |||||||||
SOCIETE EN COMMANDITE NOVELIS |
- 5 -
File No. and | Registration/ | |||||||||||||
Page | Registration No./ | Renewal Period | Collateral | |||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date ofRegistration | (years) | Classification | Comments | |||||||
NO. 1 NOVELIS NO. 1 LIMITED PARTNERSHIP 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | ||||||||||||||
NOVELIS NO. 1 LIMITED PARTNERSHIP 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | ||||||||||||||
SOCIETE EN COMMANDITE NOVELIS NO. 1 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | ||||||||||||||
NOVELIS INC. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 | ||||||||||||||
4260848 CANADA INC. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 |
- 6 -
Registration/ | ||||||||||||||||
File No. and | Renewal | |||||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||||
4 | 7-8 | NOVELIS INC. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 | IBM CANADA LIMITED - PPSA ADMINISTRATOR 3600 STEELES AVENUE EAST F4 MARKHAM, ONTARIO L3R 9Z7 | 629071218 20060920145815303604 (SEPTEMBER 20, 2006) | 4 YEARS | EQUIPMENT, ACCOUNTS, OTHER | ALL PRESENT AND AFTER ACQUIRED GOODS SUPPLIED, LEASED OR FINANCED BY THE SECURED PARTY, INCLUDING BUT NOT LIMITED TO, ALL OFFICE MACHINES, OFFICE EQUIPMENT, COMPUTER HARDWARE, SOFTWARE AND ALL ANCILLARY PRODUCTS RELATED THERETO, AND ALL UPGRADES, ADDITIONS AND ACCESSIONS THERETO AND THEREON AND ALL PROCEEDS THEREFROM OF EVERY KIND AND DESCRIPTION. | |||||||||
5 | 9 | NOVELIS INC. 1 LAPPAN’S LANE KINGSTON, ONTARIO K7L 4Z5 | TENNANT FINANCIAL SERVICES 2300 MEADOWVALE BLVD., SUITE 200 MISSISSAUGA, ONTARIO L5N 5P9 | 628296453 20060824112340431762 (AUGUST 24, 2006) | 6 YEARS | EQUIPMENT, OTHER | N/A |
- 7 -
Registration/ | ||||||||||||||||
File No. and | Renewal | |||||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||||
6 | 10-11 | NOVELIS INC. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 | WAJAX FINANCE LTD. 5035 SOUTH SERVICE ROAD BURLINGTON, ONTARIO L7 R4C8 | 626197239 20060615144116165004 (JUNE 15, 2006) AMENDMENT 20060621144216165271 (JUNE 21, 2006) | 4 YEARS | EQUIPMENT, MOTOR VEHICLE INCLUDED | N/A TO ADD A MOTOR VEHICLE DESCRIPTION TO LINE 11 OF REGISTRATION NUMBER 20060615144116165004 | |||||||||
YEAR: 1999 MAKE: HYSTER MODEL: S120XL V.I.N.: D004D07798W | ||||||||||||||||
7 | 12-13 | NOVELIS INC. 1 LAPPANS LANE KINGSTON, ONTARIO K7L 4Z5 | CHRYSLER FINANCIAL 2425 MATHESON BLVD. EAST, 3RD FLOOR MISSISSAUGA, ONTARIO L4W 5N7 | 625510323 20060525195215311506 (MAY 25, 2006) | 3 YEARS | EQUIPMENT, OTHER, MOTOR VEHICLE INCLUDED | AMOUNT SECURED: $31,907 YEAR: 2006 MAKE: JEEP MODEL: LIBERTY V.I.N.: 1J4GL48K96W249108 | |||||||||
DAIMLERCHRYSLER FINANCIAL SERVICES CANADA INC. 2425 MATHESON BLVD. EAST, 3RD FLOOR MISSISSAUGA, ONTARIO L4W 5N7 | ||||||||||||||||
8 | 14 | NOVELIS INC. 1 LAPPANS LANE KINGSTON, ONTARIO K7L 4Z5 | XEROX CANADA LTD. 33 BLOOR STREET EAST 3RD FLOOR TORONTO, ONTARIO M4W 3H1 | 624261483 20060413100114626638 (APRIL 13, 2006) | 4 YEARS | EQUIPMENT, OTHER | N/A |
- 8 -
Registration/ | ||||||||||||||||||
File No. and | Renewal | |||||||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||||||
9 | 15-16 | NOVELIS INC. 945 PRINCESS STREET KINGSTON, ONTARIO K7L 5L9 | DE LAGE LANDEN FINANCIAL SERVICES CANADA INC. 100-1235 NORTH SERVICE ROAD WEST OAKVILLE, ONTARIO L6M 2W2 | 621564039 20051223132870298463 (DECEMBER 23, 2005) | 5 YEARS | EQUIPMENT, OTHER | ALL GOODS SUPPLIED BY THE SECURED PARTY PURSUANT TO A LEASE BETWEEN THE DEBTOR AND THE SECURED PARTY, TOGETHER WITH ALL PARTS AND ACCESSORIES THERETO AND ACCESSION THERETO AND ALL REPLACEMENTS OR SUBSTITUTIONS FOR SUCH GOODS AND PROCEEDS THEREOF (PROCEEDS AS DEFINED IN THE PERSONAL PROPERTY SECURITY ACT (ONTARIO)) AND ANY INSURANCE PROCEEDS RESULTING THERE FROM. |
- 9 -
Registration/ | ||||||||||||||
File No. and | Renewal | |||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||
10 | 17-19 | NOVELIS INC. 3800 - 200 BAY STREET TORONTO, ONTARIO M5J 2Z4 | GE VEHICLE AND EQUIPMENT LEASING 5255 SOLAR DRIVE MISSISSAUGA, ONTARIO L4W 5H6 | 621062946 20051206111412542199 (DECEMBER 6, 2005) | 5 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | ALL PRESENT AND AFTER ACQUIRED MOTOR VEHICLES, TRAILERS, AND GOODS OF WHATEVER MAKE OR DESCRIPTION, NOW OR HEREAFTER LEASED BY THE SECURED PARTY TO THE DEBTOR, TOGETHER WITH ALL ADDITIONS, REPLACEMENT PARTS, ACCESSIONS, ATTACHMENTS AND IMPROVEMENTS THERETO, AND ALL PROCEEDS THEREOF, INCLUDING MONEY, CHATTEL PAPER, INTANGIBLES, GOODS, DOCUMENTS OF TITLE, SECURITIES, SUBSTITUTIONS, ACCOUNTS RECEIVABLE, RENTAL AND LOAN CONTRACTS, ALL PERSONAL PROPERTY RETURNED, TRADED IN OR REPOSSESSED AND ALL INSURANCE PROCEEDS AND ANY OTHER FORM OF PROCEEDS THEREOF. | |||||||
- 10 -
Registration/ | ||||||||||||||||
File No. and | Renewal | |||||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||||
11 | 20-22 | LYNNE MEARS DATE OF BIRTH: OCTOBER 16, 1972 926 EDINBOROUGH CR KINGSTON, ONTARIO K7P 2C5 | CHRYSLER FINANCIAL 2425 MATHESON BLVD E. 3RD FL MISSISSAUGA, ONTARIO L4W 5N7 | 618566337 20050902194815315044 (SEPTEMBER 2, 2005) | 3 YEARS | EQUIPMENT, OTHER, MOTOR VEHICLE INCLUDED | AMOUNT SECURED: $27,103 NO FIXED MATURITY DATE | |||||||||
DAIMLERCHRYSLER SERVICES CANADA INC. 2425 MATHESON BLVD E. 3RD FL MISSISSAUGA, ONTARIO L4W 5N7 | ||||||||||||||||
NOVELIS INC. 1 LAPPANS LANE KINGSTON, ONTARIO K7L 4Z5 | AMENDMENT 20070323145415309402 (MARCH 23, 2007) | REMOVE DEBTOR FROM THE REGISTRATION | ||||||||||||||
12 | 23 | NOVELIS INC. 1188 SHERBROOKE STREET WEST MONTREAL, QUEBEC H3A 3G2 | CITICORP NORTH AMERICA, INC., AS ADMINISTRATIVE AGENT 390 GREENWICH STREET NEW YORK, NY 10013 | 611605296 20041223153018620300 (DECEMBER 23, 2004) | 10 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A |
- 11 -
Registration/ | ||||||||||||||
File No. and | Renewal | |||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||
13 | 24-26 | NOVELIS INC. 1 LAPPANS LANE KINGSTON, ONTARIO K7K 6Y8 | XEROX CANADA LTD. 5650 YONGE STREET NORTH YORK, ONTARIO M2M 4G7 | 895711734 20030624113517152013 (JUNE 24, 2003) | 3 YEARS | EQUIPMENT, OTHER | N/A | |||||||
AMENDMENT | TO AMEND DEBTOR’S NAME | |||||||||||||
20050324171114620028 (MARCH 24, 2005) | FROM ALCAN INC. TO NOVELIS INC. | |||||||||||||
RENEWAL | ||||||||||||||
20050324171114620029 (MARCH 24, 2005) | RENEWED FOR A PERIOD OF 2 YEARS. |
Registration/ | ||||||||||||||||
File No. and | Renewal | |||||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||||
1 | 2 | 4260848 CANADA INC. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 | UBS AG, STAMFORD BRANCH 677 WASHINGTON BOULEVARD STAMFORD, CONNECTICUT 068901 | 636803415 20070628145715301277 (JUNE 28, 2007) | 9 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A | |||||||||
2 | 3-5 | NOVELIS NO. 1 LIMITED PARTNERSHIP 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 SOCIETE EN COMMANDITE NOVELIS NO. 1 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | UBS AG, STAMFORD BRANCH 677 WASHINGTON BOULEVARD STAMFORD, CONNECTICUT 068901 | 636803442 20070628145715301280 (JUNE 28, 2007) | 9 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A | |||||||||
NOVELIS NO. 1 LIMITED PARTNERSHIP SOCIETE EN COMMANDITE NOVELIS NO. 1 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 SOCIETE EN COMMANDITE NOVELIS |
Registration/ | ||||||||||||||||
File No. and | Renewal | |||||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||||
NO. 1 NOVELIS NO. 1 LIMITED PARTNERSHIP 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | ||||||||||||||||
4260848 CANADA INC. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 | ||||||||||||||||
3 | 6 | 4260848 CANADA INC. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 | LASALLE BUSINESS CREDIT, LLC 135 SOUTH LASALLE STREET, SUITE 425 CHICAGO, ILLINOIS 60603 | 636803478 20070628145715301283 (JUNE 28, 2007) | 7 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A | |||||||||
4 | 7-9 | NOVELIS NO. 1 LIMITED PARTNERSHIP 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 SOCIETE EN COMMANDITE NOVELIS NO. 1 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | LASALLE BUSINESS CREDIT, LLC 135 SOUTH LASALLE STREET, SUITE 425 CHICAGO, ILLINOIS 60603 | 636803505 20070628145715301286 (JUNE 28, 2007) | 7 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A | |||||||||
NOVELIS NO. 1 LIMITED PARTNERSHIP SOCIETE EN COMMANDITE NOVELIS NO. 1 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 |
Registration/ | ||||||||||||||
File No. and | Renewal | |||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||
SOCIETE EN COMMANDITE NOVELIS NO. 1 NOVELIS NO. 1 LIMITED PARTNERSHIP 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | ||||||||||||||
4260848 CANADA INC. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 | ||||||||||||||
5 | 10-12 | NOVELIS NO. 1 LIMITED PARTNERSHIP SOCIETE | CITICORP NORTH AMERICA, INC. | 635400351 20070517092718626018 | 10 YEARS | INVENTORY, EQUIPMENT | N/A | |||||||
EN COMMANDITE NOVELIS NO. 1 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | 388 GREENWICH STREET 19TH FLOOR NEW YORK, NEW YORK 10013 | (MAY 17, 2007) | ACCOUNTS, OTHER MOTOR VEHICLE INCLUDED | |||||||||||
SOCIETE EN COMMANDITE NOVELIS NO. 1 NOVELIS NO. 1 LIMITED PARTNERSHIP 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | ||||||||||||||
NOVELIS NO. 1 LIMITED PARTNERSHIP 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | ||||||||||||||
SOCIETE EN COMMANDITE NOVELIS NO. 1 2040 FAY STREET |
Registration/ | ||||||||||||||
File No. and | Renewal | |||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||
JONQUIERE, QUEBEC G7S 4K6 | ||||||||||||||
NOVELIS INC. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 | ||||||||||||||
4260848 CANADA INC. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 | ||||||||||||||
6 | 13-14 | 4260848 CANADA INC. SUITE 3800, ROYAL BANK PLAZA, SOUTH TOWER 200 BAY STREET P.O BOX 84 TORONTO, ONTARIO M5J 2Z4 | CITICORP NORTH AMERICA, INC., AS ADMINISTRATIVE AGENT 390 GREENWICH STREET NEW YORK, NY 10013 | 611605332 20041223153218620301 (DECEMBER 23, 2004) | 10 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A |
Registration/ | ||||||||||||||||
File No. and | Renewal | |||||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||||
1 | 2 | 4260856 CANADA INC. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 | UBS AG, STAMFORD BRANCH 677 WASHINGTON BOULEVARD STAMFORD, CONNECTICUT 068901 | 636803424 20070628145715301278 (JUNE 28, 2007) | 9 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A | |||||||||
2 | 3 | 4260856 CANADA INC. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 | LASALLE BUSINESS CREDIT, LLC 135 SOUTH LASALLE STREET, SUITE 425 CHICAGO, ILLINOIS 60603 | 636803487 20070628145715301284 (JUNE 28, 2007) | 7 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A | |||||||||
3 | 4-5 | 4260856 CANADA INC. SUITE 3800, ROYAL BANK PLAZA, SOUTH TOWER 200 BAY STREET P.O BOX 84 TORONTO, ONTARIO M5J 2Z4 | CITICORP NORTH AMERICA, INC., AS ADMINISTRATIVE AGENT 390 GREENWICH STREET NEW YORK, NY 10013 | 611605377 20041223153418620302 (DECEMBER 23, 2004) | 10 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A |
Registration/ | ||||||||||||||||
File No. and | Renewal | |||||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||||
1 | 2 | NOVELIS CAST HOUSE TECHNOLOGY LTD. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 | UBS AG, STAMFORD BRANCH 677 WASHINGTON BOULEVARD STAMFORD, CONNECTICUT 068901 | 636803433 20070628145715301279 (JUNE 28, 2007) | 9 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A | |||||||||
2 | 3 | NOVELIS CAST HOUSE TECHNOLOGY LTD. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 | LASALLE BUSINESS CREDIT, LLC 135 SOUTH LASALLE STREET, SUITE 425 CHICAGO, ILLINOIS 60603 | 636803496 20070628145715301285 (JUNE 28, 2007) | 7 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A | |||||||||
3 | 4-5 | NOVELIS CAST HOUSE TECHNOLOGY LTD. 6711 MISSISSAUGA ROAD, SUITE 708 MISSISSAUGA, ONTARIO L5N 2W3 | CITICORP NORTH AMERICA, INC., AS ADMINISTRATIVE AGENT 390 GREENWICH STREET NEW YORK, NY 10013 | 611605386 20041223153618620303 (DECEMBER 23, 2004) AMENDMENT 20050107142518620896 (JANUARY 7, 2005) | 10 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A TO CHANGE DEBTOR NAME ON LINE 3 OF REGISTRATION NO. 20041223153618620303 TO NOVELIS CAST HOUSE TECHNOLOGY LTD. |
Registration/ | ||||||||||||||
File No. and | Renewal | |||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||
1 | 2-4 | NOVELIS NO. 1 LIMITED PARTNERSHIP 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 SOCIETE EN COMMANDITE NOVELIS NO. 1 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | UBS AG, STAMFORD BRANCH 677 WASHINGTON BOULEVARD STAMFORD, CONNECTICUT 068901 | 636803442 20070628145715301280 (JUNE 28, 2007) | 9 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A | |||||||
NOVELIS NO. 1 LIMITED PARTNERSHIP SOCIETE EN COMMANDITE NOVELIS NO. 1 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | ||||||||||||||
SOCIETE EN COMMANDITE NOVELIS NO. 1 NOVELIS NO. 1 LIMITED PARTNERSHIP 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | ||||||||||||||
4260848 CANADA INC. |
Registration/ | ||||||||||||||
File No. and | Renewal | |||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||
191 EVANS AVENUE TORONTO, ONTARIO M8Z LJ5 | ||||||||||||||
2 | 5-7 | NOVELIS NO. 1 LIMITED PARTNERSHIP 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 SOCIETE EN COMMANDITE NOVELIS NO. 1 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 NOVELIS NO. 1 LIMITED PARTNERSHIP SOCIETE EN COMMANDITE NOVELIS NO. 1 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 SOCIETE EN COMMANDITE NOVELIS NO. 1 NOVELIS NO. 1 LIMITED PARTNERSHIP 2040 FAY STREET G7S 4K6 4260848 CANADA INC. 191 EVANS AVENUE TORONTO, ONTARIO M8Z LJ5 | LASALLE BUSINESS CREDIT, LLC 135 SOUTH LASALLE STREET, SUITE 425 CHICAGO, ILLINOIS 60603 | 636803505 20070628145715301286 (JUNE 28, 2007) | 7 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A | |||||||
3 | 8-10 | NOVELIS NO. 1 LIMITED PARTNERSHIP SOCIETE | CITICORP NORTH AMERICA, INC. | 635400351 20070517092718626018 | 10 YEARS | INVENTORY, EQUIPMENT, | N/A |
Registration/ | ||||||||||||||
File No. and | Renewal | |||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||
EN COMMANDITE NOVELIS NO. 1 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | 388 GREENWICH STREET 19TH FLOOR NEW YORK, NEW YORK 10013 | (MAY 17, 2007) | ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | |||||||||||
SOCIETE EN COMMANDITE NOVELIS NO. 1 NOVELIS NO. 1 LIMITED PARTNERSHIP 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | ||||||||||||||
NOVELIS NO. 1 LIMITED PARTNERSHIP 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | ||||||||||||||
SOCIETE EN COMMANDITE NOVELIS NO. 1 2040 FAY STREET JONQUIERE, QUEBEC G7S 4K6 | ||||||||||||||
NOVELIS INC. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 | ||||||||||||||
4260848 CANADA INC. 191 EVANS AVENUE TORONTO, ONTARIO M8Z 1J5 |
Registration/ | ||||||||||||||||
File No. and | Renewal | |||||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||||
1 | 2 | AV ALUMINUM INC. 3399 PEACHTREE ROAD NE, SUITE 1500 ATLANTA, GEORGIA 30326 | UBS AG, STAMFORD BRANCH 677 WASHINGTON BOULEVARD STAMFORD, CONNECTICUT 068901 | 636803397 20070628145715301275 (JUNE 28, 2007) | 9 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A | |||||||||
2 | 3 | AV ALUMINUM INC. 3399 PEACHTREE ROAD NE SUITE 1500 ATLANTA, GEORGIA 30326 | LASALLE BUSINESS CREDIT, LLC 135 SOUTH LASALLE STREET, SUITE 425 CHICAGO, ILLINOIS 60603 | 636803451 20070628145715301281 (JUNE 28, 2007) | 7 YEARS | INVENTORY, EQUIPMENT, ACCOUNTS, OTHER, MOTOR VEHICLE INCLUDED | N/A |
(Delaware)
U.S. | ||||||
Type of | Secretary of | U.S. District | Bankruptcy | |||
Search | State | Court | Court | |||
UCC Filing | R/C | |||||
1* | ||||||
As of 5/25/07 | ||||||
Federal Tax | R/C | |||||
Liens | As of 5/25/07 | |||||
Federal | R/C | |||||
Judgment | As of 6/7/07 | |||||
Federal | R/C | |||||
Defendant Suit | As of 6/7/07 | |||||
Bankruptcy | R/C | |||||
As of 6/7/07 |
Secured Party: Citicorp North America, Inc.
