EX-10.14
Published on May 6, 2024
EXECUTION VERSION
AMENDMENT NO. 12 TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of APRIL 26, 2024
among
NOVELIS INC.,
as Canadian Borrower,
NOVELIS CORPORATION
as a U.S. Borrower,
THE OTHER SUBSIDIARIES OF CANADIAN BORROWER
PARTY HERETO AS BORROWERS,
AV MINERALS (NETHERLANDS) N.V., AS HOLDINGS,
THE OTHER GUARANTORS PARTY HERETO,
THE THIRD PARTY SECURITY PROVIDER,
THE LENDERS PARTY HERETO,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Collateral Agent, and U.S. Swingline Lender,
WELLS FARGO BANK, N.A. (LONDON BRANCH),
as European Swingline Lender, and
THE ISSUING BANKS PARTY HERETO.
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This AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), dated as of April 26, 2024, is entered into among NOVELIS INC., a corporation amalgamated under the Canada Business Corporations Act and having its corporate office at One Phipps Plaza, 3550 Peachtree Road, Suite 1100, Atlanta, GA 30326, USA (the “Canadian Borrower”), NOVELIS CORPORATION, as a U.S. borrower, the other U.S. borrowers party hereto (collectively, the “U.S. Borrowers”), NOVELIS UK LTD, as a U.K. borrower (“Novelis UK”), NOVELIS AG, as a Swiss borrower (“Novelis AG”), NOVELIS DEUTSCHLAND GMBH, as a German borrower (“Novelis Deutschland”), AV MINERALS (NETHERLANDS) N.V., a corporation organized under the laws of the Netherlands (“Holdings”), the other LOAN PARTIES (as defined in the Amended Credit Agreement referred to below) party hereto, NOVELIS ITALIA S.P.A. (the “Third Party Security Provider”), the LENDERS party hereto, the ISSUING BANKS party hereto, WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent (in such capacity, and together with its successors in such capacity, “Administrative Agent”), as collateral agent (in such capacity, and together with its successors in such capacity, “Collateral Agent”), and as U.S. swingline lender (in such capacity, and together with its successors in such capacity, “U.S. Swingline Lender”), and WELLS FARGO BANK, N.A. (LONDON BRANCH), as European swingline lender (in such capacity, and together with its successors in such capacity, “European Swingline Lender”).
RECITALS
WHEREAS, the Borrowers party thereto, the other Loan Parties party thereto, the Administrative Agent, the Collateral Agent, the lenders party thereto immediately prior to the Amendment Effective Date (as defined below) (the “Existing Lenders”), the issuing banks party thereto, and the other parties from time to time party thereto, entered into that certain Second Amended and Restated Credit Agreement, dated as of October 6, 2014 (as amended, supplemented, restated or otherwise modified prior to the date hereof, the “Credit Agreement”, and the Credit Agreement, and as amended by this Amendment, the “Amended Credit Agreement”);
WHEREAS, the Canadian Borrower, ALR Aluminum, the other Loan Parties from time to time party thereto and the Collateral Agent, entered into that certain Amended and Restated Security Agreement, dated as of May 13, 2013 (as amended, restated, supplemented or otherwise modified from time to time, the “Specified U.S. Security Agreement”), among the Loan Parties from time to time party thereto and the Collateral Agent, as amended by this Amendment, the “Amended U.S. Security Agreement”),
WHEREAS, the Canadian Borrower and the Collateral Agent entered into that certain Share Mortgage (ABL), dated as of May 13, 2013 (as amended, supplemented, restated or otherwise modified prior to the date hereof, the “English Share Mortgage”);
WHEREAS, Novelis UK Ltd, Novelis Services Limited, Novelis Europe Holdings Limited and the Collateral Agent, entered into that certain Guarantee and Security Agreement (ABL), dated as of May 13, 2013 (as amended, supplemented, restated or otherwise
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modified prior to the date hereof, the “English Security Agreement”; and together with the English Share Mortgage, the “Foreign Security Agreements”);
WHEREAS, the Canadian Borrower has requested amendments to the Credit Agreement, the Specified U.S. Security Agreement, the Foreign Security Agreements and the Intercreditor Agreement as herein set forth;
WHEREAS, the Borrowers, the other Loan Parties, the Third Party Security Provider, the Administrative Agent, the Collateral Agent, the U.S. Swingline Lender, the European Swingline Lender, the Lenders party hereto (which Lenders constitute the Required Lenders under the Credit Agreement) and the Issuing Banks party hereto, have agreed to amend the Credit Agreement, the Specified U.S. Security Agreement, and the Foreign Security Agreements on the terms and subject to the conditions herein provided;
