Exhibit 10.1
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT NO. 1 (this "Amendment"), dated as of September 19,
2005, to CREDIT AGREEMENT, dated as of January 7, 2005 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among NOVELIS INC., a corporation organized under the
Canada Business Corporations Act (the "Company" or the "Canadian Borrower"),
NOVELIS CORPORATION, a Texas corporation (the "US Borrower"), NOVELIS
DEUTSCHLAND GMBH, a limited liability company (GmbH) organized under the laws of
Germany (the "German Borrower"), NOVELIS UK LIMITED, a limited company organized
under the laws of England and Wales with registered number 00279596 (the "UK
Borrower"), NOVELIS AG, a stock corporation (AG) organized under the laws of
Switzerland (the "Swiss Borrower" and, together with the Canadian Borrower, the
US Borrower, the German Borrower and the UK Borrower, the "Borrowers"), the
Lenders and Issuers party thereto and CITICORP NORTH AMERICA, INC. ("Citicorp"),
as administrative agent and collateral agent for the Lenders and the Issuers (in
such capacity, the "Administrative Agent"). Capitalized terms used herein but
not defined herein are used as defined in the Credit Agreement, as amended
hereby.
W I T N E S S E T H:
WHEREAS, the Borrowers have requested an amendment to the
Credit Agreement as herein set forth; and
WHEREAS, the Borrowers, the Lenders signatory to a consent and
the Administrative Agent have agreed to amend the Credit Agreement on the terms
and subject to the conditions herein provided.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and obligations herein set forth and other good and valuable
consideration, the adequacy and receipt of which is hereby acknowledged, and in
reliance upon the representations, warranties and covenants herein contained,
the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. Amendments to the Credit Agreement. As of the Effective Date
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(defined below), the Credit Agreement is hereby amended as follows:
(a) by inserting the following definitions in Section 1.1 (Defined
Terms) in alphabetical order (which definitions, if applicable, shall replace in
their entirety the corresponding definitions in such section):
"Bank Guarantee" means a bank guarantee Issued pursuant to
Section 2.4 (Letters of Credit) that provides for the Issuer to make payment
upon the presentation of specified documentation complying with the terms and
conditions of the guarantee.
"Canadian Base Rate" means the rate determined by the
Administrative Agent (i) in the case of Canadian Dollar Loans
denominated in Canadian Dollars, as the rate displayed at or about
10:30 a.m. (New York time) on display page CAPRIME of the Reuters
Screen as the prime rate for loans denominated in Canadian Dollars by
Canadian banks to borrowers in Canada; provided, however, that, in the
event that such rate does not appear on the Reuters Screen on such day
or if the basis of calculation of such rate is changed after the date
hereof and, in the reasonable judgment of the Administrative Agent,
such rate ceases to reflect each Canadian Lender's cost of funding to
the same extent as on the date hereof, then the "Canadian Base Rate"
shall be the average of the floating rate of interest per annum
established (or commercially known) as "prime rate" for loans
denominated in Canadian Dollars on such day by three major Canadian
banks selected by the Administrative Agent or (ii) in the case of
Canadian Dollar Loans denominated in Dollars, as the fluctuating
interest rate per annum as shall be in effect from time to time, which
rate per annum shall be equal at all times to the higher of the
following:
(a) the rate of interest announced publicly from
time to time by Citibank, N.A., Canadian Branch, from time to time, as
Citibank, N.A., Canadian Branch's base rate for loans denominated in
Dollars; and
(b) 0.5% per annum plus the Federal Funds Rate.
"Cash Concentration Account" means any deposit account in the
name of a Loan Party, located in a jurisdiction satisfactory to the
Administrative Agent, that is subject to a first priority perfected
security interest in favor of the Administrative Agent on terms and
conditions satisfactory to the Administrative Agent.
"Intercompany Note" means a promissory note or other
documentation evidencing intercompany loans issued by a Subsidiary of
the Company in favor of the Company or another Subsidiary of the
Company or by the Company in favor of a Subsidiary of the Company, in
each case, in form and substance acceptable to the Administrative
Agent.
