as Canadian Borrower,
as U.S. Borrower,
as Holdings,
as Administrative Agent and as Collateral Agent,
as Syndication Agent,
as Documentation Agent,
ABN AMRO INCORPORATED,
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 | 52 | ||||
SECTION 1.03 | Terms Generally; Currency Translation | 52 | ||||
SECTION 1.04 | Accounting Terms; GAAP | 53 | ||||
SECTION 1.05 | Resolution of Drafting Ambiguities | 53 | ||||
ARTICLE II. THE CREDITS | 54 | |||||
SECTION 2.01 | Commitments | 54 | ||||
SECTION 2.02 | Loans | 54 | ||||
SECTION 2.03 | Borrowing Procedure | 55 | ||||
SECTION 2.04 | Repayment of Loans; Evidence of Debt | 56 | ||||
SECTION 2.05 | Fees | 57 | ||||
SECTION 2.06 | Interest on Loans | 57 | ||||
SECTION 2.07 | Termination of Commitments | 58 | ||||
SECTION 2.08 | Interest Elections | 58 | ||||
SECTION 2.09 | Amortization of Term Loan Borrowings | 60 | ||||
SECTION 2.10 | Optional and Mandatory Prepayments of Loans | 60 | ||||
SECTION 2.11 | Alternate Rate of Interest | 65 | ||||
SECTION 2.12 | Yield Protection; Change in Law Generally | 66 | ||||
SECTION 2.13 | Breakage Payments | 67 | ||||
SECTION 2.14 | Payments Generally; Pro Rata Treatment; Sharing of Setoffs | 68 | ||||
SECTION 2.15 | Taxes | 70 | ||||
SECTION 2.16 | Mitigation Obligations; Replacement of Lenders | 72 | ||||
SECTION 2.17 | [INTENTIONALLY OMITTED] | 74 | ||||
SECTION 2.18 | [INTENTIONALLY OMITTED] | 74 | ||||
SECTION 2.19 | Interest Act (Canada); Criminal Rate of Interest; Nominal Rate of Interest | 74 | ||||
SECTION 2.20 | [INTENTIONALLY OMITTED] | 75 | ||||
SECTION 2.21 | [INTENTIONALLY OMITTED] | 75 | ||||
SECTION 2.22 | [INTENTIONALLY OMITTED] | 75 | ||||
SECTION 2.23 | Incremental Term Loan Commitments | 75 | ||||
ARTICLE III. REPRESENTATIONS AND WARRANTIES | 77 | |||||
SECTION 3.01 | Organization; Powers | 77 | ||||
SECTION 3.02 | Authorization; Enforceability | 77 | ||||
SECTION 3.03 | No Conflicts | 78 | ||||
SECTION 3.04 | Financial Statements; Projections | 78 | ||||
SECTION 3.05 | Properties | 79 | ||||
SECTION 3.06 | Intellectual Property | 80 |
i
Page | ||||||
SECTION 3.07 | Equity Interests and Subsidiaries | 80 | ||||
SECTION 3.08 | Litigation; Compliance with Laws | 81 | ||||
SECTION 3.09 | Agreements | 81 | ||||
SECTION 3.10 | Federal Reserve Regulations | 82 | ||||
SECTION 3.11 | Investment Company Act | 82 | ||||
SECTION 3.12 | Use of Proceeds | 82 | ||||
SECTION 3.13 | Taxes | 82 | ||||
SECTION 3.14 | No Material Misstatements | 83 | ||||
SECTION 3.15 | Labor Matters | 83 | ||||
SECTION 3.16 | Solvency | 83 | ||||
SECTION 3.17 | Employee Benefit Plans | 84 | ||||
SECTION 3.18 | Environmental Matters | 84 | ||||
SECTION 3.19 | Insurance | 86 | ||||
SECTION 3.20 | Security Documents | 86 | ||||
SECTION 3.21 | Acquisition Documents; Material Indebtedness Documents; Representations and Warranties in Acquisition Agreement | 89 | ||||
SECTION 3.22 | Anti-Terrorism Law | 89 | ||||
SECTION 3.23 | [INTENTIONALLY OMITTED] | 90 | ||||
SECTION 3.24 | Location of Material Inventory and Equipment | 90 | ||||
SECTION 3.25 | [INTENTIONALLY OMITTED] | 90 | ||||
SECTION 3.26 | Senior Notes; Material Indebtedness | 90 | ||||
SECTION 3.27 | Centre of Main Interests and Establishments | 90 | ||||
SECTION 3.28 | Holding and Dormant Companies | 91 | ||||
SECTION 3.29 | Hindalco Acquisition | 91 | ||||
SECTION 3.30 | Excluded Collateral Subsidiaries | 91 | ||||
SECTION 3.31 | Immaterial Subsidiaries | 91 | ||||
ARTICLE IV. CONDITIONS TO CREDIT EXTENSIONS | 91 | |||||
SECTION 4.01 | Conditions to Initial Credit Extension | 91 | ||||
SECTION 4.02 | Conditions to Credit Extensions | 99 | ||||
SECTION 4.03 | Certain Collateral Matters | 100 | ||||
ARTICLE V. AFFIRMATIVE COVENANTS | 100 | |||||
SECTION 5.01 | Financial Statements, Reports, etc. | 100 | ||||
SECTION 5.02 | Litigation and Other Notices | 103 | ||||
SECTION 5.03 | Existence; Businesses and Properties | 103 | ||||
SECTION 5.04 | Insurance | 104 | ||||
SECTION 5.05 | Payment of Taxes | 105 | ||||
SECTION 5.06 | Employee Benefits | 106 | ||||
SECTION 5.07 | Maintaining Records; Access to Properties and Inspections; Annual Meetings | 106 | ||||
SECTION 5.08 | Use of Proceeds | 107 | ||||
SECTION 5.09 | Compliance with Environmental Laws; Environmental Reports | 107 | ||||
SECTION 5.10 | Interest Rate Protection | 107 | ||||
SECTION 5.11 | Additional Collateral; Additional Guarantors | 108 |
ii
Page | ||||||
SECTION 5.12 | Security Interests; Further Assurances | 110 | ||||
SECTION 5.13 | Information Regarding Collateral | 110 | ||||
SECTION 5.14 | Affirmative Covenants with Respect to Leases | 111 | ||||
SECTION 5.15 | Secured Obligations | 111 | ||||
SECTION 5.16 | Post-Closing Covenants | 111 | ||||
ARTICLE VI. NEGATIVE COVENANTS | 111 | |||||
SECTION 6.01 | Indebtedness | 111 | ||||
SECTION 6.02 | Liens | 114 | ||||
SECTION 6.03 | Sale and Leaseback Transactions | 117 | ||||
SECTION 6.04 | Investments, Loan and Advances | 117 | ||||
SECTION 6.05 | Mergers, Amalgamations and Consolidations | 120 | ||||
SECTION 6.06 | Asset Sales | 121 | ||||
SECTION 6.07 | European Cash Pooling Arrangements | 123 | ||||
SECTION 6.08 | Dividends | 123 | ||||
SECTION 6.09 | Transactions with Affiliates | 124 | ||||
SECTION 6.10 | [INTENTIONALLY OMITTED] | 125 | ||||
SECTION 6.11 | Prepayments of Other Indebtedness; Modifications of Organizational Documents and Other Documents, etc. | 125 | ||||
SECTION 6.12 | Limitation on Certain Restrictions on Subsidiaries | 127 | ||||
SECTION 6.13 | Limitation on Issuance of Capital Stock | 128 | ||||
SECTION 6.14 | Limitation on Creation of Subsidiaries | 129 | ||||
SECTION 6.15 | Business | 129 | ||||
SECTION 6.16 | Limitation on Accounting Changes | 129 | ||||
SECTION 6.17 | Fiscal Year | 129 | ||||
SECTION 6.18 | Lease Obligations | 129 | ||||
SECTION 6.19 | No Further Negative Pledge | 129 | ||||
SECTION 6.20 | Anti-Terrorism Law; Anti-Money Laundering | 130 | ||||
SECTION 6.21 | Embargoed Persons | 130 | ||||
SECTION 6.22 | Tax Shelter Reporting | 131 | ||||
ARTICLE VII. GUARANTEE | 131 | |||||
SECTION 7.01 | The Guarantee | 131 | ||||
SECTION 7.02 | Obligations Unconditional | 132 | ||||
SECTION 7.03 | Reinstatement | 133 | ||||
SECTION 7.04 | Subrogation; Subordination | 133 | ||||
SECTION 7.05 | Remedies | 133 | ||||
SECTION 7.06 | Instrument for the Payment of Money | 134 | ||||
SECTION 7.07 | Continuing Guarantee | 134 | ||||
SECTION 7.08 | General Limitation on Guarantee Obligations | 134 | ||||
SECTION 7.09 | Release of Guarantors | 134 | ||||
SECTION 7.10 | Certain Tax Matters | 134 | ||||
SECTION 7.11 | German Guarantor | 135 | ||||
SECTION 7.12 | Swiss Guarantors | 137 | ||||
SECTION 7.13 | Irish Guarantor | 138 |
iii
Page | ||||||
SECTION 7.14 | Brazilian Guarantor | 138 | ||||
ARTICLE VIII. EVENTS OF DEFAULT | 138 | |||||
SECTION 8.01 | Events of Default | 138 | ||||
SECTION 8.02 | Rescission | 141 | ||||
SECTION 8.03 | Application of Proceeds | 142 | ||||
ARTICLE IX. [INTENTIONALLY OMITTED] | 143 | |||||
ARTICLE X. THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT | 143 | |||||
SECTION 10.01 | Appointment and Authority | 143 | ||||
SECTION 10.02 | Rights as a Lender | 143 | ||||
SECTION 10.03 | Exculpatory Provisions | 143 | ||||
SECTION 10.04 | Reliance by Agent | 144 | ||||
SECTION 10.05 | Delegation of Duties | 145 | ||||
SECTION 10.06 | Resignation of Agent | 145 | ||||
SECTION 10.07 | Non-Reliance on Agent and Other Lenders | 145 | ||||
SECTION 10.08 | No Other Duties, etc. | 146 | ||||
SECTION 10.09 | Indemnification | 146 | ||||
SECTION 10.10 | [INTENTIONALLY OMITTED] | 146 | ||||
SECTION 10.11 | Concerning the Collateral and the Related Loan Documents | 146 | ||||
SECTION 10.12 | Release | 146 | ||||
SECTION 10.13 | Acknowledgment of Security Trust Deed | 147 | ||||
ARTICLE XI. MISCELLANEOUS | 147 | |||||
SECTION 11.01 | Notices | 147 | ||||
SECTION 11.02 | Waivers; Amendment | 150 | ||||
SECTION 11.03 | Expenses; Indemnity; Damage Waiver | 153 | ||||
SECTION 11.04 | Successors and Assigns | 155 | ||||
SECTION 11.05 | Survival of Agreement | 158 | ||||
SECTION 11.06 | Counterparts; Integration; Effectiveness | 158 | ||||
SECTION 11.07 | Severability | 158 | ||||
SECTION 11.08 | Right of Setoff | 159 | ||||
SECTION 11.09 | Governing Law; Jurisdiction; Consent to Service of Process | 159 | ||||
SECTION 11.10 | Waiver of Jury Trial | 160 | ||||
SECTION 11.11 | Headings | 160 | ||||
SECTION 11.12 | Treatment of Certain Information; Confidentiality | 160 | ||||
SECTION 11.13 | USA PATRIOT Act Notice | 161 | ||||
SECTION 11.14 | Interest Rate Limitation | 161 | ||||
SECTION 11.15 | Lender Addendum | 161 | ||||
SECTION 11.16 | Obligations Absolute | 162 | ||||
SECTION 11.17 | Intercreditor Agreement | 162 | ||||
SECTION 11.18 | Judgment Currency | 162 | ||||
SECTION 11.19 | [INTENTIONALLY OMITTED] | 163 |
iv
Page | ||||||
SECTION 11.20 | [INTENTIONALLY OMITTED] | 163 | ||||
SECTION 11.21 | Abstract Acknowledgment of Indebtedness and Joint Creditorship | 163 | ||||
SECTION 11.22 | Special Appointment of Collateral Agent for German Security | 164 | ||||
SECTION 11.23 | Special Appointment of Administrative Agent in Relation to South Korea | 165 | ||||
SECTION 11.24 | Designation of Collateral Agent under Civil Code of Quebec | 165 | ||||
SECTION 11.25 | Maximum Liability | 166 |
v
ANNEXES | ||
Annex I | Applicable Margin | |
Annex II | Amortization Table | |
Annex III | Mandatory Cost Formula | |
SCHEDULES | ||
Schedule 1.01(a) | Refinancing Indebtedness to Be Repaid | |
Schedule 1.01(b) | Subsidiary Guarantors | |
Schedule 1.01(c) | Excluded Collateral Subsidiaries | |
Schedule 1.01(d) | Immaterial Subsidiaries | |
Schedule 1.01(e) | Specified Holders | |
Schedule 3.06(c) | Violations or Proceedings | |
Schedule 3.17 | Pension Matters | |
Schedule 3.19 | Insurance | |
Schedule 3.21 | Acquisition Documents | |
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 | |
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 | [INTENTIONALLY OMITTED] | |
Exhibit I | Form of Lender Addendum | |
Exhibit J | Form of Mortgage | |
Exhibit K-1 | Form of U.S. Term Loan Note | |
Exhibit K-2 | Form of Canadian Term Loan 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 |
vi
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 Term Loan Collateral Agent Appointment Letter | |
Exhibit R | Form of Receivables Purchase Agreement |
vii
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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
147
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Christopher Gomes
Telecopier No.: (203) 719-3180
Email: Christopher.Gomes@UBS.com
300 South Grand Avenue
Los Angeles, CA 90071
Attention: David C. Reamer
Telecopier No.: (213) 687-5600
Phone No.: (213) 687-5000
148
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166 |
NOVELIS INC., as Canadian Borrower | ||||
By: | /s/ Orville Lunking | |||
Name: | Orville Lunking | |||
Title: | Vice President and Treasurer | |||
NOVELIS CORPORATION, as U.S. Borrower | ||||
By: | /s/ Orville Lunking | |||
Name: | Orville Lunking | |||
Title: | Authorized Signatory | |||
NOVELIS PAE CORPORATION, as U.S. Guarantor | ||||
By: | /s/ Orville Lunking | |||
Name: | Orville Lunking | |||
Title: | Authorized Signatory | |||
NOVELIS FINANCES USA LLC, as U.S. Guarantor | ||||
By: | /s/ Orville Lunking | |||
Name: | Orville Lunking | |||
Title: | Authorized Signatory | |||
NOVELIS SOUTH AMERICA HOLDINGS LLC, as U.S. Guarantor | ||||
By: | /s/ Orville Lunking | |||
Name: | Orville Lunking | |||
Title: | Vice President and Treasurer | |||
S-1
ALUMINUM UPSTREAM HOLDINGS LLC, as U.S. Guarantor | ||||
By: | /s/ Orville Lunking | |||
Name: | Orville Lunking | |||
Title: | Vice President and Treasurer | |||
S-2
NOVELIS UK LTD, as U.K. Guarantor | ||||
By: | /s/ Orville Lunking | |||
Name: | Orville Lunking | |||
Title: | Authorized Signatory | |||
NOVELIS AG, as Swiss Guarantor | ||||
By: | /s/ Orville Lunking | |||
Name: | Orville Lunking | |||
Title: | Authorized Signatory | |||
NOVELIS CAST HOUSE TECHNOLOGY LTD., as Canadian Guarantor | ||||
By: | /s/ Orville Lunking | |||
Name: | Orville Lunking | |||
Title: | Authorized Signatory | |||
4260848 CANADA INC., as Canadian Guarantor | ||||
By: | /s/ Orville Lunking | |||
Name: | Orville Lunking | |||
Title: | Authorized Signatory | |||
4260856 CANADA INC., as Canadian Guarantor | ||||
By: | /s/ Orville Lunking | |||
Name: | Orville Lunking | |||
Title: | Authorized Signatory | |||
S-3
NOVELIS NO. 1 LIMITED PARTNERSHIP, as Canadian Guarantor, | |||||
By: 4260848 CANADA INC. | |||||
Its: General Partner | |||||
By: | /s/ Orville Lunking | ||||
Name: | Orville Lunking | ||||
Title: | Authorized Signatory | ||||
NOVELIS EUROPE HOLDINGS LIMITED, as U.K. Guarantor | |||||
By: | /s/ Orville Lunking | ||||
Name: | Orville Lunking | ||||
Title: | Authorized Signatory | ||||
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
AV ALUMINUM INC., as Guarantor | ||||
By: | /s/ Orville Lunking | |||
Name: | Orville Lunking | |||
Title: | Authorized Signatory | |||
S-5 |
NOVELIS DEUTSCHLAND GMBH, as German Guarantor | ||||
By: | /s/ Gottfried Weindl | |||
Name: | Gottfried Weindl | |||
Title: | Managing Director | |||
S-6 |
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: | Diretor Financeiro |
S-7 |
Present when the Common Seal of NOVELIS ALUMINIUM HOLDING COMPANY, As Irish Guarantor, 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 |
S-8 |
UBS AG, STAMFORD BRANCH, as Administrative Agent and as Collateral Agent | ||||
By: | /s/ Mary E. Evans | |||
Name: | Mary E. Evans | |||
Title: | Associate Director | |||
By: | /s/ David Julie | |||
Name: | David B. Julie | |||
Title: | Associate Director | |||
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-9 |
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 | |||
S-10 |
ABN AMRO INCORPORATED, as Joint Lead Arranger and Joint Bookmanager | ||||
By: | /s/ David Wood | |||
Name: | David Wood | |||
Title: | Managing Director | |||
S-11 |
ABN AMRO INCORPORATED, as Documentation Agent | ||||
By: | /s/ David Wood | |||
Name: | David Wood | |||
Title: | Managing Director | |||
S-12 |
Eurocurrency U.S. Term Loans and | ABR U.S. Term Loans and ABR Canadian | |||
Eurocurrency Canadian Term Loans | Term Loans | |||
2.00% | 1.00 | % |
Canadian Term Loan | ||||
Date | U.S. Term Loan Amount | Amount | ||
September 30, 2007 | $1,650,000 | $750,000 | ||
December 31, 2007 | $1,650,000 | $750,000 | ||
March 31, 2008 | $1,650,000 | $750,000 | ||
June 30, 2008 | $1,650,000 | $750,000 | ||
September 30, 2008 | $1,650,000 | $750,000 | ||
December 31, 2008 | $1,650,000 | $750,000 | ||
March 31, 2009 | $1,650,000 | $750,000 | ||
June 30, 2009 | $1,650,000 | $750,000 | ||
September 30, 2009 | $1,650,000 | $750,000 | ||
December 31, 2009 | $1,650,000 | $750,000 | ||
March 31, 2010 | $1,650,000 | $750,000 | ||
June 30, 2010 | $1,650,000 | $750,000 | ||
September 30, 2010 | $1,650,000 | $750,000 | ||
December 31, 2010 | $1,650,000 | $750,000 | ||
March 31, 2011 | $1,650,000 | $750,000 | ||
June 30, 2011 | $1,650,000 | $750,000 | ||
September 30, 2011 | $1,650,000 | $750,000 | ||
December 31, 2011 | $1,650,000 | $750,000 | ||
March 31, 2012 | $1,650,000 | $750,000 |
Canadian Term Loan | ||||
Date | U.S. Term Loan Amount | Amount | ||
June 30, 2012 | $1,650,000 | $750,000 | ||
September 30, 2012 | $1,650,000 | $750,000 | ||
December 31, 2012 | $1,650,000 | $750,000 | ||
March 31, 2013 | $1,650,000 | $750,000 | ||
June 30, 2013 | $1,650,000 | $750,000 | ||
September 30, 2013 | $1,650,000 | $750,000 | ||
December 31, 2013 | $1,650,000 | $750,000 | ||
March 31, 2014 | $1,650,000 | $750,000 | ||
June 30, 2014 | $1,650,000 | $750,000 | ||
Final Maturity Date | Remaining outstanding principal | Remaining outstanding principal |
AB + C(B - D) + E x 0.01 | per cent. per annum | |||
100 - (A + C) | ||||
E x 0.01 | per cent. per annum | |||||
300 | ||||||
NOVELIS CORPORATION
Agent Address: | UBS AG, Stamford Branch | Return form to: | ||
677 Washington Boulevard | Attention: Christopher Gomes | |||
Stamford, Connecticut 06901 | Telephone: (203) 719-3000 | |||
Facsimile: (203) 719-3180 | ||||
E-mail: Christopher.Gomes@UBS.com |
• Signing Credit Agreement | o Yes | o No | ||||||||
• Coming in via Assignment | o Yes | o No | ||||||||
Type of Lender: | ||||||||||
Domestic Address | Eurocurrency Address | |
EXHIBIT A-1
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 | ||||||||
Name: | ||||||||
Company: | ||||||||
Title: | ||||||||
Address: | ||||||||
Telephone: | ||||||||
Facsimile: | ||||||||
E-Mail Address: | ||||||||
EXHIBIT A-2
Bank Name: | ||
ABA/Routing No.: | ||
Account Name: | ||
Account No.: | ||
FFC Account Name: | ||
FFC Account No.: | ||
Attention: | ||
Reference: | ||
Currency: | ||
Bank Name: | ||
Swift/Routing No.: | ||
Account Name: | ||
Account No.: | ||
FFC Account Name: | ||
FFC Account No.: | ||
Attention: | ||
Reference: | ||
Bank Name: | UBS AG | |
ABA/Routing No.: | 026-007-993 | |
Account No.: | 860050-524 | |
Attention: | Christopher Gomes | |
Reference: | Novelis |
EXHIBIT A-3
EXHIBIT A-4
Assignment and Assumption
1. | Assignor: | |||
2. | Assignee: | |||
[and is an Affiliate/Approved Fund of [identify Lender]1] | ||||
3. | Borrower(s): | [Novelis, Inc.][Novelis Corporation] | ||
4. | Administrative Agent: | UBS AG, Stamford Branch, as the administrative 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 NOVELIS INC., a corporation formed under the Canada Business Corporations Act, NOVELIS |
1 | Select as applicable. |
EXHIBIT B-1
CORPORATION, a Texas corporation, AV ALUMINUM INC., a corporation formed under the Canada Business Corporations Act, the Subsidiary Guarantors, the Lenders, UBS AG, STAMFORD BRANCH, as administrative agent for the Lenders, UBS AG, STAMFORD BRANCH, as collateral agent for the Secured Parties, the other agents party thereto, and ABN AMRO INCORPORATED and UBS SECURITIES LLC, as joint lead arrangers and joint bookmanagers. | ||||
6. | Assigned Interest: |
Aggregate Amount | Amount of [U.S. | |||||||||||
of [U.S. Term Loan | Term Loan | Percentage Assigned | ||||||||||
Commitment/U.S. | Commitment/U.S. | of [U.S. Term Loan | ||||||||||
Term | Term | Commitment/U.S. | ||||||||||
Loans][Canadian | Loans][Canadian | Term | ||||||||||
Term Loan | Term Loan | Loans][Canadian | ||||||||||
Commitment/Canadian | Commitment/Canadian | Term Loan | ||||||||||
Term Loans] | Term Loans] | Commitment/Canadian | ||||||||||
Facility Assigned | for all Lenders | Assigned | Term Loans]2 | |||||||||
[U.S. Term Loans] | $ | $ | % | |||||||||
[Canadian Term Loans] |
2 | Set forth, to at least 9 decimals, as a percentage of the applicable Commitment/Loans of all Lenders thereunder. | |
3 | To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. |
EXHIBIT B-2
ASSIGNOR [NAME OF ASSIGNOR] | ||||
By: | ||||
Title: | ||||
ASSIGNEE [NAME OF ASSIGNEE] | ||||
By: | ||||
Title: | ||||
as Administrative Borrower]5
By: | | |||
Title: |
as Administrative Agent
By: | | |||
Title: |
4 | This date may not be fewer than 5 Business days after the date of assignment unless the Administrative Agent otherwise agrees. | |
5 | To be added only if the approval of such person is required by the terms of the Credit Agreement. |
EXHIBIT B-3
CREDIT AGREEMENT
ASSIGNMENT AND ASSUMPTION
BORROWING REQUEST
as Administrative Agent for
the Lenders referred to below,
677 Washington Boulevard
Stamford, Connecticut 06901
Facsimile: (203) 719-3180
(A) | Class of Borrowing | [U.S. Term Loan] | ||
[Canadian Term Loan] | ||||
(B) | Principal amount of Borrowing1 | |||
(C) | Date of Borrowing (which is a Business Day) | |||
(D) | Type of Borrowing | [ABR] [Eurocurrency] |
1 | ABR and Eurocurrency Loans must be in an amount that is at least $5,000,000 and an integral multiple of $1,000,000 or, if less, equal to the remaining available balance of the applicable Commitments. |
EXHIBIT C-1
(E) | Interest Period and the last day thereof2 | |||
(F) | Funds are requested to be disbursed to Borrower’s account with [ ] (Account No. ). |
2 | Shall be subject to the definition of“Interest Period”in the Credit Agreement. |
EXHIBIT C-2
NOVELIS INC., as Administrative Borrower | ||||
By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT C-3
COMPLIANCE CERTIFICATE
1 | To accompany annual financial statements only. | |
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 a 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). |
EXHIBIT D-1
[ ] | ||||
By: | ||||
Name: | ||||
Title: | [Financial Officer] | |||
EXHIBIT D-2
Excess Cash Flow Calculation: | ||
(A)Consolidated Interest Expense calculation for the Test Period ended [ ], 20[ ]: | ||
total consolidated interest expense of Canadian Borrower and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP | ||
plus, without duplication: | ||
(a) imputed interest on Capital Lease Obligations and Attributable Indebtedness of Canadian Borrower and its Subsidiaries for such period; | ||
(b) commissions, discounts and other fees and charges owed by Canadian Borrower or any of its Subsidiaries with respect to letters of credit securing financial obligations, bankers’ acceptance financing and receivables financings for such period; | ||
(c) amortization of debt issuance costs, debt discount or premium and other financing fees and expenses incurred by Canadian Borrower or any of its Subsidiaries for such period; | ||
(d) all interest paid or payable with respect to discontinued operations of Canadian Borrower or any of its Subsidiaries for such period; | ||
(e) the interest portion of any deferred payment obligations of Canadian Borrower or any of its Subsidiaries for such period. | ||
Consolidated Interest Expense | ||
(B) Consolidated EBITDA for the Test Period ended [ ], 20[ ]: | ||
Consolidated Net Income for the Test Period ended [ ], 20[ ] |
adding thereto, in each case only to the extent (and in the same proportion) deducted in determining such Consolidated Net Income and without duplication: | ||
(a) Consolidated Interest Expense for such period, | ||
(b) Consolidated Amortization Expense for such period, | ||
(c) Consolidated Depreciation Expense for such period, | ||
(d) Consolidated Tax Expense for such period, | ||
(e) non-recurring cash expenses and charges relating to the Hindalco Acquisition and the Refinancing, | ||
(f) restructuring charges in an amount not to exceed $15 million in the aggregate during the term of the Credit Agreement, | ||
(g) the aggregate amount of all other non-cash charges reducing Consolidated Net Income (excluding any non-cash charge that results in an accrual of a reserve for cash charges in any future period) for such period | ||
subtracting therefrom, | ||
(a) the aggregate amount of all non-cash items increasing Consolidated Net Income (other than the accrual of revenue or recording of receivables in the ordinary course of business) for such period | ||
excluding therefrom, | ||
(a) any gain (or loss), together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized during such period by Canadian Borrower or any of its Subsidiaries upon any Asset Sale (other than any dispositions in the ordinary course of business) by Canadian Borrower or any of its Subsidiaries, | ||
(b) gains and losses due solely to fluctuations in currency values and the related tax effects determined in accordance with GAAP for such period, |
(c) earnings or losses resulting from any reappraisal, revaluation or write-up or write-down of assets, | ||
(d) any one-time increase or decrease to net income that is required to be recorded because of the adoption of new accounting policies, practices or standards required by GAAP, | ||
(e) unrealized gains and losses with respect to Hedging Obligations for such period, and | ||
(f) any extraordinary gain (or extraordinary loss), together with any related provision for taxes on any such gain (or the tax effect of any such loss), recorded or recognized by Canadian Borrower or any of its Subsidiaries during such period | ||
Consolidated EBITDA | ||
(C)Consolidated Adjusted EBITDA for the Test Period ended[ ], 20[ ]: | ||
Consolidated EBITDA | ||
plus, to the extent not otherwise included in Consolidated EBITDA: | ||
(a) 100% of the net income of each Joint Venture Subsidiary and Logan for such period minus the amount of any dividends or distributions paid to the holder of any interest (other than a Company) in such Joint Venture Subsidiary or Logan during such period; and | ||
(b) the Canadian Borrower’s proportionate share of EBITDA of Norf GmbH for such period | ||
Consolidated Adjusted EBITDA | ||
(D)Excess Cash Flow for the Test Period ended [ ], 20[ ]: | ||
Consolidated Adjusted EBITDA | ||
minus, without duplication: |
(a) Debt Service for such Excess Cash Flow Period; | ||