Registration No.: 63648672
U.S. | ||||||
Secretary of | U.S. District | Bankruptcy | ||||
Type of Search | State | Court | Court | |||
UCC Filing | R/C | |||||
1* | ||||||
As of 5/25/07 | ||||||
Federal Tax | R/C | |||||
Liens | As of 5/25/07 | |||||
Federal | R/C | |||||
Judgment | As of 6/7/07 | |||||
Federal | R/C | |||||
Defendant Suit | As of 6/7/07 | |||||
Bankruptcy | R/C | |||||
As of 6/7/07 |
Secured Party: Citicorp North America, Inc.
Registration No.: 63648615
Type of | Secretary of | U.S. District | U.S. Bankruptcy | |||
Search | State | Court | Court | |||
UCC Filing | R/C 1* As of 5/25/07 | |||||
Federal Tax Liens | R/C As of 5/25/07 | |||||
Federal Judgment | R/C As of 6/7/07 | |||||
Federal Defendant Suit | R/C As of 6/7/07 | |||||
Bankruptcy | R/C As of 6/7/07 |
* | UCC Filings | |
1 Record on File: | ||
Debtor: Aluminum Upstream Holdings LLC Secured Party: Citicorp North America, Inc. Registration No.: 63648573 |
U.S. | ||||||
Type of | Secretary of | U.S. District | Bankruptcy | |||
Search | State | Court | Court | |||
UCC Filing | R/C 1* As of 5/25/07 | |||||
Federal Tax Liens | R/C As of 6/7/07 | |||||
Federal Judgment | R/C As of 6/7/07 | |||||
Federal Defendant Suit | R/C As of 6/7/07 | |||||
Bankruptcy | R/C As of 6/7/07 |
* | UCC Filings | |
1 Record on File: | ||
Debtor: Novelis PAE Corporation Secured Party: Citicorp North America, Inc. Registration No.: 501404427 | ||
Stamford | ||||||||||
Norwalk | U.S. | U.S. | ||||||||
Type of | Secretary of | Stamford | Judicial | District | Bankruptcy | |||||
Search | State | City Clerk | District | Court | Court | |||||
Federal Tax Liens | R/C As of 6/5/07 | R/C As of 6/7/07 | ||||||||
State Tax Liens | R/C As of 6/4/07 | R/C As of 6/7/07 | ||||||||
Federal Judgment | R/C As of 6/7/07 | |||||||||
Federal Defendant Suit | R/C As of 6/7/07 | |||||||||
Judgment Liens | R/C As of 6/4/07 | R/C As of 6/7/07 | R/C As of 6/8/07 | |||||||
Local Defendant Suit | R/C As of 6/8/07 | |||||||||
Bankruptcy | R/C As of 6/8/07 |
(a) | Record the NY Mortgage with the Office of the Oswego County Clerk, Oswego, New York (the “County Recorder”); | |
(b) | record the Financing Statement described in Paragraph 29 hereof (the “Financing Statement”) with the County Recorder; and | |
(c) | prior to the expiration of each period of five (5) years following the initial recording of the Financing Statement, so long as the Collateral Agent is permitted to maintain a lien on the UCC Property pursuant to the terms of the Credit Agreement, record a continuance thereof with the County Recorder. |
SOLVENCY CERTIFICATE
NOVELIS CORPORATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS PAE CORPORATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS UK LTD | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS AG | ||||
By: | ||||
Name: | ||||
Title: | ||||
AV ALUMINUM INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS CAST HOUSE TECHNOLOGY LTD. | ||||
By: | ||||
Name: | ||||
Title: | ||||
4260848 CANADA INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
4260856 CANADA INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS NO. 1 LIMITED PARTNERSHIP | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS FINANCES USA LLC | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS SOUTH AMERICA HOLDINGS LLC | ||||
By: | ||||
Name: | ||||
Title: | ||||
ALUMINUM UPSTREAM HOLDINGS LLC | ||||
By: | ||||
Name: | ||||
Title: | �� | |||
NOVELIS EUROPE HOLDINGS LIMITED | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS DEUTSCHLAND GMBH | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS SWITZERLAND SA | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS TECHNOLOGY AG | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS ALUMINIUM HOLDING COMPANY | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS DO BRASIL LTDA | ||||
By: | ||||
Name: | ||||
Title: | ||||
INTERCOMPANY NOTE
INTERCOMPANY NOTE
[date]
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2
3
[List Borrower, Holdings and All Subsidiaries] | ||||
By: | ||||
Name: | ||||
Title: |
4
RECEIVABLES PURCHASE AGREEMENT
Execution Copy
as the Purchaser,
as the Seller and the Collection Agent,
Receivables Purchase Agreement
��
Page | ||||
1. DEFINITIONS | 3 | |||
2. PURCHASES OF RECEIVABLES | 8 | |||
2.1 Manner in which Purchases may be effected | 8 | |||
2.2 Payment of Purchase Price | 9 | |||
2.3 General Provisions relating to Sale and Assignment of the Pre-Existing Receivables and Future Receivables | 10 | |||
2.4 Conditions Precedent | 10 | |||
2.5 Deemed Collections | 11 | |||
3. REPRESENTATIONS, WARRANTIES AND COVENANTS | 12 | |||
3.1 Representations and Warranties of the Seller and the Purchaser | 12 | |||
3.2 Representations and Warranties with respect to Receivables | 15 | |||
3.3 Repetition | 17 | |||
3.4 Covenants by the Seller | 18 | |||
3.5 Indemnification from German Value Added Tax | 19 | |||
4. SELLER AS SELLER AND COLLECTION AGENT | 19 | |||
5. DUTIES OF THE COLLECTION AGENT | 20 | |||
5.1 Duties of the Collection Agent | 20 | |||
5.2 Covenants with respect to Receivables | 23 | |||
5.3 Co-operation in Enforcement of Rights to Receivables | 25 | |||
5.4 Subcontracting | 26 | |||
5.5 Purchaser’s Right to Perform | 26 | |||
5.6 Enforcement; Notification of Debtors | 26 | |||
5.7 Termination by the Collection Agent | 27 | |||
5.8 Termination by the Purchaser | 27 | |||
5.9 Termination Events | 28 | |||
5.10 Payments to the Purchaser | 29 | |||
6. BENEFIT OF AGREEMENT | 29 | |||
6.1 Benefit and Burden | 29 | |||
6.2 No Assignment | 30 | |||
6.3 Assignment by the Purchaser | 30 | |||
7. GOVERNING LAW | 30 | |||
7.1 Governing law and jurisdiction | ||||
8. MISCELLANEOUS | 30 | |||
8.1 Indemnities | 30 | |||
8.2 Notices | 31 | |||
8.3 No Waivers | 31 | |||
8.4 Entire Agreement | 31 | |||
8.5 Termination | 32 | |||
8.6 Changes, Amendments, etc. | 32 |
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Page | ||||
8.7 Severability | 32 | |||
8.8 Counterparts | 32 | |||
8.9 Several and not Joint | 32 |
ii
(1) | NOVELIS AGwhose address is Bellerivestrasse 36, 8034 Zurich, Switzerland, a company organised and existing under the laws of Switzerland (the“Purchaser”); and | |
(2) | NOVELIS DEUTSCHLAND GMBHwhose address is Hannoversche Str. 1, 37075 Goettingen, Germany, a company organised and existing under the laws of Germany as the Seller and a Collection Agent (the “Seller”); |
The Seller wishes to sell and assign all of its rights, title, benefit and interest in, to and under its Receivables (as defined herein) and all Related Rights (as defined herein) thereto to the Purchaser and the Purchaser wishes to acquire such rights, title, benefit and interest and to appoint the Seller as the Collection Agent (as defined herein) to act as its agent to collect such Receivables and carry out certain services related thereto. |
1. | DEFINITIONS | |
1.1 | The following terms, as used herein, have the following respective meanings: | |
“Account Debtor”means the person owing a Receivable; | ||
“Accounting Period”means a monthly period commencing on the first calendar day of any month (or, with respect to the initial Accounting Period, the date of this Agreement) and ending on the last calendar day of the such month (or, with respect to the initial Accounting Period, July 31, 2007); | ||
“Adjusted Purchase Price”means, with respect to any Receivable, (i) the Purchase Price for such Receivable minus (ii) the applicable Funding Cost determined as of the date of sale of such Receivable minus (iii) the Factoring Fee for such Receivable; | ||
“Aged Debtor List”means a summary listing of Purchased Receivables (in arrears) which were the subject of an assignment and purchase in the prior Accounting Period, and specifying the following information: |
(a) | the aggregate face amount of such Receivables; and | ||
(b) | in relation to each such Receivable: |
(i) | any identification number of the relevant Account Debtor; |
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(ii) | the date and number of the related invoices and the order confirmation number for each related invoice; | ||
(iii) | the due date of payments to be made by the relevant Account Debtor under the related invoices; | ||
(iv) | the face amount of such Receivable; and | ||
(v) | whether such Receivable is a Large Customer Receivable; |
“Agreement”means this non-recourse receivables purchase agreement (including the schedules and annexes (and the schedules to the annexes) hereto), as amended from time to time; | ||
“Applicable Percentage”means, during each Accounting Period, the percentage of Receivables from Large Customers that are not Excluded Receivables, such percentage being determined on the basis of the face value of Large Customer Receivables; | ||
“Business Day”means a day (other than a Saturday or a Sunday) on which credit institutions are open for business in Germany and Switzerland; | ||
“Cash Pooling Arrangement”means The Agreement Regarding an Automatic Cash Management System as well as the Cash Pool Agreement (“Cash Pool Vertag”) entered into among, inter alia, the Seller, the Purchaser and Commerzbank AG; | ||
“Collection Account”means each account selected by the Purchaser from time to time as a collection account, to which the Purchaser has directed the Collection Agent to deposit Collections; and within 30 days of the date hereof the Purchaser shall open one or more Collection Accounts in its own name | ||
“Collection Agent”means the Seller in its capacity as collection agent for the Purchaser pursuant to its retention as such as set out in Section 4, or a Substitute Collection Agent selected by the Purchaser; | ||
“Collections”means, in relation to all Purchased Receivables under this Agreement, all cash collections and other cash proceeds thereof (including, without limitation, cheques, SWIFT payments, wire transfers, direct debits, bank giro credits, BACS, postal orders, bank giro credits, payments under any guarantees or sureties or any other forms of payment in accordance with the relevant Supply Contract) that the Collection Agent receives in the ordinary course of business in respect of such Receivables and net proceeds of sale or other disposition of repossessed goods and net proceeds of any Related Rights or other collateral or property of the related Account Debtor or any other party directly or indirectly liable for payment of such Receivables; |
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“Compliance Conditions”means the General Compliance Conditions and the Large Customer Compliance Conditions, as applicable; | ||
“Credit and Collection Policy”means the policy regarding credit and collection of the Collection Agent to be delivered pursuant to Section 3.4(g) except as the same may be amended pursuant to Section 5.2(j); | ||
“Designated Jurisdiction”means the United Kingdom, Switzerland, and countries that were member states of the European Union prior to 2004; | ||
“Diluted Receivable”means any Receivable or part thereof which is either (a) reduced, cancelled or adjusted as a result of (i) any defective, rejected or returned goods, merchandise or services or any failure by the Seller to deliver any merchandise or goods or provide any services or otherwise to perform under any related Supply Contract, (ii) any change in the terms of, or cancellation of, a Supply Contract or invoice or any rebate, administrative fee, discount, credit memo, refund, non-cash payment (other than payments by cheque), chargeback, allowance or any billing or other adjustment by the Seller (except any such change or cancellation made in settlement of such Receivable in accordance with the Credit and Collection Policy resulting from the financial inability of the Account Debtor to pay such Receivable) or (iii) any set off or offset in respect of a claim by the relevant Account Debtor (whether such claim arises out of the same or a related transaction or an unrelated transaction), or (b) subject to any specific counterclaim or defence whatsoever (except the discharge in a proceeding under applicable bankruptcy or insolvency laws of the Account Debtor thereof); | ||
“Discount Rate”means in relation to any Receivable, an amount representing the Purchaser’s cost of funding for the average stated term of all Receivables provisionally calculated at a rate equal to LIBOR plus 1.25%, to be adjusted on an annual basis by agreement between the Seller and the Purchaser; | ||
“Disqualified Receivable”means (a) any Receivable of an Excluded Account Debtor, (b) a Large Customer Receivable that does not meet the “Large Customer Compliance Conditions” set forth in Annex B, (c) any Receivable of an Account Debtor who pays to an account or person other than to a Collection Account and (d) any Receivable with respect to which any notice required to be given hereunder has not been delivered within the required time period (until such time as such notice has been delivered). | ||
“Due Date”means, in relation to a Receivable, the date stated on the invoice, receivables statement, other request for payment or record of due date submitted to the Account Debtor in relation thereto or under the terms of business by which the Receivable is due to be paid by the Account Debtor; | ||
“Excluded Account Debtor”means any Account Debtor so designated by the Seller on an Excluded Debtor List; | ||
“Excluded Debtor List”means the list of Excluded Account Debtors (as delivered to the Purchaser on the date hereof and, with respect to any Purchased Receivables acquired |
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thereafter, the last such list delivered by the Seller to the Purchaser prior to the acquisition of such Receivable by the Purchaser); |
“Excluded Receivable”means any Receivable from an Excluded Account Debtor; | ||
“Factoring Fee”means, with respect to any Purchased Receivable, a fee equal to 0.20% of the Purchase Price of such Receivable or such other amount as may be agreed from time to time by the Seller and the Purchaser; | ||
“French Notice Requirements”means a notice that satisfies Section 1690 of the French Civil Code in respect of accounts governed by the laws of the French Civil Code; | ||
“French Receivable”means a Purchased Receivable with an Account Debtor located in France or that is governed by the laws of France; | ||
“Funding Cost”means, with respect to any Purchased Receivable, an amount, expressed as a percentage of the Purchase Price of such Receivable, equal to the applicable Discount Rate multiplied by a fraction the numerator of which is equal to the stated term of such Receivable and the denominator of which is 360; | ||
“Future Receivables”has the meaning set forth in Section 2.1(a) hereof; | ||
“General Compliance Conditions”means certain conditions applicable to each Purchased Receivable that are contained in Annex A hereto. | ||
“Historical Performance Discount Rate”means 0.011% of such Receivable, such percentage to be adjusted on an annual basis by agreement between the Seller and the Purchaser having regard to the loss experience of the Purchased Receivables; | ||
“Large Customer”means an Account Debtor together with all of its affiliated Account Debtors where the aggregate value of Receivables owing from such Account Debtor would place it among the top 75% (when making a determination within (and including) 60 days of the date hereof) or the top 90% (when making a determination at any time after 60 days from the date hereof) of the Seller’s Account Debtors (or, in each case, such greater percentage as may be agreed by the Seller and the Purchaser) based on third-party sales for the previous business year (determined on an annual basis as of August 31 of each year based on the monetary value of Receivables from all Account Debtors); | ||
“Large Customer Compliance Conditions”means the conditions applicable to each purchased Large Customer Receivable by the Purchaser that are contained in Annex B hereto. | ||
“Large Customer Receivable”means a Receivable owing from a Large Customer; | ||
“Material Adverse Effect”means a material adverse effect on the financial condition, results of operations or business of the Collection Agent or its subsidiaries, taken as a whole; |
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“Pre-Existing Receivables”has the meaning set forth in Section 2.1(a) hereof; | ||
“Purchase Price”of any Receivable means the product of (a) the par value of such Receivable, multiplied by (b) one minus the Historical Performance Discount Rate in effect on the applicable Settlement Date; | ||
“Purchased Receivable”means all Receivables other than Excluded Receivables; | ||
“Purchaser’s Account”means the following account of the Purchaser: Commerzbank Berlin, Account No.-100/4 205990500, SWIFT: COBADEBBXXX; | ||
“Qualified Governing Law”means German law, Canadian law or U.S. law or the law of a Qualified Jurisdiction other than Germany, Canada or the United States for which a Qualified Opinion has been obtained (provided that the Purchaser may permit a Qualified Opinion with respect to a Designated Jurisdiction that has not been provided on the date hereof to be provided within thirty (30) days of the date hereafter or such longer period to which the Purchaser may consent); | ||
“Qualified Jurisdiction”means the United Kingdom, France, the Netherlands, Italy, Ireland, Belgium, Spain, Sweden, Finland, Austria, Denmark, Greece, Portugal, Luxembourg, and Switzerland or any other European country that from time to time is approved by the Purchaser; | ||
“Qualified Opinion”means a legal opinion from a firm satisfactory to the Purchaser in form and substance satisfactory to the Purchaser addressing such governing law, Qualified Jurisdiction and Annex B matters as the Purchaser may reasonably request; provided, however, that a Qualified Opinion may be subject to the qualification that the Account Debtor may validly discharge any Purchased Receivable by payment to the Seller until notice of the assignment has been delivered; | ||
