EXHIBIT 4.6
SUPPLEMENTAL INDENTURE
This Supplemental Indenture, dated as of November 29, 2006 (this
"SUPPLEMENTAL INDENTURE" or "GUARANTEE"), among NOVELIS FINANCES USA LLC,
ALUMINUM UPSTREAM HOLDINGS LLC and NOVELIS SOUTH AMERICA HOLDINGS LLC (each a
"NEW SUBSIDIARY GUARANTOR"), Novelis Inc. (together with its successors and
assigns, the "COMPANY" or the "ISSUER"), each other existing Guarantor under the
Indenture referred to below (the "SUBSIDIARY GUARANTORS"), and The Bank of New
York Trust Company, N.A., as Trustee under this Indenture referred to below.
WITNESSETH:
WHEREAS, the Issuer, the Subsidiary Guarantors and the Trustee have
heretofore executed and delivered an Indenture, dated as of February 3, 2005 (as
amended, supplemented, waived or otherwise modified, the "INDENTURE"), providing
for the issuance of Notes of the Issuer (the "NOTES");
WHEREAS, Section 4.18 of this Indenture provides that the Company is
required to cause certain of its Subsidiaries to execute and deliver to the
Trustee a supplemental indenture pursuant to which the Subsidiaries will
unconditionally Guarantee, on a joint and several basis with the other
Subsidiary Guarantors, the full and prompt payment of the principal of, premium,
if any, and interest on the Notes on a senior basis; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and
the Issuer are authorized to execute and deliver this Supplemental Indenture to
amend or supplement this Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantor, the Issuer, the other Subsidiary Guarantors and the
Trustee mutually covenant and agree for the equal and ratable benefit of the
Holders as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. As used in this Supplemental Indenture,
terms defined in this Indenture or in the preamble or recital hereto are used
herein as therein defined, except that the term "HOLDERS" in this Guarantee
shall refer to the term "HOLDERS" as defined in this Indenture and the Trustee
acting on behalf or for the benefit of such Holders. The words herein," "hereof"
and "hereby" and other words of similar import used in this Supplemental
Indenture refer to this Supplemental Indenture as a whole and not to any
particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.1 Agreement to be Bound. The New Subsidiary Guarantor
hereby becomes a party to this Indenture as a Subsidiary Guarantor and as such
will have all of the rights and be subject to all of the obligations and
agreements of a Guarantor under this Indenture. The New Subsidiary Guarantor
agrees to be bound by all of the provisions of this Indenture applicable to a
Subsidiary Guarantor and to perform all of the obligations and agreements of a
Subsidiary Guarantor under this Indenture.
SECTION 2.2 Guarantee. The New Subsidiary Guarantor agrees, on a
joint and several basis with all the existing Subsidiary Guarantors, to fully,
unconditionally and irrevocably Guarantee to each Holder and the Trustee the
Obligations on a senior basis as provided in Article Ten of the Indenture, (a)
the due and punctual payment of the principal of, premium, if any, and interest
and Special Interest, if any, on the Notes, whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue principal and premium, if any, and, to the extent permitted by law,
interest and Special Interest, if any, and the due and punctual performance of
all other obligations of the Company to the Holders or the Trustee all in
accordance with the terms of the Indenture and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. The obligations of the New Subsidiary Guarantors to
the Holders, in their capacities as such, of Notes and to the Trustee pursuant
to the Guarantee and the Indenture are expressly set forth in the Indenture,
including Article 10 and Schedule A thereto, and reference is hereby made to the
Indenture for the precise terms and any limitations of the Guarantee. This
Guarantee is subject to release as and to the extent set forth in Sections 8.02,
8.03 and 10.05 of the Indenture. Each Holder of a Note, by accepting the same
agrees to and shall be bound by such provisions. Capitalized terms used herein
and not defined are used herein as so defined in the Indenture.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Notices. All notices and other communications to the
Subsidiary Guarantor shall be given as provided in this Indenture to the
Subsidiary Guarantor, at its address set forth below, with a copy to the Issuer
as provided in this Indenture for notices to the Issuer.
SECTION 3.2 Parties. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Supplemental Indenture or this Indenture or any
provision herein or therein contained.
SECTION 3.3 THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 3.4 Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction be ineffective to the extent of such
invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions; and the invalidity of a
particular provision in a particular jurisdictions shall not invalidate such
provision in any other jurisdiction.
SECTION 3.5 Ratification of Indenture; Supplemental Indentures Part
of Indenture. Except as expressly amended hereby, this Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of this Indenture for all purposes, and every Holder heretofore or
hereafter authenticated and delivered shall be bound hereby. The Trustee makes
no representation or warranty as to the validity or sufficiency of this
Supplemental Indenture.
SECTION 3.6 Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, each of which shall
constitute an original, but all of which when taken together shall constitute
one and the same agreement.
SECTION 3.7 Headings. The headings of the Articles and the sections
in this Supplemental Indenture are for convenience of reference only, are not
part of this Supplemental Indenture and shall not be deemed to alter or affect
the meaning or interpretation of any provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
COMPANY:
NOVELIS INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President and Treasurer
NEW SUBSIDIARY GUARANTORS:
NOVELIS FINANCES USA LLC
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Director and President
ALUMINUM UPSTREAM HOLDINGS LLC
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President and Treasurer
NOVELIS SOUTH AMERICA HOLDINGS LLC
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President and Treasurer
TRUSTEE
THE BANK OF NEW YORK TRUST COMPANY, N.A.
By: /s/ Stefan Victory
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Name: Stefan Victory
Title: Vice President