"Issuer" means each Lender or Affiliate of a Lender that (a)
in the case of letters of credit, is listed on the signature pages
hereof as an "Issuer" or (b) in the case of letters of credit or Bank
Guarantees, as the case may be, hereafter becomes an Issuer with
respect to the letters of credit or Bank Guarantees, as the case may
be, with the approval of the Administrative Agent and the Company by
agreeing pursuant to an agreement with and in form and substance
satisfactory to the Administrative Agent and the Company to be bound by
the terms hereof applicable to Issuers.
"Letter of Credit" means any letter of credit or Bank
Guarantee Issued pursuant to Section 2.4 (Letters of Credit).
"Minimum Currency Threshold" means (i) in the case of Loans
denominated in Dollars, $5,000,000 or an integral multiple of
$1,000,000 in excess thereof, (ii) in the case of Canadian Dollar Loans
denominated in Canadian Dollars, C$5,000,000 or an integral multiple of
C$1,000,000 in excess thereof, (iii) in the case of Loans denominated
in Euros, (euro)5,000,000 or an integral multiple of (euro)1,000,000 in
excess thereof, (iv) in the case of Loans denominated in Sterling,
(pound)2,500,000 or an integral multiple of (pound)500,000 in excess
thereof and (v) in the case of Loans denominated in Francs,
CHF5,000,000 or an integral multiple of CHF1,000,000 in excess thereof.
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"Permitted Benefit Plan Transfer" means the transfer of assets
and accrued benefit liabilities from the Alcancorp Pension Plan to a
pension plan sponsored by the U.S. Borrower in accordance with Section
414(l) of the Code and Section 4044 of ERISA relating to current
employees of the Company and its Subsidiaries; provided, however, that
(i) the amount of the projected benefit obligations, as determined for
financial reporting purposes in accordance with the Statement of
Financial Accounting Standards No. 87, does not exceed the market value
of the transferred assets by more than $75,000,000, (ii) cash charges
to the Company or any of its Subsidiaries related to such transfer,
excluding any annual contributions to, or other expenses incurred in
connection with, such plan in the ordinary course of business, do not
exceed $2,000,000 in the aggregate, (iii) no Default or Event of
Default is continuing or would result therefrom and (iv) such transfer
is completed by December 31, 2006, unless otherwise agreed to by the
Administrative Agent in its sole discretion.
(b) by deleting Section 2.1(a)(ii) (The Commitments) in its
entirety and inserting in lieu thereof the following:
"(ii) Canadian Dollar Commitments. On the terms
and subject to the conditions contained in this Agreement, each
Canadian Dollar Lender severally agrees to make loans in Canadian
Dollars or Dollars (in either case, each a "Canadian Dollar Loan") to
the Canadian Borrower from time to time on any Business Day during the
period from the date hereof until the Revolving Credit Termination Date
in an aggregate principal amount at any time outstanding for all such
loans by such Canadian Dollar Lender not to exceed such Canadian Dollar
Lender's Canadian Dollar Commitment; provided, however, that at no time
shall any Canadian Dollar Lender be obligated to make a Canadian Dollar
Loan in excess of such Canadian Dollar Lender's Ratable Portion of the
Canadian Dollar Available Credit. Within the limits of the Canadian
Dollar Commitment of each Canadian Dollar Lender and the Canadian
Dollar Available Credit, amounts of Canadian Dollar Loans repaid may be
reborrowed by the Canadian Borrower under this Section 2.1(a)(ii)."