(b) (i) any voluntary prepayments of Term Loans, (ii) any voluntary prepayments of term loans of NKL permitted underSection 6.01(m) of the Credit Agreement, (iii) any voluntary prepayments of Revolving Credit Loans to the extent accompanied by a simultaneous permanent reduction in an equal amount of the Revolving Credit Commitments (and excluding any such reduction to the extent relating to the entering into of a replacement Revolving Credit Agreement) and (iv) any voluntary prepayments of revolving Indebtedness of NKL permitted underSection 6.01(m) of the Credit Agreement to the extent accompanied by a simultaneous permanent reduction in an equal amount of the commitments in respect of such Indebtedness (and excluding any such reduction to the extent relating to the entering into of replacement revolving Indebtedness of NKL), in each case, so long as such amounts are not already reflected in Debt Service, during such Excess Cash Flow Period; | ||
(c) Capital Expenditures during such Excess Cash Flow Period (excluding Capital Expenditures made in such Excess Cash Flow Period where a certificate in the form contemplated by the following clause (d) was previously delivered) that are paid in cash; | ||
(d) Capital Expenditures that Canadian Borrower or any of its Subsidiaries shall, during such Excess Cash Flow Period, become obligated to make but that are not made during such Excess Cash Flow Period;provided that Canadian Borrower shall deliver a certificate to the Administrative Agent not later than 90 days after the end of such Excess Cash Flow Period, signed by a Responsible Officer of Canadian Borrower and certifying that such Capital Expenditures will be made in the following Excess Cash Flow Period; | ||
(e) the aggregate amount of Investments made in cash during such period pursuant toSections 6.04(e),(h),(l),(m) and(r) of the Credit Agreement; | ||
(f) (i) taxes of Canadian Borrower and its Subsidiaries that were paid in cash during such Excess Cash Flow Period (excluding taxes paid in such Excess Cash Flow period where a certificate contemplated by the following clause (ii) was previously delivered) and (ii) taxes of Canadian Borrower and its Subsidiaries that will be paid within six months after the end of such Excess Cash Flow Period and for which reserves have been established;provided that Borrower shall deliver a certificate to the Administrative Agent not later than 90 days after the end of such Excess Cash Flow Period, signed by a Responsible Officer of Borrower and certifying that such taxes will be paid within such six month period; | ||
(g) the absolute value of the difference, if negative, of the amount of Net Working Capital at the end of the prior Excess Cash Flow Period (or, in the case of the Excess Cash Flow Period for the first complete fiscal year of Canadian Borrower commencing after the Closing Date, at the first day of such Excess Cash Flow Period) over the amount of Net Working Capital at the end of such Excess Cash Flow Period; | ||
(h) to the extent added to determine Consolidated EBITDA and paid in cash during such Excess Cash Flow Period, restructuring charges in an amount not to exceed $15 million during the term of the Credit Agreement; | ||
(i) losses excluded from the calculation of Consolidated EBITDA by operation of clauses (z)(a) and (z)(f) of the definition thereof that are paid or realized in cash during such Excess Cash Flow Period; | ||
(j) Dividends paid in cash to Holdings during such Excess Cash Flow period in accordance withSection 6.08(c) of the Credit Agreement; and | ||
(k) to the extent added to determine Consolidated EBITDA, all items that did not result from a cash payment to Canadian Borrower or any of its Subsidiaries on a consolidated basis during such Excess Cash Flow Period;1 | ||
provided that any amount deducted pursuant of any of the foregoing clauses that will be paid after the close of such Excess Cash Flow Period shall not be deducted again in a subsequent Excess Cash Flow Period; | ||
plus, without duplication: |
(i) the difference, if positive, of the amount of Net Working Capital at the end of the prior Excess Cash Flow Period (or, in the case of the Excess Cash Flow Period for the first complete fiscal year of Canadian Borrower commencing after the Closing Date, at the first day of such Excess Cash Flow Period) over the amount of Net Working Capital at the end of such Excess Cash Flow Period; | ||
(ii) (1) all net cash proceeds received during such Excess Cash Flow Period of (x) any equity issuance by, or capital contribution to, Holdings, Canadian Borrower or any other Subsidiary of Canadian Borrower to, or made by, persons other than Companies and (y) any Indebtedness (other than Revolving Credit Loans), in each case, to the extent (directly or indirectly) used to finance (A) Investments made pursuant toSections 6.04(e),(h),(l),(m) and(r) of the Credit Agreement, (B) voluntary prepayments of term loans of NKL (to the extent such voluntary repayment of term loans of NKL is deducted from Excess Cash Flow pursuant to clause (b)(ii) above), (C) voluntary repayments of Revolving Credit Loans (to the extent such voluntary repayment of Revolving Credit Loans is deducted from Excess Cash Flow pursuant to clause (b)(iii) above) or (D) voluntary repayments of revolving Indebtedness of NKL (to the extent such voluntary repayment of revolving Indebtedness of NKL is deducted from Excess Cash Flow pursuant to clause (b)(iv) above); (2) all net cash proceeds received during such Excess Cash Flow Period of (x) any equity issuance by, or capital contribution to, Holdings, Canadian Borrower or any other Subsidiary of Canadian Borrower to, or made by, persons other than Companies and (y) any Indebtedness (other than Revolving Credit Loans), in each case, to the extent used to finance any Capital Expenditure; and (3) all Net Cash Proceeds of Asset Sales utilized to make Capital Expenditures in such Excess Cash Flow Period as permitted underSection 2.10(c) of the Credit Agreement; | ||
(iii) to the extent any permitted Capital Expenditures referred to in clause (d) above do not occur in the Excess Cash Flow Period specified in the certificate of Borrower provided pursuant to clause (d) above, such amounts of Capital Expenditures that were not so made in the Excess Cash Flow Period specified in such certificates; | ||
(iv) to the extent any tax payments referred to in clause (f)(ii) above do not occur in the Excess Cash Flow Period |
specified in the certificate of Canadian Borrower provided pursuant to clause (f)(ii) above, such amounts of tax payments that were not so made in the Excess Cash Flow Period specified in such certificates; | ||
(v) to the extent not reflected in Consolidated EBITDA for such Excess Cash Flow Period, any return on or in respect of Investments received in cash during such period, which Investments were made pursuant toSections 6.04(e),(h),(l),(m) and(r) of the Credit Agreement (excluding any amounts of such Investments financed with the proceeds of (x) equity issuances by, or capital contributions to, Holdings, Canadian Borrower or any other Subsidiary of Canadian Borrower to, or made by, persons other than Companies or (y) Indebtedness (other than Revolving Credit Loans)); | ||
(vi) if deducted in the computation of Consolidated EBITDA, interest income; | ||
(vii) income and gains excluded from the calculation of Consolidated EBITDA in any period by operation of clauses (z)(a) or (z)(f) of the definition thereof that are realized in cash during such Excess Cash Flow Period (other than pursuant to a sale underSection 6.06(k) of the Credit Agreement to the extent that the proceeds of such sale are reinvested in accordance withSection 6.04(k) of the Credit Agreement during such Excess Cash Flow Period); and | ||
(viii) to the extent subtracted in determining Consolidated EBITDA, all items that did not result from a cash payment by Borrower or any of its Subsidiaries on a consolidated basis during such Excess Cash Flow Period. | ||
Excess Cash Flow |
[See attached]
[See attached]
INTEREST ELECTION REQUEST
as Administrative Agent for
the Lenders referred to below,
677 Washington Boulevard
Stamford, Connecticut 06901
Facsimile: (203) 719-3180
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 Administrative Agent not later than 11:00 a.m., New York City time on the date hereof, otherwise the fourth Business Day following the date of delivery hereof or (ii) 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 Administrative Agent not later than 9:00 a.m., New York City time on the date hereof, otherwise the Business Day following the date of delivery hereof. |
NOVELIS INC.,as Administrative Borrower | ||||
By: | ||||
Name: | ||||
Title: | ||||
JOINDER AGREEMENT
[NEW GUARANTOR] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Address for Notices: | ||||
UBS AG, Stamford Branch, as Administrative Agent and as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
LANDLORD ACCESS AGREEMENT
1 | Insert name of applicable borrower entities if Lessee is not the borrower under the Credit Agreement and create a defined term “Borrower”. | |
2 | Insert “Borrower” if Lessee is not the borrower under the Credit Agreement. | |
3 | Delete this recital if Lessee is a borrower under the Credit Agreement. | |
4 | Delete this recital if Lessee is a borrower under the Credit Agreement. | |
5 | Include bracketed language if Leased Premises are to be mortgaged. |
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6 | Include bracketed language if Leased Premises are to be mortgaged. | |
7 | Include bracketed language if Leased Premises are to be mortgaged. |
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8 | Include bracketed language if Leased Premises are to be mortgaged. |
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, | ||||
as Landlord | ||||
By: | ||||
Name: | ||||
Title: | ||||
UBS AG, STAMFORD BRANCH, as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
Location/ | ||||||||
Lessor | Lessee | Dated | Modification | Property Address | ||||
LENDER ADDENDUM
, | ||||||
as a Lender | ||||||
[Please type legal name of Lender above] | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
[If second signature is necessary:] | ||||||
By: | ||||||
Name: | ||||||
Title: |
Accepted and agreed: NOVELIS INC. | ||||
By: | ||||
Title: | ||||
UBS AG, STAMFORD BRANCH, as | ||||
Administrative Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: |
1. | Name of Lender: | |||||
Notice Address: | ||||||
Attention: | ||||||
Telephone: | ||||||
Facsimile: | ||||||
2. | Commitment: | |||||
MORTGAGE
SECURITY AGREEMENT AND FIXTURE FILING
[ ],
[ ]
attorney named below and after recording please return to:
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 | 5 | |||
SECTION 2.2. Assignment of Leases and Rents | 6 | |||
SECTION 2.3. Secured Obligations | 7 | |||
SECTION 2.4. Future Advances | 7 | |||
SECTION 2.5. Secured Amount | 7 | |||
SECTION 2.6. Last Dollar Secured | 7 | |||
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 | 8 | |||
SECTION 3.4. Property Charges | 9 | |||
ARTICLE IV. | ||||
CERTAIN COVENANTS OF MORTGAGOR | ||||
SECTION 4.1. Payment and Performance | 9 | |||
SECTION 4.2. Title | 9 | |||
SECTION 4.3. Inspection | 10 | |||
SECTION 4.4. Limitation on Liens; Transfer Restrictions | 10 | |||
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 | 12 | |||
SECTION 6.2. Stamp and Other Taxes | 12 | |||
SECTION 6.3. Certain Tax Law Changes | 12 | |||
SECTION 6.4. Proceeds of Tax Claim | 13 | |||
ARTICLE VII. | ||||
CASUALTY EVENTS AND RESTORATION | ||||
SECTION 7.1. Casualty Event | 13 | |||
SECTION 7.2. Condemnation | 13 | |||
SECTION 7.3. Restoration | 13 | |||
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 | 14 | |||
SECTION 8.3. Additional Remedies in Case of an Event of Default | 16 | |||
SECTION 8.4. Legal Proceedings After an Event of Default | 16 | |||
SECTION 8.5. Remedies Not Exclusive | 17 | |||
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 | 19 | |||
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 | 20 | |||
SECTION 11.4. Mortgagee May Perform; Mortgagee Appointed Attorney-in-Fact | 21 | |||
SECTION 11.5. Continuing Security Interest; Assignment | 22 | |||
SECTION 11.6. Termination; Release | 22 | |||
SECTION 11.7. Modification in Writing | 22 | |||
SECTION 11.8. Notices | 22 | |||
SECTION 11.9. GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY TRIAL | 23 | |||
SECTION 11.10. Severability of Provisions | 23 | |||
SECTION 11.11. Relationship | 23 | |||
SECTION 11.12. No Credit for Payment of Taxes or Impositions | 23 | |||
SECTION 11.13. No Claims Against the Mortgagee | 23 | |||
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 | 26 | |||
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; |
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(iii) | Fixtures; | ||
(iv) | Leases; | ||
(v) | Rents; | ||
(vi) | Permits; | ||
(vii) | Contracts; | ||
(viii) | Records; and | ||
(ix) | Proceeds; |
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2 | THE LOAN AMOUNT IS $960,000,000; IF STATE ALLOWS FOR MORTGAGES TO BE FOR MORE THAN THE LOAN AMOUNT IN CASE THE CREDIT AGREEMENT IS AMENDED, USE $1,000,000,000; IF STATE HAS MORTGAGE TAX, USE THE AGREED UPON VALUE OF THE PROPERTY. |
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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 Mortgagee having the address described in the Preamble hereof, from which address information concerning the security interest may be obtained. | |
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. |
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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 |
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(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: | ||||
S-l
State of | ) | |||||
) ss.: | ||||||
County of | ) |
U.S.TERM LOAN NOTE
$ | New York, New York | |
[Date] |
NOVELIS CORPORATION, as Borrower | ||||
By: | ||||
Name: | ||||
Title: | ||||
CANADIAN TERM LOAN NOTE
€ | New York, New York | |
[Date] |
NOVELIS INC., as Borrower | ||||
By: | ||||
Name: | ||||
Title: | ||||
PERFECTION CERTIFICATE
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Schedule 12(a) andSchedule 12(b), including duly signed copies of each of the Patent Security Agreement, Trademark Security Agreement and the Copyright Security Agreement, as applicable.
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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: | ||||
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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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U.S. SECURITY AGREEMENT
as Canadian Borrower,
as U.S. Borrower
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 | 9 | |||
ARTICLE II | ||||
GRANT OF SECURITY AND SECURED OBLIGATIONS | ||||
SECTION 2.1. GRANT OF SECURITY INTEREST | 9 | |||
SECTION 2.2. FILINGS | 10 | |||
ARTICLE III | ||||
PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES; | ||||
USE OF PLEDGED COLLATERAL | ||||
SECTION 3.1. DELIVERY OF CERTIFICATED SECURITIES COLLATERAL | 11 | |||
SECTION 3.2. PERFECTION OF UNCERTIFICATED SECURITIES COLLATERAL | 12 | |||
SECTION 3.3. FINANCING STATEMENTS AND OTHER FILINGS; MAINTENANCE OF PERFECTED SECURITY INTEREST | 12 | |||
SECTION 3.4. OTHER ACTIONS | 13 | |||
SECTION 3.5. JOINDER OF ADDITIONAL GUARANTORS | 16 | |||
SECTION 3.6. SUPPLEMENTS; FURTHER ASSURANCES | 16 | |||
ARTICLE IV | ||||
REPRESENTATIONS, WARRANTIES AND COVENANTS | ||||
SECTION 4.1. TITLE | 17 | |||
SECTION 4.2. VALIDITY OF SECURITY INTEREST | 17 | |||
SECTION 4.3. DEFENSE OF CLAIMS; TRANSFERABILITY OF PLEDGED COLLATERAL | 17 |
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Page | ||||
SECTION 4.4. OTHER FINANCING STATEMENTS | 17 | |||
SECTION 4.5. INVENTORY AND EQUIPMENT | 18 | |||
SECTION 4.6. DUE AUTHORIZATION AND ISSUANCE | 18 | |||
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 | 19 | |||
SECTION 5.2. VOTING RIGHTS; DISTRIBUTIONS; ETC. | 19 | |||
SECTION 5.3. DEFAULTS, ETC. | 20 | |||
SECTION 5.4. ORGANIZATIONAL DOCUMENTS | 21 | |||
SECTION 5.5. CERTAIN AGREEMENTS OF PLEDGORS AS ISSUERS AND HOLDERS OF EQUITY INTERESTS | 21 | |||
ARTICLE VI | ||||
CERTAIN PROVISIONS CONCERNING INTELLECTUAL | ||||
PROPERTY COLLATERAL | ||||
SECTION 6.1. GRANT OF INTELLECTUAL PROPERTY LICENSE | 21 | |||
SECTION 6.2. PROTECTION AND MAINTENANCE OF INTELLECTUAL PROPERTY COLLATERAL | 22 | |||
SECTION 6.3. AFTER-ACQUIRED PROPERTY | 22 | |||
SECTION 6.4. LITIGATION | 23 | |||
ARTICLE VII | ||||
CERTAIN PROVISIONS CONCERNING RECEIVABLES | ||||
SECTION 7.1. MAINTENANCE OF RECORDS | 23 | |||
SECTION 7.2. MODIFICATION OF TERMS, ETC. | 24 | |||
SECTION 7.3. COLLECTION | 24 | |||
ARTICLE VIII | ||||
TRANSFERS | ||||
SECTION 8.1. TRANSFERS OF PLEDGED COLLATERAL | 25 |
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Page | ||||
ARTICLE IX | ||||
REMEDIES | ||||
SECTION 9.1. REMEDIES | 25 | |||
SECTION 9.2. NOTICE OF SALE | 27 | |||
SECTION 9.3. WAIVER OF NOTICE AND CLAIMS | 27 | |||
SECTION 9.4. CERTAIN SALES OF PLEDGED COLLATERAL | 27 | |||
SECTION 9.5. NO WAIVER; CUMULATIVE REMEDIES | 28 | |||
SECTION 9.6. CERTAIN ADDITIONAL ACTIONS REGARDING INTELLECTUAL PROPERTY | 29 | |||
ARTICLE X | ||||
APPLICATION OF PROCEEDS | ||||
SECTION 10.1. APPLICATION OF PROCEEDS | 29 | |||
ARTICLE XI | ||||
MISCELLANEOUS | ||||
SECTION 11.1. CONCERNING COLLATERAL AGENT | 29 | |||
SECTION 11.2. COLLATERAL AGENT MAY PERFORM; COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT | 30 | |||
SECTION 11.3. CONTINUING SECURITY INTEREST; ASSIGNMENT | 31 | |||
SECTION 11.4. TERMINATION; RELEASE | 31 | |||
SECTION 11.5. MODIFICATION IN WRITING | 32 | |||
SECTION 11.6. NOTICES | 32 | |||
SECTION 11.7. GOVERNING LAW, CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY TRIAL | 32 | |||
SECTION 11.8. SEVERABILITY OF PROVISIONS | 32 | |||
SECTION 11.9. EXECUTION IN COUNTERPARTS | 32 | |||
SECTION 11.10. BUSINESS DAYS | 32 | |||
SECTION 11.11. NO CREDIT FOR PAYMENT OF TAXES OR IMPOSITION | 32 | |||
SECTION 11.12. NO CLAIMS AGAINST COLLATERAL AGENT | 32 | |||
SECTION 11.13. NO RELEASE | 33 | |||
SECTION 11.14. OBLIGATIONS ABSOLUTE | 33 | |||
SECTION 11.15. INTERCREDITOR AGREEMENT GOVERNS | 34 | |||
SECTION 11.16. DELIVERY OF COLLATERAL | 34 | |||
SECTION 11.17. MORTGAGES | 34 | |||
SECTION 11.18. CONFLICTS | 34 | |||
SIGNATURES | S-l |
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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; |
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(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 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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Section 5.2(c)(ii) hereof.
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PROPERTY COLLATERAL
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NOVELIS INC., as a Pledgor | ||
NOVELIS CORPORATION, as a Pledgor | ||
NOVELIS PAE CORPORATION, as a Pledgor | ||
NOVELIS FINANCES USA LLC, as a Pledgor | ||
NOVELIS SOUTH AMERICA HOLDINGS LLC, as a Pledgor | ||
ALUMINUM UPSTREAM HOLDINGS LLC, as a Pledgor | ||
UBS AG, STAMFORD BRANCH, | ||||||
as Collateral Agent | ||||||
By: | /s/ Mary E. Evans | |||||
Name: | ||||||
Title: | Associate Director | |||||
By: | /s/ David B. Julie | |||||
Name: | ||||||
Title: | Associate Director |
[ | ] | |||
By: | ||||
Name: | ||||
Title: | ||||
NUMBER | PERCENTAGE OF | |||||||||||||||||||||
CLASS | OF | ALL ISSUED | ||||||||||||||||||||
OF STOCK | SHARES | CAPITAL | ||||||||||||||||||||
OR | PAR | CERTIFICATE | OR | OR OTHER EQUITY | ||||||||||||||||||
ISSUER | INTERESTS | VALUE | NO(S). | INTERESTS | INTERESTS OF ISSUER |
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PRINCIPAL | DATE OF | INTEREST | MATURITY | |||||||||||||||
ISSUER | AMOUNT | ISSUANCE | RATE | DATE |
[ ], | ||||||||
as Pledgor | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
AGREED TO AND ACCEPTED: | ||||||||
UBS AG, STAMFORD BRANCH, as Collateral Agent | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
By: | ||||||||
Name: | ||||||||
Title: |
[Address of New Pledgor]
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[NEW PLEDGOR] | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
AGREED TO AND ACCEPTED: | ||||||||
UBS AG, STAMFORD BRANCH, as Collateral Agent | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
[Schedules to be attached] |
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[ASSIGNORS]1 | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
Accepted and Agreed: | ||||||||
UBS AG, STAMFORD BRANCH, as Assignee | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
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: | ||||||||
UBS AG, STAMFORD BRANCH, as Assignee | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
By: | ||||||||
Name: | ||||||||
Title: |
2 | This document needs only to be executed by Pledgers 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: | ||||||||
UBS AG, STAMFORD BRANCH, as Assignee | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
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 |
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Chistopher Gomes
Facsimile No.: 203-719-3180
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8
[ ] [Address] | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
CONSENTED AND AGREED TO: [ ] [Address] | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
ACKNOWLEDGED AND ACCEPTED: | ||||||||
UBS AG, STAMFORD BRANCH, as Agent 677 Washington Boulevard Stamford, Connecticut 06901 Attention: Christopher Gomes Facsimile No: 203-719-3180 | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
By: | ||||||||
Name: | ||||||||
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 |
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(b) | a share, participation or other interest in a Person; but excludes | ||
(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. |
(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. |
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(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; | ||
(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 Obligors; | ||
(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”; |
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(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 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, 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 Borrowers and the other Loan Parties under the Credit Agreement and the 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; |
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(c) | the due and punctual payment and performance of all obligations of the Borrowers and the other Loan Parties under each Hedging 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 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. |
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(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 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 |
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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. |
(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 |
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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, 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 |
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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. |
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; |
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(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; | ||
(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) or otherwise by law or equity. |
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(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); | ||
(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 |
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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. |
(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. |
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(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. |
(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 |
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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 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. |
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(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
(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, |
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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 the 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 the 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 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 |
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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 Term 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 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. |
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(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 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 |
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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. |