WHEREAS, the U.S. Borrowers and the other Guarantors party to the U.S. Security Agreement (collectively, the “Reaffirming Parties”, and each, a “Reaffirming Party”) have entered into or joined the U.S. Security Agreement in order to induce the Lenders to make Loans, and each Reaffirming Party desires to reaffirm the security interest granted pursuant to the Amended U.S. Security Agreement;
WHEREAS, the Reaffirming Parties expect to realize, or have realized, substantial direct and indirect benefits as a result of this Amendment becoming effective and the consummation of the transactions contemplated hereby;
WHEREAS, Section 2.05(d) of the Credit Agreement requires all Fees to be paid in Dollars;
WHEREAS, the Borrowers, the Administrative Agent and Lenders constituting the Required Lenders desire that each Fee related to an Obligation denominated in an Alternative Currency be paid in such Alternative Currency as provided herein;
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.Definitions. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Amended Credit Agreement.
Section 2.Amendments; Authorization.
2.01 Subject to the terms and conditions set forth herein, effective as of the Amendment Effective Date, the Credit Agreement is hereby amended as follows:
(i)The definition of “Dubai Guarantor” in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:
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““Dubai Guarantor” shall mean each Restricted Subsidiary of the Designated Company organized in any Permitted Dubai Freezone party hereto as a Guarantor, and each other Restricted Subsidiary of the Designated Company organized in any Permitted Dubai Freezone that becomes a Guarantor pursuant to the terms hereof.”
(ii)The definition of “Dubai Security Agreements” in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:
““Dubai Security Agreements” shall mean, collectively (i) any Security Agreements, including all subparts thereto, among any Dubai Guarantors (and such other Persons as may be party thereto) and the Collateral Agent for the benefit of the Secured Parties, (ii) each pledge agreement, mortgage, security agreement, guarantee or other agreement that is entered into by any Dubai Guarantor or any Person who is the holder of Equity Interests in any Dubai Guarantor in favor of the Collateral Agent and the Secured Parties and, in the case of an Assignment of Credits Agreement, also in favor of the Term Loan Collateral Agent and the secured parties under the Term Loan Credit Agreement in its capacity as agent for the Secured Parties pursuant to the terms of the Intercreditor Agreement and the other Loan Documents, and (iii) any other pledge agreement, mortgage, security agreement or other agreement entered into pursuant to the terms of the Loan Documents, in the case of each of clauses (i), (ii) and (iii), that is governed by the laws of the United Arab Emirates (or any subdivision thereof, including any Permitted Dubai Freezone), securing the Secured Obligations, and entered into pursuant to the terms of this Agreement or any other Loan Document, as the same may be amended, restated or otherwise modified from time to time.”.
(iii)Clause (j) of the definition of “Excluded Property” in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:
“(j) if the aggregate fair market value of Equipment located at the plant operated by Novelis do Brasil Ltda., at Av. Buriti, 1.087, CEP 12441-270, Feital –Pindamonhangaba-SP, Brazil and acquired in connection with the expansion of such plant commencing in August 2022 (the “Specified Brazilian Expansion”) that is not pledged in favor of the Collateral Agent to secure the Secured Obligations is less than $100,000,000, then such Equipment shall not be required to be so pledged until the earlier of (i) the date that is two years after the Amendment No. 12 Effective Date, and (ii) the date that the Companies complete or otherwise discontinue work on the expansion of such plant.”
Notwithstanding anything to the contrary herein or in Amendment No. 11, clause (k) of the definition of “Excluded Property” in Section 1.01 of the Credit Agreement shall have the meaning set forth in such clause as it appears in Amendment No. 10.