(c) by deleting Section 2.2(a)(ii) (Borrowing Procedures) in its
entirety and inserting in lieu thereof the following:
"(ii) Canadian Facility. Each Borrowing of
Canadian Dollar Loans shall be made on a Notice of Borrowing given by
the Canadian Borrower to the Administrative Agent not later than (x) in
the case of a Borrowing of Canadian Base Rate Loans, 12:00 noon (New
York time) one Business Day prior to the date of the proposed Borrowing
and (y) in the case of a Borrowing of BA Rate Loans or Eurocurrency
Rate Loans, 12:00 noon (New York time) three Business Days prior to the
date of the proposed Borrowing. Each such Notice of Borrowing shall
specify (A) the date of such proposed Borrowing, (B) the aggregate
amount of such proposed Borrowing denominated in Canadian Dollars or
Dollars, as the case may be, (C) whether any portion thereof will be of
Canadian Base Rate Loans, BA Rate Loans or Eurocurrency Rate Loans, (D)
the applicable Interest Period or Interest Periods for any such BA Rate
Loans or Eurocurrency Rate Loans and (E) such Borrower's Available
Credit (after giving effect to the proposed Borrowing). The Canadian
Dollar Loans shall be made as Canadian Base Rate Loans unless, subject
to Section 2.14 (Special Provisions Governing Eurocurrency Rate Loans
and BA Rate Loans) the Notice of Borrowing specifies that all or a
portion thereof shall be BA Rate Loans or Eurocurrency Rate Loans, as
applicable. Each Borrowing shall be in an aggregate amount of not less
than the Minimum Currency Threshold."
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(d) by deleting "one or more Letters of Credit" in the lead-in
paragraph of Section 2.4(a)(Letters of Credit) and inserting in lieu thereof
"letters of credit or Bank Guarantees, as applicable";
(e) by inserting "or Bank Guarantees, as applicable," after "for
the Issuance of letters of credit" and before "of the type" in Section
2.4(a)(vi);
(f) by deleting Sections 2.8(a) and 2.8(b) (Optional Prepayments)
in their entirety and inserting in lieu thereof the following:
"(a) Revolving Loans. Any Borrower may, upon (i)
one Business Day's prior notice in the case of Base Rate Loans and (ii)
at least three Business Days' prior notice in the case of Eurocurrency
Rate Loans or BA Rate Loans to the Administrative Agent stating the
proposed date and aggregate principal amount of the prepayment, prepay
the outstanding principal amount of any or all of the Multi-Currency
Loans, Canadian Dollar Loans and Swing Loans in whole or in part at any
time in the applicable currencies; provided, however, that if any
prepayment of any Eurocurrency Rate Loan or BA Rate Loan is made by
such Borrower other than on the last day of an Interest Period for such
Loan, such Borrower shall also pay all interest and fees accrued to the
date of such prepayment on the principal amount prepaid and any amount
owing pursuant to Section 2.14(e) (Breakage Costs); provided, further,
that each partial prepayment shall be an aggregate principal amount not
less than the applicable Minimum Currency Threshold. Upon the giving of
such notice of prepayment, the principal amount of Revolving Loans
specified to be prepaid shall become due and payable on the date
specified for such prepayment.
(b) Term Loans. Any Borrower may, upon (i) one
Business Day's prior notice in the case of Base Rate Loans and (ii) at
least three Business Days' prior notice in the case of Eurocurrency
Rate Loans to the Administrative Agent stating the proposed date and
aggregate principal amount of the prepayment, prepay the outstanding
principal amount of the U.S. Term Loans and the Canadian Term Loans, in
whole or in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that if
any prepayment of any Eurocurrency Rate Loan is made by a Borrower
other than on the last day of an Interest Period for such Loan, such
Borrower shall also pay any amounts owing pursuant to Section 2.14(e)
(Breakage Costs); and, provided, further, that each partial prepayment
shall be in an aggregate amount not less than the Minimum Currency
Threshold and that any such partial prepayment shall be applied to
reduce the remaining installments of the outstanding principal amount
of the Term Loans as directed by the Company, but in any event on a pro
rata basis between the U.S. Term Loans and the Canadian Term Loans.
Upon the giving of such notice of prepayment, the principal amount of
the Term Loans specified to be prepaid shall become due and payable on
the date specified for such prepayment."
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(g) by deleting Section 2.9(b) (Mandatory Prepayments) in its
entirety and inserting in lieu thereof the following:
"(b) Other Prepayments.
(i) The Borrowers shall prepay the Term
Loans in accordance with clause (c) below, within 95 days
after the last day of each Fiscal Year, in an amount equal to
50% of Excess Cash Flow for the previous Fiscal Year;
provided, however, that, if the Leverage Ratio as of the last
day of such Fiscal Year is less than 3.0 to 1, then such
percentage shall be reduced to 25%.