PARTNERSHIP, by its general partner,
4260848 CANADA INC.
INSTRUMENTS AND SECURITIES
No. | ||||||||||||||
Record | Shares | |||||||||||||
Owner | No. of | No. of | Covered | |||||||||||
(Beneficial | Shares or | Shares or | by | |||||||||||
Type of | Owner, if | Interests | Interests | Percentage | Warrants; | |||||||||
Issuer | Organization | different) | Certificate No. | Owned | Outstanding | Ownership | Options | |||||||
Novelis Inc. | Canadian | AV | ZQ937639 | 75,415,536 | 77,459,658 | 100% | None | |||||||
Corporation | Aluminum | common | common | |||||||||||
Inc. | shares | shares | ||||||||||||
1 | 2,044,122 | |||||||||||||
common | ||||||||||||||
shares | ||||||||||||||
Novelis | Texas | Novelis | 7 | 4,945 | 4,945 | 100% | None | |||||||
Corporation | Corporation | Inc. | common | common | ||||||||||
shares | shares | |||||||||||||
Novelis Cast House Technology Ltd. | Ontario Corporation | Novelis Inc. | 6 | 200 common shares | 200 common shares | 100% | None | |||||||
Novelis | Delaware | Novelis | 1 | 1 share | 1 share | 100% | None | |||||||
Finances | Limited | Inc. | ||||||||||||
USA LLC | Liability | |||||||||||||
Company | ||||||||||||||
Novelis Foil | French | Novelis | N/A | 3,127,500 | 3,127,500 | 100% | None | |||||||
France SAS | Société par | Inc. | shares | shares | ||||||||||
Action | ||||||||||||||
Simplifiée | ||||||||||||||
Novelis Europe Holdings Limited | Private company limited by shares | Novelis Inc. | 10 | 61,238,501 ordinary shares | 165,631,965 ordinary shares | 100% | None | |||||||
n | 84,393,463 ordinary shares | 144,928,900 preferred shares | ||||||||||||
n | 1 ordinary share | |||||||||||||
n | 20,000,000 |
- 2 -
No. | |||||||||||||||||||
Record | Shares | ||||||||||||||||||
Owner | No. of | No. of | Covered | ||||||||||||||||
(Beneficial | Shares or | Shares or | by | ||||||||||||||||
Type of | Owner, if | Interests | Interests | Percentage | Warrants; | ||||||||||||||
Issuer | Organization | different) | Certificate No. | Owned | Outstanding | Ownership | Options | ||||||||||||
ordinary | |||||||||||||||||||
shares | |||||||||||||||||||
n | |||||||||||||||||||
144,928,900 | |||||||||||||||||||
preferred | |||||||||||||||||||
shares | |||||||||||||||||||
Novelis | German | Novelis | N/A | 25,000 | 25,000 | 100% | None | ||||||||||||
Aluminium | GmbH | Inc. | common | common | |||||||||||||||
Beteiligungs GmbH | shares | shares | |||||||||||||||||
Novelis | French | Novelis | N/A | 200,000 | 200,000 | 100% | None | ||||||||||||
Laminés | Société par | Inc. | shares | shares | |||||||||||||||
France SAS | Action | ||||||||||||||||||
Simplifiée | |||||||||||||||||||
Novelis | French | Novelis | N/A | 8,000 | 8,000 shares | 100% | None | ||||||||||||
PAE SAS | Société par | Inc. | shares | ||||||||||||||||
Action | |||||||||||||||||||
Simplifiée | |||||||||||||||||||
Novelis No. | Québec | Novelis | N/A | N/A | N/A | 99.99% | None | ||||||||||||
1 Limited | Limited | Inc. | |||||||||||||||||
Partnership | Partnership | (Limited | 0.01% | ||||||||||||||||
Partner) | |||||||||||||||||||
4260848 | |||||||||||||||||||
Canada Inc. | |||||||||||||||||||
(General | |||||||||||||||||||
Partner) | |||||||||||||||||||
4260848 | Canadian | Novelis | C-5 | 100 | 100 common | 100% | None | ||||||||||||
Canada Inc. | Corporation | Inc. | common | shares | |||||||||||||||
shares | |||||||||||||||||||
4260856 | Canadian | Novelis | C-5 | 100 | 100 common | 100% | None | ||||||||||||
Canada Inc. | Corporation | Inc. | common | shares | |||||||||||||||
shares | |||||||||||||||||||
Aluminum | Malaysian | Novelis | N/A | 78,234,054 | 134,330,848 | 58.24% | None | ||||||||||||
Company | Public | Inc. | ordinary | ordinary | |||||||||||||||
of Malaysia | Company | shares | shares | ||||||||||||||||
Berhad | limited by | ||||||||||||||||||
shares listed | |||||||||||||||||||
on the | |||||||||||||||||||
Malaysian | |||||||||||||||||||
Stock | |||||||||||||||||||
Exchange |
- 3 -
No. | ||||||||||||||
Record | Shares | |||||||||||||
Owner | No. of | No. of | Covered | |||||||||||
(Beneficial | Shares or | Shares or | by | |||||||||||
Type of | Owner, if | Interests | Interests | Percentage | Warrants; | |||||||||
Issuer | Organization | different) | Certificate No. | Owned | Outstanding | Ownership | Options | |||||||
Novelis do | Brazilian | Novelis | N/A | 120,130,999 | 120,131,000 | 99.99% | None | |||||||
Brasil Ltda. | Limited | Inc. | quotas | quotas | ||||||||||
Liability | ||||||||||||||
Quota | ||||||||||||||
Company | ||||||||||||||
Novelis | Delaware | Novelis | N/A | 1 share | 1 share | 100% | None | |||||||
South | Limited | Inc. | ||||||||||||
America | Liability | |||||||||||||
Holdings | Company | |||||||||||||
LLC | ||||||||||||||
Novelis | Korean | 4260856 | Ahje00006~9 | 47,631 | 136,640 | 40.74% | None | |||||||
Korea Limited | Company, Limited | Canada Inc. | Saje000017~23 | shares | shares | (except | ||||||||
Maje000030~35 | (including 19,735 | Treasury Stock) | ||||||||||||
[Note to draft: to be | Daje000032~34 | Treasury Stock) | ||||||||||||
confirmed by Korean counsel] | Gaje000065 | |||||||||||||
Ahje00003~5 | 31,755 | 27.16% | ||||||||||||
4260848 | Saje000016 | shares | (except | |||||||||||
Canada Inc. | Maje000023~29 | Treasury | ||||||||||||
Daje000027~31 | Stock) | |||||||||||||
Gaje000060~64 |
Original | ||||||
Amount/ Face | ||||||
Amount Monetary | ||||||
Issuer | Type of Instrument | Obligation Secured | Maturity Date | |||
Nil. |
- 4 -
PERFECTION CERTIFICATE
FORM OF CONFIRMATION OF SECURITY INTEREST IN INTELLECTUAL
PROPERTY
[NAME OF RELEVANT OBLIGOR] | ||
Per: | ||
Authorized Signing Officer |
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 | 9 | |||
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 | 33 | |||
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 | 37 | |||
24. LOAN PARTIES | 38 | |||
25. RELEASE | 39 | |||
26. COUNTERPARTS | 39 | |||
27. NOTICES | 39 | |||
28. GOVERNING LAW | 40 | |||
29. ENFORCEMENT | 41 | |||
SCHEDULE 1 Security Assets | 42 | |||
PART 1 Real Property | 42 | |||
PART 2 Charged Shares | 44 | |||
PART 3 Specific Plant and Machinery | 44 | |||
PART 4 Security Contracts | 44 | |||
PART 5 Specific Intellectual Property | 45 | |||
PART 6 Security Accounts | 45 | |||
SCHEDULE 2 Forms of Letter for Security Accounts | 47 | |||
PART 1 Notice to Account Bank | 47 | |||
PART 3 Letter for Operation of Security Accounts | 51 | |||
SCHEDULE 3 Forms of Letter for Insurance Policies | 53 | |||
PART 1 Form of Notice of Assignment | 53 | |||
PART 2 Form of Letter of Undertaking | 55 | |||
SCHEDULE 4 Forms of Letter for Primary Contracts | 56 | |||
PART 1 Notice to Counterparty | 56 | |||
PART 2 Acknowledgement of Counterparty | 58 |
ii
Page | ||||
SCHEDULE 5 Form of Deed of Accession | 59 | |||
SCHEDULE | 61 | |||
PART 1 Real Property | 61 | |||
PART 2 Charged Shares | 61 | |||
PART 3 Specific Plant and Machinery | 61 | |||
PART 4 Security Contracts | 61 | |||
PART 5 Specific Intellectual Property | 61 | |||
PART 6 Security Accounts | 62 |
iii
(1) | NOVELIS UK LTD(registered number 00279596) with its registered office at Castle Works, Rogerstone, Newport, NP10 9YD (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) | UBS AG, STAMFORD BRANCHas agent and trustee for the Secured Parties referred to below (theCollateral 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. |
1. | INTERPRETATION | |
1.1 | Definitions | |
In this Deed: | ||
Account Bankmeans a bank with whom a Security Account is maintained. | ||
Actmeans the Law of Property Act 1925. | ||
Acquisition Documentmeans in relation to any Chargor, any agreement under which it acquires or disposes of a business or part of a business (either by share or asset sale) and under which the aggregate consideration payable at anytime is in excess of £250,000. | ||
Additional Chargormeans a member of the Group which becomes a Chargor by executing a Deed of Accession. | ||
Administratormeans any administrator appointed in respect of any Chargor (whether by the Collateral Agent, or a court or otherwise). | ||
Cash Management Documentmeans in relation to any Chargor, any agreement between two or more members of the Group to which it is a party that provides for any cash pooling, set-off or netting arrangement, including the European Cash Pooling Arrangements. | ||
Chargormeans an Original Chargor and any Additional Chargor. | ||
Charged Sharesmeans all shares in any member of the Group incorporated in England and Wales from time to time issued to a Chargor or held by any nominee on its behalf. |
1
Charged Companymeans each member of the Group from time to time whose shares are subject to the Security under this Deed. | ||
Credit Agreementmeans the Credit Agreement dated on or about the date hereof, between, amongst others, Novelis Inc. As Canadian Borrower, Novelis Corporation As U.S. Borrower, Av Aluminum Inc., As Holdings, and the Other Guarantors party thereto, the Lenders party thereto and UBS AG, Stamford Branch, as Administrative Agent and Collateral Agent. | ||
Deed of Accessionmeans a deed substantially in the form of Schedule 5(Form of Deed of Accession). | ||
Discharge Datemeans the date on which the Administrative Agent is satisfied that all of the Term Loan Obligations (as defined in the Intercreditor Agreement) have been irrevocably paid and discharged. | ||
Excluded Leasehold Propertymeans in relation to any Chargor, the leasehold property specified in Part 1B of Schedule 1(Security Assets)opposite its name. | ||
Excluded Real Propertymeans in relation to any Chargor: |
(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. |
Fixturesmeans all fixtures and fittings (including trade fixtures and fittings) and fixed plant and machinery included in a Chargor’s Mortgaged Property. | ||
Groupmeans the Original Chargors and their Affiliates from time to time. | ||
Intercompany Documentmeans in relation to any Chargor, any agreement with any other member of the Group under which the aggregate consideration payable at anytime is in excess of £250,000. | ||
Investmentsmeans: |
(a) | the Charged Shares; and | ||
(b) | all other shares, stocks, debentures, bonds, warrants, coupons and other securities and investments, |
which a Chargor purports to mortgage or charge under this Deed. | ||
Mortgaged Propertymeans all freehold and leasehold property which a Chargor purports to mortgage or charge under this Deed. | ||
Original Propertymeans any freehold or leasehold property specified in Part 1A of Schedule 1(Security Assets). | ||
Partymeans a party to this Deed. |
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Plant and Machinerymeans any plant, machinery, computers, office equipment or vehicles which a Chargor purports to mortgage or charge under this Deed. | ||
Premisesmeans all buildings and erections included in a Chargor’s Mortgaged Property. | ||
Primary Contractmeans in relation to any Chargor: |
(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. |
Receiver means an administrative receiver, a receiver and manager or a receiver, in each case, appointed under this Deed. | ||
Related Rightsmeans in relation to any Investment: |
(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. |
Report on Titlemeans any report or certificate on title on the Mortgaged Property provided to the Collateral Agent, together with confirmation from the provider of that Report that it can be relied upon by the Secured Parties. | ||
Revolving Credit Collateral Release Datemeans in relation to any Chargor the date on which the Security Interests granted by that Chargor over the Revolving Credit Priority Collateral to the Revolving Credit Collateral Agent have been irrevocably and unconditionally released, revoked, re-transferred or otherwise become unenforceable. | ||
Revolving Credit Security Agreementmeans the Guarantee and Security Agreement dated on or about the date hereof between the Chargors and the Revolving Credit Collateral Agent. |
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Secondary Contractmeans in relation to any Chargor: |
(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; | ||
(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. |
Securitymeans any Security Interest created, evidenced or conferred by or under this Deed or any Deed of Accession. | ||
Security Accountmeans in relation to any Chargor: |
(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. |
Security Assetsmeans any and all assets of each Chargor that are the subject of this Security. | ||
Security Contractsmeans in relation to any Chargor, its Primary Contracts and its Secondary Contracts. | ||
Security Interestmeans any mortgage, pledge, lien, charge (fixed or floating), assignment, hypothecation, set-off or trust arrangement for the purpose of creating security, reservation of title or security interest or any other agreement or arrangement having a similar effect. | ||
Security Periodmeans the period beginning on the date of this Deed and ending on the Discharge Date. | ||
Security Trust Deedmeans the Security Trust Deed dated on or about the date of this Deed and entered into between, amongst others, the Collateral Agent, the Administrative Agent and the Chargors. |
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); | ||
(c) | an “amendment” includes any amendment, supplement, variation, waiver, novation, modification, replacement or restatement (however fundamental) and “amend” and “amended” shall be construed accordingly; |
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(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 Administrative 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 Administrative Agent, any person for the time being appointed as Collateral Agent or Administrative 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; | ||
(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; |
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(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. | ||
(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. |
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1.4 | Intercreditor Agreement Governs | |
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE SECURITY INTERESTS 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 OR ANY RECIEVER OR OTHER SECURED PARTIES HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. 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. |
2. | GUARANTEE | |
2.1 | Guarantee | |
Each Chargor irrevocably and unconditionally jointly and severally: |
(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 | |
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Loan Party under the Loan Documents, regardless of any intermediate payment or discharge in whole or in part. | ||
2.3 | Reinstatement | |
If any payment by a Loan Party or any discharge given by the Collateral Agent or Secured Party (whether in respect of the obligations of any Loan Party or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event: |
(a) | the liability of each Loan Party shall continue as if the payment, discharge, avoidance or reduction had not occurred; and | ||
(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. |
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2.4 | Waiver of defences | |
The obligations of each Chargor under this Clause 2 (Guarantee) will not be affected by an act, omission, matter or thing which, but for this Clause 2 (Guarantee), would reduce, release or prejudice any of its obligations under this Clause 2 (Guarantee) (without limitation and whether or not known to it or any Secured Party) including: |
(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 | |
Without prejudice to the generality of Clause 2.4 (Waiver of Defences), each Chargor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Loan Documents and/or any facility or amount made available under any of the Loan Documents for the purposes of or in connection with any of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available |
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from time to time; and any fees, costs and/or expenses associated with any of the foregoing. | ||
2.7 | Immediate recourse | |
Each Chargor waives any right it may have of first requiring the Collateral Agent or any Secured Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Chargor under this Clause 2 (Guarantee). This waiver applies irrespective of any law or any provision of a Loan Document to the contrary. | ||
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 2.12 (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 Administrative Agent as if set forth herein. |
3. | CREATION OF SECURITY | |
3.1 | General |
(a) | All this Security: |
(i) | is created in favour of the Collateral Agent; |
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(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 I 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 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. |
(b) | A reference in this Deed to any freehold or leasehold property includes: |
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(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, |
in relation to that share, stock, debenture, bond, warrant, coupon or other security or investment. | ||
3.4 | Plant and machinery | |
Each Chargor charges by way of a fixed charge all plant, machinery, computers, office equipment or vehicles or interest specified in Part 3 of Schedule 1(Security Assets) opposite its name or in Part 3 of the schedule to any Deed of Accession by which it became party to this Deed and any and all other plant, machinery, computers, office equipment or vehicles (or interest therein) owned by it. | ||
3.5 | Credit balances | |
Each Chargor charges by way of a fixed charge all of its rights in respect of each amount standing to the credit of each account with any person, including its Security Accounts and the debt represented by that account. |
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3.6 | Book debts etc. | |
Each Chargor charges by way of a fixed charge: |
(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 | |
Each Chargor charges by way of a fixed charge all of its rights in respect of any Intellectual Property; this includes any specified 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. |
3.10 | Miscellaneous | |
Each Chargor charges by way of a fixed charge: |
(a) | any beneficial interest, claim or entitlement it has to any assets of any pension fund; |
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(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 Clause5(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, | ||
under section 1A of the Insolvency Act 1986. |
(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 | ||
(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 Bl 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 |
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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 | |
Each Chargor represents and warrants to each Secured Party that: |
(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: |
(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. |
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5. | RESTRICTIONS ON DEALINGS | |
No Chargor may: |
(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, |
unless permitted under the Credit Agreement | ||
6. | LAND | |
6.1 | Information for Report on Title | |
Each Chargor represents and warrants to each Secured Party that: |
(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 | |
Each Chargor represents and warrants to each Secured Party that except as disclosed in any Report on Title relating to any of its Mortgaged Property: |
(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; | ||
(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 |
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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 | |
Each Chargor must keep: |
(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 | |
Each Chargor must: |
(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 | |
If a Chargor acquires any freehold or leasehold property after the date of this Deed (save for Excluded Real Property), it must: |
(a) | notify the Collateral Agent immediately; | ||
(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 |
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(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 | |
Each Chargor must, within 14 days after the receipt by it of any application, requirement, order or notice served or given by any public or local or any other authority with respect to its Mortgaged Property (or any part of it) which would or would be reasonably likely to have a material adverse effect on the value, saleability or use of any of the Mortgaged Property: |
(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 | |
No Chargor may in respect of its Mortgaged Property (or any part of it), unless expressly permitted under the Credit Agreement |
(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: | ||
“No disposition of the registered estate by the proprietor of the registered estate is to be registered without a written consent signed by the proprietor for the time being of the security agreement referred to in the charges register dated [ ] in favour of [ ] (as agent and trustee for the Secured Parties referred to in that security agreement) or its conveyancer.” | |||
(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: | ||
“The Lenders under a Credit Agreement dated as of [•], 2007, among Novelis Inc., as Canadian Borrower, Novelis Corporation, Novelis Pae Corporation Eurofoil, Inc., as U.S. Borrowers, Novelis UK Ltd, as U.K. Borrower, Novelis |
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AG, as Swiss Borrower, AV ALUMINUM INC., as Parent Guarantor, and the Other Guarantors Party thereto, the Lenders Party thereto UBS AG, Stamford Branch, as U.S. Issuing Bank, Swingline Lender, Administrative Agent and Collateral Agent, Canadian Issuing Bank and Canadian Administrative Agent, and ABN AMRO Incorporated, UBS Securities LLC, as Joint Lead Arrangers and Joint Bookmanagers are under an obligation (subject to the terms of that Credit Agreement) to [the Chargor] to make further advances and the security agreement referred to in the charges register dated [ ] in favour of [ ] (as agent and trustee for the Secured Parties referred to in that security agreement) secures those further advances.” |
6.9 | Deposit of title deeds | |
Each Chargor must deposit with the Collateral Agent all deeds and documents of title relating to its Mortgaged Property and all local land charges, land charges and Land Registry search certificates and similar documents received by it or on its behalf. | ||
6.10 | Development | |
No Chargor may, unless expressly permitted under the Credit Agreement: |
(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, |
except as part of carrying on its principal business where it would not or would not be reasonably likely to have a material adverse effect on the value, saleability or use of the Mortgaged Property or the carrying on of the principal business of that Chargor. | ||
6.11 | Investigation of title | |
Each Chargor must grant the Collateral Agent or its lawyers on request all reasonable facilities within the power of that Chargor to enable the Collateral Agent or its lawyers (at the expense of that Chargor) after this Security has become enforceable to: |
(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 |
6.12 | Report on Title | |
Each Chargor must, as soon as practicable after a request by the Collateral Agent at a time when an Event of Default is continuing, supply the Collateral Agent with a Report on Title of that Chargor to its Mortgaged Property concerning those items which may properly be sought to be covered by a prudent mortgagee in a lawyer’s report of this nature. |
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6.13 | Power to remedy | |
If a Chargor fails to perform any covenant or stipulation or any term of this Deed affecting its Mortgaged Property, that Chargor must allow the Collateral Agent or its agents and contractors: |
(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. |
That Chargor must immediately on request by the Collateral Agent pay the costs and expenses of the Collateral Agent or its agents and contractors incurred in connection with any action taken by it under this Subclause. | ||
6.14 | Unregistered Property | |
Each Chargor shall use reasonable endeavours to: |
(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, |
including in each case, without limitation, instruction of solicitors in these regards and providing statutory declarations in respect of any title requisitions raised by the Land Registry. | ||
7. | INVESTMENTS | |
7.1 | Investments | |
Each Chargor represents and warrants to each Secured Party that: |
(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 are held by any nominee on its behalf or any Investments transferred to the Collateral Agent or its nominee pursuant to this Deed); | ||
(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 |
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(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 | |
No Chargor may (except to the extent permitted by the Credit Agreement and the Intercreditor Agreement) take or allow the taking of any action on its behalf which may result in the rights attaching to any of its Investments being altered or further shares being issued. | ||
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 |
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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, |
in respect of any Investment. | ||
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 to the Collateral Agent promptly upon receipt, and (y) it shall not exercise such voting rights, powers and other rights in a manner which would result in, or otherwise permit or agree to, (i) any variation of the rights attaching to or conferred by any of the Investments which the Collateral Agent considers prejudicial to the interests of the Secured Parties or which conflict or derogate from any Loan Documents or (ii) any increase in the issued share capital of a Charged Company, which in the opinion of the Collateral Agent would prejudice the value of, or the ability of the Collateral Agent to realise, the security created by this Deed. |
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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 may be exercised by the legal or beneficial owner of any Investment, any person who is the holder of any Investment or otherwise |
in each case, in the name of the relevant Chargor, the registered holder or otherwise and without any further consent or authority on the part of the relevant Chargor and irrespective of any direction given by any Chargor. |
(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 as its proxy to exercise all voting rights in respect of those Investments following the service of a notice by the Collateral Agent or so long as an Event of Default is continuing. | ||
(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: |
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(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 | |
Each Chargor must: |
(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 | |
Each Chargor represents and warrants to each Secured Party that as at the date of this Deed or, if later, the date it became a Party: |
(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) which either record the existence of this Deed or the restrictions on disposal imposed by this Deed. | ||
(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. |
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9. | ACCOUNTS | |
9.1 | Accounts |
(a) | Prior to the Revolving Credit Collateral Discharge Date, all Security Accounts must be maintained in accordance with the terms of the Revolving Credit Security Agreement. | ||
(b) | Following the Revolving Credit Collateral Discharge Date, all Security Accounts must be maintained at a branch of the Account Bank approved by the Collateral Agent. |
9.2 | Change of Account Bank | |
Following the Revolving Credit Collateral Discharge Date: |
(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) | Bach Chargor must immediately deposit and direct their respective Account Debtors to directly remit all payments on Accounts and all payments constituting proceeds of Inventory or other Collateral (each term as defined in the Credit Agreement) into a Security Account in accordance with Section 9.01 of the Revolving Credit Agreement. |
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(b) | To the extent not deposited or remitted to a Security Account under Clause 9.3(a), each Chargor must 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, |
in the ordinary course of its business and (prior to payment into a Security Account under Clause 9.3(c)) hold the proceeds of the getting in and realisation: |
(i) | Prior to the Revolving Credit Collateral Discharge Date on trust for the Revolving Credit Collateral Agent; and | ||
(ii) | Following the Revolving Credit Collateral Discharge Date, on trust for the Collateral Agent. |
(c) | Each Chargor must 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, except to the extent that: |
(i) | Prior to the Revolving Credit Collateral Discharge Date the Revolving Credit Collateral Agent otherwise agrees; and | ||
(ii) | Following the Revolving Credit Collateral Discharge Date, the Collateral Agent otherwise agrees. |
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) | following the Revolving Credit Collateral Discharge Date 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 |
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(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 that Account Bank substantially in the form of Part 3 of Schedule 2(Forms of letter for Account Bank). |
10. | RELEVANT CONTRACTS | |
10.1 | Representations | |
Each Chargor represents and warrants to each Secured Party that: |
(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, |
in each case to the extent that the same would have a Material Adverse Effect. | |||
(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 | |
Each Chargor must: |
(a) | duly and promptly perform its obligations under each of its Security Contracts; and |
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(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. |
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 | |
Each Chargor must: |
(a) | 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 this Deed or any Deed of Accession by which it became party to this Deed or, if later, the date of entry into that Primary Contract (as appropriate). |
11. | PLANT AND MACHINERY | |
11.1 | Maintenance | |
Each Chargor must keep its Plant and Machinery in good repair and in good working order and condition. | ||
11.2 | Nameplates | |
Each Chargor must take any action which the Collateral Agent may reasonably require to evidence the interest of the Collateral Agent in its Plant and Machinery; this includes (if so requested) fixing a nameplate on its Plant and Machinery in a prominent position stating that: |
(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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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: |
(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 | |
Each Chargor must: |
(a) | 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 l 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 this Deed or any Deed of Accession by which it became party to this Deed or, if later, the date of entry into that Insurance (as appropriate). |
12. | WHEN SECURITY BECOMES ENFORCEABLE | |
12.1 | Timing | |
This Security will become immediately enforceable if an Event of Default is continuing. | ||
12.2 | Enforcement | |
After this Security has become enforceable, the Collateral Agent may in its absolute discretion enforce all or any part of this Security in any manner it sees fit or as the Required Lenders direct. | ||
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. | ||
(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. |
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(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 | |
Neither the Collateral Agent nor any Receiver will be liable, by reason of entering into possession of a Security Asset: |
(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 | |
Each Receiver and the Collateral Agent is entitled to all the rights, powers, privileges and immunities conferred by law (including the Act) on mortgagees and receivers duly appointed under any law (including the Act). | ||
13.4 | Protection of third parties | |
No person (including a purchaser) dealing with the Collateral Agent or a Receiver or its or his agents will be concerned to enquire: |
(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. |
(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. |
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13.6 | Contingencies | |
If this Security is enforced at a time when no amount is due under the Loan Documents but at a time when amounts may or will become due, the Collateral Agent (or the Receiver) may pay the proceeds of any recoveries effected by it into such number of suspense accounts as it considers appropriate. | ||
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 Bl 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. | ||
(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. |
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15.2 | Removal | |
The Collateral Agent may by writing under its hand (subject to any requirement for an order of the court in the case of an administrative receiver) remove any Receiver appointed by it and may, whenever it thinks fit, appoint a new Receiver in the place of any Receiver whose appointment may for any reason have terminated. | ||
15.3 | Remuneration | |
The Collateral Agent may fix the remuneration of any Receiver appointed by it and any maximum rate imposed by any law (including under section 109(6) of the Act) will not apply. | ||
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 Charger or to any other person) by reason of the appointment of a Receiver or for any other reason. |
15.5 | Relationship with Collateral Agent | |
To the fullest extent allowed by law, any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver may after this Security becomes enforceable be exercised by the Collateral Agent in relation to any Security Asset without first appointing a Receiver or notwithstanding the appointment of a Receiver. | ||
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 powers conferred on a Receiver under this Deed individually and to the exclusion of any other Receiver. |
16.2 | Possession | |
A Receiver may take immediate possession of, get in and collect any Security Asset. |
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16.3 | Carry on business | |
A Receiver may carry on any business of any Chargor in any manner he thinks fit. | ||
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 | |
A Receiver may raise and borrow money either unsecured or on the security of any Security Asset either in priority to this Security or otherwise and generally on any terms and for whatever purpose which he thinks fit. | ||
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 | |
A Receiver may let any Security Asset for any term and at any rent (with or without a premium) which he thinks fit and may accept a surrender of any lease or tenancy of any Security Asset on any terms which he thinks fit (including the payment of money to a lessee or tenant on a surrender). | ||
16.8 | Compromise | |
A Receiver may settle, adjust, refer to arbitration, compromise and arrange any claim, account, dispute, question or demand with or by any person who is or claims to be a creditor of any Chargor or relating in any way to any Security Asset. | ||
16.9 | Legal actions | |
A Receiver may bring, prosecute, enforce, defend and abandon any action, suit or proceedings in relation to any Security Asset which he thinks fit. | ||
16.10 | Receipts | |
A Receiver may give a valid receipt for any moneys and execute any assurance or thing which may be proper or desirable for realising any Security Asset. |
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16.11 | Subsidiaries | |
A Receiver may form a Subsidiary of any Chargor and transfer to that Subsidiary any Security Asset. | ||
16.12 | Delegation | |
A Receiver may delegate his powers in accordance with this Deed. | ||
16.13 | Lending | |
A Receiver may lend money or advance credit to any customer of any Chargor. | ||
16.14 | Protection of assets | |
A Receiver may: |
(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 Receiver may: |
(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. |
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. |
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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 | |
The Collateral Agent or any Receiver may delegate by power of attorney or in any other manner to any person any right, power or discretion exercisable by it under this Deed. | ||
19.2 | Terms | |
Any such delegation may be made upon any terms (including power to sub-delegate) which the Collateral Agent or any Receiver may think fit. | ||
19.3 | Liability | |
Neither the Collateral Agent nor any Receiver will be in any way liable or responsible to any Chargor for any loss or liability arising from any act, default, omission or misconduct on the part of any Delegate. | ||
20. | FURTHER ASSURANCES | |
Each Chargor must, at its own expense, take whatever action the Collateral Agent or a Receiver may, acting reasonably, require for: |
(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 Interest in favour of the Collateral Agent over any Security Asset to which it holds the legal title as trustee, nominee or agent); | ||
(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. |
This includes: |
(i) | the re-execution of this Deed; |
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(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, |
which, in any such case, the Collateral Agent may think expedient. | ||
21. | POWER OF ATTORNEY | |
Each Chargor, by way of security, irrevocably and severally appoints the Collateral Agent and each Receiver to be its attorney to take any action which that Chargor is obliged to take under this Deed. Each Chargor ratifies and confirms whatever any attorney does or purports to do under its appointment under this Clause. | ||
22. | PRESERVATION OF SECURITY | |
22.1 | Continuing security | |
This Security is a continuing security and will extend to the ultimate balance of the Secured Obligations, regardless of any intermediate payment or discharge in whole or in part. | ||
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. |
22.3 | Waiver of defences | |
The obligations of each Chargor under this Deed will not be affected by any act, omission or thing which, but for this provision, would reduce, release or prejudice any of its obligations under this Deed (whether or not known to it or any Secured Party). This includes: |
(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; |
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(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 | |
Each Chargor waives any right it may have of first requiring any Secured Party (or any trustee or agent on its behalf) to proceed against or enforce any other right or security or claim payment from any person or file any proof or claim in any insolvency, administration, winding-up or liquidation proceedings relative to any other Loan Party or any other person before claiming from that Chargor under this Deed. | ||
22.5 | Appropriations | |
Until all amounts which may be or become payable by the Loan Parties under the Loan Documents have been irrevocably paid in full, each Secured Party (or any trustee or agent on its behalf) may without affecting the liability of any Chargor under this Deed: |
(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. |
22.6 | Non-competition | |
Unless: |
(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, |
no Chargor will, after a claim has been made or by virtue of any payment or performance by it under this Deed: |
(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 |
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(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. |
Each Chargor must hold in trust for and must immediately pay or transfer to the Collateral Agent for the Secured Parties any payment or distribution or benefit of security received by it contrary to this Clause or in accordance with any directions given by the Collateral Agent under this Clause. | ||
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 | |
To the extent any Chargor is required hereunder to deliver any deed, certificate, document of title or other document relating to the Security to the Collateral Agent for purposes of possession or control and is unable to do so as a result of having previously delivered such to the Revolving Credit Collateral Agent in accordance with the terms of the Revolving Credit Loan Documents, such Chargor’s obligations hereunder with respect to such delivery shall be deemed satisfied by the delivery to the Revolving Credit Collateral Agent. | ||
22.9 | Security held by Chargor | |
No Chargor may, without the prior consent of the Collateral Agent, hold any security from any other Loan Party in respect of that Chargor’s liability under this Deed. Each Chargor will hold any security held by it in breach of this provision on trust for the Collateral Agent. | ||
23. | MISCELLANEOUS | |
23.1 | Covenant to pay | |
Each Chargor must pay or discharge the Secured Obligations in the manner provided for in the Loan Documents. | ||
23.2 | Interest | |
If a Chargor fails to pay any sums on the due date for payment of that sum the Chargor shall pay interest on such sum (before and after any judgment and to the extent interest at a default rate is not otherwise being paid on that sum) from the date of demand until the date of payment calculated and compounded in accordance with the provisions of Section 2.06(c) of the Credit Agreement. | ||
23.3 | Tacking | |
Each Lender must perform its obligations under the Credit Agreement (including any obligation to make available further advances). |
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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 me new account and will not operate to reduce any Secured Liability. |
23.5 | Time deposits | |
Without prejudice to any right of set-off any Secured Party may have under any Loan Document or otherwise, if any time deposit matures on any account a Chargor has with any Secured Party within the Security Period when: |
(a) | this Security has become enforceable; and | ||
(b) | no Secured Liability is due and payable, |
that time deposit will automatically be renewed for any further maturity which that Secured Party in its absolute discretion considers appropriate unless that Secured Party otherwise agrees in writing. | ||
23.6 | Notice of assignment | |
This Deed constitutes notice in writing to each Chargor of any charge or assignment of a debt owed by that Chargor to any other member of the Group and contained in any Loan Document. | ||
23.7 | Perpetuity period | |
The perpetuity period for the trusts in this Deed is 80 years. | ||
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 Administrative Agent. |
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(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 | |
At the end of the Security Period (or as required by the Loan Documents), the Collateral Agent must, at the request and cost of the Novelis Europe, take whatever action is reasonably necessary to release the relevant Security Assets from this Security, provided that to the extent any Security Interest granted by any Chargor over the Term Loan Priority Collateral is released under this Clause, that Chargor shall take whatever action is required under the Revolving Credit Security Agreement, including serving any notice thereunder. | ||
26. | COUNTERPARTS | |
This Deed may be executed in any number of counterparts and all of those counterparts taken together shall be deemed to constitute one and the same instrument. | ||
27. | NOTICES | |
27.1 | Communications in Writing | |
Each communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, shall be made by fax or letter. | ||
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: |
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Castle Works
Rogerstone
Newport
NP10 9YD
Attention: David Sneddon, CFO.
