Amendment No. 3 and Waiver to Credit Agreement
Exhibit 10.1
Amendment No. 3 and Waiver to Credit Agreement
Amendment No. 3 and Waiver (this “Amendment”), dated as of May 9, 2007, 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 Ltd, 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”).
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 (an “Acknowledgment and
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. Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Credit Agreement, as amended hereby
Section 2. Amendments. Subject to the terms and conditions set forth herein,
effective as of the Amendment Effective Date (as defined below):
(a) the Credit Agreement (excluding the Exhibits and Schedules thereto) is hereby amended in
its entirety to read as Exhibit A attached hereto; and
(b) the Schedules to the Credit Agreement are hereby amended by (i) inserting Schedule I-A
(Additional Commitments) to the Credit Agreement, in the form of Exhibit B-1 attached hereto,
directly following Schedule I (Commitments) and (ii) inserting Schedule 7.15-A (Post-Closing
Covenants II) to the Credit Agreement, in the form of Exhibit B-2 attached hereto, directly
following Schedule 7.15 (Post-Closing Covenants).
Section 3. Consent to Amendments. The Administrative Agent and each Lender signatory
to an Acknowledgment and Consent hereby consent to the amendments to each of the
local law security agreements and/or guaranties listed on Exhibit C attached hereto, each in
form and substance satisfactory to the Administrative Agent.
Section 4. Waivers. As of the Amendment Effective Date, each Lender signatory to an
Acknowledgment and Consent hereby consents to waive the following:
(a) the Event of Default under Section 9.1(k) (Events of Default) solely as a result of the
consummation of the transactions contemplated under the Arrangement Agreement, dated as of February
10, 2007, among Hindalco Industries Limited, AVAluminum Inc. and the Company (the “Acquisition”),
until the earlier of (i) the third Business Day prior to the 60th day following the date on which
the Acquisition is consummated and (ii) in the event the Acquisition shall not have been
consummated on or prior thereto, July 7, 2007; provided, however, that none of the Borrowers shall,
nor shall they permit any of their respective Subsidiaries to, make any payment with respect to the
Senior Notes (other than scheduled payments of interest required thereby) prior to the 60th day
following the date on which the Acquisition is consummated; and
(b) the notice of prepayment required pursuant to Section 2.8(a)(ii) (Optional Prepayments)
for prepayment of the Revolving Loans on the Amendment Effective Date with respect to which one
Business Day’s prior notice has been given.
Section 5. Conditions Precedent to Effectiveness of this Amendment. This Amendment
shall become effective as of the first date (the “Amendment 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, the Administrative Agent and
each Additional U.S. Term Lender;
(ii) Acknowledgment and Consent, in the form set forth hereto as Exhibit D, duly executed by
each Additional U.S. Term Lender and each of the Lenders that, when combined, constitute the
Requisite Lenders;
(iii) for the account of each Lender having requested the same by notice to the Administrative
Agent and the Company received by each at least three Business Days prior to the Amendment
Effective Date (or such later date as may be agreed by the Company), Notes conforming to the
requirements set forth in Section 2.7(d) of the Credit Agreement;
(iv) to the extent reasonably requested by the Administrative Agent, a certificate of the
secretary, assistant secretary or other officer of each Loan Party in charge of maintaining books
and records of such Loan Party certifying as to the resolutions of such Loan Party’s board of
directors or other appropriate governing body approving and authorizing the execution, delivery and
performance of this Amendment and each document executed and delivered in connection therewith;
(v) a favorable opinion of counsels to the Loan Parties, addressed to the Administrative Agent
and the Lenders in form and substance and from counsels reasonably satisfactory to the
Administrative Agent;
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(vi) such additional documentation as the Administrative Agent may reasonably require.
(b) Delivery of Amendments. The Administrative Agent shall have received amendments,
including, without limitation, delivery of any additional Collateral pursuant thereto, to the
Collateral Documents as contemplated by this Amendment, duly executed and delivered by the
Administrative Agent, the Collateral Agent and the applicable Loan Parties.