“Receivable”means all present and future amounts due from an unaffiliated party to the Seller pursuant to or under a Supply Contract (together with any Related Rights (except for purposes of Section 2 hereof) and Collections, including, without limitation, VAT and late payment interest and penalties), in each case whether or not such amounts are Purchased Receivables or Excluded Receivables; | ||
“Reconciliation Date”means, for purposes of the Pre-Existing Receivables, the date of this Agreement, and thereafter, the fifth Business Day following the last day of each Accounting Period (provided if such day is not a Business Day, then the last day of such Accounting Period shall be the immediately following Business Day); | ||
“Reconciliation Summary”means a summary report identifying, as at the date of such summary and in reasonable detail and in a form as agreed upon by the Purchaser and the Seller, the Receivables that have been sold to the Purchaser by the Seller with respect to which the outstanding principal balance thereof is greater than zero, which of such Receivables are Large Customer Receivables, Collections that have been received by the Seller and are then held by the Seller as Collection Agent; |
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“Records”means all documents, books, records and other information (including, without limitation, computer programmes, tapes, discs, data processing software and related property and rights) maintained by the Seller and the Collection Agent with respect to the Receivables, the Related Rights, the Supply Contracts and the Account Debtors under such Receivables; | ||
“Related Rights”has the meaning ascribed to such term in the General Compliance Conditions or the Large Customer Compliance Conditions, as applicable; | ||
“Required Data”means the information designated from time to time by the Purchaser as the required data; | ||
“Seller”means Novelis Deutschland GmbH; | ||
“Seller’s Account”means the following account of the Seller: Commerzbank, Berlin, Account No. 205991302, SWIFT: COBADEBBXXX; | ||
“Settlement Date”means, for purposes of the Pre-Existing Receivables, the date of this Agreement, and thereafter, each Business Day; | ||
“Small Customer Receivable”means any Receivable other than a Large Customer Receivable; | ||
“Substitute Collection Agent”has the meaning ascribed to such term in Section 5.8; | ||
“Supply Contract”means any and all contracts, instruments, agreements, invoices, notes or other writings (including an agreement evidenced by a purchase order or similar document) of, to or involving the supply of goods, merchandise or services by the Seller; | ||
“Tax”means any tax, levy, impost, duty or other charge of a similar nature (including, without limitation, any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same); and | ||
“Termination Event”has the meaning ascribed to such term in Section 5.9. |
1.2 | Nouns, pronouns and verbs of the singular number shall be deemed to include the plural, and vice versa, and pronouns of the masculine gender shall be deemed to include the feminine and neuter and vice versa, all as the context may require. |
2. | PURCHASES OF RECEIVABLES |
2.1 | Manner in which Purchases may be effected |
(a) | The Seller hereby offers to sell and assign to the Purchaser, without recourse, all rights, title and interest in (i) all currently existing Receivables of the Seller as of the date that the Seller becomes party to this Agreement other than Excluded Receivables (together with all associated Related Rights and Collections, the |
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“Pre-Existing Receivables”),and (ii) any and all Receivables arising, and owed to the Seller from time to time after the date of this Agreement other than Excluded Receivables (together with all associated Related Rights and Collections, the“Future Receivables”).The Purchaser hereby accepts such offer of sale and assignment and agrees to pay the purchase price as stipulated in Section 2.2 below in consideration for such Pre-Existing Receivables and Future Receivables. |
(b) | For the avoidance of doubt, the offer, sale, acceptance and purchase of the Receivables and the Related Rights and the relationship between the Purchaser and the Seller shall be governed by the laws of Germany. The enforceability vis-à-vis the Account Debtors, the scope of the assigned rights and the relationship between the Purchaser and the Account Debtors, following the assignment of any Purchased Receivable or Related Right pursuant to this Agreement, shall be further subject to, or addressed in, the General Compliance Conditions and the Large Customer Compliance Conditions, as applicable. | ||
(c) | The sale, purchase and assignment of the Pre-Existing Receivables pursuant to this Agreement shall be fully effective and agreed upon the signing of this Agreement by the Parties. The assignment of any Future Receivable shall be effective on the date on which such Future Receivable is created. The parties hereto intend that (i) the transfer and assignment contemplated hereunder constitute a true sale of the Pre-Existing Receivables and Future Receivables from the Seller to the Purchaser and that the legal and beneficial interest in and title to the Pre-Existing Receivables and Future Receivables shall not be part of the Seller’s assets or revenues whether in the event of its winding-up, dissolution, administration, reorganisation or otherwise, and (ii) the Future Receivables shall come into existence directly as assets of the Purchaser. | ||
(d) | All Related Rights to any Purchased Receivable shall be transferred to the Purchaser in accordance with the Compliance Conditions. | ||
(e) | The Seller shall prepare and deliver as of the date hereof the Excluded Debtors List. From time to time thereafter, the Excluded Debtors List may be amended by the Seller. A current Excluded Debtors List shall be delivered on each Reconciliation Date. In all cases, the Seller shall include on such Excluded Debtors List all Account Debtors with respect to which the Seller has knowledge that such Account Debtor’s Receivables would not satisfy the requirements of Annex B (applying Annex B as if each Receivable were a Large Customer Receivable). |
2.2 | Payment of Purchase Price |
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(a) | With respect to the Pre-Existing Receivables, the Purchaser shall pay the Adjusted Purchase Price of the Pre-Existing Receivables on the date that this Agreement is executed and delivered. With respect to the Future Receivables, for any Accounting Period, the Purchaser shall pay the Adjusted Purchase Price to the Seller for any such Future Receivables sold to the Purchaser on the Settlement Date on which such Future Receivables have come into existence. The Purchaser shall pay the Adjusted Purchase Price (or, at its option for Purchased Receivables that are expressed in currencies other than Euros, the equivalent amount in Euros) by reducing any outstanding intercompany loan balance to the extent owing by the Seller to the Purchaser as and when outstanding from time to time; any portion of the Adjusted Purchase Price not so paid shall be paid as set forth in clause (b) below. | ||
(b) | All payments to be made by the Purchaser in respect of any Pre-Existing Receivables or any Future Receivables pursuant to this Agreement (subject to the loan repayment provisions specified above in clause (a)) shall be made in the currency of denomination of such Pre-Existing Receivables or such Future Receivables, as the case may be, to the Seller’s Account. The Seller may, at its option, convert Purchased Receivables that are expressed in currencies other than Euros into Euros based on the rate of exchange used by the Seller on the date of exchange for its other business purposes. |
2.3 | General Provisions relating to Sale and Assignment of the Pre-Existing Receivables and Future Receivables |
(a) | Any Collections received by the Seller (either in its capacity as Seller or Collection Agent) from an Account Debtor with respect to any Pre-Existing Receivables and Future Receivables sold and assigned to the Purchaser hereunder after the date of assignment of any such Pre-Existing Receivables or Future Receivables shall be received into a trust account held by the Seller for the account of the Purchaser(offenes Treuhandkonto),and the Seller (either in its capacity as Seller or Collection Agent) will hold such payments in trust(treuhänderisch)for the Purchaser and will remit such amounts no later than on a daily basis to the Purchaser’s Account or as instructed otherwise by the Purchaser (in each case to the extent not previously paid to Seller in accordance with the Cash Pooling Agreement, it being understood that a loan or advance to Seller under the Cash Pooling Agreement does not constitute a payment for this purpose). | ||
(b) | All transfers of data to any person in accordance with the provisions of this Agreement shall comply with the provisions of, and the parties hereto agree that this entire Agreement shall be construed in accordance with, all applicable data protection laws. |
2.4 | Conditions Precedent |
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The Seller shall have, prior to or upon execution of this Agreement, delivered to the Purchaser: |
(a) | a certificate, in form satisfactory to the Purchaser, of a Director or other appropriate officer of the Seller the relevant excerpt from the commercial registers of the Seller; | ||
(b) | details of person(s) authorised to sign Assignment Certificates and other documents on behalf of the Seller and setting forth the signatures of such person(s); and | ||
(c) | the following legal opinions in form and substance satisfactory to the Purchaser: |
(i) | as to the capacity of the Seller and the enforceability of this Agreement, and the true sale of the Pre-Existing Receivables and the Future Receivables pursuant to this Agreement, from Norr Stiefenhofer Lutz as to German law; and | ||
(ii) | as to the capacity of the Purchaser from Homberger. |
Furthermore, the Seller may deliver such Qualified Opinions that it has received on or before the date hereof. |
The Purchaser shall have designated one or more Collection Accounts as the initial Collection Accounts. | ||
2.5 | Deemed Collections |
(a) | If on any day a Pre-Existing Receivable or a Future Receivable or any part thereof becomes a Diluted Receivable, the Seller shall be deemed to have received on such day a Collection of such Pre-Existing Receivable or Future Receivable in the amount of such Diluted Receivable or part thereof. | ||
(b) | If on any day it is determined that any of the representations and warranties of Seller herein or in any document delivered pursuant hereto was untrue with respect to a Purchased Receivable or the nature of the Purchaser’s (or its assignees’) interest in such Purchased Receivable, the Seller shall be deemed to have received on such day a Collection of such Purchased Receivable in an amount equal to the unpaid balance thereof. | ||
(c) | Not later than the first Reconciliation Date after Seller is notified in writing or otherwise becomes aware that it has been deemed pursuant to this Section 2.5 to have received a Deemed Collection, Seller shall inform Purchaser of such |
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Deemed Collection and the amount and, upon request of the Purchaser, the circumstances thereof. Any such amount shall be subject to setoff against the Adjusted Purchase Price of Pre-Existing Receivables and the Future Receivables and to periodic settlement as set forth in this Section 2. |
3. | REPRESENTATIONS, WARRANTIES AND COVENANTS | |
3.1 | Representations and Warranties of the Seller and the Purchaser | |
The Seller represents and warrants to the Purchaser that: |
(a) | it has been duly incorporated or organised and is validly existing as a corporation or organisation, and, if relevant under such laws, is in good standing, under the laws of the jurisdiction of its incorporation or organisation, with the power under the laws of such jurisdiction to execute and deliver this Agreement and to perform its obligations hereunder; | ||
(b) | this Agreement has been duly authorised and executed on behalf of it and, assuming due authorisation and execution by the Purchaser, is a valid and legally binding agreement of the Seller enforceable against the Seller in accordance with its terms; | ||
(c) | the execution and performance by it of this Agreement will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Seller pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or other similar agreement or instrument nor will such action result in any violation of the provisions of the constitutional documents of the Seller or contravene any material law, statute, rule or regulation or any material order, writ, injunction or decree of any court or governmental instrumentality applicable to the Seller; provided that an assignment of a Purchased Receivable that meets the requirements of Section 1.1.c of Annex B shall not be treated as in breach of any provision of such Purchased Receivable prohibiting assignments; | ||
(d) | it has not taken any steps and is not aware of any steps having been, or being taken, for its winding-up, dissolution, administration, reorganisation or similar event or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of it or any or all of its assets or revenues and no petition, execution, attachment or any similar process has been levied or enforced against its assets or revenues; |
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(e) | there is no consent, approval, authorisation, licence, order, registration or qualification of or with any governmental or other regulatory authority having jurisdiction over the Seller which is required for, and the absence of which would materially affect, the execution, delivery and performance of this Agreement; | ||
(f) | there are no legal or governmental proceedings in existence or pending of which the Seller or any of its subsidiaries, if any, is the subject, and no such proceedings are known by the Seller to be threatened or contemplated by governmental authorities or threatened by others (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, or (iii) seeking any determination or ruling that, in the reasonable judgment of the Seller, would materially or adversely affect the performance by the Seller of its obligations under this Agreement; | ||
(g) | it has its “centre of main interests” in Germany within the meaning of the Counsel of the European Union Regulation No. 1346/2000 on Insolvency Proceedings; | ||
(h) | the chief place of business(Ort der Geschäftsleitung)and chief executive office(Verwaltungssitz)of it is located in Germany, the office where the Seller keeps all its Records, are located at the address of the Seller referred to herein; | ||
(i) | as of each Reconciliation Date, there has been no material change in its Credit and Collection Policy and it has complied with its Credit and Collection Policy; | ||
(j) | all information provided by it to the Purchaser pursuant to this Agreement (“Seller Information”) is, and all Seller Information hereafter provided by the Seller to the Purchaser will be true and accurate in every material respect, on the date that such information is stated or certified and does not or will not contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; | ||
(k) | each Purchased Receivable that was represented to be a Receivable that was not an Excluded Receivable at the time of the creation or assignment of such Receivable or the Settlement Date for such Receivable, but was an Excluded Receivable, has been treated as a Diluted Receivable upon the Seller having knowledge of such discrepancy; | ||
(l) | there is no action or administrative proceeding of or before any court, governmental agency or arbitrator or, to the knowledge of the Seller, threatened (i) which could be expected to have a material adverse effect on the Seller’s |
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Receivables or (ii) as to which there is a likelihood of an adverse judgment which could be expected to have a material adverse effect on the Seller’s Receivables or (iii) which purports to affect the legality, validity or enforceability of this Agreement; and | |||
(m) | it is not in a general stoppage of payment situation(Zahlungseinstellung)and/or otherwise in a situation which would oblige its directors to take steps for the opening of insolvency proceedings. |
The Purchaser represents and warrants to the Seller that: |
(a) | it has been duly incorporated and is validly existing as a company with limited liability under the laws of Switzerland, with the power under the laws of such jurisdiction to execute this Agreement and to perform its obligations hereunder; | ||
(b) | this Agreement has been duly authorised and executed on behalf of it and, assuming due authorisation and execution by the Seller, is a valid and legally binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms, subject as to enforcement to the effect of bankruptcy, insolvency or similar laws affecting generally the enforcement of creditors’ rights, as such laws would apply in the event of any bankruptcy, receivership, insolvency or similar event applicable to the Purchaser; | ||
(c) | the execution and performance by the Purchaser of this Agreement will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Purchaser pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or other similar agreement or instrument nor will such action result in any violation of the provisions of the constitutional documents of the Purchaser; | ||