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 Agent’s communication details (or any substitute department or officer as the Collateral Agent shall specify for this purpose). |
27.4 | Notification of address and fax number | |
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 27.2(Addresses) or changing its own address or fax number, the Collateral Agent shall notify the other parties. | ||
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 | |
This Deed is governed by English law. |
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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. |
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. |
This Deed has been executed and delivered as a deed on the date stated at the beginning of this Deed. |
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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 SL150811 |
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 Aluminum 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 ID 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 | ||||||
Novelis UK Ltd | SL66977 | Freehold land on the south side of the Bridgenorth bypass | N/A |
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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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Chargor | Description | |
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 |
Chargor | Description | |||||||||||||||
Owner | ||||||||||||||||
Named on | Registration | Expiry | ||||||||||||||
Trademark | Register | Class | No | CTM | Filing Date | Date | ||||||||||
ALICAN & DEVICE | Alcan Aluminium UK Limited | 16,39,40,41 | 2215385 | X | 26 Nov 1999 | 26 Nov 2009 | ||||||||||
ALICAN & 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 |
Security Account | ||||
Account Bank | Security Account numbers (s) | name | ||
HSBC Bank plc City of London Corporate | 51050176 (Bridgnorth — GBP) | Novelis UK Ltd |
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Security Account | ||||||
Account Bank | Security Account number(s) | name | ||||
Office | ||||||
Canary Wharf | ||||||
London | ||||||
E14 5HQ | ||||||
Sort Code: 40-02-50 | ||||||
51269313 (Rogerstone — GBP) | Novelis UK Ltd | |||||
1272284 | Novelis Europe 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) | |||||
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) 59241733 (USD) | Novelis Europe Holdings Limited | |||||
Commerzbank AG, | 30119391 (Rogerstone EUR) | Novelis UK Ltd. | ||||
London Branch | 30119392 (Bridgnorth EUR) | |||||
60 Gracechurch Street | ||||||
London EC3V 0HR | ||||||
Sort Code: 40-62-01 |
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(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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(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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50
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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(Authorised signatory) [Collateral Agent]
(Authorised signatory) [Account Bank]
52
(for attachment by way of endorsement to the insurance policies)
(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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For [Chargor] |
57
[Date]
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. |
[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 |
PART | 2 |
Name of | ||||||
company in | Name of nominee (if | |||||
which shares | any) by whom shares | Class of | Number of | |||
are held | are held | shares held | shares held | |||
[ ] | [ ] | [ ] | [ ] |
PART | 3 |
PART | 4 |
PART | 5 |
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[PART | 6 |
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SIGNATORIES (TO DEED OF ACCESSION) | ||||||||
The Additional Chargor | ||||||||
Executed as a deed by | ) | Director | ||||||
[ ] | ) | |||||||
acting by | ) | |||||||
and | ) | Director/Secretary | ||||||
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 | ) | |||||||
The Collateral Agent | ||||||||
[ ] | ||||||||
By: |
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SIGNATORIES | ||||
SIGNED as a Deed by NOVELIS UK LIMITEDacting by a director and a director/its secretary: | ) ) ) ) |
SIGNED as a Deed by NOVELIS EUROPE HOLDINGS LIMITEDacting by a director and a director/its secretary: | ) ) ) ) |
SIGNATORIES (to Security Agreement) | ||||
The Original Chargors | ||||
Executed as a deed by | ) | Director | ||
NOVELIS UK LTD | ) | |||
acting by | ) | |||
) | Director/Secretary | |||
Executed as a deed by | ) | Director | ||
NOVELIS EUROPE HOLDINGS LIMITED | ) | |||
acting by | ) | |||
) | Director/Secretary |
SWISS SECURITY AGREEMENT
1. INTERPRETATION | 4 | |||
2. ASSIGNMENT AND ASSIGNOR’S OBLIGATIONS | 6 | |||
3. UP-STREAM AND CROSS-STREAM SECURITIES: LIMITATION AND WITHHOLDING TAX | 9 | |||
4. RIGHTS AND OBLIGATIONS OF THE COLLATERAL AGENT | 10 | |||
5 . REPRESENTATIONS AND WARRANTIES | 12 | |||
6. FURTHER ASSURANCES OF THE ASSIGNOR | 12 | |||
7. POWERS OF ATTORNEY | 12 | |||
8. ASSIGNMENTS AND TRANSFERS | 13 | |||
9. EFFECTIVENESS OF ASSIGNMENT | 13 | |||
10. COSTS AND EXPENSES | 13 | |||
11. NOTICES | 14 | |||
12. SUCCESSOR AGENT | 14 | |||
13. SEVERABILITY | 15 | |||
14. WAIVERS AND MODIFICATIONS | 15 | |||
15. COUNTERPARTS | 15 | |||
16. LAW AND JURISDICTION | 15 | |||
SCHEDULE 1 | 19 | |||
SCHEDULE 2 | 20 | |||
SCHEDULE 3 | 21 | |||
SCHEDULE 4 | 22 | |||
SCHEDULE 5 | 23 | |||
SCHEDULE 6 | 25 |
(1) | NOVELIS AG, a company incorporated under the laws of Switzerland, having its seat at Bellerivestrasse 36, Zurich, Switzerland (the “Assignor”); |
(2) | LaSalle Business Credit,LLC, a company incorporated under the laws of Illinois, having its seat at Chicago, acting for itself and in the name and on behalf of the Secured Parties (as defined in this Agreement) (the“Collateral Agent”). |
(A) | The Assignor and the Collateral Agent have entered into that certain Term Loan Agreement on or about July 6, 2007 (the “Term Loan Agreement”) among, inter alia Novelis Inc., Novelis Corporation, Novelis UK Ltd. and the Assignor (each as Borrower) and AV Aluminium Inc. (as Parent Guarantor) and the Collateral Agent, ABN Amro Incorporated and UBS Securities LLC (each as Lender) and other Lenders (as defined therein), whereby the Borrowers were made available certain term loan credit facilities by the Lenders. | |
(B) | The Assignor and the Collateral Agent have entered into that certain Revolving Credit Agreement on or about July 6, 2007 (the “Revolving Credit Agreement” and together with the Term Loan Agreement: the“Credit Agreements”) among, inter alia Novelis Inc., Novelis Corporation, Novelis UK Ltd. and the Assignor (each as Borrower) and AV Aluminium Inc. (as Parent Guarantor) and the Collateral Agent, ABN Amro Incorporated and UBS Securities LLC (each as Lender) and other Lenders (as defined therein), whereby the Borrowers were made available certain revolving credit facilities by the Lenders. | |
(C) | On or about July 6, 2007, the Collateral Agent and the Assignor entered into an Intercreditor Agreement governing the relationship and preference rights of the Term Loan Secured Parties and Revolving Secured Parties (as these terms are defined below) among each other in relation to their respective obligations under the Term Loan Agreement and Revolving Credit Agreement (the“Intercreditor Agreement”). | |
(D) | On or about July 6, 2007, the Assignor entered into a guarantee agreement in favour of UBS AG, Stamford Branch (acting for itself and for the Term Loan Secured Parties) (the “Term Loan Guarantee”). |
(E) | On or about July 6, 2007, the Assignor entered into a guarantee agreement in favour of the Collateral Agent (acting for itself and for the Revolving Secured Parties) (the “Revolving Guarantee”). | |
(F) | On or about July 6, 2007, the Assignor and Novelis Deutschland GmbH entered into a receivable purchase agreement (the “Receivables Purchase Agreement”) pursuant to which substantially all receivables owned by Novelis Deutschland GmbH under any of its supply contracts (the “Purchased Receivables”) have been sold and assigned to the Assignor by way of a true sale. | |
(G) | The Collateral Agent and the Lenders under the Term Loan Agreement and Revolving Credit Agreement require the Assignor to enter into this assignment for security purposes in favour of the Collateral Agent, (i) first for the ratable benefit of the Lenders under the Term Loan Agreement and (ii) second, upon full discharge of the Term Loan Secured Obligations (as defined in this Agreement), for the ratable benefit of the Lenders under the Revolving Credit Agreement. | |
(H) | The Assignor has agreed to assign (i) the Assigned Receivables, (ii) the Assigned Inter-company Receivables and (iii) the Bank Accounts as security for the Secured Obligations (as these terms are defined in Section 1 below) to the Collateral Agent, acting on behalf of the Secured Parties (as defined in Section 1 below). |
1.1 | In this Agreement: | |
“Assigned Bank Accounts” means all current or future rights, title, interest and action (including any balances and accrued interest) the Assignor may have or acquire in relation to any bank account which the Assignor now has or may at any time have in the future vis-à-vis any bank or other financial institution, including, but not limited to, the bank accounts listed inSchedule 1, together with all rights and benefits relating thereto including privileges and ancillary rights in respect thereof (art. 170 Swiss Code of Obligations); | ||
“Assigned Inter-Company Receivables” means all current or future receivables owed by Affiliates to Assignor and arising in the course of business of the Assignor, whether contingent or not, incorporated in a title or not, together with all rights and benefits relating thereto including privileges and ancillary rights in respect thereof (art. 170 Swiss Code of |
“Assigned Receivables” means all current or future receivables owed by customers or other trade debtors (excluding any Affiliate) to the Assignor and arising in the course of business of the Assignor, whether contingent or not, together with all rights and benefits relating thereto including privileges and ancillary rights in respect thereof (art. 170 Swiss Code of Obligations) but excluding any Purchased Receivables; Currently existing Assigned Receivables are listed inSchedule 3; | ||
“Assignment” means the assignments by the Assignor of the Assigned Inter-Company Receivables, Assigned Receivables and Assigned Bank Accounts to the Collateral Agent, acting for itself and on behalf of the Secured Parties pursuant to art 164 et seq. of the Swiss Code of Obligations; | ||
“Business Day” shall mean one day on which the commercial banks in Zurich are open for normal business transactions. | ||
“Notice of Assignment to Affiliates” means the notice substantially in the form ofSchedule 4 to this Agreement; | ||
“Notice of Assignment to Banks” means the notice substantially in the form ofSchedule 5 to this Agreement; | ||
“Notice of Assignment to Debtors” means the notice substantially in the form ofSchedule 6 to this Agreement; | ||
“Revolving Secured Obligations” means (i) all present and future obligations and liabilities (whether actual or contingent and whether owed jointly or severally or in any other capacity whatsoever) of the Assignor towards the Revolving Secured Parties under the Revolving Guarantee and (ii) the Revolving Credit Obligations (as defined in the Intercreditor Agreement); | ||
“Revolving Secured Parties” means the Revolving Credit Claimholders as defined in the Intercreditor Agreement; | ||
“Secured Obligations” means the Revolving Secured Obligations and the Term Loan Secured Obligations; | ||
“Secured Parties” means the Revolving Secured Parties and the Term Loan Secured Parties; |
“Term Loan Secured Obligations” means (i) all present and future obligations and liabilities (whether actual or contingent and whether owed jointly or severally or in any other capacity whatsoever) of the Assignor towards the Term Loan Secured Parties under the Term Loan Guarantee and (ii) the Term Loan Credit Obligations (as defined in the Intercreditor Agreement); | ||
“Term Loan Secured Parties” means the Term Loan Claimholders as defined in the Intercreditor Agreement. | ||
1.2 | Unless defined otherwise herein, capitalized terms and expressions used herein shall have the meaning ascribed to them in the Intercreditor Agreement and the Credit Agreements. | |
1.3 | In this Agreement, (a) a person includes its successors and assigns; (b) headings are forconvenienceof reference only and are to be ignored in construing this Agreement and (c) references to any agreement or document are references to that agreement or document as amended, supplemented or substituted from time to time, in accordance with its terms. |
2.1 | The Assignor agrees to assign by way of security to the Collateral Agent (acting for itself and on behalf of the Secured Parties) the Assigned Receivables, the Assigned Inter-Company Receivables and the Assigned Bank Accounts as security for the Secured Obligations until such time as the Secured Obligations have been paid and discharged in full, and no further Secured Obligations are capable of arising. The Assignor confirms that it fully understands and accepts the definition of the term “Secured Obligations”. | |
2.2 | For the purpose of effecting the Assignment, the Assignor hereby: | |
2.2.1 | assigns by way of security to the Collateral Agent and the Secured Parties, the Assigned Receivables, the Assigned Inter-Company Receivables and the Assigned Bank Accounts; | |
2.2.2 | subject as set out in Section 2.10.2, transfers to the Collateral Agent all documents evidencing the Assigned Receivables, the Assigned Inter-Company Receivables and the Assigned Bank Accounts (whether incorporated in a title or not), including but not limited to any written agreement, acknowledgment of debt, certificate, inter-company note, exchange of letters, fax or e-mail). | |
2.3 | The Collateral Agent (acting for itself and on behalf of the Secured Parties) expressly accepts the Assignment provided for in Section 2.2. |
2.4 | The Assignor agrees and undertakes as follows: | |
2.4.1 | Except for liens permitted under the Credit Agreements, the Assignor shall refrain from granting any pledge, encumbrance or other third party rights affecting the Assigned Receivables, the Assigned Inter-Company Receivables and the Assigned Bank Accounts and shall refrain from any other act or omission that would adversely affect the Collateral Agent’s and Secured Parties’ rights under this Agreement or any amounts that are or will become due under any of the Assigned Receivables, the Assigned Inter-Company Receivables and the Assigned Bank Accounts; | |
2.4.2 | without the prior written consent of the Collateral Agent, the Assignor shall not enter into any kind of arrangement that would provide for the non-assignability of any of the Assigned Receivables, the Assigned Inter-Company Receivables and the Assigned Bank Accounts or subject the assignability to the consent of a party other than the Collateral Agent; | |
2.4.3 | the Assignor shall not enter into any arrangement by which the Assigned Receivables, the Assigned Inter-Company Receivables and the Assigned Bank Accounts would be assigned to a party other than the Collateral Agent and/or Secured Parties; | |
2.4.4 | the Assignor shall deliver to the Collateral Agent within 10 Business Days following the end of each calendar quarter (the first time 10 Business Days following September 30, 2007), a list of all its Assigned Receivables, Assigned Inter-Company Receivables and Assigned Bank Accounts outstanding as of the end of the relevant calendar quarter and assigned substantially in the same form as set forth inSchedule 1 to 3 as appropriate; | |
2.4.5 | upon the Collateral Agent’s written request and in no event more than once per year, unless an Event of Default has occurred and is continuing, the Assignor shall deliver to the Collateral Agent, within 10 Business Days from being so requested by the Collateral Agent, an up-dated list of all its Assigned Receivables, Assigned Inter-Company Receivables and Assigned Bank Accounts outstanding as of the day where the Collateral Agent’s request under this paragraph was received substantially in the same form as set forth inSchedule 1 to 3 as appropriate; | |
2.5 | Within 5 Business Days from the Closing Date, the Assignor shall notify the banks of the assignment by way of security of the Assigned Bank Accounts by delivering to such banks a Notice of Assignment to Banks substantially in the form ofSchedule 5. The Assignor shall simultaneously send a copy of any Notice of Assignment to Banks to the Collateral Agent. For the purpose of this Agreement, the Assignor shall release the respective banks from the banking secrecy to the extent required for the Collateral Agent to perform its rights and obligations hereunder. Subject to and in accordance with the terms and conditions of the |
Credit Agreements, the Assignor shall be authorized to use its bank accounts and any balance on its bank accounts freely without restriction for as long as no Event of Default has occurred and is continuing, except in the circumstances set forth in Section 2.6 below. | ||
2.6 | Upon an Activation Notice (as this term is defined in the Credit Agreements) being sent in accordance with Section 9.01 of the Revolving Credit Agreement, the Assignor shall not longer be authorized to use its bank accounts and the Collateral Agent shall be entitled to transfer any balance out of such bank accounts and apply such monies in accordance with Section 9.01 of the Revolving Credit Agreement. | |
2.7 | In the event where any bank would refuse to countersign the Notice of Assignment to Banks listed inSchedule 5 and thereby would refuse to waive any first ranking security interest and/or any right of set-off such bank may have in relation to the Assigned Bank Accounts, the Assignor shall close the Assigned Bank Accounts and open new bank account(s) (not subject to such first ranking security interest or right of set-off) with one or more banking institutions, which would then be assigned by way of security to the Collateral Agent as per the terms of this Agreement. | |
2.8 | Within 5 Business Days from the Closing Date, the Assignor shall notify its respective Affiliates of the assignment by way of security of the Assigned Inter-Company Receivables by delivering to such Affiliate a Notice of Assignment to Affiliates substantially in the form ofSchedule 4. The Assignor shall simultaneously send a copy of any Notice of Assignment to Affiliates to the Collateral Agent. | |
2.9 | Subject to and in accordance with the terms and conditions of the Credit Agreements, the Assignor shall be authorized to collect any Assigned Receivables for as long as no Event of Default has occurred and is continuing, and until such time as notified by the Collateral Agent, provided the proceeds of such Assigned Receivables are credited on the Assigned Bank Accounts. | |
2.10 | With respect to any Assigned Inter-Company Receivable and any Assigned Bank Account arising after the date hereof, the Assignor undertakes to: | |
2.10.1 | notify immediately the appropriate debtor of Assigned Inter-Company Receivables or Assigned Bank Accounts by using the appropriate notification form; and | |
2.10.2 | transfer to the Collateral Agent all documents evidencing such Assigned Inter-Company Receivables and Assigned Bank Accounts (whether incorporated in a title or not), including but not limited to any written agreement, acknowledgment of debt, certificate, inter-company note, exchange of letters, fax or e-mail). |
2.11 | With respect to any Assigned Receivable arising after the date hereof, the Assignor undertakes to: | |
2.11.1 | instruct the debtor of such Assigned Receivable to discharge its obligations in relation thereto exclusively on one of the Assigned Bank Accounts; and | |
2.11.2 | upon the reasonable request of the Collateral Agent and upon giving appropriate prior notice, allow representatives of the Collateral Agent to inspect, during normal business hours, all documents evidencing such Assigned Receivable (whether incorporated in a title or not), including but not limited to any written agreement, acknowledgment of debt, certificate, inter-company note, exchange of letters, fax or e-mail. | |
2.12 | Within5calendar days after the Collateral Agent has notified the Assignor that an Event of Default has occurred and is continuing, the Assignor shall notify its current and future debtors of Assigned Receivables of the Assignment by delivering to such debtors a Notice of Assignment to Debtors substantially in the form ofSchedule 6 but, where necessary or appropriate, in the respective language of the addressee. The Assignor shall simultaneously send a copy of any Notice of Assignment to Debtors to the Collateral Agent. | |
2.13 | After the Collateral Agent has notified the Assignor that an Event of Default has occurred and is continuing, the Assignor shall co-operate with the Collateral Agent and use its best commercially reasonable endeavors in assisting the Collateral Agent in collecting the Assigned Receivables, Assigned Inter-Company Receivables and Assigned Bank Accounts. | |
2.14 | Before the Collateral Agent has notified the Assignor that an Event of Default has occurred and is continuing, the Assignor undertakes that the Assigned Receivables and the Assigned Inter-Company Receivables be paid onto the Assigned Bank Accounts as set out inSchedule 1. | |
2.15 | After the Collateral Agent has notified the Assignor that an Event of Default has occurred and is continuing, the Assigned Receivables, the Assigned Inter-Company Receivables and the Assigned Bank Accounts shall be paid to the Collateral Agent or as directed by the Collateral Agent. |
3. | UP-STREAM AND CROSS-STREAM SECURITIES: LIMITATION AND WITHHOLDING TAX | |
3.1 | If and to the extent (i) the obligations of the Assignor under this Agreement are for the exclusive benefit of the Affiliates of such Assignor (except for the (direct or indirect) Subsidiaries of such Assignor) 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 3 of the Term Loan Guarantee and the Revolving Guarantee entered into by the Assignor shall apply to any enforcement of the security interest created hereunder and the proceeds of such enforcement. |
4. | RIGHTS AND OBLIGATIONS OF THE COLLATERAL AGENT | |
4.1 | Provided the Assignor has not complied with the obligations set out in Section 2.5 and 2.8 within the time limits set forth therein, the Collateral Agent shall be entitled, at any time on or after the sixth Business Day after the Closing Date, to notify or to request the Assignor to notify to the relevant debtor, the Assignment in respect of all or part of the Assigned Inter-Company Receivables or the Assigned Bank Accounts: | |
4.1.1 | In the form ofSchedule 4 to this Agreement with respect to Assigned Inter-Company Receivables; | |
4.1.2 | In the form ofSchedule 5 to this Agreement with respect to Assigned Bank Accounts; | |
4.2 | The Collateral Agent shall be entitled to notify, or request the Assignor to notify, the Assignment in respect of all or part of the Assigned Bank Accounts and Assigned Inter- Company Receivables to the relevant debtors following the receipt of up-datedSchedule 1 orSchedule 2 in accordance with Section 2.4.4. | |
4.3 | The Collateral Agent has the right to request that the Assignor transfers to the Collateral Agent all documents evidencing the Assigned Receivables, the Assigned Inter-Company Receivables and the Assigned Bank Accounts (whether incorporated in a title or not), including but not limited to any written agreement, acknowledgment of debt, certificate, inter-company note, exchange of letters, fax or e-mail). | |
4.4 | After the Collateral Agent has notified the Assignor that an Event of Default has occurred and is continuing, the Collateral Agent shall be entitled to request immediately the Assignor to notify the debtors of the Assigned Receivables of the Assignment, and, if the Collateral Agent has not received evidence of such notification within five calendar days in accordance with Section 2.12, the Collateral Agent shall be entitled to notify on its own, the Assignment in respect of all or part of the Assigned Receivables to the relevant debtors by a Notice of Assignment to Debtors substantially in the form of Schedule 6 to this Agreement. | |
4.5 | After the Collateral Agent has notified the Assignor that an Event of Default has occurred and is continuing or, with respect to the Assigned Receivables exclusively, 5 calendar days after such notification: |
4.5.1 | the Collateral Agent shall be entitled, but not obligated, to collect any Assigned Receivable, any Assigned Inter-Company Receivable and any Assigned Bank Account and to apply the amounts collected towards the discharge of the Secured Obligations in accordance with the Intercreditor Agreement; | |
4.5.2 | the Collateral Agent shall have the right to access the premises of the Assignor to the full extent necessary during ordinary business hours, at the sole discretion of the Collateral Agent, to ascertain the existence and particulars of the Assigned Receivables, the Assigned Inter-Company Receivables and the Assigned Bank Accounts; | |
4.5.3 | the Collateral Agent shall be entitled, but not obligated, to undertake on its own initiative and cost any acts it deems appropriate to collect any overdue or bad claim under the Assigned Receivables, the Assigned Inter-Company Receivables and the Assigned Bank Accounts and shall apply the amounts so collected towards the discharge of the Secured Obligations in accordance with the Intercreditor Agreement; and | |
4.5.4 | to the extent that collection of any Assigned Receivable, any Assigned Inter-Company Receivable and/or any Assigned Bank Account is not possible or is deemed unduly burdensome in the reasonable opinion of the Collateral Agent, the latter shall be entitled to sell such Assigned Receivables, Assigned Inter-Company Receivables and/or Assigned Bank Accounts by private sale(“Private Verwertung (Selbstverkauf)”),without regard to the enforcement procedure provided for by the Swiss Federal Law on Debt Collection and Bankruptcy, and apply the proceeds (less all costs and expenses) of such sale towards the discharge of the Secured Obligations. The Collateral Agent shall apply such proceeds in accordance with the Intercreditor Agreement. The Collateral Agent shall discharge its rights under this Agreement with the same degree of care it would use in respect of its own property. | |
4.6 | Upon repayment and discharge in full of the Secured Obligations, the Collateral Agent, at the costs of the Assignor, shall promptly, and in any event within 5 Business Days from the full discharge of the Secured Obligations, re-assign the remainder, if any, of the Assigned Receivables, Assigned Inter-Company Receivables and/or Assigned Bank Accounts to the Assignor. | |
4.7 | Notwithstanding anything herein to the contrary, the 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 hereunder are subject to the provisions of the Intercreditor Agreement. 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. |
5.1 | Without prejudice to the representations and warranties made under the Credit Agreements, the Assignor represents and warrants to the Collateral Agent that: | |
5.1.1 | it is a company duly established, validly existing and registered under the laws of Switzerland, capable of suing and being sued in its own right and having the power and authority and all necessary governmental and other material consents, approvals, licenses and authorizations under any applicable jurisdiction to own its property and assets and to carry on its business as currently conducted; | |
5.1.2 | as long as this Agreement remains in force, the Assigned Receivables, the Assigned Inter-Company Receivables and the Assigned Bank Accounts are and will continue to be (and any Assigned Receivable, any Assigned Inter-Company Receivable and any Assigned Bank Account coming into existence in the future will be) free and clear of any pledge, encumbrance or other third party interests, with the exception of any liens permitted under the Credit Agreements; | |
5.1.3 | subject to the qualifications set out in the legal opinion of Borrowers’ Swiss counsel, this Agreement constitutes (i) its legal, valid and binding obligations enforceable against it pursuant to its terms and (ii) a valid and effective transfer of the Assigned Receivables, the Assigned Inter-Company Receivables and the Assigned Bank Accounts from Assignor to the Collateral Agent and the Secured Parties. |
The Assignor shall promptly do all things and execute all documents that are required by the Collateral Agent for the purpose of securing or perfecting the Assignment provided for in this Agreement. |
The Assignor authorizes the Collateral Agent to be its attorney and in its name, on its behalf and as its act to execute, deliver and perfect all documents (including giving notifications and instructions to customers of the Assignor) and do all things that are necessary for carrying out any obligation imposed on the Assignor under this Agreement, provided that the Assignor does not carry out such obligation in due time in accordance with the terms of this Agreement, or exercising any of the rights conferred on the Collateral Agent by this Agreement or by law, in particular in connection with a private realization(“Private Verwertung (Selbstverkauf)”) |
but in any case only after the Collateral Agent has notified the Assignor that an Event of Default has occurred and is continuing. |
The rights and obligations of the Assignor under this Agreement may not be assigned or transferred without the prior written consent of the Collateral Agent. The assignment of the rights and obligations of the Collateral Agent under this Agreement shall be restricted to and made in accordance with Section 12 below. Nothing in this Agreement shall be construed as limiting the right of the Secured Parties to assign their rights and obligations under the Credit Agreements in accordance with the relevant provisions thereof. |
9.1 | The security constituted by the Assignments under this Agreement shall be cumulative, in addition to and independent of every other security which the Collateral Agent and/or Secured Parties may at any time hold for the Secured Obligations or any rights, powers and remedies provided by law. | |
