JOINDER AGREEMENT
Exhibit 10.38
Reference is made to 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
CORPORATION, a Texas corporation, AV ALUMINUM INC., a corporation formed under the Canada Business
Corporations Act, the Subsidiary Guarantors (such term and each other capitalized term used but not
defined herein having the meaning given to it in the Credit Agreement), 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.
WITNESSETH:
WHEREAS, the Guarantors have entered into the Credit Agreement and the applicable Security
Documents in order to induce the Lenders to make the Loans to or for the benefit of the Borrowers;
WHEREAS, pursuant to Section 5.1 l(b) of the Credit Agreement, certain Subsidiaries are
required to become Guarantors under the Credit Agreement by executing a Joinder Agreement. NOVELIS
PAE S. A.S. (the “New Guarantor”) is executing this joinder agreement (“Joinder
Agreement”) to the Credit Agreement and as consideration for the Loans previously made by the
Lenders and as consideration for the other agreements of the Lenders and the Agents under the Loan
Documents and as consideration for other good and valid consideration the receipt and sufficiency
of which is hereby acknowledged.
NOW, THEREFORE, the Administrative Agent, Collateral Agent and the New Guarantor hereby agree
as follows:
1. Guarantee. In accordance with Section 5.11 (b) of the Credit Agreement, the New
Guarantor by its signature below becomes a Guarantor under the Credit Agreement with the same
force and effect as if originally named therein as a Guarantor, subject to the limitations set forth
in Clause 2 herein.
2. Guarantee Limitations.
(a) The obligations and liabilities of the New Guarantor under the Credit Documents
and in particular under Article VII (Guarantee) of the Credit Agreement shall not include any
obligation
or liability which if incurred would constitute the provision of financial assistance within
the meaning of
article L. 225-216 of the French Code de commerce and/or would constitute a misuse of
corporate assets
within the meaning of article L. 241-3 or L. 242-6 of the French Code de commerce or any other
laws or
regulations having the same effect, as interpreted by French courts.
(b) The obligations and liabilities of the New Guarantor under Article VII
(Guarantee) of the Credit Agreement for the obligations under the Credit Documents of any
other
Guarantor which is not a Subsidiary of the New Guarantor, shall be limited at any time to an
amount
equal to the aggregate of all amounts borrowed under the Credit Agreement by such other
Guarantor as
Borrower to the extent directly or indirectly on-lent to the New Guarantor under inter-company
loan
agreements and outstanding at the date a payment is to be made by the New Guarantor under
Article VII
(Guarantee) of the Credit Agreement, it being specified that any payment made by the New
Guarantor
under Article VII (Guarantee) of the Credit Agreement in respect of the obligations of such
Guarantor as
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Borrower shall reduce pro tanto the outstanding amount of the inter-company loans due by the New
Guarantor under the inter-company loan arrangements referred to above.
(c) The obligations and liabilities of the New Guarantor under Article VII (Guarantee) of the
Credit Agreement for the obligations under the Credit Documents of any Guarantor which is its
Subsidiary shall not be limited and shall therefore cover all amounts due by such Guarantor as
Borrower and/or as Guarantor, as applicable. However, where such Subsidiary is not incorporated in
France, the amounts payable by the New Guarantor under this paragraph (c) in respect of obligations
of this Subsidiary as Guarantor, shall be limited as set out in paragraph (b) above.
3. Representations and Warranties. The New Guarantor hereby (a) agrees to all the terms
and provisions of the Credit Agreement applicable to it as a Guarantor thereunder (subject to
the limitations set forth in Clause 2 herein) and (b) represents and warrants that the
representations and
warranties made by it as a Guarantor thereunder are true and correct in all material respects
(except that
any representation and warranty that is qualified as to “materiality” or “Material Adverse
Effect” shall be
true and correct in all respects) on and as of the date hereof, except to the extent such
representations and
warranties expressly relate to an earlier date, in which case such representation and warranty
shall have
been true and correct in all material respects (or, in the case of any representation and
warranty that is
qualified as to “materiality” or “Material Adverse Effect”, true and correct in all respects)
as of such
earlier date. Each reference to a Guarantor in the Credit Agreement shall be deemed to include
the New
Guarantor. The New Guarantor hereby agrees to supplement each of the schedules to the
Credit
Agreement and the Perfection Certificates applicable to it in accordance with Section 9
hereof.
4. Severability. Any provision of this Joinder Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such
prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such
prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such
provision in any other jurisdiction.