(d) | it has not taken any steps and is not aware of any steps having been, or being taken, for its winding-up, dissolution, administration, reorganization or similar event or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of it or any or all of its assets or revenues and no petition, execution, attachment or any similar process has been levied or enforced against its assets or revenues; | ||
(e) | there is no consent, approval, authorisation, licence, order, registration or qualification of or with any governmental or other regulatory authority having |
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jurisdiction over the Purchaser which is required for, and the absence of which would materially affect, the execution and performance of this Agreement; and | |||
(f) | as of the date of this Agreement there are no legal or governmental proceedings in existence or pending of which the Purchaser or any of its subsidiaries, if any, is the subject, and no such proceedings are known by the Purchaser to be threatened or contemplated by governmental authorities or threatened by others (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, or (iii) seeking any determination or ruling that, in the reasonable judgment of the Purchaser, would materially or adversely affect the performance by the Purchaser of its obligations under this Agreement. |
3.2 | Representations and Warranties with respect to Purchased Receivables | |
The Seller represents and warrants to the Purchaser that, with respect to the Purchased Receivables: |
(a) | it has the power to convey legal and beneficial ownership of the Purchased Receivables to the Purchaser; | ||
(b) | the assignment of each Purchased Receivable that is a Large Customer Receivable in the manner contemplated by this Agreement (including, for the avoidance of doubt, the Compliance Conditions) will be effective under the governing law of such Receivable to pass to the Purchaser full and unencumbered title thereto and the benefit thereof to the Purchaser and, assuming compliance with the Large Customer Compliance Conditions, no further act, condition or thing will be required to be done in connection therewith to enable the Purchaser to enforce payment of any such Receivable from the relevant Account Debtor in the jurisdiction of domicile of such Account Debtor (and the Purchaser has no knowledge that such representation and warranty would not be true with respect to any Small Customer Receivable that is a Purchased Receivable); provided that an assignment of a Purchased Receivable that meets the requirements of Section 1.1.c of Annex B shall not be treated as in breach of any provision of such Receivable prohibiting assignments. | ||
(c) | following assignment in the manner contemplated by this Agreement (including, for the avoidance of doubt, the Large Customer Compliance Conditions), each Large Customer Receivable will represent a valid claim by the Purchaser on the relevant Account Debtor, each Large Customer Receivable is or will be, as the case may be, debt, the rights in which can be transferred by way of assignment to the Purchaser and the assignment of each Large Customer Receivable in the manner contemplated by this Agreement is not contrary to the terms of such Large Customer Receivables; |
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(d) | it has not (except to the Purchaser in the manner contemplated by this Agreement) assigned, transferred or otherwise disposed of any Purchased Receivable prior to the assignment to the Purchaser in the manner contemplated by this Agreement and the Seller will not purport to further assign, transfer or otherwise dispose of any of its rights in respect of any such Purchased Receivable; | ||
(e) | such Purchased Receivables can be segregated and identified for ownership purposes on any day; | ||
(f) | such Receivables are (and the Seller is or will be, as the case may be, entitled to sell the same to the Purchaser) free and clear of any liens, security interests or other encumbrances, save as provided for in this Agreement and save for the rights of the relevant Account Debtor under each Supply Contract; | ||
(g) | such Purchased Receivables are evidenced by an invoice under the relevant Supply Contract which is sufficient to support a prima facie claim against the relevant Account Debtor; | ||
(h) | it (including in its capacity as the Collection Agent) has maintained Records relating to each Supply Contract related to a Purchase Receivable which are complete and accurate in all material respects, and such Records are held by or to the order of the Seller; | ||
(i) | the performance of the terms of any such Supply Contract related to the Purchased Receivables or the exercise of any rights thereunder will not render such Supply Contract unenforceable in whole or in part or subject to any lien, right of rescission, counterclaim, set-off, defence or right of retention and, to the knowledge of the Seller, no such lien, right of rescission, counterclaim, set-off, defence or right of retention has been asserted against the Seller in respect thereof; | ||
(j) | it is not aware of any material default, breach or violation under any Supply Contract related to the Purchased Receivables, or any event (including any action threatened by an Account Debtor against the Seller for any failure on the part of the Seller to perform any of its material obligations under a Supply Contract) which would constitute a material default, breach or violation under any Supply Contract related to the Receivables; | ||
(k) | the Purchased Receivables have been or will be, as the case may be, created in compliance with all applicable laws and all required consents, approvals and authorisations have been obtained or will be, as the case may be, obtained in respect thereof; |
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(l) | the Purchased Receivables have been originated in accordance with the Seller’s Credit and Collection Policy; | ||
(m) | if a Supply Contract related to a Purchased Receivable has been terminated or rescinded, such Receivable will be treated for all purposes hereof as a Diluted Receivable; | ||
(n) | each Purchased Receivable that is purported in any report or document provided to Purchaser to be a Large Customer Receivable that satisfies all the conditions of Annex B, a Small Customer Receivable that is not an Excluded Receivable, or a French Receivable is what it is purported to be; | ||
(o) | the sale and assignment of Purchased Receivables by the Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Seller and the Purchaser, have been and will be made for the Seller’s own commercial benefit, in good faith and without intent to hinder, delay or defraud creditors of the Seller; | ||
(p) | each Supply Contract related to the Purchased Receivables has been conducted at arm’s length and the relevant Account Debtor has entered into the relevant Supply Contract at its own will and not under any undue influence; | ||
(q) | the assignment of each Large Customer Receivable that is a Purchased Receivable in the manner contemplated by this Agreement will not be re-characterised as any other type of transaction and will be effective to pass to the Purchaser full and unencumbered legal and beneficial title or similar provisions pursuant to applicable laws to, and the valid and enforceable exclusive ownership of, such Receivable and all the benefits thereof, and no further act, condition or thing will be required to be done in connection therewith to enable the Purchaser to require payment of any such Receivable or the enforcement of any such right in any court (and the Purchaser has no knowledge that such representation and warranty would not be true with respect to any Small Customer Receivable that is a Purchased Receivable); and | ||
(r) | together with any related Supply Contract, each Purchased Receivable is in full force and effect and constitutes the legal, valid and binding obligation of the related Account Debtor enforceable against such Account Debtor in accordance with its terms. |
3.3 | Repetition | |
Each of the representations and warranties set out in Sections 3.1 and 3.2 above with respect to a Purchased Receivable shall be deemed to be repeated on each date on which |
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such Purchased Receivable is assigned and on each day on which the Purchaser makes payment of the applicable purchase price for such Purchased Receivable. Each of the representations and warranties set out in Sections 3.1 and 3.2 above that are not with respect to a Purchased Receivable shall be deemed to be repeated on each date on which such Purchased Receivable is assigned and on each day on which the Purchaser makes payment of the applicable purchase price for such Purchased Receivable. | ||
3.4 | Covenants by the Seller | |
The Seller covenants that it shall: |
(a) | at its expense, in a timely manner fully perform and comply with all provisions, covenants and other promises required to be observed by it under the Supply Contracts or, if it shall not fully perform and comply with all such provisions, covenants and other promises in all material respects, it shall treat each related Purchased Receivable as a Diluted Receivable; | ||
(b) | procure that all relevant value added tax or other applicable Tax payments are punctually made by it in respect of supplies of goods or services pursuant to a Supply Contract that relate to Purchased Receivables, and pay all value added tax (if any) payable in respect of any value added tax supply made, or input value added tax suffered by the Purchaser with respect to supplies of goods or services by the Seller pursuant to a Supply Contract or which otherwise relates to such Purchased Receivables.; | ||
(c) | ensure that all amounts paid to the Purchaser under this Agreement shall be made free of all withholding taxes or other taxes other than as required by law; | ||
(d) | keep its chief place of business(Ort der Geschäftsleitung)and chief executive office(Verwaltungssitz)within Germany and the office where it keeps its Records concerning the Receivables sold and transferred to the Purchaser at the address of the Seller set forth in Section 8.2; | ||
(e) | duly pay the relevant suppliers. Furthermore, where supplies under any extended retention of title clauses(verlängerte Eigentumsvorbehalte),or similar clauses which provide for an assignment of Receivables to a supplier where supplies have been purchased by the Seller subject to retention of title(Eigentumsvorbehalte)and/or ownership rights due to manufacturing clauses(Verarbeitungsvorbehalte)of the suppliers of the Seller, the Seller shall put the Purchaser into the same position in respect of each large Customer Receivable as if the goods had been owned by the Seller; |
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(f) | provide and shall procure(veranlassen)that the Collection Agent provides to the Purchaser upon request by the Purchaser and in all events at least annually an update of all new and changed Account Debtors’ addresses; provided that such information shall be deemed to be provided if it is contained in other reports delivered by the Collection Agent hereunder; | ||
(g) | cause the Collection Agent to provide to the Purchaser a copy of its Credit and Collection Policy within 14 days after the date of this Agreement; and | ||
(h) | not treat any Purchased Receivable on its records or other books as a Receivable belonging to the Seller and shall reflect the Purchase Price of the Purchased Receivables on its books and other records as a claim against the Purchaser until paid. |
3.5 | Seller shall hold harmless Purchaser from and indemnify Purchaser against any liability for German Value Added Tax under Sec. 13c German Value Added Tax Act (UStG). | |
4. | SELLER AS SELLER AND COLLECTION AGENT | |
The Seller (in its capacity as Collection Agent for the Purchaser) will collect all Collections due in respect of any Purchased Receivable that has been purchased by the Purchaser from the Seller in accordance with the terms of this Agreement and the relevant Credit and Collection Policy. The Seller as the Collection Agent shall ensure that all Collections in respect of Purchased Receivables are, as, when, and to the extent required by Section 2, paid to a Collection Account. The Seller as the Collection Agent shall hold all Collections received by it in respect of Purchased Receivables for the Purchaser in accordance with Section 2, and shall, where so required by Section 2, promptly pay (and in case of the Seller shall procure that the Collection Agent pays) to the Purchaser any such Collections without any set-off, deduction, withholding, counterclaim or other defence (except, so long as no Termination Event is continuing, set-off for Adjusted Purchase Price as specified in Section 2). The Seller shall also comply with all its obligations in respect of remitting VAT to all applicable tax authorities. The Collection Agent shall also carry out each of the obligations which are expressed to be carried out by the Collection Agent in this Agreement. | ||
If a Collection Account or former Collection Account is in the name of the Seller, the Seller shall hold such account and all amounts in such account in trust for the exclusive benefit of the Purchaser and such amounts shall be treated for all purposes as funds belonging exclusively to the Purchaser. | ||
The Purchaser shall promptly establish one or more Collection Accounts in its own name and advise the Seller of the details of such Collection Accounts. Within ninety (90) days (with such extensions as the Purchaser may agree to grant) of the date hereof, the Seller shall provided remittance directions on all its invoices to each Account Debtor (other than Excluded Account Debtors) to make all payments with respect to Purchased |
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Receivables to such applicable new Collection Accounts. The Seller shall use good faith efforts to cause the Account Debtors to follow the revised remittance directions and shall not further change the remittance directions on its invoices unless approved by the Purchaser. |
5. | DUTIES OF THE COLLECTION AGENT | |
5.1 | Duties of the Collection Agent | |
In consideration of a monthly servicing fee of Euros 25,200 (as may be adjusted by agreement between the Seller and the Purchaser), the Collection Agent will collect, administer and recover amounts relating to the Receivables purchased by the Purchaser from the Seller and will do all things incidental thereto (including the enforcement of the Receivables), in accordance with the Credit and Collection Policy and all applicable laws, rules and regulations, and with the due care and diligence expected from a prudent collection agent in the business of collecting, administering and recovering receivables. In particular, the Collection Agent will: |
(a) | recover all amounts due from Account Debtors in relation to the Purchased Receivables and, if applicable, Related Rights so purchased by the Purchaser in accordance with the Credit and Collection Policy and provide administration services in relation to the collection of the Receivables, and in particular (but without prejudice to the generality of the foregoing) exercise all enforcement measures to claim amounts due from each Account Debtor; | ||
(b) | ensure that all payments on account of Purchased Receivables by or for the Account Debtors are made directly to a Collection Account; | ||
(c) | in compliance with the Credit and Collection Policy, fully perform and comply in all material respects with all provisions, covenants and other agreements required to be observed by it under the Supply Contracts and the Purchased Receivables; | ||
(d) | to the extent relevant, consider the interests of the Purchaser in the exercise of any discretion arising from the performance of its duties pursuant to this Agreement; | ||
(e) | maintain its main residence in the jurisdiction of its incorporation for tax purposes; | ||
(f) | without prejudice to the Compliance Conditions, notify each of the Account Debtors under the Supply Contracts relating to Purchased Receivables, of the Purchaser’s ownership thereof as soon as reasonably practicable following a direction by the Purchaser under Section 5.6(a); |
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(g) | devote to the performance of its obligations under this Agreement at least the same amount of time and attention, and exercise at least the same level of skill, care and diligence in the performance of those obligations as it would if it were administering its own rights and obligations as opposed to those of the Purchaser; | ||
(h) | keep proper Records which can be separated and segregated from all other Records, and documents of the Collection Agent in relation to Purchased Receivables (and related Supply Contracts) so purchased to the extent necessary for it to comply with its obligations hereunder; | ||
(i) | keep proper Records for all taxation purposes, including for the purposes of VAT; | ||
(j) | hold all documents, deeds and instruments relating to Purchased Receivables (and related Supply Contracts) so purchased in its possession on trust to the order of the Purchaser; | ||
(k) | maintain Records of all material correspondence with Account Debtors in respect of Purchased Receivables on a Supply Contract by Supply Contract basis so purchased and maintain either in computer readable form or otherwise information in relation to such Purchased Receivables in particular, for the purposes of identifying at any time amounts paid by and to each Account Debtor, any amount due by or to an Account Debtor, the source of receipts which are paid with respect to the Purchased Receivables, and dilutions, settlements, rebates, credit notes and other reductions in respect of each Purchased Receivable; | ||