9.2 | No failure on the part of the Collateral Agent and/or Secured Parties to exercise, or delay on its part in exercising, any rights hereunder shall operate as waiver thereof, nor shall any single or partial exercise of any rights hereunder preclude any further or other exercise of that or any other rights. | |
9.3 | The Collateral Agent and/or Secured Parties shall not be liable by reason of taking any action permitted by this Agreement. |
The Assignor shall bear all reasonable costs and expenses (including, without limitation, legal fees, stamp duties or other duties) incurred in connection with the execution, perfection or implementation of the Assignment hereby constituted or the exercise of any rights hereunder and the Assignor shall reimburse and indemnify the Collateral Agent for any such costs or expenses reasonably incurred by it. |
All notices or other communications made or given in connection with this Agreement shall be made by facsimile or letter as follows: |
a) | if to the Assignor | |||||
Novelis AG | ||||||
Address: | Bellerivestrasse 36 CH- 8034 Zurich | |||||
Fax: | +41 44 386 21 51 | |||||
Attn: | Legal Counsel | |||||
b) | if to the Collateral Agent | |||||
LaSalle Business Credit, LLC | ||||||
Address | 135 South LaSalle Street, Suite 425 | |||||
Chicago, Illinois 60603 | ||||||
Fax: | +1 (312) 992-1501 | |||||
Attn: | Steven Friedlander | |||||
Email: | steven.friedlander@abnamro.com |
Each notice, communication and document given under or in connection with this Agreement shall be in English or, if not, accompanied by an accurate translation thereof which has been confirmed by authorized signatory of the party giving the same as being a true and accurate translation. |
If a successor of the Administrative Agent and Collateral Agent is appointed in accordance with the Credit Agreements, the parties hereto shall enter into an agreement whereby the Collateral Agent is replaced by the successor agent as party to this Agreement. |
If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, this shall not affect or impair (i) the validity or enforceability in that jurisdiction of any other provision of this Agreement or (ii) the validity or enforceability in any other jurisdiction of that or any other provision of this Agreement, and the parties will negotiate in good faith to replace the relevant provision by another provision reflecting as closely as possible the original intention and purpose of the parties. |
This Agreement may be terminated, amended or modified only specifically and in writing signed by the parties hereto. |
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. |
16.1 | This Agreement shall be governed by and construed in accordance with the substantive laws of Switzerland. | |
16.2 | Subject to the subsequent paragraph, the Commercial Court of the Canton of Zurich(Handelsgericht des Kantons Zürich),Switzerland, shall have exclusive jurisdiction for all disputes, differences or controversies relating to, arising from or in connection with this Agreement. | |
16.3 | Notwithstanding the foregoing, any legal action or proceeding with respect to this Agreement may be brought in the courts of the State of New York or of the United States of America for the Southern District of New York or any other competent court having jurisdiction under the relevant Credit Agreement, provided that a legal action or proceeding under any of the Credit Agreements is already pending before such court or a claim under any of the Credit Agreements is submitted simultaneously with a claim in respect to this Agreement to such court. By execution and delivery of this Agreement, the Assignor hereby accepts for itself and in respect of its property, subject to the aforementioned condition, the jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably waive any objection, including any objection to the laying of venue or based on the grounds offorum non convenients, that any of |
them may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions. | ||
16.4 | The Assignor hereby irrevocably designates, appoints and empowers Novelis Corporation, attn: Charles Aley, Secretary, 6060 Parkland Blvd., Mayfield Heights OH 44124-4185. USA (telephone number: +1 440 423 6917) (telecopy number: +1 440 423 6663 (the “Process Agent”), in the case of any suit, action or proceeding brought in the United States of America as its designee, appointee and agent to receive, accept and acknowledge for and on its behalf, and in respect of its property, service of any and all legal process, summons, notices and documents that may be served in any action or proceeding arising out of, or in connection with, this Agreement. Such service may be made by mailing (by registered or certified mail, postage prepaid) or delivering a copy of such process to the Assignor in care of the Process Agent at the Process Agent’s above address, and the Assignor hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. Each Guarantor agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. |
GERMAN SECURITY AGREEMENT
Execution Copy
as Pledgor
as Administrative Agent, Collateral Agent and Original Pledgee 1
as Joint Lead Arranger, Joint Bookmanager and Original Pledgee 2
as Joint Lead Arranger, Joint Bookmanager and Original Pledgee 3
as Pledgees
(VERPFÄNDUNG VON BANKKONTEN)
PAGE | ||||
1. DEFINITIONS AND LANGUAGE | 2 | |||
2. CREATION OF PLEDGES | 4 | |||
3. SECURED OBLIGATIONS | 6 | |||
4. DISPOSALS OVER ACCOUNTS | 6 | |||
5. REALISATION OF THE PLEDGES | 6 | |||
6. WAIVER OF PLEDGORS’ DEFENCES AND OF SUBROGATION RIGHTS | 8 | |||
7. RELEASE OF THE PLEDGES | 9 | |||
8. DURATION AND INDEPENDENCE | 9 | |||
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 | 1 | |||
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) | UBS AG, Stamford Branch, a company organised under the laws of Switzerland having its business address at 677 Washington Blvd, Stamford, CT 06901 (the“Collateral Agent”, “Administrative Agent”and“Original Pledgee 1”,as applicable), | |
(3) | ABN Amro Incorporated, a company organised under the laws of New York having its business address at 55 E 52nd Street, New York, NY 10055 (the“Original Pledgee 2”); | |
(4) | UBS Securities LLC, a company organised under the laws of Delaware having its business address at 677 Washington Blvd, Stamford, CT 06901 (the“Original Pledgee 3”); | |
(5) | 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 and the Original Pledgee 3, the“Original Pledgees”); and | |
(6) | the Future Pledgees, as defined herein. |
(A) | Pursuant to a credit agreement dated as of July 6, 2007 (the“Credit Agreement”)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“Borrowers”), AV ALUMINUM INC., a corporation formed under the Canada Business Corporations Act(“Holdings”), the other guarantors party thereto, the Lenders (as defined below) party thereto, |
UBS AG, STAMFORD BRANCH, as administrative agent (in such capacity,“Administrative Agent”) for the Lenders, and as collateral agent (in such capacity,“Collateral Agent”) for the Secured Parties, ABN AMRO INCORPORATED and UBS SECURITIES LLC, as joint lead arrangers and joint bookmanagers (in such capacities,“Arrangers”), and the other agents party thereto, the Lenders have agreed to extend credit in the form of Term Loans (the“Loan”) to the Borrowers. | ||
(B) | 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”). | |
(C) | It is one of the conditions for granting the Loan that the Pledgor enters into this Agreement. | |
(D) | In connection with an ABL revolving loan agreement dated on or about the date hereof, (the“ABL Loan Agreement”), the Pledgor has agreed to grant a first ranking pledge over its Accounts (as defined below) as security for the obligations arising under or in connection with the ABL Loan Agreement. | |
(E) | The Pledgor has agreed to grant a second ranking pledge over its Accounts (as defined below) as security for the Pledgees’ (as defined below) respective claims against the Loan Parties (as defined below) under or in connection with the Credit 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 be subordinated to any pledges created over the Accounts in connection with the ABL Loan Agreement, but 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 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. | |
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 | |
The Pledgor represents and warrants (sichert zu) to each of the Pledgees by way of an independent guarantee (selbständiges Garantieversprechen) that, at the date hereof: | ||
9.1 | except the rights of the Trust Account Beneficiary 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 Schedule 2, 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 Trust Account Beneficiary with respect to the Trust Accounts created under the Trust Agreement and security for the ABL Loan 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 Pledgees will (upon effectiveness of this Agreement but subject to receipt of the executed schedule confirmation by the Account Banks) will be subordinated only to the pledges over the Accounts created in connection with the ABL Loan Agreement but will rank ahead of any other 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 renumbered 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 (Reinvermögen), in each case as calculated in accordance with generally accepted accounting principles in Germany (Grundsätze ordnungsmäßiger Buchührung) 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. |
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: |
Address: | UBS AG, Stamford Branch | |||
677 Washington Boulevard Stamford, Connecticut 06901 | ||||
Attention: | Christopher Gomes | |||
Fax: | + 1.203.719-3180 | |||
Email: | Christopher.Gomes@UBS.com | |||
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 |
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 |
Term Loan: Account Pledge Agreement
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 | |
Any amendment to, or modification of, this Agreement, including this Clause, shall be effective only if made in writing, unless mandatory law provides for more stringent formal requirements. | ||
20. | ANNEXES, SCHEDULES | |
All Schedules to this Agreement shall form an integral part hereof. | ||
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 |
Term Loan: Account Pledge Agreement
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. |
Term Loan: Account Pledge Agreement
Washington Boulevard, Stamford, CT 06901
Term Loan: Account Pledge Agreement
LIST OF BANK ACCOUNTS OF PLEDGOR
Bank Sort | ||||||||||||||||||||
Country | Ort | Bank | Code (BLZ) | Account Nr. | Currency | Notes | Owner | Location | Contact | |||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Novelis Germany | 37075 Göttingen - | Christoph | ||||||||||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991300* | EUR | One-Way Pool | GmbH | Germany | Bienwald | |||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Novelis Germany | 37075 Göttingen - | Christoph | ||||||||||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991300* | CAD | One-Way Pool | GmbH | Germany | Bienwald | |||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Novelis Germany | 37075 Göttingen - | Christoph | ||||||||||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991300* | CHF | One-Way Pool | GmbH | Germany | Bienwald | |||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Novelis Germany | 37075 Göttingen - | Christoph | ||||||||||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991300* | DKK | One-Way Pool | GmbH | Germany | Bienwald | |||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Novelis Germany | 37075 Göttingen - | Christoph | ||||||||||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991300* | GBP | One-Way Pool | GmbH | Germany | Bienwald | |||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Novelis Germany | 37075 Göttingen - | Christoph | ||||||||||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991300* | SEK | One-Way Pool | GmbH | Germany | Bienwald | |||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Novelis Germany | 37075 Göttingen - | Christoph | ||||||||||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991300* | USD | One-Way Pool | GmbH | Germany | 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- Gebührenbelas tungen | Novelis Germany GmbH | Hannoversche Str. 1 - 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205995408 | EUR | Sicherheiten/R ücklagen 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 | |||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991309 | EUR | Festgelder | Novelis Germany GmbH | 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 205991309 | GBP | Festgelder | Novelis Germany GmbH | 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 209550300 | EUR | Holding | Novelis Aluminium Holding Co. | 37075 Göttingen - Germany | Christoph Bienwald | |||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Germany | Berlin | Commerzbank | 100 400 00 | 1766005 | EUR | Novelis Germany GmbH | 37075 Göttingen - Germany | Christoph Bienwald | ||||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Germany | Lüdenscheid | Commerzbank | 458 400 26 | 6208870 | EUR | Novelis Germany GmbH | 37075 Göttingen - Germany | Christoph Bienwald | ||||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Germany | Plettenberg | Commerzbank | 458 410 31 | 8203200 | EUR | Novelis Germany GmbH | 37075 Göttingen - Germany | Christoph Bienwald | ||||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Germany | Aschersleben | Commerzbank | 810 400 00 | 6526172 | EUR | Novelis Germany GmbH | 37075 Göttingen - Germany | Christoph Bienwald | ||||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Germany | Nürnberg | Commerzbank | 760 400 61 | 521823501 | EUR | Rentenkonto | Novelis Germany GmbH | 37075 Göttingen - Germany | Christoph Bienwald |
Bank Sort | ||||||||||||||||||||
Country | Ort | Bank | Code(BLZ) | Account Nr. | Currency | Notes | Owner | Location | Contact | |||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Novelis Germany | 37075 Göttingen - | Christoph | ||||||||||||||||||
Spain | Madrid | Commerzbank | COBAESM | 3631686 | EUR | GmbH | Germany | Bienwald | ||||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Great | Novelis Germany | 37075 Göttingen - | Christoph | |||||||||||||||||
Britain | London | Commerzbank | COBAGB2 | 1152214 | GBP | GmbH | Germany | Bienwald | ||||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Nordea Pamki | NDEAFIHH | 15713027756 | Novelis Germany | 37075 Göttingen - | Christoph | |||||||||||||||
Finland | Espoo | Suomi Oyi | XXX | EUR | GmbH | Germany | Bienwald | |||||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Den Danske | DABADKK | Novelis Germany | 37075 Göttingen - | Christoph | ||||||||||||||||
Denmark | Ishoj | Bank | KXXX | 3326147966 | DKK | GmbH | Germany | Bienwald | ||||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Levallois- | Societe | 00020491387 | Novelis Germany | 37075 Göttingen - | Christoph | |||||||||||||||
France | Perret | Generale | SOGEFRPP | EUR | GmbH | Germany | Bienwald | |||||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
Novelis Germany | 37075 Göttingen - | Christoph | ||||||||||||||||||
Netherlands | Amsterdam | Postbank | PSTBNL21 | 1775145 | EUR | GmbH | Germany | Bienwald | ||||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
210073796440 | Novelis Germany | 37075 Göttingen - | Christoph | |||||||||||||||||
Belgium | Brüssel | Fortis Bank | GEBABEBB | EUR | GmbH | Germany | Bienwald | |||||||||||||
Hannoversche Str. 1 - | ||||||||||||||||||||
ABN AMRO | Novelis Germany | 37075 Göttingen - | Christoph | |||||||||||||||||
Netherlands | Dordrecht | Bank NV | ABNANL2A | 417007310 | EUR | GmbH | Germany | Bienwald |
From: | Novelis Deutschland | |
Hannoversche Strabe 1 | ||
37075 Göttingen Germany | ||
To: | [ ] | |
[ ] | ||
Germany | ||
Date: | [ ] | |
Re: | Accounts Nos. [ ] (the “Accounts”) |
Novelis Deutschland GmbH
From: | Commerzbank AG (theAccount Bank) |
To: | UBS AG, Stamford Branch as Collateral Agent 677 Washington Boulevard, Stamford, Connecticut 06901, USA Fax: +1 203-719-3180 Attention: Lauren Clark |
Copy to: | Novelis Deutschland GmbH Hannoversche Straße 1 37075 Göttingen Germany |
GKE Ost
Potsdamer Str. 125
10783 Berlin
Fax:+ 49 30 / 2653-2720
(duly authorised signatory of the Account Bank)
/s/ Mary E. Evans | ||
Name: Title: | Mary E. Evans Associate Director Banking Products Services, US | |
/s/ Richard L. Tavrow | ||
Name: Title: | Richard L. Tavrow Director Banking Products Services, US |
ABN AMRO INCORPORATED
/s/ David Wood | ||
Title: Managing Director |
UBS SECURITIES LLC
Title |
Title: |
UBS SECURITIES LLC
/s/ Mary E. Evans | /s/ Irja R. Otsa | |||||
Name: Title | Mary E. Evans Associate Director Banking Products Services, US | Irja R. Otsa Associate Director Banking Products Services, US |
NOVELIS DEUTSCHLAND GMBH
/s/ Gottfried Weindl | ||
Title: Managing Director(Geschäftsführer) |
IRISH SECURITY AGREEMENT
as Collateral Agent
the terms of a Credit Agreement dated on or about the date hereof an Intercreditor
Agreement dated on or about the date hereof
Solicitors
Riverside One
Sir John Rogerson’s Quay
Dublin 2
Clause | Page | |
1. INTERPRETATION | 4 | |
2. GUARANTEE | 9 | |
3. CREATION OF SECURITY | 11 | |
4. REPRESENTATIONS - GENERAL | 16 | |
5. RESTRICTIONS ON DEALINGS | 17 | |
6. LAND | 17 | |
7. INVESTMENTS | 21 | |
8. INTELLECTUAL PROPERTY | 24 | |
9. ACCOUNTS | 25 | |
10. RELEVANT CONTRACTS | 27 | |
11. PLANT AND MACHINERY | 28 | |
12. INSURANCE POLICIES | 29 | |
13. WHEN SECURITY BECOMES ENFORCEABLE | 29 | |
14. ENFORCEMENT OF SECURITY | 29 | |
15. RECEIVER | 31 | |
16. POWERS OF RECEIVER | 32 | |
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 | 37 | |
24. LOAN PARTIES | 38 | |
25. RELEASE | 39 | |
26. COUNTERPARTS | 39 | |
27. NOTICES | 39 |
Clause | Page | |
28. THE COLLATERAL AGENT AS TRUSTEE | 40 | |
29. GOVERNING LAW | 40 | |
30. ENFORCEMENT | 41 |
(1) | NOVELIS ALUMINIUM HOLDING COMPANYa company registered in Ireland with company number 316911 (hereinafter referred to as the“Original Chargor”);and | |
(2) | UBS AG, STAMFORD BRANCHas agent and trustee for the Secured Parties referred to below (theCollateral 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, |
1. | INTERPRETATION | |
1.1 | Definitions | |
1.2 | In this Deed: | |
Account Bankmeans a bank with whom a Security Account is maintained. | ||
Acquisition Documentmeans in relation to any Chargor, any agreement under which it acquires or disposes of a business or part of a business (either by share or asset sale) and under which the aggregate consideration payable at anytime is in excess of €250,000. | ||
Actmeans the Conveyancing and Law of Property Act, 1881 as amended. | ||
Additional Chargormeans a member of the Group which becomes a Chargor by executing a Deed of Accession. | ||
Cash Management Documentmeans in relation to any Chargor, any agreement between two or more members of the Group to which it is a party that provides for any cash pooling, set-off or netting arrangement, including the European Cash Pooling Arrangements. | ||
Chargor means the Original Chargor and any Additional Chargor. | ||
Charged Sharesmeans all shares in any member of the Group Incorporated in Ireland from time to time issued to a Chargor or held by any nominee on its behalf. | ||
Charged Companymeans each member of the Group from time to time whose shares are subject to the Security under this Deed. | ||
Credit Agreementmeans the Credit Agreement dated on or about the date hereof between, amongst others, Novelis Inc., as Canadian Borrower, Novelis Corporation as U.S. Borrower, AV ALUMINUM INC., as Holdings, and the Other Guarantors party thereto, the Lenders party thereto and UBS AG, Stamford Branch as Administrative Agent and Collateral Agent. | ||
Deed of Accessionmeans a deed substantially in the form of Schedule 5(Form of Deed of Accession). |
Discharge Datemeans the date on which the Administrative Agent is satisfied that all of the Term Loan Obligations (as defined in the Intercreditor Agreement) have been irrevocably paid and discharged. | ||
Examinermeans an examiner appointed under Section 2 of the Companies (Amendment) Act, 1990. | ||
Fixturesmeans all fixtures and fittings (including trade fixtures and fittings) and fixed plant and machinery included in a Chargor’s Mortgaged Property. | ||
Groupmeans the Original Chargor and its Affiliates. | ||
Intercompany Documentmeans in relation to any Chargor, any agreement with any other member of the Group under which the aggregate consideration payable at anytime is in excess of €250,000. | ||
Investmentsmeans: |
(i) | the Charged Shares; and | ||
(ii) | all other shares, stocks, debentures, bonds, warrants, coupons and other securities and investments, |
which a Chargor purports to mortgage or charge under this Deed. | ||
Mortgaged Propertymeans all freehold and leasehold property which a Chargor purports to mortgage or charge under this Deed. | ||
Original Propertymeans any freehold or leasehold property specified in Part 1 of Schedule 1(Security Assets). | ||
Partymeans a party to this Deed. | ||
Plant and Machinerymeans any plant, machinery, computers, office equipment or vehicles which a Chargor purports to mortgage or charge under this Deed. | ||
Premisesmeans all buildings and erections included in a Chargor’s Mortgaged Property. | ||
Primary Contractmeans in relation to any Chargor: |
(i) | 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; | ||
(ii) | any other agreement to which that Chargor is a party and which that Chargor and the Collateral Agent have designated a Primary Contract.; | ||
(iii) | any Acquisition Document; | ||
(iv) | any Cash Management Document; | ||
(v) | any Hedging Agreement; | ||
(vi) | any Intercompany Document; | ||
(vii) | any letter of credit issued in its favour under which the aggregate consideration payable at any time is in excess of €100,000; or |
(viii) | any bill of exchange or other negotiable instrument held by it. |
Real Propertymeans all that property referred to in Clauses 3.2(a) to 3.2(c) inclusive. | ||
Receivermeans a receiver and manager or a receiver, in each case, appointed under this Deed. | ||
Related Companymeans a company which is related within the meaning of Section 4(5) of the Companies (Amendment) Act, 1990. | ||
Related Rightsmeans in relation to any Investment: |
(i) | 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; | ||
(ii) | all rights under any licence, agreement for sale, option or lease in respect of that asset; and | ||
(iii) | all rights, benefits, claims, contracts, warranties, remedies, security Indemnities or covenants for title in respect of that asset. |
Report on Titlemeans any report or certificate on title on the Mortgaged Property provided to the Collateral Agent, together with confirmation from the provider of that Report that it can be relied upon by the Secured Parties. | ||
Revolving Credit Collateral Agenthas the meaning given to that term in the Intercreditor Agreement. | ||
Revolving Credit Collateral Release Datemeans in relation to any Chargor the date on which the Security Interests granted by that Chargor over the Revolving Credit Priority Collateral to the Revolving Credit Collateral Agent pursuant to the Revolving Credit Security Agreement have been irrevocably and unconditionally released, revoked, re-transferred or otherwise become unenforceable. | ||
Revolving Credit Security Agreementmeans the Guarantee and Security Agreement dated on about the date hereof between the Chargors and the Revolving Credit Collateral Agent. | ||
Secondary Contractmeans in relation to any Chargor: |
(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; | ||
(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 PrimaryContract)entered into after the date of this Deed under which the aggregate consideration payable at anytime is in excess of €250,000. |
Securitymeans any Security Interest created, evidenced or conferred by or under this Deed or any Deed of Accession. | ||
Security Accountmeans in relation to any Chargor: |
(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. |
Security Assetsmeans any and all assets of each Chargor that are the subject of this Security. | ||
Security Contractsmeans in relation to any Chargor, its Primary Contracts and its Secondary Contracts. | ||
Security Interestmeans any mortgage, pledge, lien, charge (fixed or floating), assignment, hypothecation, set-off or trust arrangement for the purpose of creating security, reservation of title or security interest or any other agreement or arrangement having a similar effect. | ||
Security Periodmeans the period beginning on the date of this Deed and ending on the Discharge Date. | ||
Security Trust Deedmeans the Security Trust Deed dated on or about the date of this Deed and entered into between, amongst others, the Collateral Agent, the Administrative Agent and the Chargors. |
1.3 | Construction |
(a) | Capitalisedterms defined in the Credit Agreement or the Intercreditor Agreement (as 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); | ||
(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) | any reference 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 Collateral Agent or Administrative 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 Administrative Agent, any person for the time being appointed as Collateral Agent or Administrative 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; | ||
(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; and | ||
(vi) | words imparting the singular include the plural and vice versa. |
(n) | The term clearance system means 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) | 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 examination 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. | ||
(q) | 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. |
1.4 | Intercreditor Agreement Governs | |
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE SECURITY INTERESTS 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 OR ANY RECEIVER OR OTHER SECURED PARTIES HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. 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. | ||
2. | GUARANTEE | |
2.1 | Guarantee | |
Each Chargor irrevocably and unconditionally jointly and severally: |
(a) | 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; | ||
(b) | 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 | ||
(c) | 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 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 | |
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Loan Party under the Loan Documents, regardless of any intermediate payment or discharge in whole or in part. | ||
2.3 | Reinstatement | |
If any payment by a Loan Party or any discharge given by the Collateral Agent or a Secured Party (whether in respect of the obligations of any Loan Party or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event: |
(a) | the liability of each Loan Party shall continue as if the payment, discharge, avoidance or reduction had not occurred; and | ||
(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 | |
The obligations of each Chargor under this Clause 2 (Guarantee) will not be affected by an act, omission, matter or thing which, but for this Clause 2 (Guarantee), would reduce, |
release or prejudice any of its obligations under this Clause 2(Guarantee)(without limitation and whether or not known to it or any Secured Party) including: |
(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 | |
Without prejudice to the generality of Clause 2.4(Waiver of Defences),each Chargor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Loan Documents and/or any facility or amount made available under any of the Loan Documents for the purposes of or in connection with any of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing. | ||
2.7 | Immediate recourse | |
Each Chargor waives any right it may have of first requiring the Collateral Agent or any Secured Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Chargor under this Clause 2(Guarantee).This waiver applies irrespective of any law or any provision of a Loan Document to the contrary. |
2.8 | Deferral ofChargors’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 ordistribution 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 Administrative Agent as if set forth herein. | ||
3. | CREATION OF SECURITY | |
3.1 | General |
(a) | All this Security: |
(i) | is created in favour of the Collateral Agent as trustee for the Secured Parties; | ||
(ii) | is security for the payment, discharge and performance of all the Secured Obligations; and | ||
(iii) | is made by each Chargor as beneficial owner. |
(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 | |
Each Chargor as beneficial owner, as continuing security for the payment, performance and discharge of the Secured Obligations, hereby:- |
(a) | grants, conveys, transfers and demises to the Collateral Agent as trustee for the Secured PartiesALL THAT AND THOSEthe freehold and leasehold property of such Chargor both present and future (including specifically, but not limited to, the lands, hereditaments and premises specified in Part 1 A of Schedule 1(Security Assets)and all buildings and (to the extent the same are not otherwise subject to a fixed charge hereunder) all fixtures (including trade fixtures) from time to time on every such property and all fixed plant and machinery of such Chargor both present and future therein or thereon to hold the same as to so much thereof as is of freehold tenure unto the Collateral Agent as trustee for the Secured Parties in fee simple and as to so much thereof as is of leasehold tenure unto the Collateral Agent as trustee for the Secured Parties for the residue of the respective terms of years for which such Chargor now or, as applicable at the time of acquisition, then holds the same less the last three days of each such term, subject to the proviso for redemption herein contained PROVIDED that each Chargor hereby declares that it shall henceforth stand possessed of such of the said property as is of leasehold tenure for the last day or respective last days of the term or terms or years for which the same is held by it, and for any further or other interest which it now has or may hereafter acquire or become entitled to in the same or any part thereof by virtue of any Act or Acts of the Oireachtas or otherwise howsoever, in trust for the Collateral Agent as trustee for the Secured Parties and to be conveyed assigned or otherwise dealt with whether to the Collateral Agent as trustee for the Secured Parties or its nominee or otherwise as the Collateral Agent shall direct but subject to the same equity of redemption as may for the time being be subsisting in the said property, and PROVIDED FURTHER that each Chargor doth hereby irrevocably appoint the secretary (and any authorised signatory) for the time being of the Collateral Agent to be its attorney, in its name and on its behalf, and as its act and deed to sign seal and deliver and otherwise perfect every or any Deed of Conveyance of the leasehold reversion which may be desired by the Collateral Agent, in order to vest in the Collateral Agent as trustee for the Secured Parties or in any person or persons in trust as agent for the Collateral Agent, subject as aforesaid, or in any purchaser of the said property or any part thereof, the said leasehold reversion and any further or other interest which such Chargor now has or may hereafter acquire or become entitled to in the said leasehold premises or any part thereof by virtue of any Act or Acts of the Oireachtas or otherwise howsoever; |