5. Counterparts. This Joinder Agreement may be executed in counterparts, each of which
shall constitute an original. Delivery of an executed signature page to this Joinder
Agreement by
facsimile transmission shall be as effective as delivery of a manually executed counterpart of
this Joinder
Agreement.
6. No Waiver. Except as expressly supplemented hereby, the Credit Agreement shall
remain in full force and effect.
7. Notices. All notices, requests and demands to or upon the New Guarantor, any Agent or
any Lender shall be governed by the terms of Section 11.01 of the Credit Agreement.
8. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION.
9. Certain Agreements. The New Guarantor hereby agrees that it shall take each action
and deliver each of the documents set forth on Exhibit I, each within the number of days set
forth on such
Exhibit.
[Signature
Pages Follow]
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IN WITNESS WHEREOF, the undersigned have caused this Joinder Agreement to be duly executed and
delivered by their duly authorized officers as of the day and year first above written.
Signed on September 12, 2008
In two (2) original copies
| NOVELIS PAE S.A.S. |
||||
| By: | /s/ X. Xxxxxxxx | |||
| Name: | X. XXXXXXXX | |||
| Title: | PRESIDENT | |||
|
Address for Notices: Novelis PAE S.A.S. 000 xxx Xxxxxxxx Xxxxxx 00000 Xxxxxxx Xxxxxx |
||||
| UBS AG, STAMFORD BRANCH, as Administrative Agent and as Collateral Agent |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Associate Director | |||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Associate Director | |||
|
Address for Notices: UBS AG, Stamford Branch 000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxx, Xxxxxxxxxxx 00000 Attn: Xxxxxxxxxxx Xxxxx |
||||
Novelis PAE S.A.S. Joinder Agreement (Term)
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Exhibit I
Obligations of New Guarantor
1. (i) Deliver to the Collateral Agent (such term as referenced in this Exhibit I to include
successor
Agents under Section 10.06 of the Credit Agreement), within 30 days of the date hereof (or by such
later
date as may be agreed to in writing by the Collateral Agent in its sole discretion) a bank accounts
pledge
agreement in respect of each of the cash accounts the New Guarantor maintains with depositary bank
or
banks, in form and substance satisfactory to the Administrative Agent and the Collateral Agent and
(ii)
deliver to the depositary bank or banks acknowledgments evidencing such accounts pledge agreements
in
favor of the Collateral Agent in respect of each of the cash accounts of the New Guarantor, each in
form
and substance acceptable to the Collateral Agent.
2. Within 30 days of the date hereof (or by such later date as may be agreed to in writing by the
Collateral Agent in its sole discretion) deliver a pledge of receivables held by the New Guarantor,
in form
and substance satisfactory to the Funding Agent (such term as referenced in this Exhibit I to
include
successor Agents under Section 10.06 of the Credit Agreement) and the Collateral Agent and
subsequently enter into supplemental receivables pledge agreements in form and substance
satisfactory to
the Funding Agent and the Collateral Agent as may be necessary.
3. Within 30 days of the date hereof (or by such later date as may be agreed to in writing by the
Collateral Agent in its sole discretion) deliver a pledge of stock held by the New Guarantor, in
form and
substance satisfactory to the Funding Agent and the Collateral Agent.
4. Within 30 days of the date hereof (or by such later date as may be agreed to in writing by the
Collateral Agent in its sole discretion) deliver a pledge over going concern with regard to the New
Guarantor, in form and substance satisfactory to the Funding Agent and the Collateral Agent, in
addition
to any ancillary documents or instruments needed to perfect or record the security interest granted
thereunder under the laws of the Unites States, Canada, the United Kingdom, Germany, and
Switzerland.
5. Within 30 days of request thereof by the Funding Agent or the Collateral Agent (or by such later
date
as may be agreed to in writing by the Collateral Agent or the Funding Agent, as applicable, in its
sole
discretion) take all other actions requested by the Funding Agent or the Collateral Agent to cause
the
Liens created by the Security Documents executed by the New Guarantor in connection with this
Joinder
Agreement to be duly perfected in accordance with all applicable Requirements of Law in accordance
with (and subject to the limitations set forth in) Section 5.11(b) of the Credit Agreement.
6. Deliver, within 30 days of the date hereof (or by such later date as may be agreed to in writing
by the
Collateral Agent in its sole discretion), each in form and substance acceptable to the Collateral
Agent,
supplements to each of the schedules to the Credit Agreement and the Perfection Certificates
applicable to
it (each as referred to in Clause 3 of the Joinder Agreement).
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