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(iv)The definition of “Restricted Grantor” in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:
““Restricted Grantor” shall mean a Loan Party that has granted a Guarantee that is subject to limitations that impair in any material respect the benefit of such Guarantee (as determined by the Administrative Agent in its Permitted Discretion) (it being expressly understood and agreed that (i) except to the extent otherwise provided in any Loan Document, no Loan Party that is the Canadian Borrower, a Canadian Guarantor, a U.K. Borrower, a U.K. Guarantor, a Dutch Guarantor or a U.S. Borrower shall be a Restricted Grantor and (ii) except as may be otherwise determined by the Administrative Agent in its Permitted Discretion, each Loan Party that is a Belgian Guarantor, a German Borrower, a German Guarantor, an Irish Guarantor, the Swiss Borrower, a Swiss Guarantor, a French Guarantor, a Dubai Guarantor or a Brazilian Guarantor shall be a Restricted Grantor); provided that, notwithstanding the foregoing, Novelis MEA LTD shall, subject to the terms of that certain letter agreement, dated as of July 30, 2013, by and among the Collateral Agent, the collateral agent in respect of the prior term loan credit agreement, and Novelis Inc., be an Unrestricted Grantor prior to the MEA Re-Domiciliation and shall be a Restricted Grantor upon and following the MEA Re-Domiciliation.”
(i) The following definition is hereby added to Section 1.01 of the Credit Agreement in appropriate alphabetical order:
““Amendment No. 12 Effective Date” means April 26, 2024.
“MEA Re-Domiciliation” means the transfer and re-domiciliation of Novelis MEA LTD from the Dubai International Financial Centre to the Dubai Multi Commodities Centre or the Dubai World Trade Centre; provided that (x) no Default or Event of Default exists immediately before and immediately after giving effect to such transfer and re-domiciliation and (y) Novelis MEA LTD has satisfied the requirements of Section 5.11 of this Agreement as of the date of such transfer and re-domiciliation with such transfer and re-domiciliation being deemed the formation of Novelis MEA LTD solely for purposes of determining compliance with such Section 5.11, and without regard to any Loan Documents governed by the laws of the Dubai International Financial Centre in effect immediately prior to giving effect to the MEA Re-Domiciliation. The MEA Re-Domiciliation shall occur no later than December 31, 2025 or such later date as may be agreed by the Administrative Agent in its sole discretion.
“Permitted Dubai Freezone” means the Dubai International Financial Centre, the Dubai Multi Commodities Centre or the Dubai World Trade Centre.
“Shell Entity” has the meaning assigned to such term in Section 7.09.
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(v)Section 2.05(d) of the Credit Agreement is hereby amended and restated in its entirety as follows:
“Notwithstanding anything in this Agreement or any other Loan Document to the contrary, all Fees shall be paid on the dates due, in immediately available funds, (i) for any Fee listed on Schedule 2.05(d) hereto, in the Approved Currency set forth on Schedule 2.05(d) hereto with respect to such Fee and (ii) for all other Fees (including, but not limited to, Commitment Fees), in Dollars, in each case, to the Administrative Agent for distribution, if and as appropriate, among the Lenders, except that Borrowers shall pay the Fronting Fees directly to the applicable Issuing Bank. Once paid, none of the Fees shall be refundable under any circumstances.”