(l) | obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws and regulations of its jurisdiction of incorporation to enable it lawfully to enter into and perform its obligations under this Agreement or to ensure the legality, validity or enforceability against it of this Agreement; | ||
(m) | use all reasonable endeavours to maintain electronic systems for use in relation to the Purchased Receivables so purchased in working order and permit the Purchaser and any firm of independent accountants and/or any other representatives of the Purchaser upon giving at least ten Business Days notice in writing to the Collection Agent to enter during normal working hours under the direct supervision of the Collection Agent upon its premises to inspect and satisfy itself or themselves that such systems are capable of providing the information to which it or they are reasonably and properly entitled pursuant to this Agreement; |
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(n) | ensure that all Purchased Receivables are clearly and specifically designated in the Seller’s own books and records as having been sold to the Purchaser and, in relation to any Collections received in connection therewith, are clearly identifiable as property held on behalf of the Purchaser; | ||
(o) | on each Reconciliation Date and, if the Purchaser shall request a Reconciliation Summary on any other date, not later than ten Business Days following any request by the Purchaser therefor, provide a Reconciliation Summary to the Purchaser and shall prepare and deliver to the Purchaser such further information, certification and/or reports, whether in writing or otherwise, as the Purchaser may reasonably request from time to time, provided that any reports or certificates delivered by the Collection Agent to the Purchaser under this Section 5.1(n) shall be signed by an authorised signatory of the Collection Agent; | ||
(p) | on demand by the Purchaser, promptly pay to the Purchaser or as the Purchaser may direct, all Collections received by the Seller on behalf of the Purchaser as Collection Agent in respect of Purchased Receivables and not yet accounted for and, to the extent so required hereby, paid over to the Purchaser; | ||
(q) | promptly deliver to the Purchaser such Records evidencing the Purchased Receivables from it as the Purchaser may reasonably specify; | ||
(r) | allow the Purchaser, its representatives, servants or agents such access to the Seller’s premises as the Purchaser upon 5 days written notice may request for the purpose of examining the Seller’s Records relating to Purchased Receivables; | ||
(s) | from time to time, upon the reasonable request of the Purchaser, confer with officials of the Purchaser and advise them as to matters bearing on the financial condition of the Seller; | ||
(t) | notify the Purchaser as soon as reasonably practicable after becoming aware (i) of the occurrence and the continuation of an Termination Event, (ii) of the fact that any representation, referred to in Section 3.1 or 3.2, made by the Seller was incorrect when made, specifying the reason why such representation was incorrect, and (iii) any fact or circumstance which causes (A) a Large Customer Receivable that was purported to satisfy all the conditions of Annex B, or (B) the Applicable Percentage of Small Customer Receivables (excluding those that are Excluded Receivables) or (C) a Purchased Receivable that was purported to be a French Receivable, in each case to be other than what it was purported or reported to be; |
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(u) | assist the Purchaser in discharging any Related Rights in respect of any Purchased Receivable sold and transferred to the Purchaser which have been paid; and | ||
(v) | assist the Purchaser’s auditors and provide information to them upon request. |
5.2 | Covenants with respect to Purchased Receivables | |
The Seller, as Seller and as Collection Agent, agrees and undertakes that: |
(a) | it shall not sell, assign, convey transfer, lease, pledge or otherwise dispose (or purport to do so) of any Purchased Receivable (whether now existing or hereafter created) under a Supply Contract to any person other than the Purchaser; | ||
(b) | it shall not grant, create, incur, assume or suffer to exist any encumbrance or purport to do so over any Purchased Receivable (whether now existing or hereafter created) under a Supply Contract or any interest therein; | ||
(c) | it shall do all things necessary to remain duly organised, validly existing under the laws of the Federal Republic of Germany and maintain all requisite authority and licences to lawfully conduct its business in the Federal Republic of Germany; | ||
(d) | it shall comply in all respects which could be regarded as material in the context of the transactions contemplated by this Agreement, with all laws, rules, regulations, orders(Verfügungen),writs(Beschlüsse),judgments(Urteile), injunctions(einstweiligen Verfügungen),administrative decrees(Verwaltungsakte)or awards to which it may be subject; | ||
(e) | it shall keep its “centre of main interests” in Germany within the meaning of the European Regulation No. 1346/2000 of 29 May 2000 on insolvency proceedings; | ||
(f) | it will not, without the written consent of the Purchaser or without treating such Purchased Receivable as a Diluted Receivable, agree to any termination, waiver, amendment or variation of any Purchased Receivable and in any Supply Contract to which a Purchased Receivable relates which would operate to reduce the amount of the Purchased Receivable or alter its Due Date unless such termination, waiver, amendment or variation falls within parameters specified in the relevant Receivable or Supply Contract or the Credit and Collection Policy or otherwise that have been agreed in writing with the Purchaser; | ||
(g) | it will: |
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(i) | advise the Purchaser immediately of any dispute over any Supply Contract to which a Purchased Receivable relates or any other event or circumstance which may result in the full amount of any payment due in respect of such Purchased Receivable not being paid by the Account Debtor on the Due Date; | ||
(ii) | use reasonable care and take all practicable measures to prevent or minimise loss in the event of any breach by an Account Debtor of a Supply Contract which relates to a Purchased Receivable; and | ||
(iii) | provide such assistance as the Purchaser may require to recover any amounts payable in respect of the Purchased Receivables in the event of non-payment, including taking legal action against the Account Debtor if so instructed by the Purchaser; |
(h) | it will not exercise any retention of title clause (or similar provision) without the Purchaser’s consent and subject to such conditions as the Purchaser may wish to impose; | ||
(i) | it will notify the Purchaser no later than five Business Days after the last day of the month in which it becomes aware of any errors, omissions, disputes or other similar matters which would have a material effect on the amounts received or to be received by the Purchaser in relation to any Purchased Receivable or of any circumstance or event affecting the recoverability thereof from the relevant Account Debtor; | ||
(j) | it will not modify its Credit and Collection Policy in any material fashion or in any way that may lead to a deterioration of the payment of the Purchased Receivables, without the prior written consent of the Purchaser (which consent, prior to the occurrence of a Termination Event, shall not be unreasonably withheld, conditioned or delayed); | ||
(k) | it will inform the Purchaser without undue delay(unverzüglich)and in any event within five Business Days after (i) the institution of any proceeding against the Collection Agent or to which the Collection Agent becomes a party or (ii) the entry of a judgment, decree or injunction against the Collection Agent in either case, which either individually or in the aggregate has had or could have a Material Adverse Effect; | ||
(l) | it will comply with all legal requirements (including, for the avoidance of doubt, any applicable consumer protection legislation) in relation to all Purchased Receivables; |
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(m) | it will not change the Due Date for a Receivable sold and transferred to the Purchaser other than in accordance with its Credit and Collection Policy; | ||
(n) | it will not make any change in the character of the Collection Agent’s business or change in or amendment to the Credit and Collection Policy (other than pursuant to Section 5.2(j) above), which change would, in either case, have consequences for the collectability of any Purchased Receivable or for the ability of the Collection Agent to perform its obligations hereunder; and | ||
(o) | with the due care of a prudent merchant(ordentlicher Kaufmann),it will take all measures necessary to obtain Collections from the Account Debtor on a Purchased Receivable where the original due date is exceeded, in accordance with the Credit and Collection Policy and will comply with the Credit and Collection Policy in all material respects, |
provided always that (except as otherwise required or expressly permitted in this Agreement) the Collection Agent shall not have any power to enter into any new contracts on behalf of the Purchaser nor to act as any form of branch, agency or representative of the Purchaser nor to direct, administer or manage any aspect of the Purchaser’s business (without prejudice to the specific activities expressly contemplated in this Agreement). | ||
The Purchaser covenants that it shall will keep its “centre of main interests” in Switzerland and will not have an “establishment” outside Switzerland each within the meaning of the European Regulation No. 1346/2000 of 29 May 2000 on insolvency proceedings. |
5.3 | Co-operation in Enforcement of Rights to Receivables | |
The Seller (in its capacity as Seller and Collection Agent) agrees and undertakes: |
(a) | to assist in the enforcement of the Purchaser’s rights against the Account Debtors or any other relevant third party in relation to any Purchased Receivable purchased by the Purchaser from the Seller including (without limitation) joining into and being party to any legal action the Purchaser may institute against the Account Debtor or such relevant third party for the recovery of the whole or any part of any such Purchased Receivable. In particular, the Purchaser shall be entitled to require the Seller (in its capacity as Seller and Collection Agent) to exercise any rights which it may have for the Purchaser’s benefit and for the purpose of effecting a recovery hereunder. For the avoidance of doubt the Purchaser shall have sole control and direction in respect of the conduct and settlement of any such legal action but will consult with the Collection Agent over any such action and will give ten Business Days notice to the Seller (in its capacity as Collection Agent) over any such action; |
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(b) | to sign and deliver and otherwise perfect any deed, assurance, agreement, instrument or act which the Purchaser may consider reasonably necessary to obtain payment or perfect the Purchaser’s ownership of any Purchased Receivable or to secure performance of any of the Seller’s (in its capacity as Seller and Collection Agent) obligations for so long as any payment in respect of any Purchased Receivable or other sums remain outstanding to the Purchaser and have not been paid; and | ||
(c) | to deliver to the Purchaser, at the Purchaser’s first request, any documents relating to or arising out of any Purchased Receivable and shall grant the Purchaser the access to the Seller’s (in its capacity as Seller and Collection Agent) premises as it may reasonably request in order to recover, take away and/or make copies of any such documents. |
5.4 | Subcontracting | |
The Collection Agent will not, without the prior consent of the Purchaser, subcontract with any other person in regard to servicing, administering or collecting amounts due in respect of the Purchased Receivables or any of the other duties under this Agreement. In the event of any subcontracting following the consent of the Purchaser, the Collection Agent will remain liable for the performance of their duties and obligations under this Agreement. The Purchaser will not have any liability to any sub agent, sub contractor or representative of the Collection Agent or any other person appointed whatsoever in respect of any cost, claim, charge, loss, liability, damage or expense suffered or incurred by any sub agent, sub contractor or representative of the Collection Agent, or any such person in connection with this Agreement. For the avoidance of doubt, any instructions given to a law firm to enforce a Purchased Receivable (whether by way of commencing legal proceedings or otherwise) against an Account Debtor will not be regarded as “subcontracting” within the meaning of this Section 5.4. | ||
5.5 | Purchaser’s Right to Perform | |
If the Collection Agent fails to perform any of its agreements or obligations under this Agreement, the Purchaser may (but will not be required to) itself perform, or cause the performance of, such agreement or obligations at the cost of the Collection Agent. | ||
5.6 | Enforcement; Notification of Debtors |
(a) | The parties hereto are aware that, each Account Debtor will be entitled, before and after any assignment of a Receivable pursuant to this Agreement, to continue to pay all amounts due to the Purchaser in respect of each Receivable to the Seller until the Account Debtor has knowledge of the assignment of the Receivable or the facts constituting the assignment and that in the case of a Receivable governed by German law which is assigned in accordance with Section 354a of the German |
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Commercial Code, such right of the Account Debtor will continue to exist after a notice of assignment is delivered to the Account Debtor. The Seller agrees that: |
(i) | it shall direct all or any of the Account Debtors to pay amounts outstanding in respect of Purchased Receivables directly to the Collection Account established by the Purchaser in accordance with Section 4; and/or | ||
(ii) | it shall give instructions to make the transfers of Collections paid to the Seller to the Collection Account so specified by the Purchaser; and/or | ||
(iii) | it shall immediately upon request of the Purchaser give notice in its own name to all or any of the Account Debtors of the sale and assignment of all or any of the Receivables sold and transferred to the Purchaser; and/or | ||
(iv) | it shall take all other action as it reasonably considers to be necessary, appropriate or desirable in order to recover any amount outstanding in respect of the Receivables sold and transferred to the Purchaser or to improve, protect, preserve or enforce their rights against the Account Debtors in respect of any such Receivable. |
The Purchaser (or the Purchaser’s designee, assignee or pledgee) will be entitled from time to time to give notification to the Account Debtors on its own behalf or on behalf of the Seller. |
(b) | The Purchaser (or the Purchaser’s designee, assignee or pledgee) may from time to time give any notice to each Account Debtor (other than the Excluded Account Debtors) pursuant to this Section 5.6. To this effect, the Seller shall deliver to the Purchaser simultaneously with the execution of this Agreement 100 notarially certified and 100 uncertified certificates in the form of Schedule 1 (one half of each in the English language and in the German language) of this Agreement, duly printed on its headed paper and executed by two Directors. Each notification made by the Purchaser (or any of its designees or subsequent assignees or pledgees) in accordance with this Section 5.6 may be accompanied by a simple or a notarially confirmed photocopy of such certificate or a certificate in the form of Schedule 2 or a German language version thereof. |
5.7 | Termination by the Collection Agent | |
The Collection Agent may terminate its appointment as the Collection Agent only with the prior written consent of the Purchaser (such consent not to be unreasonably withheld). | ||
5.8 | Termination by the Purchaser |
(a) | At any time after a Termination Event has occurred, the Purchaser may without prejudice to the Purchaser’s other rights: |
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(i) | upon written notice to the Seller in its capacity as Collection Agent, terminate the appointment of the Collection Agent under this Agreement and designate any other person as its agent or to act on its own behalf for the collection of Receivables sold to the Purchaser by the Seller (a“Substitute Collection Agent”)on such terms as the Purchaser thinks fit; and/or | ||
(ii) | notify (or cause to be notified) Account Debtors that all payments in respect of Receivables must be made to the Purchaser or to the Substitute Collection Agent(s) referred to in Section 5.8(a)(i) above. |
(b) | Upon termination of the appointment of the Collection Agent, whether pursuant to Section 5.7 or this Section 5.8, the Collection Agent will: |
(i) | immediately deliver to the Substitute Collection Agent the Records in its possession or under its control relating to the Receivables purchased by the Purchaser from it in its capacity as the Seller and all Collections held by the Collection Agent on behalf of the Purchaser; and | ||