(b) | as registered owner or, as the case may be, person entitled to be registered as owner, charges to the Collateral Agent as trustee for the Secured PartiesALL THAT AND THOSEthe freehold and leasehold lands, hereditaments, premises and property of such Chargor registered under the Registration of Title Act, 1964 both present and future (including, specifically, but not limited to, the lands, hereditaments and premises specified in Part 1 B of Schedule 1) together with all buildings and (to the extent the same are not otherwise subject to a fixed charge hereunder) all fixtures (including trade fixtures) from time to time on every such property and all fixed plant and machinery both present and future therein with the payment performance and discharge of the Secured Obligations; | ||
(c) | charges to the Collateral Agent as trustee for the Secured Parties all its other estate, right, title or interests in any land or buildings now belonging to such Chargor (including, specifically, but not limited to, the lands, hereditaments and premises specified in Schedule I) (whether or not the legal estate is vested in such Chargor or registered in the name of such Chargor), and all future estate, right, title or interests of such Chargor in such lands, hereditaments and premises and in any other freehold or leasehold property (whether or not registered) vested In or held by or on behalf of such Chargor from time to time and/or the proceeds of sale thereof together in all cases (to the extent the same are not otherwise subject to a fixed charge hereunder) all fixtures (including trade fixtures) and all fixed plant and machinery from time to time therein with the payment performance and discharge of the Secured Obligations; and | ||
(d) | charges to the Collateral Agent as trustee for the Secured Parties the benefit of all present and future licences, covenants, permissions, consents and authorisations (statutory or otherwise) held by such Chargor in connection with the use of any of the Real Property and the right to recover and receive all compensation or other monies which may at any time become payable to it in respect thereof. |
3.3 | Investments |
(a) | Each Chargor as beneficial owner as continuing security for the payment, performance and discharge of the Secured Obligations hereby 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 first 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, |
in relation to that share, stock, debenture, bond, warrant, coupon or other security or investment. |
3.4 | Plant and machinery | |
Each Chargor as beneficial owner as continuing security for the payment, performance and discharge of the Secured Obligations hereby charges by way of first fixed charge all plant, machinery, computers, office equipment or vehicles or interest specified in Part 3 of Schedule 1(Security Assets)opposite its name or in Part 3 of the schedule to any Deed of Accession by which it became party to this Deed and any other plant, machinery, computers, office equipment or vehicles (or interest therein) owned by it. | ||
3.5 | Credit balances | |
Each Chargor as beneficial owner as continuing security for the payment, performance and discharge of the Secured Obligations hereby charges by way of a first fixed charge all of its rights in respect of each amount standing to the credit of each account with any person, including its Security Accounts and the debt represented by that account. | ||
3.6 | Book debts etc. | |
Each Chargor as beneficial owner as continuing security for the payment, performance and discharge of the Secured Obligations hereby charges by way of a first fixed charge: |
(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 as beneficial owner as continuing security for the payment, performance and discharge of the Secured Obligations hereby as beneficial owner as continuing security for the payment, performance and discharge of the Secured Obligations hereby 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 first 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 as beneficial owner as continuing security for the payment, performance and discharge of the Secured Obligations hereby 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 fail within any other Subclause of this Clause and are not effectively assigned under paragraph (a) or (b) above, each Chargor charges by way of first 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 | |
Each Chargor as beneficial owner as continuing security for the payment, performance and discharge of the Secured Obligations hereby charges by way of a first fixed charge all of its rights in respect of any Intellectual Property; this includes any specified 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. | ||
3.10 | Miscellaneous | |
Each Chargor as beneficial owner as continuing security for the payment, performance and discharge of the Secured Obligations hereby charges by way of a first fixed charge: |
(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, as beneficial, owner as continuing security for the payment, performance and discharge of the Secured Obligations hereby charges by way of a first 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 falls 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 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 Examiner is appointed or the Collateral Agent receives notice of an intention to appoint an Examiner; | ||
(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); or | ||
(iii) | on the presentation of a petition to appoint an Examiner to that Chargor or where the protection of the court is sought by a Related Company. |
(d) | 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. | ||
Any charge which has been converted into a fixed charge in accordance with paragraphs (b) and (c) 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 | |
Each Chargor represents and warrants to each Secured Party that; |
(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 examination or otherwise; and | ||
(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: |
(i) | each Chargor which becomes party to this Deed by 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 | |
No Chargor may: |
(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 orotherwise dispose of all or any part of its assets, | ||
unless permitted under the Credit Agreement. |
6. | LAND | |
6.1 | Information for Report on Title | |
Each Chargor represents and warrants to each Secured Party that: |
(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. |
6.2 | Title | |
Each Chargor represents and warrants to each Secured Party that except as disclosed in any Report on Title relating to any of its Mortgaged Property: |
(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; |
(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 | |
Each Chargor must keep: |
(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 | |
Each Chargor must: |
(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 | |
If a Chargor acquires any freehold or leasehold property after the date of this Deed, it must: |
(a) | notify the Collateral Agent immediately; | ||
(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 | |
Each Chargor must, within 14 days after the receipt by it of any application, requirement, order or notice served or given by any public or local or any other authority with respect to its Mortgaged Property (or any part of it) which would or would be reasonably likely to have a material adverse effect on the value, saleabllity or use of any of the Mortgaged Property: |
(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 | |
No Chargor may in respect of its Mortgaged Property (or any part of it), unless expressly permitted under the Credit Agreement: - |
(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 hereby consents to the registration as burdens on the folio of any registered land of which it is the registered owner or, as applicable, the person entitled to be registered as registered owner as well as on the folio of any further registered lands of which it may from time to time become the registered owner or, as applicable, the person entitled to be registered as registered owner, of: |
(i) | the first ranking fixed mortgage and charge created by this Deed on the said land; | ||
(ii) | on crystallisation of the floating charge created by this Deed on the said land, such crystallised floating charge; and | ||
(iii) | the power of any Receiver appointed under this Deed to charge the said land. |
(b) | The address of the Collateral Agent in Ireland for the service of notices is c/o McCann FitzGerald, Riverside One, Sir John Rogerson’s Quay, Dublin 2 (Attn: EDV). |
6.9 | Deposit of title deeds | |
Each Chargor must deposit with the Collateral Agent all deeds and documents of title relating to its Mortgaged Property and all local land charges, land charges and Land Registry search certificates and similar documents received by it or on its behalf. | ||
6.10 | Development | |
No Chargor may unless expressly permitted under the Credit Agreement: |
(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, | ||
except as part of carrying on its principal business where it would not or would not be reasonably likely to have a material adverse effect on the value, saleabllity or use of the Mortgaged Property or the carrying on of the principal business of that Chargor. |
6.11 | Investigation of title | |
Each Chargor must grant the Collateral Agent or its lawyers on request all reasonable facilities within the power of that Chargor to enable the Collateral Agent or its lawyers (at the expense of that Chargor) after this Security has become enforceable to: |
(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. |
6.12 | Report on Title | |
Each Chargor must, as soon as practicable after a request by the Collateral Agent at a time when an Event of Default is continuing, supply the Collateral Agent with a Report on Title of that Chargor to its Mortgaged Property concerning those items which may properly be sought to be covered by a prudent mortgagee in a lawyer’s report of this nature. | ||
6.13 | Power to remedy | |
If a Chargor fails to perform any covenant or stipulation or any term of this Deed affecting its Mortgaged Property, that Chargor must allow the Collateral Agent or its agents and contractors: |
(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. |
That Chargor must immediately on request by the Collateral Agent pay the costs and expenses of the Collateral Agent or its agents and contractors incurred in connection with any action taken by it under this Subclause. |
6.14 | Unregistered Property | |
Each Chargor shall use reasonable endeavours to: |
(a) | provide a completed and signed Land Registry application for 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, |
Including in each case, without limitation, instruction of solicitors in these regards and providing responses in respect of any title requisitions raised by the Land Registry. | ||
7. | INVESTMENTS | |
7.1 | Investments | |
Each Chargor represents and warrants to each Secured Party that: |
(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 are held by any nominee on its behalf or any investments transferred to the Collateral Agent or its nominee pursuant to this Deed); | ||
(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 each Charged Company (including any option or right of pre-emption or conversion). |
7.2 | Certificated Investments | |
Each Chargor must: |
(a) | 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 | ||
(b) | 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: |
(i) | 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 | ||
(ii) | 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. |
(c) | 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 | |
No Chargor may (except to the extent permitted by the Credit Agreement and the intercreditor Agreement) take or allow the taking of any action on its behalf which may result in the rights attaching to any of its investments being altered or further shares being issued. | ||
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 81 of the Companies Act, 1990) 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, |
in respect of any Investment. |
7.6 | Voting rights |
(a) | Unless and until the service of a notice by the Collateral Agent of an Event of Default which 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 of shareholder meeting in respect of the investments to the Collateral Agent promptly upon receipt, and (y) it shall not exercise such voting rights, powers and other rights in a manner which would result in, or otherwise permit or agree to, (i) any variation of the rights attaching to or conferred by any of the investments which the Collateral Agent considers prejudicial to the interests of the Secured Parties or which conflict or derogate from any Loan Documents or (ii) any increase in the issued share capital of a Charged Company, which in the opinion of the Collateral Agent would prejudice the value of, or the ability of the Collateral Agent to realise, the security created by this Deed. | ||
(b) | Unless and until the service of a notice by the Collateral Agent of an Event of Default which 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 of an Event of Default which 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 of an Event of Default which 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 |
in each case, in the name of the relevant Chargor, the registered holder or otherwise and without any further consent or authority on the part of the relevant Chargor and Irrespective of any direction given by any Chargor. | |||
(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 as its proxy to exercise all voting rights in respect of those Investments at any time after the service of a notice by the Collateral Agent of the occurrence of an Event of Default which is continuing. | ||
(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 lnvestment 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 demateriallsation 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 demateriallsation or rematerialisation of the investments as necessary. |
7.8 | Custodian arrangements | |
Each Chargor must: |
(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 | |
Each Chargor represents and warrants to each Secured Party that as at the date of this Deed or, if later, the date it became a Party: |
(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) which either record the existence of this Deed or the restrictions on disposal imposed by this Deed. | ||
(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 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 |
(a) | Prior to the Revolving Credit Collateral Discharge Date all Security Accounts must be maintained In accordance with the terms of the Revolving Credit Security Agreement. | ||
(b) | Following the Revolving Credit Collateral Discharge Date, all Security Accounts must be maintained at a branch of the Account Bank approved by the Collateral Agent. |
9.2 | Change of Account Bank | |
Following the Revolving Credit Collateral Discharge Date: |
(a) | Any Account Bank may be changed to another bank and additional banks may be appointed as Account Banks if the relevant Chargor 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 rote 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 Clause 9.2(a) above 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; |
(e) | 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 constituting proceeds of Inventory or other Collateral (each term as defined in the Credit Agreement) into a Security Account in accordance with Section 9.01 of the Revolving Credit Agreement. | ||
(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, |
(1) | prior to the Revolving Credit Collateral Discharge Date, on trust for the Revolving Credit Collateral Agent; and | ||
(2) | following the Revolving Credit Collateral Discharge Date, on trust for the Collateral Agent. |
(c) | Each Chargor must pay all the proceeds of the getting in and realisation under Clause 9.1(b) into a Security Account as soon as practicable on receipt except to the extent that: |
(i) | prior to the Revolving Credit Collateral Discharge Date, the Revolving Credit Collateral Agent otherwise; and | ||
(ii) | following the Revolving Credit Collateral Discharge Date, the Collateral Agent otherwise agrees. |
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) | following the Revolving Credit Collateral Discharge Date, 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 that Account Bank substantially in the form of Part 3 of Schedule 2 (Forms of letter for Account Bank). |
10. | RELEVANT CONTRACTS | |
10.1 | Representations | |
Each Chargor represents and warrants to each Secured Party that: |
(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; | ||
(ii) | take any action which might jeopardise the existence or enforceability of any of its Secondary Contracts; or | ||
(iii) | in each case to the extent that the same would have a Material Adverse Effect. |
(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 | |
Each Chargor must: |
(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. |
10.4 | Rights |
(a) | Subject to the rights of the Collateral Agent under paragraph (b) below, the 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 | |
Each Chargor must: |
(a) | 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 this Deed or the date of any Deed of Accession by which it became party to this Deed or, if later, the date of entry into that Primary Contract (as appropriate). |
11. | PLANT AND MACHINERY | |
11.1 | Maintenance | |
Each Chargor must keep its Plant and Machinery in good repair and in good working order and condition. | ||
11.2 | Nameplates | |
Each Chargor must take any action which the Collateral Agent may reasonably require to evidence the interest of the Collateral Agent in its Plant and Machinery; this includes (if so requested) fixing a nameplate on its Plant and Machinery in a prominent position stating that: |
(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. |
12. | INSURANCE POLICIES | |
12.1 | 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 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: |
(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. |
12.2 | Notice | |
Each Chargor must: |
(a) | 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 this Deed or the date of any Deed of Accession by which it became party to this Deed or, if later, the date of entry into that Insurance (as appropriate). |
13. | WHEN SECURITY BECOMES ENFORCEABLE | |
13.1 | Timing | |
This Security will become immediately enforceable if an Event of Default is continuing. | ||
13.2 | Enforcement | |
After this Security has become enforceable, the Collateral Agent may in its absolute discretion enforce all or any part of this Security in any manner it sees fit or as the Required Lenders direct. | ||
14. | ENFORCEMENT OF SECURITY | |
14.1 | General |
(a) | The power of sale and any other power conferred on a mortgagee by law (including under section 19 of the Act) as varied or amended by this Deed will be immediately exercisable at any time after this Security has become enforceable. |
(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 20 of the Act) or the right of a mortgagee to consolidate mortgages (including under section 17 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 18 of the Act or section 3 of the Conveyancing Act 1911). |
14.2 | No liability as mortgagee in possession | |
Neither the Collateral Agent nor any Receiver will be liable, by reason of entering into possession of a Security Asset: |
(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. |
14.3 | Privileges | |
Each Receiver and the Collateral Agent is entitled to all the rights, powers, privileges and immunities conferred by law (including the Act) on mortgagees and receivers duly appointed under any law (including the Act). | ||
14.4 | Protection of third parties | |
No person (including a purchaser) dealing with the Collateral Agent or a Receiver or its or his agents will be concerned to enquire: |
(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. |
14.5 | 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. |
(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. |
14.6 | Contingencies | |
If this Security is enforced at a time when no amount is due under the Loan Documents but at a time when amounts may or will become due, the Collateral Agent (or the Receiver) may pay the proceeds of any recoveries effected by it into such number of suspense accounts as it considers appropriate. |
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 24 of the Act) does not apply to this Deed. |
15.2 | Removal | |
The Collateral Agent may by writing under its hand remove any Receiver appointed by it and may, whenever it thinks fit, appoint a new Receiver in the place of any Receiver whose appointment may for any reason have terminated. | ||
15.3 | Remuneration | |
The Collateral Agent may fix the remuneration of any Receiver appointed by it and any maximum rate imposed by any law (including under section 24(6) of the Act) will not apply. | ||
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 | |
To the fullest extent allowed by law, any right, power or discretion conferred by this Deed (either expressly or impliedly) or by law on a Receiver may after this Security becomes enforceable be exercised by the Collateral Agent in relation to any Security Asset without first appointing a Receiver or notwithstanding the appointment of a Receiver. |
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 all the rights, powers and discretions conferred on a receiver (or a receiver and manager) under the Act and in Schedule 6. | ||
(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 powers conferred on a Receiver under this Deed individually and to the exclusion of any other Receiver. |
16.2 | Possession | |
A Receiver may take immediate possession of, get in and collect any Security Asset. | ||
16.3 | Carry on business | |
A Receiver may carry on any business of any Chargor in any manner he thinks fit. | ||
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 | |
A Receiver may raise and borrow money either unsecured or on the security of any Security Asset either in priority to this Security or otherwise and generally on any terms and for whatever purpose which he thinks fit. | ||
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 | |
A Receiver may let any Security Asset for any term and at any rent (with or without a premium) which he thinks fit and may accept a surrender of any lease or tenancy of any Security Asset on any terms which he thinks fit (including the payment of money to a lessee or tenant on a surrender). |
16.8 | Compromise | |
A Receiver may settle, adjust, refer to arbitration, compromise and arrange any claim, account, dispute, question or demand with or by any person who is or claims to be a creditor of any Charger or relating in any way to any Security Asset. | ||
16.9 | Legal actions | |
A Receiver may bring, prosecute, enforce, defend and abandon any action, suit or proceedings in relation to any Security Asset which he thinks fit. | ||
16.10 | Receipts | |
A Receiver may give a valid receipt for any moneys and execute any assurance or thing which may be proper or desirable for realising any Security Asset. | ||
16.11 | Subsidiaries | |
A Receiver may form a Subsidiary of any Chargor and transfer to that Subsidiary any Security Asset. | ||
16.12 | Delegation | |
A Receiver may delegate his powers in accordance with this Deed. | ||
16.13 | Lending | |
A Receiver may lend money or advance credit to any customer of any Chargor. | ||
16.14 | Protection of assets | |
A Receiver may: |
(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, | ||
in each case as he thinks fit. |
16.15 | Other powers | |
A Receiver may: |
(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. |
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 and fees to which this Deed, the Transaction Security or any judgement given in connection with them, is or at any time may be subject. |
19. | DELEGATION | |
19.1 | Power of Attorney | |
The Collateral Agent or any Receiver may delegate by power of attorney or in any other manner to any person any right, power or discretion exercisable by it under this Deed. | ||
19.2 | Terms | |
Any such delegation may be made upon any terms (including power to sub-delegate) which the Collateral Agent or any Receiver may think fit. | ||
19.3 | Liability | |
Neither the Collateral Agent nor any Receiver will be in any way liable or responsible to any Chargor for any loss or liability arising from any act, default, omission or misconduct on the part of any Delegate. | ||
20. | FURTHER ASSURANCES | |
Each Chargor must, at its own expense, take whatever action the Collateral Agent or a Receiver may, acting reasonably, require for: |
(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 interest in favour of the Collateral Agent over any Security Asset to which it holds the legal title as trustee, nominee or agent); | ||
(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 Ireland. |
(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, |
which, in any such case, the Collateral Agent may think expedient. | ||
21. | POWER OF ATTORNEY | |
Each Chargor, by way of security, irrevocably and severally appoints the Collateral Agent and each Receiver to be its attorney to take any action which that Chargor is obliged to take under this Deed. Each Chargor ratifies and confirms whatever any attorney does or purports to do under its appointment under this Clause. | ||
22. | PRESERVATION OF SECURITY | |
22.1 | Continuing security | |
This Security is a continuing security and will extend to the ultimate balance of the Secured Obligations, regardless of any intermediate payment or discharge in whole or in part. | ||
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, examination 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. |
22.3 | Waiver of defences | |
The obligations of each Chargor under this Deed will not be affected by any act, omission or thing which, but for this provision, would reduce, release or prejudice any of its obligations under this Deed (whether or not known to it or any Secured Party). This includes: |
(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 | |
Each Chargor waives any right it may have of first requiring any Secured Party (or any trustee or agent on its behalf) to proceed against or enforce any other right or security or claim payment from any person or file any proof or claim in any insolvency, examination, winding-up or liquidation proceedings relative to any other Loan Party or any other person before claiming from that Chargor under this Deed. | ||
22.5 | Appropriations | |
Until all amounts which may be or become payable by the Loan Parties under the Loan Documents have been irrevocablypaid in full, each Secured Party (or any trustee or agent on its behalf) may without affecting the liability of any Chargor under this Deed: |
(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. |
22.6 | Non-competition | |
Unless: |
(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 | |
To the extent any Chargor is required hereunder to deliver any deed, certificate document of title or other document relating to the Security to the Collateral Agent for purposes of possession or control and is unable to do so as a result of having previously delivered such to the Revolving Credit Collateral Agent in accordance with the terms of the Revolving Credit Loan Documents, such Chargor’s obligations hereunder with respect to such delivery shall be deemed satisfied by the delivery to the Revolving Credit Collateral Agent. | ||
22.9 | Security held by Chargor | |
No Chargor may, without the prior consent of the Collateral Agent, hold any security from any other Loan Party in respect of that Chargor’s liability under this Deed. Each Chargor will hold any security held by it in breach of this provision on trust for the Collateral Agent. | ||
23. | MISCELLANEOUS | |
23.1 | Covenant to pay | |
Each Chargor must pay or discharge the Secured Obligations in the manner provided for in the Loan Documents. | ||
23.2 | Interest | |
If a Chargor fails to pay any sums on the due date for payment of that sum the Chargor shall pay interest on such sum (before and after any judgment and to the extent interest at a default rate is not otherwise being paid on that sum) from the date of demand until the date of payment calculated and compounded in accordance with the provisions of Section 2.06(c) of the Credit Agreement |
23.3 | Tacking | |
Each Lender must perform its obligations under the Credit Agreement (Including any obligation to make available further advances). | ||
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 | |
Without prejudice to any right of set-off any Secured Party may have under any Loan Document or otherwise, if any time deposit matures on any account a Chargor has with any Secured Party within the Security Period when: |