(ii) The Borrowers shall promptly, but
in any event within five Business Days, prepay the Term Loans
in accordance with clause (c) below in an amount equal to any
Investment made pursuant to Section 8.3(e)(vii) (Investments);
provided, however, that such prepayment shall not be required
if on the date of such Investment, the Leverage Ratio, as of
the last day of the most recent Fiscal Quarter for which
Financial Statements have been delivered pursuant to Section
6.1(a) or (b) (Financial Statements), is less than 3.0 to 1.
(iii) The Borrowers shall promptly, but
in any event within five Business Days, prepay the Term Loans
in accordance with clause (c) below in an amount equal to any
Investment made pursuant to Section 8.3(e)(ix) (Investments)."
(h) by deleting Section 2.10(a)(i) (Interest) in its entirety and
inserting in lieu thereof the following:
"(i) Subject to the terms and conditions
set forth in this Agreement, at the option of the Borrower,
(x) all Dollar Loans and Term Loans shall be made as Base Rate
Loans or Eurocurrency Rate Loans, (y) all Canadian Dollar
Loans denominated in Canadian Dollars shall be made as
Canadian Base Rate Loans or BA Rate Loans and (z) all Canadian
Dollar Loans denominated in Dollars shall be made as Canadian
Base Rate Loans or Eurocurrency Rate Loans; provided, however,
that all such Loans shall be made as Base Rate Loans unless,
subject to Section 2.16 (Special Provisions Governing
Eurocurrency Rate Loans and BA Rate Loans), the Notice of
Borrowing specifies that all or a portion thereof shall be
Eurocurrency Rate Loans or BA Rate Loans, as the case may be.
All U.S. Swing Loans shall be made as Base Rate Loans, and all
Euro Loans, all U.K. Swing Loans and all Swiss Swing Loans
shall be made as Eurocurrency Rate Loans, subject to
conversion pursuant to Section 2.3(d) (Swing Loans)."
(i) by deleting Section 2.11(a) (Conversion/Continuation Option)
in its entirety and inserting in lieu thereof the following:
"(a) Each Borrower may elect (i) at any time on
any Business Day to convert (x) U.S. Base Rate Loans (other than Swing
Loans) or Canadian Base Rate Loans denominated in Dollars or any
portion thereof to Eurocurrency Rate Loans or (y) Canadian Base Rate
Loans denominated in Canadian Dollars to BA Rate Loans and (ii) at the
end of any applicable Interest Period, to convert Eurocurrency Rate
Loans or BA Rate Loans or any portion thereof into the applicable Base
Rate Loans or to continue such Eurocurrency Rate Loans or BA Rate Loans
or any portion thereof for an additional Interest Period; provided,
however, that the aggregate amount of the Eurocurrency Rate Loans or BA
Rate Loans, as the case may be, for each Interest Period must be not
less than the Minimum Currency Threshold. Each conversion or
continuation shall be allocated among the Loans of each Lender in
accordance with such Lender's Ratable Portion. Each such election shall
be in substantially the form of Exhibit F (Form of Notice of Conversion
or Continuation) (a "Notice of Conversion or Continuation") and shall
be made by giving the Administrative Agent at least three Business
Days' prior written notice specifying (A) the amount and type of Loan
being converted or continued, (B) in the case of a conversion to or a
continuation of Eurocurrency Rate Loans or BA Rate Loans, the
applicable Interest Period and (C) in the case of a conversion, the
date of such conversion."
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(j) by deleting Section 6.1(g) (Financial Statements) in its
entirety and inserting in lieu thereof the following:
"(g) Intercompany Loan Balances. Together with
each delivery of any Financial Statement pursuant to clause (a), a
summary of (i) the outstanding balance of all Pledged Intercompany
Notes and (ii) the credit or debit balance of each of the Company and
its Subsidiaries in all Cash Concentration Accounts, in each case, as
of the last day of the Fiscal Quarter covered by such Financial
Statement, certified by a Responsible Officer of the Company."