(ii) | take such further action as the Purchaser may reasonably request in relation to the Receivables so purchased and all Collections held by the Collection Agent on behalf of the Purchaser including, without limitation and to the fullest extent permitted by law, endorsing the Substitute Collection Agent’s name on cheques or other instruments representing Collections and enforcing such Receivables and the related Supply Contracts. |
5.9 | Termination Events | |
Each of the following events shall be a termination event (a“Termination Event”)with respect to the Seller, severally and not jointly: |
(a) | the Seller (in its capacity as Seller or Collection Agent) defaults in the payment on the due date of any payment due and payable by it under this Agreement and such default is not remedied within seven Business Days of such due date; | ||
(b) | the Seller (in its capacity as Seller or Collection Agent) defaults in any material respect in the observance of any of its covenants and obligations, or breaches in any material respect any of its representations and warranties under this Agreement which, in the reasonable opinion of the Purchaser is materially prejudicial to the Seller’s ability (in its capacity as Seller or Collection Agent) to perform hereunder and such default is not remedied to the reasonable satisfaction of the Purchaser within fifteen Business Days after receipt by the Seller of written notice by the Purchaser requiring the same to be remedied; |
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(c) | the Seller (in its capacity as Seller or Collection Agent) goes into administration, bankruptcy, dissolution, receivership or winding-up (or analogous proceedings) or ceases to exist; | ||
(d) | an application has been filed by the Seller for the commencement of insolvency, bankruptcy or liquidation proceedings or if filed by a third party, the Seller fails to give evidence satisfactory to the Purchaser within 10 Business Days that such application will be withdrawn or dismissed or it is not withdrawn or dismissed within 30 days thereafter; | ||
(e) | the Seller (in its capacity as Seller or Collection Agent) is overindebted or unable to pay its debts as they fall due or the inability to pay debts as they fall due is threatened; | ||
(f) | there shall have occurred any event or condition which would have a material adverse effect on the ability of the Seller or the Collection Agent to perform their respective obligations under this Agreement; or | ||
(g) | unless waived by the Purchaser, there is an event of default pursuant to any agreement or instrument evidencing material indebtedness to which the Seller is an obligor or a guarantor. |
5.10 | Payments to the Purchaser |
(a) | Any payments required to be made by the Seller to the Purchaser pursuant to this Agreement shall, unless this Agreement otherwise provides, be made available on each date upon which this Agreement requires an amount to be paid in immediately available funds by electronic funds transfer to the account of the Purchaser in the currency of the relevant payment at such bank as the Purchaser shall from time to time notify the Collection Agent for this purpose. | ||
(b) | The Seller shall not be entitled to set off its own claims against the Purchaser’s claims and to exercise any retention rights(Zurückbehaltungsrechte) or counterclaims unless and only to the extent such claims of the Seller have become finally awarded by a court(rechtskräftig festgestellt)or are undisputed (it being understood that this clause (b) does not apply to the netting provisions of Section 2.2(b) hereof). |
6. | BENEFIT OF AGREEMENT | |
6.1 | Benefit and Burden |
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This Agreement shall be binding upon, and enure to the benefit of the Purchaser and the Seller and their respective successors. | ||
6.2 | No Assignment | |
The Seller may not assign all or any of its rights, benefits or obligations under this Agreement. | ||
6.3 | Assignment by the Purchaser | |
The Purchaser may assign or encumber all or any part of its rights or benefits under this Agreement without the consent of any party. Consequently the Purchaser may disclose to a prospective assignee or to any other person who may propose entering into contractual relations with the Purchaser in relation to this Agreement such information about the Seller or the Receivables as the Purchaser shall consider appropriate. | ||
7. | GOVERNING LAW | |
This Agreement, and all matters arising therefrom will be governed by and construed in accordance with the laws of Germany, provided that the choice of the laws of Germany referred to above shall not extend to matters which, pursuant to mandatory rules of private international law, are subject to the laws of any other jurisdiction. For the benefit of the Purchaser, the Seller agrees that, any dispute arising out of or in connection with this Agreement shall be subject to the non-exclusive jurisdiction of the courts of Switzerland. The Purchaser may commence any litigation in any other competent courts. | ||
8. | MISCELLANEOUS | |
8.1 | Indemnities |
(a) | Without limiting any other rights which the Purchaser may have hereunder or under applicable law, the Seller and Collection Agent agree to indemnify the Purchaser and its respective officers, directors and agents or any assignee of the Purchaser’s rights hereunder (each an“Indemnified Party”and collectively, the“Indemnified Parties”),from and against any and all damages, losses, claims, liabilities, costs and expenses (including any reasonably incurred attorneys’ fees) and disbursements (including any irrevocable value added tax thereon) (all of the foregoing being collectively referred to as“Indemnified Amounts”)awarded against or incurred by any Indemnified Party, arising out of or as a result of any breach of an obligation by the Seller or Collection Agent, as the case may be, hereunder. | ||
(b) | The Seller shall indemnify the Purchaser and any assignee of the Purchaser against (a) all stamp duty, registration and other similar taxes and (b) all irrevocable levies, duties, charges, and taxes levied on the Purchaser and any assignee of the Purchaser by a tax or other authority or any public entity to which |
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this Agreement, any sale or payment pursuant to this Agreement or any judgment given in connection herewith or therewith may at any time become subject subsequent to the date of this Agreement and, from time to time on demand of the Purchaser, indemnify the Purchaser against any liabilities, costs, claims and expenses resulting from any failure to pay or any delay in paying any such tax, save for any taxes (whatsoever and wheresoever) payable by the Purchaser by reference to its income, gains or profits. |
8.2 | Notices | |
Unless otherwise specified herein all notices, requests, demands or other communications to or from the parties hereto shall be in writing and shall be deemed to have been duly given and made, in the case of a letter, upon delivery by internationally recognized express carrier service, and in the case of a facsimile, when a facsimile is sent and receipt is telephonically confirmed. Unless otherwise specified herein, any such notice, request, demand or communication shall be delivered or addressed as follows: |
(a) | if to the Purchaser, to it at: | ||
Novelis AG Bellerivestrasse 36 8034 Zurich Switzerland Attention: Management Fax: +41 44 386 2151 | |||
(b) | if to Seller to it at | ||
Novelis Deutschland GmbH Hannoversche Str. 1 37075 Goettingen Germany Attention: Management Fax: +49 551 304 4902 |
or at such other address or facsimile number as the relevant party hereto may designate by written notice to the other parties hereto by not less than five Business Days’ notice. | ||
8.3 | No Waivers | |
No failure or delay by or any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. | ||
8.4 | Entire Agreement |
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This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes any prior discussions, negotiations, agreements and understandings. | ||
8.5 | Termination | |
This Agreement shall have a minimum term of 6 years starting from the date hereof. Thereafter, it may be terminated by either party upon 30 days prior written notice to the Seller. Notwithstanding a termination of this Agreement, except as provided in Section 5.8, the Seller shall continue to perform its duties as Collection Agent until all Purchased Receivables are fully collected or written off. | ||
8.6 | Changes, Amendments, etc. | |
Neither this Agreement nor any provision hereof may be changed or amended orally, but only by agreement in writing signed by the parties to this Agreement. | ||
8.7 | Severability | |
If any provision of this Agreement or the application thereof to any person or circumstance shall be illegal, invalid or unenforceable to any extent, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is illegal, invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and enforceable to the extent permitted by law. | ||
8.8 | Counterparts | |
This Agreement may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument. Such invalid, illegal or unenforceable provision or such omission(Vertragslücke)shall be replaced by the parties with a provision which comes as close as reasonably possible to the commercial intentions of the invalid, illegal or unenforceable provision. | ||
8.9 | Several and not Joint | |
The parties agree that the obligations of the Seller and the Collection Agent hereunder shall be several but not joint, as if the Seller and the Collection Agent had entered into an agreement with the Purchaser separately. |
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IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be duly executed as of the date first above written in two originals (each party acknowledging receipt of one signed original). |
1) | NOVELIS AG, as the Purchaser |
2) | NOVELIS DEUTSCHLAND GMBH, as the Seller and the Collection Agent |
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1. | APPLICATION | |
1.1 | The provisions of this Annex A apply to purchases and assignments of Small Customer Receivables and the Related Rights thereto from the Seller, provided the “Receivable” is not an Excluded Receivable. | |
1.2 | For purposes of this Annex A, “Related Rights” means with respect to each Receivable, all ancillary claims, rights and collateral (present and future) relating to such Receivable, including, without limitation: |
(a) | the claim (if any) for the payment of default interest under any Supply Contract relating to such Receivable; | ||
(b) | all other existing and future claims and rights under, pursuant to or in connection with such Receivable and any underlying Supply Contract including, but not limited to: |
(i) | other related ancillary rights and claims by the exercise of which the relevant Supply Contract is altered, in particular, the right of rescission, but which are not of a personal nature; | ||
(ii) | claims for the provision of collateral; | ||
(iii) | indemnity claims for non-performance; | ||
(iv) | restitution claims against the relevant Account Debtor in the event that the Supply Contract underlying such Receivables is void; | ||
(v) | all other payment claims against the Account Debtor arising from, and in connection with, such Receivable; and | ||
(vi) | all retention of title rights, claims and interest of the Seller to or any other rightin remwith respect to goods sold under the Supply Contract underlying such Receivable; | ||
(vii) | any ancillary rights and claims, including but not limited to, independent unilateral rights(selbständige Gestaltungsrechte)as well as dependent unilateral rights(unselbständige Gestaltungsrechte) by the exercise of which any relevant Supply Contract is altered, in particular the right of termination(Recht zur Kündigung),if any, but which are not of a personal nature (without prejudice to the assignment of ancillary rights and claims pursuant to Section 401 German Civil Code or the comparable provision of any other applicable law); | ||
(viii) | with respect to each such Receivable which is subject to a current account arrangement which are comparable to current account arrangements(Kontokorrent(§ 355 HGB)), all existing and future claims of the Seller, up to the nominal amount or the nominal amount of the part of each such Receivable, for the payment of: |
(1) | the final balance of such current account; and | ||
(2) | interim balances, if any, of such current account, provided that such current account is dissolved between any of its balancing dates; |
(ix) | with respect to each such Receivable which is subject to contractual arrangements which are comparable to current account arrangements(Kontokorrent(§ 355 HGB)), all existing and future claims of the Seller, up |
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to the face value (including any Tax) of such Receivable as stipulated in the invoice relating to such Receivable or the face value (including any Tax) of the part of such Receivable as stipulated in the invoice relating to such Receivable; | |||
(x) | any ownership interest, security interest (which includes any mortgage, pledge, lien, charge, encumbrance, assignment, hypothecation, expectancy right or other agreement or arrangement having the effect of conferring security) or other right or claim subject to German law in, over or on any property or properties or revenues from time to time, if any, in favor of the Seller securing or attaching to such Receivable or purporting to secure payment of such Receivable, whether pursuant to any Supply Contract related to such Receivable or otherwise (with the exception of (i) liens arising by law and (ii) liens arising by attachment); | ||
(xi) | all claims under guarantees, insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable whether pursuant to the Supply Contract related to such Receivable or otherwise; | ||
(xii) | all Records related to such Receivable; and | ||
(xiii) | all possessory and other rights of the Seller in respect of any Receivables and all rights, benefits and entitlement of the Seller under such Supply Contract (and any claim the Seller acquires from the Account Debtor owing such Receivable pursuant to the provisions governing any form of retention of title subsisting as between such Account Debtor and the Seller) to the extent permitted by law. |
2. | ASSIGNMENT | |
Assignment and sale by the Seller of Receivables, shall be made as of the signing of this Agreement, with respect to the Pre-Existing Receivables, and the date of the coming into existence of the Future Receivables, with respect to the Future Receivables. Without prejudice to the foregoing, such assignment and sale shall be documented by the Seller on the relevant Reconciliation Date by delivery of the Excluded Debtor List and the Required Data and, upon request of the Purchaser and at least annually, by an Aged Debtor List. | ||
3. | PAYMENT OF PURCHASE PRICE FOR RECEIVABLES | |
The purchase price payable by the Purchaser on the applicable Settlement Date in relation to Receivables assigned by the Seller and purchased by the Purchaser shall be as set forth in Section 2.2 of this Agreement. | ||
4. | EFFECTS OF ASSIGNMENT OF RECEIVABLES |
(a) | Subject to the assignment of the relevant Receivables the Seller hereby offers to assign or to transfer title to and the Purchaser hereby accepts such offer of assignment of or transfer of title to: |
(i) | any Record relating to such Receivables, | ||
(ii) | any Related Rights relating to such Receivables; in the event that the title to the Related Rights is not transferable by means of a mere agreement between the Purchaser and the Seller, the parties agree on the following: |
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(A) | if the Related Rights is governed by German law, the transfer of possession (Besitzübergabe) necessary for the transfer of title shall be substituted as follows: |
(aa) | if the Seller holds direct possession(unmittelbarerBesitz)of the Related Rights, the Seller shall hold such Related Rights in custody for the Purchaser free of charge(unentgeltliche Verwahrung), | ||
(bb) | if the Seller holds indirect possession(mittelbarerBesitz)of the Related Rights or is entitled to claim the Related Rights from a third party for any other reason, the Seller hereby assigns any claim to surrender(Herausgabeanspruch)the Related Rights to the Purchaser who hereby accepts such assignment, |
(b) | if the Related Rights is governed by any other jurisdiction, Section 4 (a)(ii)(A) of this Annex A shall apply mutatis mutandis, and, | ||
(c) | the transfer of any Related Rights the transfer of which requires the consent of any Person other than the Seller and/or the registration with an applicable register in order to be effective shall become effective (and all steps necessary to be taken by the Seller in order to effect the transfer of title shall be required to be taken) upon request of the Purchaser. | ||
(d) | if any payment by an Account Debtor in relation to a purchased Receivable is made by cheque or by bill of exchange, to the cheque or bill of exchange to the Purchaser. Title to any cheque or bill of exchange will pass to the Purchaser upon the acquisition of title by the Seller. The Seller and the Purchaser agree with respect to the transfer that the transfer of possession necessary to transfer title in the cheque or bill of exchange is replaced by the Seller holding the cheque or bill of exchange in custody for the Purchaser free of charge or, should the cheque or bill of exchange not be in possession of the Seller, by assigning to the Purchaser all claims to surrender against the relevant Persons which are in actual possession of the cheque or bill of exchange. If the Seller no longer acts as an agent for collection for the Purchaser according to this Agreement, the Seller will surrender every cheque and bill of exchange to its successor, furnished with an endorsement in blank. | ||
