Exhibit 10.1
WAIVER AND CONSENT
THIS FIFTH WAIVER AND CONSENT, dated as of August 11, 2006
(this "Waiver"), to CREDIT AGREEMENT, dated as of January 7, 2005 and amended as
of September 19, 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.
W I T N E S S E T H:
WHEREAS, pursuant to the Fourth Waiver and Consent, dated as
of May 10, 2006 (the "Fourth Waiver"), the Company requested a waiver of certain
reporting covenants under the Credit Agreement as herein set forth; and
WHEREAS, the Company has requested an extension of certain of
the waivers provided in the Fourth Waiver as more fully described herein; and
WHEREAS, the Company, Lenders signatory to a consent (an
"Acknowledgment and Consent") and the Administrative Agent have agreed to such
extensions 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. Waiver and Consent.
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(a) As of the Effective Date and subject to clause (b) below, the
Administrative Agent and each Lender signatory to an Acknowledgment and Consent
hereby (i) consent to (A) the delivery of the Financial Statements required by
Section 6.1(a) (Quarterly Reports) and the related Compliance Certificate
required by Section 6.1(c) (Compliance Certificate) (1) for the Fiscal Quarter
ended March 31, 2006, on or prior to September 18, 2006, (2) for the Fiscal
Quarter ended June 30, 2006, on or prior to November 30, 2006 (or, if earlier,
59 calendar days after written notice with respect to such default is given to
the Company under Section 6.01(d) of the Indenture governing the Senior Notes by
the Trustee or by holders of 25% or more in principal amount of the Senior
Notes) and (3) for the Fiscal Quarter ending September 30, 2006, on or prior to
December 29, 2006 (or, if earlier, 30 calendar days after written notice with
respect to such default is given to the Company under Section 6.01(d) of the
Indenture governing the Senior Notes by the Trustee or by holders of 25% or more
in principal amount of the Senior Notes) and (B) the delivery of the Financial
Statements and related accountant's certificate required by Section 6.1(b)
(Annual Reports) and the related Compliance Certificate required by Section
6.1(c) (Compliance Certificate) for the Fiscal Year ended December 31, 2005, on
or prior to September 18, 2006, and (ii) waive any Default or Event of Default
arising under Section 6.1(a) (Quarterly Reports), Section 6.1(b) (Annual
Reports) or Section 6.1(c) (Compliance Certificate) solely as a result of the
delay in delivery of the financial statements, reports and certificates required
thereunder as contemplated hereunder (all such financial statements, reports and
certificates being the "Delayed Reports"); provided, however, that nothing
contained in this Waiver shall be construed as a waiver of any other Default or
Event of Default, including, without limitation any such Default or Event of
Default arising under Section 9.1(e) (Events of Default).
(b) In consideration of the Fourth Waiver and the waiver and
consent provided for in clause (a) above and notwithstanding the Applicable
Margin or Applicable Unused Commitment Fee Rate that would otherwise be in
effect, from and after May 15, 2006 and through the later of (x) December 29,
2006 and (y) the date that all of the Delayed Reports have been delivered to the
Administrative Agent in accordance with the requirements set forth in the Credit
Agreement (as amended by this Waiver), (i) "Applicable Margin" shall mean (A)
with respect to Term Loans maintained as (1) Base Rate Loans, a rate equal to
1.25% per annum and (2) Eurocurrency Rate Loans, a rate equal to 2.25% per annum
and (B) with respect to Revolving Loans maintained as (1) Base Rate Loans, a
rate equal to 1.50% per annum and (2) Eurocurrency Rate Loans or BA Rate Loans,
a rate equal to 2.50% per annum and (ii) "Applicable Unused Commitment Fee Rate"
shall mean 0.625% per annum; provided, however, that if at any time prior to
December 29, 2006 the Company is in full compliance with the delivery
requirements with respect to each Delayed Report required to be delivered on or
before such time, and the Company determines that it no longer needs the
extensions provided for in this Waiver with respect to any other Delayed Report,
then upon five Business Days' prior written notice from the Company to the
Administrative Agent that the Company no longer requires the benefits of Section
1(a) of this Waiver, then "Applicable Margin" and "Applicable Unused Commitment
Fee Rate" shall each revert to the definition set forth in the Credit Agreement
without giving effect to this Section 1(b) and from and after such fifth
Business Day this Waiver shall cease to be of further force and effect with
respect to any Delayed Report that has not yet been delivered.