(vi)Section 2.14(a) of the Credit Agreement is hereby amended and restated in its entirety as follows:
“Payments Generally. Each Loan Party shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or Reimbursement Obligations, or of amounts payable under Section 2.12, Section 2.13, Section 2.15, Section 2.16, Section 2.22 or Section 11.03, or otherwise) on or before the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to (i) in the case of payments with respect to Revolving Loans made in GBP or Euros, 12:00 noon, London time, (ii) in the case of European Swingline Loans, 11:00 a.m. London time), (iii) in the case of the Fees listed on Schedule 2.05(a) hereto, the time set forth on Schedule 2.05(d) hereto with respect to such Fee and (iv) with respect to all other payments, 3:00 p.m., New York time, on the date when due, in immediately available funds, without condition or deduction for any counterclaim, defense, recoupment or setoff. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All payments by any Loan Party shall be made to the Administrative Agent at Agent’s Account, for the account of the respective Lenders to which such payment is owed, except (w) payments to be made directly to an Issuing Bank or a Swingline Lender as expressly provided herein, (x) payments pursuant to Section 2.12, Section 2.13, Section 2.15, Section 2.16, Section 2.22 and Section 11.03 shall be made directly to the persons entitled thereto, (y) payments of Fees pursuant to Section 2.05(d) shall be made to the accounts set forth on Schedule 2.05(d) hereto with respect to such Fee and (z) payments pursuant to other Loan Documents shall be made to the persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other person to the appropriate recipient promptly following receipt thereof in like funds as received by the Administrative Agent. If any payment under any Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the date for payment shall be
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extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments under each Loan Document shall be made in Dollars, except as expressly specified otherwise (including, but not limited to, as expressly specified in Section 2.05(d)).”.
(vii)Section 5.11(a) of the Credit Agreement is hereby amended and restated in its entirety as follows:
“(a) Subject to the terms of the Intercreditor Agreement and this Section 5.11, with respect to (1) any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, and (2) any property that was Excluded Property but, as of the end of the most recently ended fiscal quarter has ceased to be Excluded Property, promptly (and in any event (x) in the case of newly acquired property, within thirty (30) days after the acquisition thereof, or (y) in the case of any other property that was Excluded Property, within thirty (30) days after the end of fiscal quarter in which such property ceases to be Excluded Property; provided that, in the case of clauses (x) and (y), the Administrative Agent may agree to an extension thereof in its sole discretion, or (z) immediately in connection with the applicable step(s) of the Permitted Reorganization, the applicable Permitted Reorganization Action, the applicable Permitted Aleris Foreign Subsidiary Transfer, the MEA Re-Domiciliation (except in the case of the notarization of any pledge over Equity Interests in the Dubai Guarantor, which shall be completed as soon as reasonably practicable following the MEA Re-Domiciliation)) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a First Priority Lien on such property subject to no Liens other than Permitted Liens, and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with Applicable Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion. The Borrowers shall otherwise take such actions and execute and/or deliver to the Administrative Agent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Security Documents against such after-acquired properties.”.
(viii)Section 6.02(f) of the Credit Agreement is hereby amended and restated in its entirety as follows:
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“(f) Liens (other than any Lien imposed by ERISA) (x) imposed by Requirements of Law or deposits made in connection therewith in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security legislation, (y) incurred in the ordinary course of business to secure the performance of tenders, statutory obligations (other than excise taxes), surety, stay, customs and appeal bonds, statutory bonds, bids, leases, government contracts, trade contracts, freight, logistics or shipping contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money) or (z) arising by virtue of deposits made in the ordinary course of business to secure liability for premiums to insurance carriers; provided that (i) with respect to clauses (x), (y) and (z) of this paragraph (f), such Liens are for amounts not yet due and payable or delinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been established on the books of the appropriate Company in accordance with US GAAP, and (ii) to the extent such Liens are not imposed by Requirements of Law, such Liens shall in no event encumber any property other than cash and Cash Equivalents and, with respect to clause (y), property relating to the performance of obligations secured by such contracts, bonds or instruments;”.
(ix)Section 6.02(q) of the Credit Agreement is hereby amended and restated in its entirety as follows:
“(q) (i) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business and (ii) Cash collateral deposited with the issuers of letters of credit, so long as (x) such cash collateral (1) secures undrawn amounts of letters of credit issued by such issuer (or contingent obligations thereunder) and (2) does not exceed the face amount of such letters of credit, and (y) such letters of credit are permitted under Section 6.01 and are issued in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;”.
(x)Section 6.04(c) of the Credit Agreement is hereby amended to add the following clause (v) at the end thereof:
“or (v) make deposits and advances in the ordinary course of business in connection with the purchase of goods (other than inventory) or services in the ordinary course of business;”
(xi)Section 6.11(e) of the Credit Agreement is hereby amended to add the following phrase at the end thereof:
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“; provided that, notwithstanding the foregoing, the amendments to the Organizational Documents of Novelis MEA LTD that are required to effect the MEA Re-Domiciliation, and all other changes required by the Administrative Agent or the Collateral Agent in order to effect the requirements of Section 5.11 in connection therewith, in each case are deemed not to be adverse in any material respect to the interests of the Lenders.”