(e) | Notwithstanding any of the foregoing, should any of the assignments or transfers according to Section 4 of this Annex A not be recognized under any relevant applicable law the Seller shall do all things necessary to perfect such transfer or assignment at its own cost. The Seller and the Purchaser will take all such steps and comply with all such formalities as may reasonably be required or desirable to perfect or more fully evidence or secure title or other proprietary interests to the purchased Receivables and the Related Rights as well as of any other collateral granted or to be granted or enforce any of its rights thereunder in accordance with this Section 4 of this Annex A. |
5. | RIGHTS AND OBLIGATIONS OF THE PARTIES |
(a) | It is expressly agreed between the Purchaser and the Seller that while the latter will be responsible for the existence of the Receivables, the Purchaser shall, subject to the provisions of the following sentence, bear the default risk in respect of the payment of the purchased Receivables by the relevant Account Debtors. The Purchaser expressly agrees that it shall have no recourse against the Seller with regard to any payment due by the relevant Account Debtors in respect of the purchased Receivables. | ||
(b) | The parties agree that the obligations of the Seller hereunder shall be several but not joint as if the Seller had entered into an agreement with the Purchaser separately. | ||
(c) | The Purchaser may, at any time, instruct one or more Account Debtors not to make |
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payments to the Seller by giving a notice of assignment in the form of Schedule 2 to this Agreement such Account Debtors. The Seller hereby authorize the Purchaser to give such notice of assignment on behalf of the Seller. |
6. | GOVERNING LAW | |
This Annex A shall be governed by German law, unless mandatory law requires otherwise. |
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1. | APPLICATION | |
1.1 | The provisions of this Annex B apply to purchases and assignments of each Large Customer Receivable (other than an Excluded Receivable), and the Related Rights thereto from the Seller, that satisfies each of the following criteria: |
(a). | it has been originated by the Seller pursuant to a Supply Contract under which the Seller has fully and in full compliance with such Supply Contract, performed(erfüllt)(as such term is defined by Section 103 of the German Insolvency Code(Insolvenzordnung))its obligations to the relevant Account Debtor; | ||
(b) | it can be freely and validly transferred by way of assignment to the Purchaser under the terms of the relevant Supply Contract without any requirement to give notice to or obtain consent from the Account Debtor and without otherwise breaching the Supply Contract under which the Receivable arises; | ||
(c) | the sale and assignment of which will not violate any provision of applicable law or regulation or articles of association of the Seller or of any agreement (including any contractual or legal prohibition to assign the respective Receivables(vertragliche oder gesetzliche Abtretungsverbote),unless in case of Receivables generated under German law such Receivable is assignable although a contractual prohibition to assign does exist pursuant to Section 354a of the German Commercial Code(Handelsgesetzbuch)and in respect of Receivables governed by any Qualifying Governing Law other than German law, which are assignable although a contractual prohibition to assign does exist, pursuant to any comparable provisions, judgment, injunction, order, decree or other instrument binding upon it and such conclusion is supported by a Qualifying Opinion; | ||
(d) | the Account Debtor in respect of the Receivable is a company or a corporation or a merchant (Kaufmann) pursuant to the German Commercial Code(Handelsgesetzbuch)or other similar provisions pursuant to the relevant applicable laws, and entered into the transaction with respect to which such Receivable arose in the course of its business(Handelsgeschäft)(but in no case a customer(Verbraucher)in the meaning of Section 13 German Civil Code(Bürgerliches Gesetzbuch));which is not: |
(i) | bankrupt or insolvent or in liquidation, administration, receivership or subject to any analogous procedure; or | ||
(ii) | subject to protection under the German Data Protection Act(Bundesdatenschutzgesetz)or similar data protection laws under the relevant applicable law (and such conclusion is supported by a Qualifying Opinion); |
(e) | the related Account Debtor has been directed to make all payments in respect thereof to a Collection Account; | ||
(f) | it does not originate from the sale of products which had been acquired by the Seller subject to any form of extended retention of title(verlängerte Eigentumsvorbehalte),or similar clauses which provide for an assignment of the Receivables to a supplier, unless (a) the reservation of title has lapsed already due to the payment of the original acquisition price or (b) such retention of title clauses are commonly accepted in the relevant industry(branchenüblich)and does not prevent the sale and assignment of the relevant Receivable pursuant to this Agreement; | ||
(g) | the related Account Debtor is located and has its principal place of business in one of the following jurisdictions: the United States of America, Canada, Germany or a Qualified Jurisdiction that is subject to a Qualified Opinion (provided that the Purchaser |
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may permit a Qualified Opinion with respect to a Designated Jurisdiction that has not been provided on the date hereof to be provided within thirty (30) days of the date hereafter or such longer period to which the Purchaser may consent); provided that a Qualified Opinion with respect to a French Receivable may assume that the French Notice Requirements, to the extent applicable under then current law, will be complied with; and | |||
(h) | it is subject to German law (or a Qualified Governing Law). |
1.2 | For purposes of this Annex B, “Related Rights” means with respect to each Receivable, all ancillary claims, rights and collateral (present and future) relating to such Receivable and, including, without limitation: |
(a) | the claim (if any) for the payment of default interest under any Supply Contract relating to such Receivable; | ||
(b) | all other existing and future claims and rights under, pursuant to or in connection with such Receivable and any underlying Supply Contract including, but not limited to: |
(i) | other related ancillary rights and claims by the exercise of which the relevant Supply Contract is altered, in particular, the right of rescission, but which are not of a personal nature; | ||
(ii) | claims for the provision of collateral; | ||
(iii) | indemnity claims for non-performance; | ||
(iv) | restitution claims against the relevant Account Debtor in the event that the Supply Contract underlying such Receivables is void; | ||
(v) | all other payment claims against the Account Debtor arising from, and in connection with, such Receivable; and | ||
(vi) | all retention of title rights, claims and interest of the Seller to or any other rightin remwith respect to goods sold under the Supply Contract underlying such Receivable; | ||
(vii) | any ancillary rights and claims, including but not limited to, independent unilateral rights(selbständige Gestaltungsrechte)as well as dependent unilateral rights(unselbständige Gestaltungsrechte) by the exercise of which any relevant Supply Contract is altered, in particular the right of termination(Recht zur Kündigung),if any, but which are not of a personal nature (without prejudice to the assignment of ancillary rights and claims pursuant to Section 401 German Civil Code); | ||
(viii) | with respect to each such Receivable which is subject to a current account arrangement(Kontokorrent(§ 355 HGB)) all existing and future claims of the Seller, up to the nominal amount or the nominal amount of the part of each such Receivable, for the payment of: |
(1) | the final balance of such current account; and | ||
(2) | interim balances, if any, of such current account, provided that such current account is dissolved between any of its balancing dates; |
(ix) | with respect to each such Receivable which is subject to contractual |
39
arrangements which are comparable to current account arrangements(Kontokorrent(§ 355 HGB)) all existing and future claims of the Seller, up to the face value (including any Tax) of such Receivable as stipulated in the invoice relating to such Receivable or the face value (including any Tax) of the part of such Receivable as stipulated in the invoice relating to such Receivable; | |||
(x) | any ownership interest, security interest (which includes any mortgage, pledge, lien, charge, encumbrance, assignment, hypothecation, expectancy right(Antwartschaftsrecht)or other agreement or arrangement having the effect of conferring security) or other right or claim subject to German law in, over or on any property or properties or revenues from time to time, if any, in favor of the Seller securing or attaching to such Receivable or purporting to secure payment of such Receivable, whether pursuant to any Supply Contract related to such Receivable or otherwise (with the exception of (i) liens arising by law and (ii) liens arising by attachment); | ||
(xi) | all claims under guarantees, insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable whether pursuant to the Supply Contract related to such Receivable or otherwise; | ||
(xii) | all Records related to such Receivable; and | ||
(xiii) | all possessory and other rights of the Seller in respect of any Receivables or the goods which are the subject of the related Supply Contract in respect thereof and all rights, benefits and entitlement of the Seller under such Supply Contract (including, but not limited to, to the extent applicable, (i) the ownership (Eigentum) in the goods which are the subject matter of a Supply Contract and (ii) any claim the Seller acquires from the Account Debtor owing such Receivable pursuant to the provisions governing any form of retention of title subsisting as between such Account Debtor and the Seller) |
2. | ASSIGNMENT | |
Assignment and sale by the Seller of Receivables, shall be made as of the signing of this Agreement, with respect to the Pre-Existing Receivables, and the date of the coming into existence of the Future Receivables, with respect to the Future Receivables. Without prejudice to the foregoing, such assignment and sale shall be documented by the Seller on the relevant Reconciliation Date by delivery of the Excluded Debtor List, the Required Data and, upon request of the Purchaser and at least annually, by an Aged Debtor List. | ||
3. | PAYMENT OF PURCHASE PRICE FOR RECEIVABLES | |
The purchase price payable by the Purchaser on the applicable Settlement Date in relation to Receivables assigned by the Seller and purchased by the Purchaser shall be as set forth in Section 2.2 of this Agreement. | ||
4. | EFFECTS OF ASSIGNMENT OF RECEIVABLES |
(a) | Subject to the assignment of the relevant Receivables the Seller hereby offers to assign or to transfer title to and the Purchaser hereby accepts such offer of assignment of or transfer of title to: |
(i) | any Record relating to such Receivables, |
40
(ii) | any Related Rights relating to such Receivables; in the event that the title to the Related Rights is not transferable by means of a mere agreement between the Purchaser and the Seller, the parties agree on the following: |
(A) | if the Related Rights is governed by German law, the transfer of possession (Besitzübergabe) necessary for the transfer of title shall be substituted as follows: |
(aa) | if the Seller holds direct possession(unmittelbarerBesitz)of the Related Rights, the Seller shall hold such Related Rights in custody for the Purchaser free of charge(unentgeltliche Verwahrung), | ||
(bb) | if the Seller holds indirect possession(mittelbarerBesitz)of the Related Rights or is entitled to claim the Related Rights from a third party for any other reason, the Seller hereby assigns any claim to surrender(Herausgabeanspruch)the Related Rights to the Purchaser who hereby accepts such assignment, |
(b) | if the Related Rights is governed by any other jurisdiction, Section 4 (a)(ii)(A) of this Annex B shall apply mutatis mutandis, and, | ||
(c) | the transfer of any Related Rights the transfer of which requires the consent of any Person other than the Seller and/or the registration with a land register(Grundbuchamt)shall only become effective (and all steps necessary to be taken by the Seller in order to effect the transfer of title shall only be required to be taken) upon request of the Purchaser following the occurrence of a Termination Event. | ||
(d) | if any payment by an Account Debtor in relation to a purchased Receivable is made by cheque or by bill of exchange, to the cheque or bill of exchange to the Purchaser. Title to any cheque or bill of exchange will pass to the Purchaser upon the acquisition of title by the Seller. The Seller and the Purchaser agree with respect to the transfer that the transfer of possession (Besitzübergabe) necessary to transfer title in the cheque or bill of exchange is replaced by the Seller holding the cheque or bill of exchange in custody for the Purchaser free of charge (unentgeltliche Verwahrung) or, should the cheque or bill of exchange not be in possession (Besitz) of the Seller, by assigning to the Purchaser all claims to surrender (Herausgabeanspruch) against the relevant Persons which are in actual possession of the cheque or bill of exchange. If the Seller no longer acts as an agent for collection for the Purchaser according to this Agreement, the Seller will surrender every cheque and bill of exchange to its successor, furnished with an endorsement in blank. | ||
(e) | Notwithstanding any of the foregoing, should any of the assignments or transfers according to Section 4 of this Annex B not be recognized under any relevant applicable law, the Seller shall do all things necessary to perfect such transfer or assignment at its own cost. The Seller and the Purchaser will take all such steps and comply with all such formalities as may reasonably be required or desirable to perfect or more fully evidence or secure title or other proprietary interests (dingliche Rechte) to the purchased Receivables and the Related Rights as well as of any other collateral granted or to be granted or enforce any of its rights thereunder in accordance with this Section 4 of this Annex B. |
5. | RIGHTS AND OBLIGATIONS OF THE PARTIES |
(a) | It is expressly agreed between the Purchaser and the Seller that while the latter will be responsible for the existence of the Receivables (Haftung für den rechtlichen Bestand der Forderungen) the Purchaser shall, subject to the provisions of the following sentence, bear the default risk (Delkredere) in respect of the payment of the purchased Receivables by the relevant Account Debtors. The Purchaser expressly agrees that it shall have no |
41
recourse against the Seller with regard to any payment due by the relevant Account Debtors in respect of the purchased Receivables. | |||
(b) | The parties agree that the obligations of the Seller hereunder shall be several but not joint as if the Seller had entered into an agreement with the Purchaser separately. | ||
(c) | The Purchaser may, at any time, instruct one or more Account Debtors not to make payments to the Seller by giving a notice of assignment in the form of Schedule 2 to this Agreement to such Account Debtors. The Seller hereby authorizes the Purchaser to give such notice of assignment on behalf of the Seller. |
6. | GOVERNING LAW | |
This Annex B shall be governed by German law, unless mandatory law requires otherwise. |
42
Name: | Name: | |
Title: | Title: |
43
44
BORROWING BASE CERTIFICATE
EXHIBIT R-l
![(FORM)](https://capedge.com/proxy/S-4A/0000950123-09-051624/g20430a1g2043014.gif)
LaS BORR( ille Business Credit, LLC WING BASE CERTIFICATE Client Name: Loan ID. ABBE ID Report No. Report Date: WI2M9 Ex«Esaslitt|m>, ^"^••t^flRdaas”;:? TOTAL * Be Gt Ne No Di! Cr Ad Ad Ad No (inning AIR Balance pnmpmiaaiuton) »s Sales (Invokes) Collection (m. a, out/tea @ua; nA/R Collections counts/Allowance iditMemos ustments Monthly Aging (-H-) ustments(+/-) ustments (+/-) lA/RCash ColkMAWta CotWmlSiAlncIlM r:E X«C°IU«IA# Ending Collateral Balance Ineligibl Endof MoMk tiO. Indijible as oC ! TMpomylnettgible Toullndijible 3/JIQ064:’:: Eligible Collateral Advanet Rate — Effective Adv. Rate Unappll accktmt befaeAlv. C Adv «l Cash — Balance tomPrevKXii Rq»n *w» **»*» Wea* Sutmcttal *** NoClunje U^McukA* ale CmrnVunlUtltlmxtUuu Eligible a • Check I .MR Urn MR NOVELiSCANA^A- . NOVELlStllC ‘ jsy»» INVOZ ravos TOTAL Beg I N I”* N Inel T EUg 0 A* ,, OH. Check tt Invento fining Inventory as of Purchases Sales ing Inventory as of gible Inventory >le Inventory mceRate BSility 3/31/2004 COMUMilAddiliMI CollMmlS^ncIlM ” OR ‘ Ott» ‘ Check ti ; Revolvii ISS AVAILABILITY (A r Collateral @q> <jffij «• (S* .., —jvANCEi /RANDINVEN JCftpBO i TORY) Oowy GUAKAI TEES Advance Rate NOVELISCAUSD NOVELISCANADA Rev k Rev 6 |Giu Letter of Credit : Letter of Credit antees Total Reserves 9Fiyny noveliscatjsd NOVEUSCANADA NOVELISUK NovBLissw;::, Begmnini devolving Lorn Balanci stuns n’ve Loan Adj. aces Addition (Mate, Pea, i»l rolving Loan Balance (» SfPromPmtatutlipo taMngLoai) t» L <=<>« 0 tyg A Adv N Loa NctcoOMIini o»-l~.»* LonAMI^M o»u_Mttk. Ending Ri Termloa Termloa RBSEJ.V ‘.Check tc § Apply to Credit Une Apptv to Credit Line m Availal lity • Check K 4pply to Avail. H BORRpV BR’S COMMENTS The undersigned hereby represents and warrantt to LaSalte Buslnen Credit, LLC, a d IvUlon of ABN AMRO Bank, N.V, that the infonnatioii set fonh herein is true and correct as of tk date made, that any AccomtsReceivabteor Inventory classified as “EHgjbte Accounts” or “Eli8iblelnventoiy“con(bnn in all respects to the respective definition of “Eligible Account* and “Eligible Inventory” as set fcrm in teLoM and Security Agreemera (or similar agreement) entered into by and between LaSalle Business Credit, LLC and the undersigned, as amended, modified or supplemented from time to time). { Prepared By: Authorized Signature 1 of 13 NOVELISBlANKjcls-Consolidated LBCI-yio(Keviied 10/03) |