(k) by deleting Section 8.3(e)(v) (Investments) in its entirety
and inserting in lieu thereof the following:
"(v) any Subsidiary of the Company that is not a
Loan Party to any Loan Party (other than the German Borrower) or to
another Subsidiary of the Company that is not a Loan Party; provided,
however, that each such intercompany loan is subordinated to the
Obligations of such Loan Party on terms satisfactory to the
Administrative Agent;"
(l) by inserting the following new clauses (vii), (viii) and (ix)
in Section 8.3(e)(Investments):
"(vii) the German Borrower to any other Loan Party
(other than directly to the Company, Novelis Aluminium Holdings Company
or Novelis Europe Holdings Ltd.); provided, however, that (A) no
Default or Event of Default shall have occurred and be continuing or
would result therefrom, (B) each such intercompany loan shall be
evidenced by an Intercompany Note that is a Pledged Secured
Intercompany Note and (C) for each such intercompany loan, a
corresponding amount is applied to the payment of the Obligations to
the extent required by Section 2.9(b)(ii) (Mandatory Prepayments);
(viii) the Company or any Subsidiary of the Company
to any Cash Concentration Account or from any such Cash Concentration
Account to the Company or any Subsidiary of the Company; provided,
however, that, at any time, (A) the aggregate amount owed by all
Subsidiaries of the Company that are not Loan Parties to all such Cash
Concentration Accounts minus the aggregate amount on deposit from such
Persons in all such Cash Concentration Accounts shall not exceed
$50,000,000 and (B) the aggregate amount on deposit from the German
Borrower in all such Cash Concentration Accounts shall not exceed the
lesser of (1) $25,000,000 and (2) the aggregate principal amount of the
Term Loans prepaid under Section 2.8(b) (Optional Prepayments) after
the Effective Date; or
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(ix) Novelis do Brasil Ltda to any Loan Party;
provided, however, that (A) such intercompany loan shall be evidenced
by an Intercompany Note that is a Pledged Secured Intercompany Note;
and (B) for each such intercompany loan, a corresponding amount is
applied to the payment of the Obligations as required by Section
2.9(b)(iii) (Mandatory Prepayments);"
(m) by deleting Section 8.3(k) (Investments) in its entirety and
inserting in lieu thereof the following:
"(k) Investments not otherwise permitted hereby,
including other Investments in any Subsidiary of the Company or any
other Permitted Joint Venture; provided, however, that (i) the Dollar
Equivalent of the aggregate outstanding amount of all such Investments
(less any dividends or distributions or repayment of principal received
in respect thereof) shall not exceed $50,000,000 at any time and (ii)
in the case of Investments in the form of intercompany loans, each such
loan shall be (A) evidenced by a Pledged Secured Intercompany Note if
such intercompany loan is from a Loan Party to any other Loan Party,
(B) evidenced by a Pledged Intercompany Note if such intercompany loan
is from a Loan Party to a Subsidiary of the Company that is not a Loan
Party and (C) made from the proceeds of the Canadian Dollar Loans if
such intercompany loan is from the Canadian Borrower to the German
Borrower; and"
(n) by inserting the following new clause (l) in Section
8.3(Investments):
"(l) Investments in the form of capital
contributions to Novelis PAE and Novelis Specialites not to exceed
$15,000,000 in the aggregate."