(a) | this Security has become enforceable; and | ||
(b) | no Secured Liability is due and payable, |
that time deposit will automatically be renewed for any further maturity which that Secured Party in its absolute discretion considers appropriate unless that Secured Party otherwise agrees in writing. | ||
23.6 | Notice of assignment | |
This Deed constitutes notice in writing to each Chargor of any charge or assignment of a debt owed by that Chargor to any other member of the Group and contained in any Loan Document. | ||
23.7 | Perpetuity period | |
The perpetuity period under the rule against perpetuities if applicable to the trust constituted by this Deed shall be the period of 21 years from the date of death of the last survivor of the issue now living of the late President of Ireland, Eamon de Valera and, subject thereto, if the Collateral Agent determines that all of the obligations of the Chargor under this Deed have been fully and unconditionally discharged, such trusts shall be wound up. | ||
24. | LOAN PARTIES |
(a) | All communications under this Deed to or from a Secured Party must be sent through the Collateral Agent or the Administrative Agent. | ||
(b) | Each Loan Party that is a Party to this Deed irrevocably appoints the Original Chargor 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) | The Original Chargor hereby accepts the appointment under Clause 24(b). | ||
(d) | Any communication given to the Original Chargor 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 the Original Chargor is made with the consent of each Loan Party that is party to this Deed. |
25. | RELEASE | |
At the end of the Security Period (or as required by the Loan Documents), the Collateral Agent must, at the request and cost of the Original Chargor, take whatever action is reasonably necessary to release the relevant Security Assets from this Security provided that to the extent that any Security Interest granted by any Chargor over the Term Loan Priority Collateral (as defined in the Intercreditor Agreement) is released under this clause, that Chargor shall take whatever action is required under the Revolving Credit Security Agreement, including serving any notice thereunder. | ||
26. | COUNTERPARTS | |
This Deed may be executed in any number of counterparts and all of those counterparts taken together shall be deemed to constitute one and the same instrument. | ||
27. | NOTICES | |
27.1 | Communications in Writing | |
Each communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, shall be made by fax or letter. | ||
27.2 | Addresses | |
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 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. | ||
27.3 | Delivery | |
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. |
27.4 | Notification of address and fax number | |
Promptly upon receipt of notification of an address and fax number or change of address or fax number pursuant to Clause 27.2(Addresses)or changing its own address or fax number, the Collateral Agent shall notify the other parties. | ||
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) | (i) in English; or | ||
(ii) | (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. | THE COLLATERAL AGENT AS TRUSTEE |
(a) | On the terms set out in the Credit Agreement and the Security Trust Deed, the Collateral Agent declares itself trustee of the security and other rights (Including but not limited to the benefit of the covenants contained herein), titles and interests constituted by this Assignment and of all monies, property and assets paid to the Collateral Agent or to its order or held by the Collateral Agent or its nominee or received or recovered by the Collateral Agent or its nominee pursuant to or in connection with this Assignment with effect from the date hereof to hold the same on trust for itself and each of the Secured Parties absolutely in accordance with their entitlements under the Loan Documents (save as may otherwise be agreed between the Collateral Agent and the other Secured Parties from time to time). | ||
(b) | All moneys received by the Collateral Agent shall be held by it upon trust for itself and the Secured Parties according to their respective interests to apply the same in accordance with Clause 10. | ||
(c) | The parties to this Assignment declare that the perpetuity period applicable to the trusts constituted by this Assignment shall be a period of 21 years after the death of the last survivor of the issue living on the date of this Assignment of the late President of Ireland, Eamon de Valera unless there has previously been legislation making it lawful for the trusts constituted by this Assignment to continue. | ||
(d) | The rights, powers and discretions conferred on the Collateral Agent by this Assignment shall be supplemental to the Trustee Act 1893 and in addition to any which may be vested in the Collateral Agent by the Loan Documents, general law or otherwise. |
29. | GOVERNING LAW | |
This Deed shall be governed by and construed in accordance with the laws of Ireland. |
30. | ENFORCEMENT | |
30.1 | Jurisdiction |
(a) | The Irish courts have exclusive jurisdiction to settle any dispute in connection with this Deed. | ||
(b) | The Irish courts are the most appropriate and convenient courts to settle any such dispute in connection with this Agreement. Each Chargor agrees not to argue to the contrary and waives objection to those courts 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. |
30.2 | Waiver of immunity |
(a) | Each Chargor Irrevocably and unconditionally: |
(i) | 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; | ||
(ii) | consents generally to the giving of any relief or the issue of any process in connection with those proceedings; and | ||
(iii) | waives all rights of immunity in respect of it or its assets. |
Name of | ||||||||
Name of | nominee (if any) | |||||||
Charged | by whom shares | Class of shares | Number of shares | |||||
Chargor | Company | are held | held | held | ||||
Novelis Aluminium Holding Company | Novelis Benelux SA/NV | N/A | 60,000 | |||||
Novelis Aluminium Holding Company | Novelis Deutschland GmbH | N/A | Ordinary | 1 of€100,350,000 1 of€11,150,000 |
Principal | Date of | Maturity | ||||||||
Noteholder | Obligor | Amount | Issuance | Date | ||||||
Novelis Aluminium Holding Company | Novelis Deutschland GmbH | $ | 172,255,970 | Jan. 6, 2005 | Jan. 62015 | |||||
Novelis Aluminium Holding Company | Novelis Deutschland GmbH | $ | 188,561,280 | Jan. 6, 2005 | Jan. 6 2015 |
Bank | Account number | Sort code | ||||
Commerzbank Berlin Germany | 209550300 | 100 400 00 |
(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 our account(s) to the credit of each Security Account. |
for and on behalf of | ||
Novelis Aluminium Holding Company/ | ||
[Chargor] |
(a) | accept the Instructions contained in any outstanding notice and agree to comply with the notice; | ||
(b) | have not received notice of the 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; | ||
(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. |
(Authorised signatory) [Account Bank] |
1. | the Security Agreement; | |
2. | the notice to you dated [•] from [Novelis Aluminium Holding Company] (the 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 Acknowledgment). |
(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 the 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 of the Chargor if those Security Accounts are included in group netting arrangements operated by you for the Chargor. |
(Authorised signatory) [Collateral Agent] | ||
Receipt acknowledged | ||
(Authorised signatory) [Account Bank] |
(a) | we will remain liable under [the] [each] Insurance to perform all the obligations we assumed 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 us under [the] [each] Insurance must be paid to the Collateral Agent; and | |
(b) | any of our rights in connection with those amounts will be exercisable by, and notices must be given to, the Collateral Agent or as it directs. |
[NOVELIS ALUMIMIUM HOLDING COMPANY] | ||
[authorised signatory] |
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. |
[Insurer] |
(a) | we 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. |
[NOVELIS ALUMINIUM HOLDING COMPANY] | ||
(Authorised Signatory) |
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. |
(Authorised signatory) | ||
[Counterparty] |
(1) | [•] (registered number [•]) with its registered office at [•] (theAdditional Chargor); | |
(2) | NOVELIS ALUMINIUM HOLDING COMPANYin its capacity as Original Chargor under the Security Agreement referred to below (theOriginal Chargor); and | |
(3) | UBS AG, Stamford Branch as agent and trustee for the Secured Parties under and as defined in the Security Agreement referred to below (theCollateral Agent). |
(A) | The Additional Chargor is a subsidiary of Novelis Inc. | |
(B) | The Original Chargor has entered into a security agreement dated [•], 200[•] with the Collateral Agent (theSecurity Agreement). | |
(C) | The Additional Chargor has agreed to enter into this Deed and to become a Chargor under the Security Agreement. | |
(D) | The Additional Chargor will also, by execution of 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 | |
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 as beneficial owner, as continuing security for the payment, performance and discharge of the Secured Obligations, hereby:- |
(a) | grants, conveys, transfers and demises, mortgages and charges to the Collateral Agent as trustee for the Secured PartiesALL THAT AND THOSEthe freehold and leasehold property of the Additional Chargor both present and |
future (including specifically, but not limited to, the lands, hereditaments and premises specified in Part 1 A of Schedule 1 to this Deed and all buildings and (to the extent the same are not otherwise subject to a fixed charge hereunder) all fixtures (including trade fixtures) from time to time on every such property and all fixed plant and machinery of the Additional Chargor both present and future therein or thereon to hold the same as to so much thereof as is of freehold tenure unto the Collateral Agent as trustee for the Secured Parties in fee simple and as to so much thereof as is of leasehold tenure unto the Collateral Agent as trustee for the Secured Parties for the residue of the respective terms of years for which the Additional Chargor now or, as applicable at the time of acquisition, then holds the same less the last three days of each such term, subject to the proviso for redemption herein contained PROVIDED that each Chargor hereby declares that it shall henceforth stand possessed of such of the said property as is of leasehold tenure for the last day or respective last days of the term or terms or years for which the same is held by it, and for any further or other interest which it now has or may hereafter acquire or become entitled to in the same or any part thereof by virtue of any Act or Acts of the Oireachtas or otherwise howsoever, in trust for the Collateral Agent as trustee for the Secured Parties and to be conveyed assigned or otherwise dealt with whether to the Collateral Agent as trustee for the Secured Parties or its nominee or otherwise as the Collateral Agent shall direct but subject to the same equity of redemption as may for the time being be subsisting in the said property, and PROVIDED FURTHER that each Chargor doth hereby irrevocably appoint the secretary (and any authorised signatory) for the time being of the Collateral Agent to be its attorney, in its name and on its behalf, and as its act and deed to sign seal and deliver and otherwise perfect every or any Deed of Conveyance of the leasehold reversion which may be desired by the Collateral Agent in order to vest in the Collateral Agent as trustee for the Secured Parties or in any person or persons in trust as agent for the Collateral Agent, subject as aforesaid, or in any purchaser of the said property or any part thereof, the said leasehold reversion and any further or other interest which the Additional Chargor now has or may hereafter acquire or become entitled to in the said leasehold premises or any part thereof by virtue of any Act or Acts of the Oireachtas or otherwise howsoever; | |||
(b) | as registered owner or, as the case may be, person entitled to be registered as owner, charges to the Collateral Agent as trustee for the Secured Parties ALL THAT AND THOSE the freehold and leasehold lands, hereditaments, premises and property of the Additional Chargor registered under the Registration of Title Act, 1964 both present and future (including, specifically, but not limited to, the lands, hereditaments and premises specified in Part 1 B of Schedule 1 to this Deed) together with all buildings and (to the extent the same are not otherwise subject to a fixed charge hereunder) all fixtures (including trade fixtures) from time to time on every such property and all fixed plant and machinery both present and future therein with the payment performance and discharge of the Secured Obligations; | ||
(c) | charges to the Collateral Agent as trustee for the Secured Parties all its other estate, right, title or interests in any land or buildings now belonging to the Additional Chargor (including, specifically, but not limited to, the lands, hereditaments and premises specified in Schedule I to this Deed) (whether or not the legal estate is vested in the Additional Chargor or registered in the name of the Additional Chargor), and all future estate, right, title or interests of the Additional Chargor in such lands, hereditaments and premises and in any other freehold or leasehold property (whether or not registered) vested in or held by or on behalf of such Chargor from time to time and/or the proceeds of sale thereof together in all cases (to the extent the same are not otherwise subject to a fixed charge hereunder) all fixtures (including trade fixtures) and all fixed plant and machinery from time to time therein with the payment performance and discharge of the Secured Obligations; |
(d) | charges by way of a first legal mortgage all shares owned by it and specified in Part 2 of the schedule to this Deed; | ||
(e) | charges by way of a first fixed charge all plant, machinery, computers, office equipment or vehicles specified in Part 3 of the schedule to this Deed; | ||
(f) | 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; [and] | ||
(g) | charges by way of a first fixed charge all of its rights in respect of any Intellectual Property specified in Part 5 of the schedule to this Deed [; and | ||
(h) | [charges by way of a first 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 Aluminium Holding Company and each other Chargor agrees to all matters provided for in this Deed. |
5. | Law | |
This Deed is governed by Irish law. | ||
This Deed has been executed and delivered as a deed on the date stated at the beginning of this Deed |
PART | 1 | |
REAL PROPERTY | ||
Part A | ||
Unregistered Land | ||
Part B | ||
Registered Land | ||
PART | 2 | |
SHARES |
Name of | ||||||
company in | Name of nominee (if | |||||
which shares | any) by whom | Class of | Number of shares | |||
are held | shares are held | shares held | held | |||
[ ] | [ ] | [ ] | [ ] |
PART | 3 | |
SPECIFIC PLANT AND MACHINERY | ||
Description | ||
PART | 4 | |
SECURITY CONTRACTS | ||
A. Primary Contracts | ||
Description | ||
[e.g. Hedging Documents] | ||
[e.g. Acquisition Documents] | ||
[e.g. Intercompany Loan Agreements] | ||
B. Secondary Contracts | ||
PART | 5 | |
SPECIFIC INTELLECTUAL PROPERTY RIGHTS | ||
Description |
[PART | 6 | |
SECURITY ACCOUNTS | ||
Account number Sort code] |
The Common Seal of [ ] | ) | Director | ||||||
was hereunto affixed | ) | |||||||
in the presence of | ) | Director/Secretary | ||||||
THE ORIGINAL CHARGOR | ||||||||
The Common Seal of | Director | |||||||
Novelis Aluminium Holding Company | ||||||||
was hereunto affixed | ) | |||||||
in the presence of | ) | Director/Secretary | ||||||
THE COLLATERAL AGENT | ||||||||
Signed by: | ||||||||
for and on behalf of | Authorised Signatory | |||||||
UBS AG, Stamford Branch |
(1) | enter upon, take possession of, collect and get in all or any of the Security Assets, exercise in respect of any shares or securities all voting or other powers or rights available to a registered holder thereof in such manner as he may think fit and bring, defend or discontinue any proceedings (including, without limitation, proceedings for the winding up of any Chargor) or submit to arbitration in the name of any Chargor or otherwise as may seem expedient to him; | |
(2) | carry on, manage, develop, reconstruct, amalgamate or diversify the business of any Chargor or any part thereof or concur in so doing, lease or otherwise acquire and develop or improve properties or other assets without being responsible for loss or damage; | |
(3) | raise or borrow any money (including money for the completion with or without modification of any building in the course of construction and any development or project in which any Chargor was engaged) from or incur any other liability to the Collateral Agent or others on such terms with or without security as he may think fit and so that any such security may be or include a charge on the whole or any part of the Security Assets ranking in priority to the security constituted by the Security Agreement or otherwise; | |
(4) | sell by public auction or private contract, let, surrender or accept surrenders, grant licences or otherwise dispose of or deal with all or any of the Security Assets or concur In so doing in such manner for such consideration and generally on such terms and conditions as he may think fit (including, without limitation, conditions excluding or restricting the personal liability of the Receiver or the Collateral Agent) with full power to convey, let, surrender, accept surrenders or otherwise transfer or deal with such Security Assets in the name and on behalf of any Chargor or otherwise and so that the covenants and contractual obligations may be granted and assumed in the name of and so as to bind such Chargor if the Receiver shall consider it necessary or expedient so to do; any such sale, lease or disposition may be for cash, debentures or other obligations, shares, stock, securities or other valuable consideration and be payable immediately or by instalments spread over such period as he shall think fit and so that any consideration received or receivable shall ipso facto forthwith be and become charged with the payment of all Secured Obligations; plant, machinery and fixtures may be severed and sold separately from the premises containing them and the Receiver may apportion any rent and the performance of any obligations affecting the premises sold without the consent of any Chargor; | |
(5) | promote, procure the formation or otherwise acquire the share capital of any body corporate with a view to such body corporate purchasing, leasing, licensing or otherwise acquiring interests in all or any of the Security Assets or otherwise, arrange for companies to trade or cease to trade and to purchase, lease, licence or otherwise acquire all or any of the Security Assets on such terms and conditions whether or not including payment by instalments secured or unsecured as he may think fit; | |
(6) | make any arrangement or compromise or enter into or cancel any contracts which he shall think expedient; | |
(7) | make and effect such repairs, renewals and improvements to the Security Assets or any part thereof as he may think fit and maintain, renew, take out or increase insurances including, without limitation, indemnity insurance; | |
(8) | appoint managers, agents, officers, and employees for any of such purposes or to guard or protect the Security Assets at such salaries and commissions and for such periods and on such terms as he may determine and dismiss the same; |
(9) | make or require the directors of any Chargor to make calls, conditionally or unconditionally, on the members of such Chargor in respect of uncalled capital and enforce payment of any call so made by action (In the name of such Chargor or the Receiver as may be thought fit) or otherwise; | |
(10) | without any consent by or notice to any Chargor, exercise on behalf of any Chargor all the powers and provisions conferred on a landlord or a tenant by any legislation from time to time in force relating to rents or otherwise in respect of any part of the Security Assets but without any obligation to exercise any of such powers and without any liability in respect of powers so exercised or omitted to be exercised; | |
(11) | without any consent or notice by or to any Chargor, exercise for and on behalf of any Chargor and in the name of any Chargor all powers and rights of any Chargor relevant to and necessary to effect the registration in the Land Registry of the crystallisation of the floating charge created by this Security Agreement and/or the appointment of a Receiver hereunder; | |
(12) | settle, arrange, compromise and submit to arbitration any accounts, claims, questions or disputes whatsoever which may arise in connection with the business of any Chargor or the Security Assets or any part thereof or in any way relating to the security constituted by this Security Agreement, bring, take, defend, compromise, submit to and discontinue any actions, suits, arbitrations or proceedings whatsoever whether civil or criminal in relation to the matters aforesaid, enter into, complete, disclaim, abandon or disregard, determine or rectify all or any of the outstanding contracts or arrangements of any Chargor in any way relating to or affecting the Security Assets or any part thereof and allow time for payment of any debts either with or without security as he shall think expedient; | |
(13) | redeem any prior encumbrance and settle and agree the accounts of the encumbrancer; any accounts so settled and agreed shall (subject to any manifest error) be conclusive and binding on any Chargor and the money so paid shall be deemed an expense properly incurred by the Receiver; | |
(14) | generally, at the option of the Receiver, use the name of any Chargor in the exercise of all or any of the powers hereby conferred; | |
(15) | transfer all or any part of the Security Assets to any other company or body corporate, whether or not formed or acquired for the purpose; | |
(16) | sell any intellectual property hereby mortgaged or charged or assigned in consideration of a royalty or other periodical payment; | |
(17) | exercise, or permit any Chargor or any nominees of any Chargor to exercise, any powers or rights incidental to the ownership of the Security Assets or any part thereof in such manner as he may think fit; | |
(18) | sign any document, execute any deed and do all such other acts and things as may be considered by the Receiver to be incidental or conducive to any of the matters or powers conferred on him by Security Agreement or to the realisation of the Collateral Agent’s security and use the name of any Chargor for all the above purposes. |
THE ORIGINAL CHARGOR | ||||||||
The Common Seal of | Director | |||||||
Novelis Aluminium Holding Company | ||||||||
was hereunto affixed | ) | |||||||
in the presence of | ) | Director/Secretary | ||||||
THE COLLATERAL AGENT | ||||||||
Signed by: | ||||||||
for and on behalf of | /s/ Mary. E. Evans | Associate Director | ||||||
UBS AG, STAMFORD BRANCH | ||||||||
Signed by: | ||||||||
for and on behalf of | /s/ Irja R. Otsa | Associate Director | ||||||
UBS AG, STAMFORD BRANCH |
BRAZILIAN SECURITY AGREEMENT
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(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 |
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Pledge Agreement entered into by and between LASALLE Business Credit, LLC, 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; | |
(vi) | Pledgor has full knowledge of all terms and conditions of the Term Loan 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
677 Washington Blvd.
Stamford, CT 068901
Tel: 203-719-5609
Fax: 203-719-3888
Marie.Haddad@ubs.com
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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 | Calxa | 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 | Unlbanco 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 Coelho Nardocci Presidente | |||
Name: | Alexandre M. Almeida | |||
Title: Diretor Financelro e de Serviços Corporativos | ||||
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Novelis do Brasil Ltda. | ||||
Name: NOVELIS DO BRASIL | ||||
Title: | Antonio Tadeu Coelho Nardocci Presidente | |||
Name: | Alexandre M. Almeida | |||
Title: Diretor Financelro e de Serviços Corporativos | ||||
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(a) | to Pledgor: |
Avenida das Nações Unidas, 12.551 – 15th floor
Torre Empresarial World Trade Center
Sao Paulo S.P. Brasil
04578-000
Telefax: 55 11 5503-0714
Attention: Alexandre Moreira Martins de Almeida
(b) | to the Collateral Agent: |
677 Washington Blvd.
Stamford, CT 068901
Tel: 203-719-5609
Fax: 203-719-3888
Marie.Haddad@ubs.com
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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: Avenlda 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 | |
l) | 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/No, 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 Acesso á 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 — Acuruí Depóslto 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 Coeino Nardocci Presidente | 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) | UBS AG, STAMFORD BRANCH,a financial institution, having its office at 677 Washington Boulevard, Stamford, Connecticut, 06901, in its capacity as Collateral Agent under the Term Loan Credit Agreement, hereby represented by its [attorney-in-fact/legal representative] (hereinafter referred to as the “UBS AG” or “Collateral Agent”); and |
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Name: | NOVELIS DO BRASIL | Name: | Alexandre M. Almeida | |||||||
Title: | Antonio Tadeu Coeino Nardooci Presidente | Title: | Diretor Financeiro e de Serviços Corporativos |
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Title: | Title: | |||
Witnesses: | ||||
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 | ||
fax416.865.7380 | ||
www.torys.com July 6, 2007 |
on its own behalf and as Administrative Agent and Collateral Agent
677 Washington Boulevard
Stamford, Connecticut 06901
Each of the Lenders party to the
Credit Agreement
(as defined below)
(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 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 |
(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 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 Administrative Agent 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); | ||
(1) | 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. |
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 Revolving Credit Agreement and (d) will not violate, result in a default under, or require or result in the granting of Liens 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. | ||
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 or 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. |
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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 with 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). | ||
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 (or to its agent (other than any Loan Party or its agent)) 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 terms of 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. |
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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 Cand 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. | ||
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. | No tax is payable under Part XIII of theIncome Tax Act(Canada) (the “Tax Act”), or any similar law of the Province of Ontario (and the Canadian Borrower is not required to withhold or collect any such tax) on any amount that the Canadian Borrower pays or credits under any Canadian Term Loan advanced on the date hereof as on account or in lieu of, payment, or in satisfaction of interest (including commitment fees relating thereto) or principal to Lenders in respect of any Canadian Term Loan advanced on the date hereof who, for the purposes of the Tax Act are neither resident nor deemed to be resident in Canada (such Lenders “Non-Resident Lenders”) provided that at the time of any such payment or credit, the Canadian Borrower and each Canadian Guarantor deals at arm’s length with the Non- Resident Lenders for the purpose of the Tax Act. This opinion does not extend to interest payable by reason of failure to pay amounts when due (other than, for greater certainty, interest on overdue interest on the Term Loans). |
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28. | 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. | ||
29. | 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. | ||
30. | 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). | ||
31. | 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. | ||
32. | 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. |
33. | 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; |
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however, an Ontario court will not apply any laws of the State of New York which are contrary to Ontario public policy. | |||
34. | 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. | ||
35. | 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 |
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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 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 |
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(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 | ||
(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 |
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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 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 |