LaSalle Business Credit, LLC BORROWING BASE CERTIFICATE | Client Name: Novelis Inc. |
Loan ID. | ABLE ID | Report No. | 1 | Report Date: | 5/12/2004 | |||||||||||||||||||
NOVELISUS | NOVELISCANADA | NOVELISUK | NOVELISSW | NOVELISSWING | Consolidated | |||||||||||||||||||
Inventory Ineligible detail | ||||||||||||||||||||||||
NOVELISUS | ||||||||||||||||||||||||
Work in Process | ||||||||||||||||||||||||
Supplies | ||||||||||||||||||||||||
Packaging | ||||||||||||||||||||||||
Outside Processors | ||||||||||||||||||||||||
Consignment | ||||||||||||||||||||||||
Other | ||||||||||||||||||||||||
Other | ||||||||||||||||||||||||
Other | ||||||||||||||||||||||||
Other | ||||||||||||||||||||||||
Other | ||||||||||||||||||||||||
Other | ||||||||||||||||||||||||
Total Ineligibles | ||||||||||||||||||||||||
![(FORM)](https://capedge.com/proxy/S-4A/0000950123-09-051624/g20430a1g2043015.gif)
NOVEUSBLANKxIs-Coiuolidatal LBCl-ne(Sevtsed 10/03) 2 of 13 LaS BORR( die Bu WINGB^ isiness Credit, LLC ,SE CERTIFICATE Client Name: r• ., ivo^iiiCS*i»oitfiul’i: ?•;;;•,. yg ·.,;;. Loan ID. : /sfflSiusW “ Report No.• vjjLiiS’jr: = ; Report Date: ii f *smimm lHl^i^lyi^ijS^ 8^;[i;f:^!;::x^^ll*|!fe;|i^i^ ‘jj^jbj£jjjjtjj£&^ji^J£. AMbt 8;JS!BQW fa;|||iiWlw:lL tviiSisSi^ifSP:;? SSlris^i^lilifi TOTAL‘a”c c t t R• e c l V l> e Be Gr Ne No Oil Cr Ad Ad Ad No ,inningA/R Balance (FmmprerlaaiStfon) »i Sales (Invoices) Collection (1KLB. Girt /tea @tscn :i: ‘•___.;-. ,-.. .:.....i,.-,” ‘ = CoBMnlAdditfM GoartnlSuNnclliHi A/RCollecdons counts/Allowance it Memo » Stments Monthly Aging (+/-) iutment>(+/-) stments (+/-) Am Cash iiliiil n^i^iitii! - -ili::i^::iii;|l:l^:^’::: ‘^^ Er’ NMCollMnlAdt Ending i ollateral Balance Inellglbl EnloTMonlbAatheEgiUtiioe TtOfKniybdigible “ J/JISW?”’ Eligible ollateral Advann Rate — Effective Adv. Rate : “ “• Unapplli Clieckboib inctafcuuv betwA*. Cash — Baton ton Kevins Repot slowto **"»» edcuk Sobnaioo tale tHTlMCMkMt Cnratt Unpplied Baluce Babnce Eligible 3iIRAva•RSub- JR lable for Advances Jmit 9W1S wiyoi: “•” “•’ .,;iliiV02. ‘: ^ ‘iNVfeiiii. . .’ i-. -::;’INffiil-:: SSS if V B N O 12k1 Beg End Inel Elig Adv Elig nning Inventory as of Purchases Sales ng Inventory as of gible Inventory ble Inventory mceRate ble Inventory C«k»IMItt» Olkl>lUI»«» mve itory Availability Inv itory Sub-Limitoron* iSS AVAILABn-ITY (A/R AND INVENTORY) r Collateral fKQ)(RE)or(SA) (CapEx) ILE FOR ADVANCES Ow ivolvin Limit rEES Advance Kate•"•’••ry- :•••,• L C 1 qua Letter of Credit : Letter of Credit mlees Total Reserves EOANiA tryrrV &e L 0 A N cfS ^eg Ajdv Loa (evolving Loan Balance tThMtAvnbBxAqwtf ctions live Loan Adj. nces NMCOOMdM M-U^S* U.AfclUvM Addition (burat. Fees, aid Odn Mjnraaa) 0*.U.AUW___EodmgR* solving Loan Balance<im«A«u^oiuM Termln TerJnLoa RESEFV CnditLm Credit Un S ~• .::•;: ‘i’"-v::ftv.:’..;i-t’"!i:;i:?!’:?; ‘.:•; n HkA^uai, D Avail ii Sty 4vai7. IZ BORRir iKS COMMENTS Tne undmigwd hereby repnsents and wanants to LaSalk Bialnos Credit, L made, that any Account Receivable or Inventory classiSedas“EligibleAccouii of “Eligible Account* and “Blgible Invenlory” as set forth in the Lam and Seam Business Credit, U.C and the undersigned, as amended, modiBed or supptew LC thai the inlbmation set fbtthhetem is true and eon Is” or “Eligible Inventory” conform in an respects to llx eel as of Sedate ;resptcnVe definitions d between 3 of 13 Medftom time to time). sr NOVEUSBLANKjtb-US LBCI-ri6(Revlied 10/03) 1 Prepared By: Authorized Signature |
LaSalle Business Credit, LLC BORROWING BASE CERTIFICATE | Client Name: Novelis Corporation |
Currency Type: | US | Loan ID. | NOVELISUS | Report No. | 1 | Report Date: | 5/12/2004 | |||||||||||||||||||||
Conversion Rate: |
INV01 | INV02 | INV03 | INV04 | INV05 | ||||||||||||||||
Work in Process | ||||||||||||||||||||
Supplies | ||||||||||||||||||||
Packaging | ||||||||||||||||||||
Outside Processors | ||||||||||||||||||||
Consignment | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Total Ineligibles | ||||||||||||||||||||
![(FORM)](https://capedge.com/proxy/S-4A/0000950123-09-051624/g20430a1g2043016.gif)
LaSalle Business Credit, a division of ABN AMRO Bank N.V., BORROWING BASE CERTIFICATE Client Name: Novelis Inc. Currency Type CDN$ NOVELISCAD NOVELISUSD Report No. 1 Report Date: 5/12/2004 Conversion Rate 0.9319 CAD USD CAD$ CAD$ ACCOUNTS RECEIVABLE A/R01 A/R01 A/R01 TOTAL TOTAL TOTAL A Be ginning A/R BaIance(From previous report e Gorss sales (invoices J- Net Collection (Wt, L.B, Cash Rec’d@LBCI) Non A/r Collections R Di scounts/Allowance e Cr edit Memos• Ad juitments Monthly Aging (+/-) J Ad|ustment(+/-)• Adjustments(+/-)*Non A/R Cash · CotColleteral Addidtion Collatoral Subtraction Collatoral Subtraction Collatoral Subtraction Discoutn(-) Credit Memos(-) Adj. Aging(+/-) Net Colletoral Adj. Ending Collateral Balance End of Month A/R Intigible as of Ineligible Temporary Ineligible Total ineligible 3/3!iPW Eligible bilateral Adyanci Rate — Effective Adv. Rate UnhppUi d Cash — Balance tanrrevioM Report Check boc below Addition inclode»u, piled cub Srf*wi» befbnAAr. Utt NaOuoje OAdv ?(!(« CiinatUupllllMBllwcBaklice U-TpMCuHUt Eligible L/R• CtieclH,’ Applyra""** 1 .^Ki/fflft•* g : ‘?’ :• CADi ‘ ‘vw ..; ‘ J rCAD$ ‘ : ‘ .• : ;:iSB$T ! Tj 1 i > is* ^ ^ ~y••& ‘ ‘ v ^ ^ ^4 ; ^ ^ ^r ^ ^ !S^t8ii!i;;::::e: ;: -iiS >is L. ? ?’ .’,, ;£, ·.. -• < Jt ‘C-’ : ‘ ‘ INV01 INV01 TOTAli '' “: WjTAfc... ‘ ; g’; Beg nning Inventory as of I Purchases N Sates «f End ng Inventory as of CDttMMlAddUMI agmlSiMicto .•: :••:.’,-,[’,.’’ fs• f•N JnelgJblenwentoryT Elig ble InventoryqAdv mce Rate n RK» M> V.»»«*n~.Check u Applyoiliry (Ulf fc l»Vtt MUiV-A<UUlllI GR( SS AVAILABILITY (A/R AND INV ] Othi rCollaferalf«O(?i£;w^;(Gira;•’cftidi « "^S~« :>VAMCWI.Revolving LimitBNTORY) Ounqr OQAB|A^ TEES Advance Kate flfev |5 Letter of Credit «iv j 15 ‘ Letter of Credit \ |Ouai antees Total Reserves LOAjijA* l^jfrv CADS USDS CADS TOTAL USDSTOTAL••••;.. i•’ —if. ‘,.:\ jt.r;i«,SfCJ Begmning Revolving Loan Balance<fnm rnoaa i<v, ) IT) L Coll ctionj O Negi rive Loan Adj. A Aavincts N Loan AdditJonammftF^mdoihtiA^uonon. NMCaDMIlM OAcrLMnSA LdMMKlUvM aioL-nMtlk. Endmg|Re rolving Loan Balance (XnnMnriomj Termljoai TcrmI1oai RESERVES ; CAedb ro 4pp/vto Credit LineB8\Chec^to Apply to Cndit Line159 MiAAwMOiV Availftb lity• C»«c*{ ro 4/jpfy «o ^vo/i 121 BjOftR^ BR^ COMMENTS The undersigned hereby represents mdwamnu toLiStllt Bialnen Credit, LLC that iheinfotmadonKt forth herein is inie and comet as of ihe date made, ihat any AccamBReceivabkorlnvenloiy classified as “Eligible Accounts” or “Eligible Inventory” conform in all respects to the respeclivedeUtions of “Eligible Accounf* and “Eligible Lwentoy* as set forth in U* Loan and Secun\y Agreement (or similar agreement) cnleredinM by aivilKt»’«iiUS«ll<! Business Crtdlt, LLC and the undersigned, as amended, modified « suppleraauedftom time to time). * 1 ~ ~ “a. ‘ ];-.[ | ___! Prepared By: Audurized Signature 5 of 13 |
LaSalle Business Credit, a division of ABN AMRO Bank N.V., | ||||
BORROWING BASE CERTIFICATE | Client Name: Novelis Inc. |
Currency Type | CDN$ | NOVELISCAD | NOVELISUSD | Report No. | 1 | Report Date: | 5/12/2004 | |||||||||
Conversion Rate: | 0.9319 | CAD | USD | CAD$ | USD$ |
CAD | USD | CAD$ | USD$ | |||||||||||||
INV01 | INV01 | TOTAL | TOTAL | |||||||||||||
Work in Process | ||||||||||||||||
Supplies | ||||||||||||||||
Packaging | ||||||||||||||||
Outside Processors | ||||||||||||||||
Consignment | ||||||||||||||||
Other | ||||||||||||||||
Other | ||||||||||||||||
Other | ||||||||||||||||
Other | ||||||||||||||||
Other | ||||||||||||||||
Other | ||||||||||||||||
Total Ineligibles | ||||||||||||||||
6 of 13
![(FORM LOGO)](https://capedge.com/proxy/S-4A/0000950123-09-051624/g20430a1g2043017.gif)
LaSalle Business Credit, LLC BORROWINGBASE CERTIFICATE Client Name: Novelis UK Limited Currency EUROS £Pounds Loan ID. NOVELISUK Report No. 1 Report Date: 5/12/2004 RATE 1.3335 1.9783 POUNDS $US ACCOUNTS RECEIVABLE A/R02 A/R03 TOTAL A Beginning A/R Balance(From previous Report) Gross Sales (Invoices) Collateral Addition Net Collection (Wr. LB Cash Rec’d @ LBCI) Collateral Subtraction Collateral Subtraction Non A/R Collections Collateral Subtraction Discounts/Allowance discounts/Allowance Credit Memos Credit Memos (-) Adjustments Monthly Aging (+/-) Adj. Asing(+/-) Adjustment (+/-) Other Adj (+/-) Adjustments (+/-) Other Adj. (+/-) Non A/R Cash Non A/R Cash (+) Net Collateral Adj Ending Collateral Balance End of Month A/R Ineligible is of. | Ineligible I Tmpomjhelleibl. _ ToUllndipble Eligible :oUateral Admire Rate — Effective Adv. Rate UnappU d C«h — BduceiumPnvloiis Rqon Chsellmbriowto MHWon inetalt aup jlied wk Sibuoioii iKfcre**. l« I Netciaiig* Ui»fplMCMfcA4i. D ^V t«<« CmrnaUiupplmlB.toccBtoCT ^^ Eligible. M. Checku>Apply raSMW .A/R Limit ::’ ‘ ‘ KHJNDS: m.;:”; ite;,—— ’ JSHil IRf :-;5 5 fWisw;? — :;c ‘iisvjji:1’ ‘ 1NV6* : ’:-BP»- .’ . MVW;:!::|: ‘i| 2 i;-“fii8S,.,.: ; Beg nning Inventory as of I Purchases *i Sales V’ End ng Inventory as of ,, Inel gibte Inventory ^ Elig ble Inventory <j’. AdvinceRate *« C1«» kla Ti**WM*nM> C^ecktc Apply jy,^ |*U**f tt*H] UtMf-lstAldilk S/3ia007 GBOMnlAdUliM CofclmlS*MiM OR( ISS AVAILABILITY (A Othi r Collateral (Eg) tx£>“BOVANCES \Rtvotytnilimtt /RAND INVENTORY) HCHfExt OraW i QUASAMEES AitvanceRate «ev C Letter of Credit ««v |y ‘Letter of Credit I Guai intees Total Reserves LOANJAC JTVITY POUNDS EUROS 3egjnnmg Revolving Loan Balance tFitrnfmtaaRtpon) L Collictionj O Negi live Loan Adj. A Advinces N. Loan Addition (UenAFmiid N«Cokoi» OdwLDMSA LMBJU«:Rtqimt (MaMtuuaO) !saMnlam> OtbwUMAdlttM Ending! Re reiving Loan Balance IK, TermLpn Termljoai RESERVES ‘.diecKto tpplv to Credit Une ] ‘ Check to 4pplv to Credit Une n M^AtMhMBr aft. Availability Chechia ippfy to Avail. FZ BORROW BR’S COMMENTS The undersigned hereby represents and warrants to LaSalle Business Credit, LLC that the Information forth herein is true and correct as of the date made,that any Accounts Receivable or Inventory classified as “Eligible Accounts” or “Eligible Inventory” conform in all respects to the respective definitons of “Eligible Account” and “Eligible Inventory” as set forth in the Loan and Security Agreement (or similar agreement) entered into by and between LaSalle Business Credit, LLC and the undersigned, as amended, modified or supplemented from time to time).1 Prepared By: Authorized Signature NOVELISBLANK.xls-UK LBCI-V16(Kevtsed 10/03) 7 of 13 |
LaSalle Business Credit, LLC BORROWING BASE CERTIFICATE | Client Name: Novelis UK Limited |
Currency | EUROS | £Pounds | Loan ID. | NOVELISUK | Report No. | 1 | Report Date: | 5/12/2004 | ||||||||||
RATE | 1.3335 | 1.9783 | POUNDS | $US |
POUNDS | $US | |||||||||||||||||||
INV01 | INV02 | INV03 | INV04 | INV05 | ||||||||||||||||
Work in Process | ||||||||||||||||||||
Supplies | ||||||||||||||||||||
Packaging | ||||||||||||||||||||
Outside Processors | ||||||||||||||||||||
Consignment | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Total Ineligibles | ||||||||||||||||||||
![(FORM)](https://capedge.com/proxy/S-4A/0000950123-09-051624/g20430a1g2043018.gif)
LaS die Business Credit, LLC BORROWING BASE CERTIFICATE Client Name: ACCOUNT RECEIVABLE Beginning A/R Balance (From previous Report) Gross Sales (Invoices) Collateral Additiion Net Collection (Wt. LB. Cash Collateral Subtraction Non A/R Collections Collateral Subtraction Dicounts/Allowance Discount(-) Credit Memos Credit Memos(-) Adjustments Monthly Aging (+/-) Adjustments (+/-) Other Adj. (+/-) Adjustment(+/-) Other Adj.(+/-) Non A/R Cash Non A/R Cash(+) Net Collateral Adj. Ending Collateral Balance End of Month A/R Ineligible Ineligible Temporary Ineligible Total Ineligible Eligible Collateral Advance Rate — Effective Adv. Rate Unapplied Cash-Balance from Previous Reportinclude unapplied cshNet Change Adv Rate EligibleCheck to ApplyA/R Limit INVENTORY: Beginning lnventory as of As of date Purchases Collateral Addition Sales Collateral Substraction Ending Inventory as of Ineligible Inventory Eligible Inventory 0 Advance RateInventory Limit GROSS AVAlLABILTY (A/R AND INVENTORY) Other CollateralRevolving LimitGUARANTEES Rev Letter of Credit Rev Letter of Credit Guarantees Total Reserves LOAN ACTIVITY Beginning Revolving Loan Balance(From Previous Report)Collections Negetive Loan Adj. Other Loan Sub. A Advances Loan Addition (interest, Fees, and Other Adjustments) Ending Re ‘plying Loan BalanceguxMngHaii)TERM LOAN RESERVESCheck to Apply to Credit LimitMin AvailabilityCheck to 4pplv to Credit LineAvailabilityCheerio Apply to AvailBORROW BBS COMMENTS made, that any Accounts Receivable or Inventory classified as “Eligible Accounts” Eligible Inventory” conform of eligible Account” and “Eligible Inventory” as set forth in the Loan and Security Agreement (or similar agreement Business Credit, LLC and the undersgned, as amended, modified Prepared By:Authorized SignatureNOVELISBLANK.xls-Swiss LBCl-V16(Revised 10/03)9 of 13 |
LaSalle Business Credit, LLC BORROWING BASE CERTIFICATE | Client Name: Novelis AG |
POUNDS | Euros | Loan ID. | NOVELIS AG | Report No. | 1 | Report Date: | 5/12/2004 | |||||||||||||||||||||
EUROS | TOTAL US$ | |||||||||||||||||||||||||||
INV01 | INV02 | INV03 | INV04 | INV05 | ||||||||||||||||
Work in Process | ||||||||||||||||||||
Supplies | ||||||||||||||||||||
Packaging | ||||||||||||||||||||
Outside Processors | ||||||||||||||||||||
Consignment | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Total Ineligibles | ||||||||||||||||||||
![(FORM)](https://capedge.com/proxy/S-4A/0000950123-09-051624/g20430a1g2043019.gif)
LaSalle Business Credit, LLC BORROWING BASE CERTIFICATE Client Name: NOVELIS AG Currency Tyo ACCOUNTS RECEIVA BLEtotal Beginning A/R Balancer (From previous Report) Gross Sales (Invoices) Coleteral Addition Net Collection (Wt. LB. Cash Rec’d @gi Colleteral Subtraction «a6a»6S6ffl Non A/R Collections Collateral Subtraction Discounts/Allowance DiscountCredit Memos Credit Memos(-) Adjustments Monthly Aging (+/-) Adj. Aging (+/-) Adjustments (+/-) Other Adj. (+/-) Adjustments (+/-) Other Adj. (+/-) Non A/R Cash Non A/R Cash (+) Net Control Adj. Ending Collateral Balance EndofMonft Ineligible as of Ineligible of: As of date Ineligible Temporary Ineligible Total Inligible Eligible :Collateral Advance Rate — Effective Adv. Rate Unapplied Cash-Balance from Previous Report Check box below to Addition include unapplied cash subtractionmata. before Adv. Rate Net ChangeAdv RateCurrent Unapplied Balance Balance Eligible A/RCheck to Apply ances A/R LimitBeginning Inventory as of As of date . I Purchases Collateral Addition Sales Collateral Substraction Ending Inventory as of Ineligible Inventory Eligible Inventory Advance RateInventory LimitOther Collateral (EQ) (RE) or (SA)check to apply Revolving limit \ GUARANTEES Rev Letter of CreditRev (Lelter of Credit Guarantees Total Reserves LOAN ACTIVITY Beginning Revolving Loan Balance (From Previous Report) Collections Net Collection Ending Revolving Loan Balance(Revolving Loan)Term loan Term loan Check to Apply to Credit(Check to Apply to Credit Loan AvailabilityCheck to Apply to AvailabilityBORROWEER’S COMMENTS The urndersigned hereby represents and warrant to LaSalle Business Credit, LLC that the information made, that any Accounts Receivable or Inventory classified as Eligible Accounts” or Eligible Inventor conform in all respects to the respective definitions of “Eligible Account” and “Eligible Inventories as set forth in the and Security Agreement (or similar agreement) Business Credit, LLC and the undersigned, as amended, modified supplemented from 1 Prepared By: Authorized SignatureNOVBELISBLANK.xls-Swing LBCI-ri6(Revised 10/03)11 of 13 |
LaSalle Business Credit, LLC BORROWING BASE CERTIFICATE | Client Name: NOVELIS AG |
Currency Type: | Francs | Loan ID. | NOVELISAG | Report No. | 1 | Report Date: | 5/12/2004 | |||||||||||||||||||||
RM | WIP | FG | ||||||||||||||||||
INV01 | INV02 | INV03 | INV04 | INV05 | ||||||||||||||||
Work in Process | ||||||||||||||||||||
Supplies | ||||||||||||||||||||
Packaging | ||||||||||||||||||||
Outside Processors | ||||||||||||||||||||
Consignment | ||||||||||||||||||||
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Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Other | ||||||||||||||||||||
Total Ineligibles | ||||||||||||||||||||
Comp 1 | Comp 2 | Comp 3 | Comp 4 | Comp 5 | Total | ||||||||||||||||||
A/R | |||||||||||||||||||||||
INV | |||||||||||||||||||||||
Rev | |||||||||||||||||||||||
Total |
REVOLVING CREDIT FACILITY
COLLATERAL AGENT APPOINTMENT LETTER
EXHIBIT S-1
Revolving Credit Facility Collateral Agent Appointment Letter
135 South LaSalle Street, Suite 425
Chicago, IL 60603
Attention: Account Officer
[DATE]
Page 2
Very truly yours, [NAME OF TREASURY SERVICES PROVIDER] | ||||
By | ||||
Name: | ||||
Title: | ||||
THIS DAY OF , 20 :
LASALLE BUSINESS CREDIT, LLC, as Collateral Agent | ||||
By | ||||
Name: | ||||
Title: | ||||