(c) Except with respect to the provisions of the Fourth Waiver
relating to the delivery of the Financial Statements required by Section 6.1(a)
(Quarterly Reports) and the related Compliance Certificate required by Section
6.1(c) (Compliance Certificate) for the Fiscal Quarters ended (x) March 31,
2005, (y) June 30, 2005, and (z) September 30, 2005, each of which has been
delivered in accordance with the terms of the Fourth Waiver, this Waiver shall
supersede the terms of the Fourth Waiver.
Section 2. Conditions Precedent. This Waiver shall become effective as
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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 Waiver, duly executed by the Company, on behalf
of itself and each Loan Party, and the Administrative Agent;
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(ii) an Acknowledgment and Consent, in the form set forth
hereto as Exhibit A, duly executed by each Lender constituting the Requisite
Lenders;
(iii) such additional documentation as the Administrative
Agent may reasonably require.
(b) Payment of Fees Costs and Expenses. The Administrative Agent
and the Lenders shall have received payment of all fees, costs and expenses,
including, without limitation, all fees, costs and expenses of the
Administrative Agent and the Lenders (including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent) in connection with this Waiver, the Credit Agreement and each other Loan
Document, as required by Section 4 and Section 5 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
Waiver, no Default or Event of Default shall have occurred and be continuing.
Section 3. Representations and Warranties. The Company, on behalf of
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itself and each Loan Party, hereby represents and warrants to the Administrative
Agent and each Lender, with respect to all Loan Parties, as follows:
(a) After giving effect to this Waiver, 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.
(b) The execution, delivery and performance by the Company of this
Waiver have been duly authorized by all requisite corporate action on the part
of the Company and will not violate any of the articles of incorporation or
bylaws (or other constituent documents) of the Company.
(c) This Waiver has been duly executed and delivered by the
Company, on behalf of itself and each Loan Party, and each of this Waiver and
the Credit Agreement as amended hereby constitute the legal, valid and binding
obligation of the Company and each such Loan Party, enforceable against the
Company and each 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 Waiver, no Default or Event of
Default has occurred and is continuing as of the date hereof.
Section 4. Fees. As consideration for the execution of this Waiver, the
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Company, on behalf of each Borrower, agrees to pay to the Administrative Agent
for the account of each Lender for which the Administrative Agent shall have
received (by facsimile or otherwise) an executed Acknowledgment and Consent (or
a release from escrow of an Acknowledgment and Consent previously delivered in
escrow) with respect to this Waiver (i) if received by 5 p.m. (New York time) on
August 8, 2006 (the "Initial Deadline"), a waiver fee equal to 0.1% of the sum
of (A) such Lender's Revolving Credit Commitment then in effect and (B) the
principal amount of such Lender's Term Loans then outstanding or (ii) if
received after the Initial Deadline but prior to 5 p.m. (New York time) on
August 10, 2006, a waiver fee equal to 0.075% of the sum of (A) such Lender's
Revolving Credit Commitment then in effect and (B) the principal amount of such
Lender's Term Loans then outstanding.
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Section 5. Costs and Expenses. As provided in Section 11.3(a) (Costs
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and Expenses) of the Credit Agreement, the Company, on behalf of each 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
Waiver.
Section 6. Reference to and Effect on the Loan Documents.
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(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 and as waived hereby with
respect to the certain requirements outlined above, and this Waiver and the
Credit Agreement shall be read together and construed as a single instrument.
(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 Waiver 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) The Company, on behalf of itself and each Loan Party, hereby
confirms that the guaranties, security interests and liens granted by it
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 7. Counterparts. This Waiver may be executed in any number of
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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 Waiver.
Section 8. Governing Law. This Waiver and the rights and obligations of
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the parties hereto shall be governed by, and construed and interpreted in
accordance with, the law of the State of New York.
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Section 9. Headings. Section headings contained in this Waiver are
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included herein for convenience of reference only and shall not constitute a
part of this Waiver for any other purposes.
Section 10. Waiver of Jury Trial. EACH OF THE PARTIES HERETO
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IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO
THIS WAIVER OR ANY OTHER LOAN DOCUMENT.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
to be executed by their respective officers and members thereunto duly
authorized, on the date indicated below.
NOVELIS INC.
as Borrower and Guarantor
By: /s/ Orville Lunking
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Orville Lunking
Vice President and Treasurer
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CITICORP NORTH AMERICA, INC.,
as Administrative Agent under
the Credit Agreement
By: /s/ Arnold Y. Wong
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Arnold Y. Wong
Vice President
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[SIGNATURE PAGE TO LENDER CONSENT TO NOVELIS' FIFTH WAIVER]
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