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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) | Our opinion in paragraph 27 above is based on the provisions of the Tax Act and theCorporations Tax Act(Ontario) and the regulations thereto, each as at the date hereof. Our opinion also takes into account proposed amendments to any of the foregoing which have been publicly announced prior to the date hereof. Our opinion is also based on relevant jurisprudence, as well as our understanding of the current published administrative policies and assessing practices of the Canada Revenue Agency (“CRA”) in particular as they relate to “change of control”, “asset sales”, and “casualty”. In addition, the CRA has not issued an advance tax ruling in connection with the Documents. Neither the CRA nor the courts are bound by our opinions expressed herein. | ||
(aa) | 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. |
- 15 -
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. 1 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; and | ||
(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 UBS AG, Stamford Branch, in its capacity as Term Loan Administrative Agent and Term Loan Collateral Agent, LaSalle Business Credit LLC in its capacity as collateral agent under the Revolving Credit Agreement and the Loan Parties (the “Intercreditor Agreement”) |
(b) | a Contribution, Intercompany, Contracting and Offset Agreement made between the Loan Parties; |
- 2 -
(c) | a Subordination Agreement made between the Loan Parties; |
(d) | a Security Agreement made by the Canadian Borrower and 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 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 LaSalle Business Credit LLC in its capacity as collateral agent under the Revolving Credit 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. |
(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); and |
- 3 -
(e) | a First 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. | 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. —see attached 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. | UBS AG, STAMFORD | 636803406 | 9 YEARS | INVENTORY, | N/A | |||||||
3399 PEACHTREE ROAD, | BRANCH | 20070628145715301276 | EQUIPMENT, | |||||||||||
NE, SUITE 1500 | 677 WASHINGTON | (JUNE 28, 2007) | ACCOUNTS, | |||||||||||
ATLANTA, GEORGIA | BOULEVARD | OTHER, | ||||||||||||
30326 | STAMFORD, | MOTOR | ||||||||||||
CONNECTICUT | VEHICLE | |||||||||||||
068901 | INCLUDED | |||||||||||||
2 | 3 | NOVELIS INC. | LASALLE BUSINESS | 636803469 | 7 YEARS | INVENTORY, | N/A | |||||||
3399 PEACHTREE ROAD, | CREDIT, LLC | 20070628145715301282 | EQUIPMENT, | |||||||||||
NE, SUITE 1500 | 135 SOUTH LASALLE | (JUNE 28, 2007) | ACCOUNTS, | |||||||||||
ATLANTA, GEORGIA | STREET, SUITE 425 | OTHER, | ||||||||||||
30326 | CHICAGO, ILLINOIS | MOTOR | ||||||||||||
60603 | VEHICLE | |||||||||||||
INCLUDED | ||||||||||||||
3 | 4-6 | NOVELIS NO. 1 LIMITED | CITICORP NORTH | 635400351 | 10 YEARS | INVENTORY, | N/A | |||||||
PARTNERSHIP SOCIETE | AMERICA, INC. | 20070517092718626018 | EQUIPMENT, | |||||||||||
EN COMMANDITE | 388 GREENWICH STREET | (MAY 17, 2007) | ACCOUNTS, | |||||||||||
NOVELIS NO. 1 | 19TH FLOOR | OTHER | ||||||||||||
2040 FAY STREET | NEW YORK, NEW YORK | MOTOR | ||||||||||||
JONQUIERE, QUEBEC | 10013 | VEHICLE | ||||||||||||
G7S 4K6 | INCLUDED |
- 5 -
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 | ||||||||||||||
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. | IBM CANADA LIMITED - | 629071218 | 4 YEARS | EQUIPMENT, | ALL PRESENT AND AFTER | |||||||
191 EVANS AVENUE | PPSA ADMINISTRATOR | 20060920145815303604 | ACCOUNTS, | ACQUIRED GOODS SUPPLIED, | ||||||||||
TORONTO, ONTARIO | 3600 STEELES AVENUE | (SEPTEMBER 20, 2006) | OTHER | LEASED OR FINANCED BY THE | ||||||||||
M8Z 1J5 | EAST F4 | SECURED PARTY, INCLUDING | ||||||||||||
MARKHAM, ONTARIO | BUT NOT LIMITED TO, ALL | |||||||||||||
L3R 9Z7 | 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. | TENNANT FINANCIAL | 628296453 | 6 YEARS | EQUIPMENT, | N/A | |||||||
1 LAPPAN’S LANE | SERVICES | 20060824112340431762 | OTHER | |||||||||||
KINGSTON, ONTARIO | 2300 MEADOWVALE | (AUGUST 24, 2006) | ||||||||||||
K7L 4Z5 | BLVD., SUITE 200 | |||||||||||||
MISSISSAUGA, ONTARIO | ||||||||||||||
L5N 5P9 |
- 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. | WAJAX FINANCE LTD. | 626197239 | 4 YEARS | EQUIPMENT, | N/A | |||||||
191 EVANS AVENUE | 5035 SOUTH SERVICE | 20060615144116165004 | MOTOR | |||||||||||
TORONTO, ONTARIO | ROAD | (JUNE 15, 2006) | VEHICLE | |||||||||||
M8Z 1J5 | BURLINGTON, ONTARIO | INCLUDED | ||||||||||||
L7R 4C8 | AMENDMENT | TO ADD A MOTOR VEHICLE | ||||||||||||
20060621144216165271 | DESCRIPTION TO LINE 11 OF | |||||||||||||
(JUNE 21, 2006) | REGISTRATION NUMBER | |||||||||||||
20060615144116165004 | ||||||||||||||
YEAR: 1999 | ||||||||||||||
MAKE: HYSTER | ||||||||||||||
MODEL: S120XL | ||||||||||||||
V.I.N.: D004D07798W | ||||||||||||||
7 | 12-13 | NOVELIS INC. | CHRYSLER FINANCIAL | 625510323 | 3 YEARS | EQUIPMENT, | AMOUNT SECURED: $31,907 | |||||||
1 LAPPANS LANE | 2425 MATHESON BLVD. | 20060525195215311506 | OTHER, | YEAR: 2006 | ||||||||||
KINGSTON, ONTARIO | EAST, 3RD FLOOR | (MAY 25, 2006) | MOTOR | MAKE: JEEP | ||||||||||
K7L 4Z5 | MISSISSAUGA, ONTARIO | VEHICLE | MODEL: LIBERTY | |||||||||||
L4W 5N7 | INCLUDED | V.I.N.: 1J4GL48K96W249108 | ||||||||||||
DAIMLERCHRYSLER | ||||||||||||||
FINANCIAL SERVICES | ||||||||||||||
CANADA INC. | ||||||||||||||
2425 MATHESON BLVD. | ||||||||||||||
EAST, 3RD FLOOR | ||||||||||||||
MISSISSAUGA, ONTARIO | ||||||||||||||
L4W 5N7 | ||||||||||||||
8 | 14 | NOVELIS INC. | XEROX CANADA LTD. | 624261483 | 4 YEARS | EQUIPMENT, | N/A | |||||||
1 LAPPANS LANE | 33 BLOOR STREET EAST | 20060413100114626638 | OTHER | |||||||||||
KINGSTON, ONTARIO | 3RD FLOOR | (APRIL 13, 2006) | ||||||||||||
K7L 4Z5 | TORONTO, ONTARIO | |||||||||||||
M4W 3H1 |
- 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. | DE LAGE LANDEN | 621564039 | 5 YEARS | EQUIPMENT, | ALL GOODS SUPPLIED BY THE | |||||||
945 PRINCESS STREET | FINANCIAL SERVICES | 20051223132870298463 | OTHER | SECURED PARTY PURSUANT TO | ||||||||||
KINGSTON, ONTARIO | CANADA INC. | (DECEMBER 23, 2005) | A LEASE BETWEEN THE DEBTOR | |||||||||||
K7L 5L9 | 100-1235 NORTH SERVICE | AND THE SECURED PARTY, | ||||||||||||
ROAD WEST | TOGETHER WITH ALL PARTS | |||||||||||||
OAKVILLE, ONTARIO | AND ACCESSORIES THERETO | |||||||||||||
L6M 2W2 | 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. | GE VEHICLE AND | 621062946 | 5 YEARS | INVENTORY, | ALL PRESENT AND AFTER | |||||||
3800 - 200 BAY STREET | EQUIPMENT LEASING | 20051206111412542199 | EQUIPMENT, | ACQUIRED MOTOR VEHICLES, | ||||||||||
TORONTO, ONTARIO | 5255 SOLAR DRIVE | (DECEMBER 6, 2005) | ACCOUNTS, | TRAILERS, AND GOODS OF | ||||||||||
M5J 2Z4 | MISSISSAUGA, ONTARIO | OTHER, | WHATEVER MAKE OR | |||||||||||
L4W 5H6 | MOTOR | DESCRIPTION, NOW OR | ||||||||||||
VEHICLE | HEREAFTER LEASED BY THE | |||||||||||||
INCLUDED | 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 | CHRYSLER FINANCIAL | 618566337 | 3 YEARS | EQUIPMENT, | AMOUNT SECURED: $27,103 | |||||||
DATE OF BIRTH: | 2425 MATHESON BLVD E. | 20050902194815315044 | OTHER, | NO FIXED MATURITY DATE | ||||||||||
OCTOBER 16, 1972 | 3RD FL | (SEPTEMBER 2, 2005) | MOTOR | |||||||||||
926 EDINBOROUGH CR | MISSISSAUGA, ONTARIO | VEHICLE | ||||||||||||
KINGSTON, ONTARIO | L4W 5N7 | INCLUDED | ||||||||||||
K7P 2C5 | ||||||||||||||
DAIMLERCHRYSLER | ||||||||||||||
SERVICES CANADA INC. | ||||||||||||||
2425 MATHESON BLVD E. | ||||||||||||||
3RD FL | ||||||||||||||
MISSISSAUGA, ONTARIO | ||||||||||||||
L4W 5N7 | ||||||||||||||
NOVELIS INC. | AMENDMENT | REMOVE DEBTOR FROM THE | ||||||||||||
1 LAPPANS LANE | 20070323145415309402 | REGISTRATION | ||||||||||||
KINGSTON, ONTARIO | (MARCH 23, 2007) | |||||||||||||
K7L 4Z5 | ||||||||||||||
12 | 23 | NOVELIS INC. 1188 | CITICORP NORTH | 611605296 | 10 YEARS | INVENTORY, | N/A | |||||||
SHERBROOKE | AMERICA, INC., AS | 20041223153018620300 | EQUIPMENT, | |||||||||||
STREET WEST | ADMINISTRATIVE AGENT | (DECEMBER 23, 2004) | ACCOUNTS, | |||||||||||
MONTREAL, QUEBEC | 390 GREENWICH STREET | OTHER, | ||||||||||||
H3A 3G2 | NEW YORK, NY 10013 | MOTOR | ||||||||||||
VEHICLE | ||||||||||||||
INCLUDED |
- 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. | XEROX CANADA LTD. | 895711734 | 3 YEARS | EQUIPMENT, | N/A | |||||||
1 LAPPANS LANE | 5650 YONGE STREET | 20030624113517152013 | OTHER | |||||||||||
KINGSTON, ONTARIO | NORTH YORK, ONTARIO | (JUNE 24, 2003) | ||||||||||||
K7K 6Y8 | M2M 4G7 | |||||||||||||
AMENDMENT | TO AMEND DEBTOR’S NAME | |||||||||||||
20050324171114620028 | FROM ALCAN INC. TO NOVELIS | |||||||||||||
(MARCH 24, 2005) | INC. | |||||||||||||
RENEWAL | ||||||||||||||
20050324171114620029 | RENEWED FOR A PERIOD OF 2 | |||||||||||||
(MARCH 24, 2005) | 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 | UBS AG, STAMFORD BRANCH | 636803415 20070628145715301277 | 9 YEARS | INVENTORY, EQUIPMENT, | N/A | |||||||
TORONTO, ONTARIO | 677 WASHINGTON | (JUNE 28, 2007) | ACCOUNTS, | |||||||||||
M8Z 1J5 | BOULEVARD | OTHER, | ||||||||||||
STAMFORD, | MOTOR | |||||||||||||
CONNECTICUT | VEHICLE | |||||||||||||
068901 | INCLUDED | |||||||||||||
2 | 3-5 | NOVELIS NO. 1 LIMITED | UBS AG, STAMFORD | 636803442 | 9 YEARS | INVENTORY, | N/A | |||||||
PARTNERSHIP | BRANCH | 20070628145715301280 | EQUIPMENT, | |||||||||||
2040 FAY STREET | 677 WASHINGTON | (JUNE 28, 2007) | ACCOUNTS, | |||||||||||
JONQUIERE, QUEBEC | BOULEVARD | OTHER, | ||||||||||||
G7S 4K6 | STAMFORD, | MOTOR | ||||||||||||
CONNECTICUT | VEHICLE | |||||||||||||
SOCIETE EN | 068901 | INCLUDED | ||||||||||||
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 |
- 13 -
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 | ||||||||||||||
JONQU1ERE, QUEBEC | ||||||||||||||
G7S 4K6 | ||||||||||||||
4260848 CANADA INC. | ||||||||||||||
191 EVANS AVENUE | ||||||||||||||
TORONTO, ONTARIO | ||||||||||||||
M8Z 1J5 | ||||||||||||||
3 | 6 | 4260848 CANADA INC. | LASALLE BUSINESS | 636803478 | 7 YEARS | INVENTORY, | N/A | |||||||
191 EVANS AVENUE | CREDIT, LLC | 20070628145715301283 | EQUIPMENT, | |||||||||||
TORONTO, ONTARIO | 135 SOUTH LASALLE | (JUNE 28, 2007) | ACCOUNTS, | |||||||||||
M8Z 1J5 | STREET, SUITE 425 | OTHER, | ||||||||||||
CHICAGO, ILLINOIS | MOTOR | |||||||||||||
60603 | VEHICLE | |||||||||||||
INCLUDED | ||||||||||||||
4 | 7-9 | NOVELIS NO. 1 LIMITED | LASALLE BUSINESS | 636803505 | 7 YEARS | INVENTORY, | N/A | |||||||
PARTNERSHIP | CREDIT, LLC | 20070628145715301286 | EQUIPMENT, | |||||||||||
2040 FAY STREET | 135 SOUTH LASALLE | (JUNE 28, 2007) | ACCOUNTS, | |||||||||||
JONQUIERE, QUEBEC | STREET, SUITE 425 | OTHER, | ||||||||||||
G7S 4K6 | CHICAGO, ILLINOIS | MOTOR | ||||||||||||
60603 | VEHICLE | |||||||||||||
INCLUDED | ||||||||||||||
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 |
- 14 -
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 | ||||||||||||||
JONQU1ERE, QUEBEC | ||||||||||||||
G7S 4K6 | ||||||||||||||
4260848 CANADA INC. | ||||||||||||||
191 EVANS AVENUE | ||||||||||||||
TORONTO, ONTARIO | ||||||||||||||
M8Z 1J5 | ||||||||||||||
5 | 10-12 | NOVELIS NO. 1 LIMITED | CITICORP NORTH | 635400351 | 10 YEARS | INVENTORY, | N/A | |||||||
PARTNERSHIP SOCIETE | AMERICA, INC. | 20070517092718626018 | EQUIPMENT, | |||||||||||
EN COMMANDITE | 388 GREENWICH STREET | (MAY 17, 2007) | ACCOUNTS, | |||||||||||
NOVELIS NO. 1 | 19TH FLOOR | OTHER | ||||||||||||
2040 FAY STREET | NEW YORK, NEW YORK | MOTOR | ||||||||||||
JONQUIERE, QUEBEC | 10013 | VEHICLE | ||||||||||||
G7S 4K6 | 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 |
- 15 -
Registration/ | ||||||||||||||
File No. and | Renewal | |||||||||||||
Page | Registration/ | Period | Collateral | |||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||
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. | CITICORP NORTH | 611605332 | 10 YEARS | INVENTORY, | N/A | |||||||
SUITE 3800, ROYAL | AMERICA, INC., AS | 20041223153218620301 | EQUIPMENT, | |||||||||||
BANK PLAZA, SOUTH | ADMINISTRATIVE AGENT | (DECEMBER 23, 2004) | ACCOUNTS, | |||||||||||
TOWER | 390 GREENWICH STREET | OTHER, | ||||||||||||
200 BAY STREET | NEW YORK, NY | MOTOR | ||||||||||||
P.O BOX 84 | 10013 | VEHICLE | ||||||||||||
TORONTO, ONTARIO | INCLUDED | |||||||||||||
M5J 2Z4 |
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. | UBS AG, STAMFORD | 636803424 | 9 YEARS | INVENTORY, | N/A | |||||||
191 EVANS AVENUE | BRANCH | 20070628145715301278 | EQUIPMENT, | |||||||||||
TORONTO, ONTARIO | 677 WASHINGTON | (JUNE 28, 2007) | ACCOUNTS, | |||||||||||
M8Z 1J5 | BOULEVARD | OTHER, | ||||||||||||
STAMFORD, | MOTOR | |||||||||||||
CONNECTICUT. | VEHICLE | |||||||||||||
068901 | INCLUDED | |||||||||||||
2 | 3 | 4260856 CANADA INC. | LASALLE BUSINESS | 636803487 | 7 YEARS | INVENTORY, | N/A | |||||||
191 EVANS AVENUE | CREDIT, LLC | 20070628145715301284 | EQUIPMENT, | |||||||||||
TORONTO, ONTARIO | 135 SOUTH LASALLE | (JUNE 28, 2007) | ACCOUNTS, | |||||||||||
M8Z 1J5 | STREET, SUITE 425 | OTHER, | ||||||||||||
CHICAGO, ILLINOIS | MOTOR | |||||||||||||
60603 | VEHICLE | |||||||||||||
INCLUDED | ||||||||||||||
3 | 4-5 | 4260856 CANADA INC. | CITICORP NORTH | 611605377 | 10 YEARS | INVENTORY, | N/A | |||||||
SUITE 3800, ROYAL | AMERICA, INC., AS | 20041223153418620302 | EQUIPMENT, | |||||||||||
BANK PLAZA, SOUTH | ADMINISTRATIVE AGENT | (DECEMBER 23, 2004) | ACCOUNTS, | |||||||||||
TOWER | 390 GREENWICH STREET | OTHER, | ||||||||||||
200 BAY STREET | NEW YORK, NY | MOTOR | ||||||||||||
P.O BOX 84 | 10013 | VEHICLE | ||||||||||||
TORONTO, ONTARIO | INCLUDED | |||||||||||||
M5J 2Z4 |
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 | UBS AG, STAMFORD | 636803433 | 9 YEARS | INVENTORY, | N/A | |||||||
TECHNOLOGY LTD. | BRANCH | 20070628145715301279 | EQUIPMENT, | |||||||||||
191 EVANS AVENUE | 677 WASHINGTON | (JUNE 28, 2007) | ACCOUNTS, | |||||||||||
TORONTO, ONTARIO | BOULEVARD | OTHER, | ||||||||||||
M8Z 1J5 | STAMFORD, | MOTOR | ||||||||||||
CONNECTICUT | VEHICLE | |||||||||||||
068901 | INCLUDED | |||||||||||||
2 | 3 | NOVELIS CAST HOUSE | LASALLE BUSINESS | 636803496 | 7 YEARS | INVENTORY, | N/A | |||||||
TECHNOLOGY LTD. | CREDIT, LLC | 20070628145715301285 | EQUIPMENT, | |||||||||||
191 EVANS AVENUE | 135 SOUTH LASALLE | (JUNE 28, 2007) | ACCOUNTS, | |||||||||||
TORONTO, ONTARIO | STREET, SUITE 425 | OTHER, | ||||||||||||
M8Z 1J5 | CHICAGO, ILLINOIS | MOTOR | ||||||||||||
60603 | VEHICLE | |||||||||||||
INCLUDED | ||||||||||||||
3 | 4-5 | NOVELIS CAST HOUSE | CITICORP NORTH | 611605386 | 10 YEARS | INVENTORY, | N/A | |||||||
TECHNOLOGY LTD. | AMERICA, INC., AS | 20041223153618620303 | EQUIPMENT, | |||||||||||
6711 MISSISSAUGA | ADMINISTRATIVE AGENT | (DECEMBER 23, 2004) | ACCOUNTS, | |||||||||||
ROAD, SUITE 708 | 390 GREENWICH STREET | OTHER, | ||||||||||||
MISSISSAUGA, ONTARIO L5N 2W3 | NEW YORK, NY 10013 | AMENDMENT 20050107142518620896 (JANUARY 7, 2005) | MOTOR VEHICLE INCLUDED | 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 | UBS AG, STAMFORD | 636803442 | 9 YEARS | INVENTORY, | N/A | ||||||||
PARTNERSHIP | BRANCH | 20070628145715301280 | EQUIPMENT, | ||||||||||||
2040 FAY STREET | 677 WASHINGTON | (JUNE 28, 2007) | ACCOUNTS, | ||||||||||||
JONQUIERE, QUEBEC | BOULEVARD | OTHER, | |||||||||||||
G7S 4K6 | STAMFORD, | MOTOR | |||||||||||||
CONNECTICUT | VEHICLE | ||||||||||||||
SOCIETE EN | 068901 | INCLUDED | |||||||||||||
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 | |||||||||||||||
JONQUIERE, QUEBEC | |||||||||||||||
G7S 4K6 |
- 19 -
Registration/ | ||||||||||||||
File No. and | Renewal | |||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||
4260848 CANADA INC. | ||||||||||||||
191 EVANS AVENUE | ||||||||||||||
TORONTO, ONTARIO | ||||||||||||||
M8Z LJ5 | ||||||||||||||
2 | 5-7 | NOVELIS NO. 1 | LASALLE BUSINESS | 636803505 | 7 YEARS | INVENTORY, | N/A | |||||||
LIMITED PARTNERSHIP | CREDIT, LLC | 20070628145715301286 | EQUIPMENT, | |||||||||||
2040 FAY STREET | 135 SOUTH LASALLE | (JUNE 28, 2007) | ACCOUNTS, | |||||||||||
JONQUIERE, QUEBEC | STREET, SUITE 425 | OTHER, | ||||||||||||
G7S 4K6 | CHICAGO, ILLINOIS | MOTOR | ||||||||||||
60603 | VEHICLE | |||||||||||||
SOCIETE EN | INCLUDED | |||||||||||||
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 |
- 20 -
Registration/ | ||||||||||||||
File No. and | Renewal | |||||||||||||
Page | Registration No./ | Period | Collateral | |||||||||||
No. | No. | Debtor(s) | Secured Party(ies) | Date of Registration | (years) | Classification | Comments | |||||||
3 | 8-10 | NOVELIS NO. 1 LIMITED | CITICORP NORTH | 635400351 | 10 YEARS | INVENTORY, | N/A | |||||||
PARTNERSHIP SOCIETE | AMERICA, INC. | 20070517092718626018 | EQUIPMENT, | |||||||||||
EN COMMANDITE | 388 GREENWICH STREET | (MAY 17, 2007) | ACCOUNTS, OTHER, | |||||||||||
NOVELIS NO. 1 | 19TH FLOOR | MOTOR VEHICLE | ||||||||||||
2040 FAY STREET | NEW YORK, NEW YORK | INCLUDED | ||||||||||||
JONQUIERE, QUEBEC | 10013 | |||||||||||||
G7S 4K6 | ||||||||||||||
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. | UBS AG, STAMFORD | 636803397 | 9 YEARS | INVENTORY, | N/A | |||||||
3399 PEACHTREE ROAD | BRANCH 677 | 20070628145715301275 | EQUIPMENT, | |||||||||||
NE, SUITE 1500 | WASHINGTON | (JUNE 28, 2007) | ACCOUNTS, OTHER, | |||||||||||
ATLANTA, GEORGIA | BOULEVARD STAMFORD, | MOTOR VEHICLE | ||||||||||||
30326 | CONNECTICUT 068901 | INCLUDED | ||||||||||||
2 | 3 | AV ALUMINUM INC. | LASALLE BUSINESS | 636803451 | 7 YEARS | INVENTORY, | N/A | |||||||
3399 PEACHTREE ROAD | CREDIT, LLC | 20070628145715301281 | EQUIPMENT, | |||||||||||
NE SUITE 1500 | 135 SOUTH LASALLE | (JUNE 28, 2007) | ACCOUNTS, OTHER, | |||||||||||
ATLANTA, GEORGIA | STREET, SUITE 425 | MOTOR VEHICLE | ||||||||||||
30326 | CHICAGO, ILLINOIS | INCLUDED | ||||||||||||
60603 |
(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 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 |
Secured Party: Citicorp North America, Inc.
Registration No.: 63648672
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 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 |
Secured Party: Citicorp North America, Inc.
Registration No.: 63648615
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 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 |
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 |
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 30 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
EXHIBIT O-1
NOVELIS CORPORATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS PAE CORPORATION | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS UK LTD | ||||
By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT O-2
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: | ||||
EXHIBIT O-3
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: | ||||
EXHIBIT O-4
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: | ||||
EXHIBIT O-5
NOVELIS TECHNOLOGY AG | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS ALUMINIUM HOLDING COMPANY | ||||
By: | ||||
Name: | ||||
Title: | ||||
NOVELIS DO BRASIL LTDA | ||||
By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT O-6
[Currency][Loan Amount] | Date: [Date] | |
1 | Insert for borrowers other than UK borrowers. | |
2 | Insert for UK borrowers. | |
3 | Delete for German [or Swiss] borrowers. | |
4 | Insert for French borrowers. | |
5 | Insert for French borrower if there are no charges other than interest (insert interest rate fromSection 2(a)above). | |
6 | Insert for Italian borrower. |
2
7 | Insert for Belgian borrower. | |
8 | Insert for Canadian borrower. |
3
9 | Insert for German borrower | |
10 | Insert for Belgian SA/NV or SCA/CVA borrower |
4
5
6
7
8
Borrower: [Intercompany Borrower] | ||||
By: | ||||
Name: | ||||
Title: | ||||
ACKNOWLEDGED AND AGREED TO AS OF THIS DAY OF , 20 : [Intercompany Lender] | ||||
By: | ||||
Name: | ||||
Title: | ||||
TERM LOAN COLLATERAL AGENT APPOINTMENT LETTER
EXHIBIT Q-1
Term Loan Collateral Agent Appointment Letter
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Christopher Gomes
Re: | Novelis Hedging Agreements |
[DATE]
Page 2
Very truly yours, [HEDGING COUNTERPARTY] | ||||
By | ||||
Name: | ||||
Title: | ||||
ACKNOWLEDGED AND AGREED TO THIS DAY OF , 20 : UBS AG, STAMFORD BRANCH, as Collateral Agent | |||
By | |||
Name: | |||
Title: | |||
By | |||
Name: | |||
Title: | |||
RECEIVABLES PURCHASE AGREEMENT
Eurocurrency U.S. Term Loans and | ABR U.S. Term Loans and ABR Canadian | |
Eurocurrency Canadian Term Loans | Term Loans | |
2.00% | 1.00% |
Canadian Term Loan | ||||
Date | U.S. Term Loan Amount | Amount | ||
September 30, 2007 | $1,650,000 | $750,000 | ||
December 31, 2007 | $1,650,000 | $750,000 | ||
March 31, 2008 | $1,650,000 | $750,000 | ||
June 30, 2008 | $1,650,000 | $750,000 | ||
September 30, 2008 | $1,650,000 | $750,000 | ||
December 31, 2008 | $1,650,000 | $750,000 | ||
March 31, 2009 | $1,650,000 | $750,000 | ||
June 30, 2009 | $1,650,000 | $750,000 | ||
September 30, 2009 | $1,650,000 | $750,000 | ||
December 31, 2009 | $1,650,000 | $750,000 | ||
March 31, 2010 | $1,650,000 | $750,000 | ||
June 30, 2010 | $1,650,000 | $750,000 | ||
September 30, 2010 | $1,650,000 | $750,000 | ||
December 31, 2010 | $1,650,000 | $750,000 | ||
March 31, 2011 | $1,650,000 | $750,000 | ||
June 30, 2011 | $1,650,000 | $750,000 | ||
September 30, 2011 | $1,650,000 | $750,000 | ||
December 31, 2011 | $1,650,000 | $750,000 | ||
March 31, 2012 | $1,650,000 | $750,000 |
Canadian Term Loan | ||||
Date | U.S. Term Loan Amount | Amount | ||
June 30, 2012 | $1,650,000 | $750,000 | ||
September 30, 2012 | $1,650,000 | $750,000 | ||
December 31, 2012 | $1,650,000 | $750,000 | ||
March 31, 2013 | $1,650,000 | $750,000 | ||
June 30, 2013 | $1,650,000 | $750,000 | ||
September 30, 2013 | $1,650,000 | $750,000 | ||
December 31, 2013 | $1,650,000 | $750,000 | ||
March 31, 2014 | $1,650,000 | $750,000 | ||
June 30, 2014 | $1,650,000 | $750,000 | ||
Final Maturity Date | Remaining outstanding principal | Remaining outstanding principal |
AB + C(B-D) + E x 0.01 | per cent, per annum |
Ex 0.01 | per cent, per annum. |
Company | Description | Bank Name | Issue Date | Due date | Amount | |||||||||||||||
Novelis Inc. | Bond | N/A | February 3, 2005 | February 3, 2015 | US$ | 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. |
§ | 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
RAJASHREE BIRLA
VASAVADATTA BAJAJ
§ | 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. | |||
$ | 100,000,000 | each and every occurrence combined for PD and BI. | ||||
Impounded Water 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 Arrangement, 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 Revolving Credit Loan Document |
§ | Revolving Credit Agreement, dated July 6, 2007, among Novelis Inc., as Canadian Borrower, Novelis Corporation and the other U.S. subsidiaries of the Canadian Borrower signatory thereto, as Initial U.S. Borrowers, Novelis UK Ltd, as U.K. Borrower, and Novelis AG, as Swiss Borrower, AV Aluminum Inc., the Subsidiary Guarantors, the Lenders, ABN Amro Bank N.V., as U.S./European Issuing Bank, ABN Amro Bank N.V., acting through its Canadian branch, as Canadian Issuing Bank, ABN Amro Bank N.V., as swingline lender, ABN Amro Bank N.V., as administrative agent for the Lenders, LaSalle Business Credit, LLC as collateral agent for the Secured Parties and the Issuing Bank, LaSalle Business Credit, LLC as funding agent for the Secured Parties and the Issuing Bank, 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 funding agent, ABN Amro Bank N.V., acting through its Canadian branch, as Canadian |
administrative agent, and ABN Amro Incorporated and UBS Securities LLC, as joint lead arrangers and joint bookmanagers. |
§ | The Revolving Credit Security Documents as defined in the Credit Agreement |
(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” |
US$ | ||||||||||||
Company | Description | Bank Name | Issue Date | Due date | 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: 15 13 Redding Drive LaGrange, Georgia 30240 USA | Leased | No | |||
Global Automotive Products Division: Executive Office: 28970 Cabot Drive Suite 500 Novi, Michigan 48377 USA | Leased | No | ||||
Rolled Products North America Division: Aurora Research and Development: 535 North Exchange Court Aurora, Illinois 60504 USA | Leased | No | ||||
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 USA | Owned | N/A | ||||
Other: 1022 1 E. Montgomery Suite A, Spokane, WA 99206 USA | Lease, de minimis annual rent | No | ||||
2408 Zurlo Ct. Santa Rosa, California 95403 USA | Home office, de minimis annual rent | No | ||||
475 Jennifer Lane Grayslake, Illinois 60030 USA | Home office, de minimis annual rent | No | ||||
14 Ledgewood Drive Bedford, Massachusetts 01730 USA | Home office, de minimis annual rent | No | ||||
9 Davidson Avenue Jamesburg, New Jersey 08831 USA | Home office, de minimis annual rent | No | ||||
1616 Westgate Circle Suite 105 Brentwood, Tennessee 37027 USA | Sales office, de minimis annual rent | No | ||||
Novelis UK Ltd. | Bridgnorth: Stourbridge Road Bridgnorth WV 5 6AW United Kingdom | Leased | No | |||
Latchford: Thelwall Lane Warrington, Cheshire WA41NP United Kingdom | Owned | N/A | ||||
Banbury: 5th Floor Beaumont House, Southam Road Banbury, Oxfordshire United Kingdom | Leased | No |
Subject to | ||||||
Bailee/Landlord | ||||||
Loan Party | Address | Owned/Leased | Letter | |||
Bilston: Unit 13 Bilston Business Centre, Dudley Street Bilston Wolverhampton WV14 0LA United Kingdom | Leased | No | ||||
Novelis do Brasil Ltda. | Candeias: Via das Torres, S/N° — Centro Industrial de Aratu Candeias, BA CEP 43800-000 Brazil | N/A for Brazil | N/A for 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 Centre — Belo Horizonte, MG CEP Brazil | ||||||
Hydropower Plant — Fumaça: Est. Miguel Rodrigues a Barroca S/N° — Cachoeira do Brumado Mariana, MG CEP 35424-000 Brazil |
Subject to | ||||||
Bailee/Landlord | ||||||
Loan Party | Address | Owned/Leased | Letter | |||
Hydropower Plant — Furquim: 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 |
Subject to | ||||||
Bailee/Landlord | ||||||
Loan Party | Address | Owned/Leased | Letter | |||
Bauxite Mine — Serra do Maquiné Mina Serra do Maquiné S/N° 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 à 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 Brazil | ||||||
Novelis Deutschland GmbH | Novelis Packaging Benelux: Venuslaan 14 3318 JX Dordrecht Netherlands |
Subject to | ||||||
Bailee/Landlord | ||||||
Loan Party | Address | Owned/Leased | Letter | |||
Novelis Deutschland GmbH Sales Office France: 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 61 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 37075 Göttingen Germany |
Subject to | ||||||
Bailee/Landlord | ||||||
Loan Party | Address | Owned/Leased | Letter | |||
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 Elsenwerk 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 Corporation | Rexam Beverage | No | ||
124 Carson Road | ||||
Birmingham, Alabama 35215 | ||||
USA |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
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 2101 East Firt Avenue | No | |||
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 Ltd. | Alloa Community Enterprises Ltd Unit 1 Block 1 | No | ||
Ward Street Alloa Scotland FK10 1ET United Kingdom |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
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 Deutschland GmbH | Third Party in Possession regarding Berlin: | N/A for Germany | ||
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, 4 1541 Dormagen | ||||
Germany | ||||
Agfa-Gevaert AG, | ||||
Grafische Systeme, WerkKalle-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 1, | ||||
66117 Saarbriicken Germany | ||||
NE Deckensysteme GmbH, | ||||
Industriestr. 16, | ||||
45739 Oer-Erkenschwick Germany | ||||
MKG Metall- und Kunststoff-Verarbeitungs-Ges. mbh, | ||||
Daimlerstr. 13-1 5, | ||||
49504 Lotte Germany | ||||
Warehouses for finished goods: | ||||
R.M.S. Europe Ltd., | ||||
Boothfeny Terminal, | ||||
Bridge Street, Goole, East Yorkshire, DN14 5SS United Kingdom |
Loan Party | Address | Subject to Bailee/Landlord Letter | ||
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 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-93 158 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 Dattein | ||||
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 5 1 — 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 5 1 — 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 Brasil Ltda. | Inventory stored with customers under consignment arrangements: |
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 |
Sources | Uses | |||||||||||||||||||
Amount | % | Amount | % | |||||||||||||||||
New Term Loan | $ | 960.0 | 75 | % | Refinance Term Loan | $ | 822.0 | 64 | % | |||||||||||
New ABL Revolver* | $ | 324.0 | 25 | % | Refinance Revolver | $ | 443.0 | 35 | % | |||||||||||
Fees and expenses | $ | 19.0 | 1 | % | ||||||||||||||||
Total | $ | 1,284.0 | 100 | % | $ | 1,284.0 | 100 | % | ||||||||||||
* | After giving effect to the borrowing and repayment to occur on the Closing Date pursuant to the Revolving 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 Administrative Agent in its sole discretion) Novelis Europe Holdings Limited shall deliver to the Administrative 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 Administrative Agent in its sole discretion) Borrowers shall deliver to the Administrative 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 Administrative Agent within the time period proscribed in this paragraph 2. | |
3. | Within 3 Business Days after the date hereof, Borrowers shall deliver to the Administrative 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 Administrative Agent in its sole discretion) the Borrowers shall deliver to the 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 Administrative 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 Administrative 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 Administrative 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 Administrative Agent in its sole discretion, including, at the election of the Administrative Agent, entry into the land register to 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 Administrative 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 Administrative 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 acceptable to the Administrative Agent. | |
13. | Security transfer agreements over all IP rights of Novelis Deutschland GmbH. | |
14. | 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 Administrative Agent in its sole discretion). |
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 Intesa 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 | 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. |