(c) Other Conditions Precedent. As of the Amendment Effective Date, (i) the conditions
precedent set forth in Section 3.2 of the Credit Agreement shall have been satisfied, both before
and after giving effect to this Amendment and the Additional U.S. Term Loans, and (ii) the Company
shall be in compliance with the covenants set forth in Article V (Financial Covenants) of the
Credit Agreement as of the most recently ended Fiscal Quarter, both before and after giving effect
to such Additional U.S. Term Loans (in each case, after giving effect to the repayment of
Indebtedness with the advancement of the proceeds of such Additional U.S. Term Loans).
(d) 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 8 hereof.
(e) Representations and Warranties. Each of the representations and warranties contained in
Section 6 below shall be true and correct.
(f) 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 6. 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.
(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.
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(d) After giving effect to this Amendment, no Default or Event of Default has occurred and is
continuing as of the date hereof.
Section 7. Continuing Effect; Liens and Guaranties.
(a) Except as expressly set forth in this Amendment, all of the terms and provisions of the
Credit Agreement are and shall remain in full force and effect and each of the Borrowers shall
continue to be bound by all of such terms and provisions. The Amendment provided for herein is
limited to the specific provisions of the Credit Agreement specified herein and shall not
constitute an amendment of, or an indication of the Administrative Agent’s, any Lender’s or any
Issuer’s willingness to amend or waive, any other provisions of the Credit Agreement or the same
sections for any other date or purpose.
(b) Each of the Borrowers and the Guarantors hereby consents to this Amendment, including all
increases in commitments and extensions of additional credit pursuant thereto and the execution,
delivery and performance of the other Loan Documents (if any) to be executed in connection
therewith. Each of the Loan Parties hereby acknowledges and agrees that all of its obligations,
including all Liens and Guaranties granted to the Secured Parties under the applicable Loan
Documents, are reaffirmed and that such Liens and Guaranties shall continue in full force and
effect on and after Effective Date to secure and support the Secured Obligations of the Borrowers
and the Guarantors.
Section 8. Fees, Costs and Expenses.
(a) As consideration for the execution of this Amendment, the 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 Amendment by 5 p.m. (New York time) on April 27, 2007 (the “Deadline”), a
waiver fee equal to 0.125% 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.
(b) As provided in Section 11.3(a) (Costs and Expenses) of the Credit Agreement, the Borrowers
agree 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 9. 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.
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(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 10. 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.
Section 11. 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 12. 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 13. 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 |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| Novelis Corporation, as Borrower and Guarantor |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Attorney in Fact | |||
| Novelis Deutschland GmbH, as Borrower and Guarantor |
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| By: | /s/ Xxxxxx X. Xxxxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Attorney in Fact | |||
| Executed as a deed by Novelis UK Ltd, as Borrower and Guarantor |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Attorney in Fact | |||
| Novelis AG, as Borrower and Guarantor |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Attorney in Fact | |||
| Eurofoil Inc. (USA), as Guarantor |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Attorney in Fact | |||
| Novelis PAE Corporation, as Guarantor |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Attorney in Fact | |||
| Novelis Cast House Technology Ltd., as Guarantor |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Attorney in Fact | |||
| 4260848 Canada Inc., as Guarantor |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Attorney in Fact | |||
| 4260856 Canada Inc., as Guarantor |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Attorney in Fact | |||
| Executed as a deed by Novelis Europe Holdings Limited, as Guarantor |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Attorney in Fact | |||
| Novelis do Brasil Ltda, as Guarantor |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Attorney in Fact | |||
| Novelis Switzerland AG, as Guarantor |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Attorney in Fact | |||
| Novelis Technology AG, as Guarantor |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Attorney in Fact | |||
| Present when the Common Seal of Novelis Aluminium Holding Company, as Guarantor was hereunto affixed in the presence of |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Attorney in Fact | |||
| Novelis Finances USA LLC, as Guarantor |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Attorney in Fact | |||
| Aluminum Upstream Holdings LLC as Guarantor |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| Novelis South America Holdings LLC as Guarantor |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Vice President and Treasurer | |||
| Citicorp North America, Inc., as Administrative Agent under the Credit Agreement |
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| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Vice President | |||