(xii)Section 7.09 of the Credit Agreement is hereby amended and restated in its entirety as follows:
“Section 7.09 Release of Guarantors.
If, in compliance with the terms and provisions of the Loan Documents, (a) Equity Interests of any Subsidiary Guarantor are issued, sold or transferred (including pursuant to a merger, consolidation or amalgamation) such that it ceases to be a Restricted Subsidiary (a “Transferred Guarantor”) to a person or persons, none of which is a Loan Party or a Subsidiary, (b) a Guarantor is designated as an Unrestricted Subsidiary in accordance with the Loan Documents, (c) a Restricted Subsidiary that becomes a Loan Party after the Closing Date is subsequently designated as an Excluded Collateral Subsidiary in accordance with the definition thereof, (d) a Qualified Canadian Borrower IPO shall occur or (e) a Guarantor owns no assets (a “Shell Entity”), then, such Transferred Guarantor (in the case of clause (a)), such Unrestricted Subsidiary (in the case of clause (b)), such Restricted Subsidiary (in the case of clause (c)), or Holdings (in the case of clause (d)), and such Shell Entity (in the case of clause (e)) shall, upon the consummation of such issuance, sale or transfer or upon such designation as an Unrestricted Subsidiary or Excluded Collateral Subsidiary or upon the completion of the Qualified Canadian Borrower IPO or upon such Guarantor becoming a Shell Entity (as certified to the Administrative Agent in writing by the Designated Company), be released from its obligations under this Agreement (including under Section 11.03 hereof) and any other Loan Documents to which it is a party and, except with respect to Holdings in the case of clause (d) above, its obligations to pledge and grant any Collateral owned by it pursuant to any Security Document, and the Collateral Agent shall take such actions as are within its powers to effect each release described in this Section 7.09 in accordance with the relevant provisions of the Security Documents and the Intercreditor Agreement; provided that such Guarantor is also released from its obligations, if any, under the Term Loan Documents, the Senior Note Documents, the Additional Senior Secured Indebtedness Documents, any Additional Senior Secured Indebtedness, any Junior Secured Indebtedness, any Other Secured Indebtedness, and other Material Indebtedness guaranteed by such Person on the same terms; provided, further, that if such Guarantor is also a Borrower, such Guarantor shall not be released from any obligations hereunder or under any other Loan Document unless (1) it either (x) repays all Loans and other Obligations of such Borrower owing by it (the “Amounts Owing”) or (y) assign the outstanding
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Amounts Owing from such Borrower to another Borrower in the jurisdiction of organization of such Borrower pursuant to documentation reasonably satisfactory to the Administrative Agent, (2) no Default or Event of Default exists at the time of such release, (3) the representations and warranties of each Loan Party in the Loan Documents shall be true and correct in all material respects as of the date of the release of such Guarantor (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date, and any representation or warranty qualified by materiality shall be true and correct in all respects), (4) both immediately before and immediately after giving effect to such release, (x) the Availability Conditions shall have been satisfied, and (y) the Funding Conditions, the LC Conditions and the Swingline Conditions shall have been satisfied, and (5) the Administrative Borrower shall have delivered an updated Borrowing Base Certificate to the Administrative Agent based on the Borrowing Base Certificate most recently delivered pursuant to this Agreement, demonstrating the effect on the Borrowing Base of the removal of the Eligible Accounts and Eligible Inventory owned by the Borrower, and the updated Borrowing Base Certificate shall include an updated list of Borrowers reflecting the removal of such Borrower (clauses (1) through (5), the “Borrower Release Conditions”); provided, further, that, with respect to Holdings in the case of clause (d) above, (A) the only Collateral required to remain pledged and granted by Holdings pursuant to any Security Document after giving effect to a Qualified Canadian Borrower IPO shall be the Equity Interests (and related assets as described in the applicable Security Documents) that Holdings owns in Novelis Inc. (it being agreed that the Liens in favor of the Collateral Agent over assets of Holdings other than such Equity Interests and related assets shall be released upon giving effect to the Qualified Canadian Borrower IPO and so long as any Liens over such assets securing obligations under the Term Loan Documents are released concurrently), and (B) if, following the date of the Qualified Canadian Borrower IPO, Holdings shall sell, transfer or otherwise dispose of Equity Interests of the Canadian Borrower, then solely to the extent that no Default or Event of Default exists immediately before and immediately after giving effect to such sale, transfer or other disposition (as certified to the Administrative Agent in writing by the Designated Company), then such Equity Interests (together with any related assets in respect of such Equity Interests) shall be released, and so long as any Liens over such assets securing obligations under the Term Loan Documents are released concurrently (clauses (A) and (B), the “Permitted Holdings Collateral Release Provisions”).”.