(o) by deleting Section 8.5(a) (Restricted Payments) in its
entirety and inserting in lieu thereof the following:
"(a) (i) in the case of any Wholly-Owned
Subsidiary of any Borrower, Restricted Payments by such Subsidiary to
such Borrower or any Guarantor and (ii) in the case of any Subsidiary
that is a Permitted Joint Venture, any Restricted Payment made by such
Subsidiary to all Persons holding such Subsidiary's Stock; provided,
however, that the Restricted Payments received by each Person that is
not a Loan Party or a Subsidiary of a Loan Party shall not exceed such
Person's pro rata interest in such Restricted Payments based upon such
Person's ownership percentage of such Subsidiary's Stock (other than
Restricted Payments of up to $13,000,000 required to be paid as a
priority payment to Taihan Electric Wire Co., Ltd. under the
Constituent Documents of NKL);"
(p) by deleting Section 8.5(c) (Restricted Payments) in its
entirety and inserting in lieu thereof the following:
"(c) cash dividends on the Stock of the Company
in an aggregate amount not to exceed the following amounts paid and
declared in any Fiscal Year ending after the Closing Date: (i) for the
Fiscal Year ending December 31, 2005, $45,000,000 and (ii) for each
Fiscal Year thereafter, 50% of the Consolidated Net Income of the
Company for the previous Fiscal Year; provided, however, that (A) the
Restricted Payments described in this clause (c) shall not be permitted
if a Default or Event of Default shall have occurred and be continuing
at the date of declaration or payment thereof or would result therefrom
and (B) Consolidated Net Income shall be calculated for purposes of
this clause (c) without giving effect to non-cash after-tax gains and
losses resulting from the mark-to-market of any Hedging Contract in
accordance with the Statement of Financial Accounting Standards No. 133
or non-cash after-tax gains or losses relating to any balance sheet
translation in accordance with the Statement of Financial Accounting
Standards No. 52 and, in either case, assuming an applicable tax rate
equal to 35%."
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(q) by inserting "(other than in connection with the Permitted
Benefit Plan Transfer)" in Section 9.1(h) (Events of Default) after "the
definition of 'ERISA Event' shall occur" and before "and the Dollar Equivalent."
Section 2. Conditions Precedent. This Amendment shall become effective
--------------------
as of the date (the "Effective Date") on which each of the following conditions
precedent shall have been satisfied or duly waived:
(a) Certain Documents. The Administrative Agent shall have
received each of the following, in form and substance satisfactory to the
Administrative Agent:
(i) this Amendment, duly executed by each of the Loan
Parties and the Administrative Agent;
(ii) Acknowledgment and Consent, in the form set forth
hereto as Exhibit A, duly executed by each of the Requisite Lenders;
(iii) such additional documentation as the Administrative
Agent may reasonably require.
(b) Payment of Fees Costs and Expenses. The Administrative Agent
shall have received payment of all fees, costs and expenses, including, without
limitation, all fees, costs and expenses of the Administrative Agent (including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent) in connection with this Amendment, the Credit
Agreement and each other Loan Document, as required by Section 4 hereof.
(c) Representations and Warranties. Each of the representations
and warranties contained in Section 3 below shall be true and correct.
(d) No Default or Event of Default. After giving effect to this
Amendment, no Default or Event of Default shall have occurred and be continuing.
Section 3. Representations and Warranties. Each Loan Party hereby
------------------------------
jointly and severally represents and warrants to the Administrative Agent and
each Lender, with respect to all Loan Parties, as follows:
(a) After giving effect to this Amendment, each of the
representations and warranties in the Credit Agreement and in the other Loan
Documents are true and correct in all material respects on and as of the date
hereof as though made on and as of such date, except to the extent that any such
representation or warranty expressly relates to an earlier date and except for
changes therein expressly permitted by the Credit Agreement.
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(b) The execution, delivery and performance by each Loan Party of
this Amendment have been duly authorized by all requisite corporate, limited
liability company or limited partnership action on the part of such Loan Party
and will not violate any of the articles of incorporation or bylaws (or other
constituent documents) of such Loan Party.
(c) This Amendment has been duly executed and delivered by each
Loan Party, and each of this Amendment and the Credit Agreement as amended
hereby constitutes the legal, valid and binding obligation of such Loan Party,
enforceable against such Loan Party in accordance with their terms, except as
the same may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the rights of creditors generally and by general
principles of equity.
(d) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing as of the date hereof.
Section 4. Costs and Expenses. As provided in Section 11.3(a) (Costs
------------------
and Expenses) of the Credit Agreement, the Borrower agrees to reimburse the
Administrative Agent for all reasonable fees, costs and expenses, including the
reasonable fees, costs and expenses of counsel or other advisors for advice,
assistance or other representation in connection with this Amendment.
Section 5. Reference to and Effect on the Loan Documents.
---------------------------------------------
(a) As of the Effective Date, each reference in the Credit
Agreement and the other Loan Documents to "this Agreement," "hereunder,"
"hereof," "herein," or words of like import, and each reference in the other
Loan Documents to the Credit Agreement (including, without limitation, by means
of words like "thereunder", "thereof" and words of like import), shall mean and
be a reference to the Credit Agreement as amended hereby, and this Amendment and
the Credit Agreement shall be read together and construed as a single
instrument. Each of the table of contents and lists of Exhibits and Schedules of
the Credit Agreement shall be amended to reflect the changes made in this
Amendment.
(b) Except as expressly amended hereby, all of the terms and
provisions of the Credit Agreement and all other Loan Documents are and shall
remain in full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Administrative Agent, any Lender or any Issuer
under the Credit Agreement or any Loan Document, or constitute a waiver or
amendment of any other provision of the Credit Agreement or any Loan Document
except as and to the extent expressly set forth herein.
(d) Each Loan Party hereby confirms that the guaranties, security
interests and liens granted pursuant to the Loan Documents continue to guarantee
and secure the Obligations as set forth in the Loan Documents and that such
guaranties, security interests and liens remain in full force and effect.
Section 6. Counterparts. This Amendment may be executed in any number
------------
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Receipt by the
Administrative Agent of a facsimile copy of an executed signature page hereof
shall constitute receipt by the Administrative Agents of an executed counterpart
of this Amendment.
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Section 7. Governing Law. This Amendment and the rights and obligations
-------------
of the parties hereto shall be governed by, and construed and interpreted in
accordance with, the law of the State of New York. Section 8. Headings. Section
headings contained in this Amendment are included herein for convenience of
reference only and shall not constitute a part of this Amendment for any other
purposes.
Section 9. Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY
--------------------
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT
OR ANY OTHER LOAN DOCUMENT.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers and members thereunto duly authorized, on
the date indicated below.
NOVELIS INC.
as Borrower and Guarantor
By:
---------------------------------
Name:
Title:
NOVELIS CORPORATION,
as Borrower and Guarantor
By:
---------------------------------
Name:
Title:
NOVELIS DEUTSCHLAND GMBH,
as Borrower and Guarantor
By:
---------------------------------
Name:
Title:
NOVELIS UK LIMITED,
as Borrower and Guarantor
By:
---------------------------------
Name:
Title:
NOVELIS AG,
as Borrower and Guarantor
By:
---------------------------------
Name:
Title:
EUROFOIL INC. (USA),
as Guarantor
By:
---------------------------------
Name:
Title:
[SIGNATURE PAGE TO NOVELIS AMENDMENT NO. 1]
NOVELIS PAE CORPORATION,
as Guarantor
By:
---------------------------------
Name:
Title:
NOVELIS CAST HOUSE TECHNOLOGY LTD.,
as Guarantor
By:
---------------------------------
Name:
Title:
4260848 CANADA INC.,
as Guarantor
By:
---------------------------------
Name:
Title:
4260856 CANADA INC.,
as Guarantor
By:
---------------------------------
Name:
Title:
NOVELIS EUROPE HOLDINGS LTD.,
as Guarantor
By:
---------------------------------
Name:
Title:
NOVELIS UK LTD.,
as Guarantor
By:
---------------------------------
Name:
Title:
[SIGNATURE PAGE TO NOVELIS AMENDMENT NO. 1]
NOVELIS DO BRASIL LTDA,
as Guarantor
By:
---------------------------------
Name:
Title:
NOVELIS SWITZERLAND S.A.,
as Guarantor
By:
---------------------------------
Name:
Title:
NOVELIS TECHNOLOGY AG,
as Guarantor
By:
---------------------------------
Name:
Title:
NOVELIS ALUMINIUM HOLDINGS COMPANY,
as Guarantor
By:
---------------------------------
Name:
Title:
[SIGNATURE PAGE TO NOVELIS AMENDMENT NO. 1]
CITICORP NORTH AMERICA, INC.,
as Administrative Agent under the
Credit Agreement
By:
---------------------------------
Name:
Title:
Date:
[SIGNATURE PAGE TO NOVELIS AMENDMENT NO. 1]