(xiii)Section 10.02(a) of the Credit Agreement is hereby amended and restated in its entirety as follows:
“(a) Lien Releases; Care of Collateral. Secured Parties authorize Collateral Agent to release any Lien with respect to any Collateral (a) upon Full Payment of the Secured Obligations; (b) that is the subject of a sale, lease, license, consignment,
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transfer or other disposition which Administrative Borrower certifies in writing to Administrative Agent and Collateral Agent is permitted by Section 6.06 (provided that no Lien shall be released in any Series of Cash Neutral Transactions or, except as provided in the second to last sentence of this Section 10.02(a), in any Asset Sale to another Loan Party) (and the Agents may rely conclusively on any such certificate without further inquiry); provided that with respect to the release of any Liens over assets of Holdings on or after the date of the Qualified Canadian Borrower IPO, such release shall be subject to the Permitted Holdings Collateral Release Provisions; (c) that does not constitute a material part of the Collateral; (d) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor from its obligations under its Guarantee pursuant to Section 7.09; provided that with respect to the release of Holdings as a Guarantor, the release of any Liens over assets of Holdings on or after the date of the Qualified Canadian Borrower IPO shall be subject to the Permitted Holdings Collateral Release Provisions; (e) that is the subject of a Lien which Administrative Borrower certifies in writing to Administrative Agent and Collateral Agent is permitted by Section 6.02(n)(x) or (y) (and Agent may rely conclusively on any such certificate without further inquiry); (f) with the written consent of the Required Lenders or such other number of Lenders whose consent is required under Section 11.02; or (g) to the extent such Lien attaches to property that would otherwise constitute Excluded Property (including property of an Excluded Collateral Subsidiary in connection with the designation of a Loan Party as an Excluded Collateral Subsidiary); provided that, notwithstanding the foregoing, (1) [reserved], (2) each Agent’s Lien on any Revolving Credit Priority Collateral transferred by any Borrower to Holdings or any of its Subsidiaries that is not a Borrower shall not be released pursuant to the terms of this Agreement, any other Loan Document, or otherwise unless the Administrative Agent has received an updated Borrowing Base Certificate reflecting the removal of such Revolving Credit Priority Collateral from the Borrowing Bases, and upon such removal the Funding Conditions shall be satisfied, and (3) if, in connection with such release pursuant to a transaction permitted by this Agreement, a Borrower would either be released from all of its Obligations or the Liens on all Collateral of such Borrower would be released, then such release shall be subject to the satisfaction of the Borrower Release Conditions. Secured Parties authorize Collateral Agent to subordinate or release its Liens to any a Lien permitted hereunder that secures a Purchase Money Obligation or Capital Lease Obligation permitted hereunder. No Agent shall have any obligation to assure that any Collateral exists or is owned by a Loan Party, or is cared for, protected or insured, nor to assure that Collateral Agent’s Liens have been properly created, perfected or enforced, or are entitled to any particular priority, nor to exercise any duty of care with respect to any Collateral. As of the Amendment No. 1 Effective Date, notwithstanding anything to the contrary in the Intercreditor Agreement, and as permitted by Section 2.4(b)(i) of the Intercreditor Agreement, each Secured Party hereby unconditionally (i) (x) terminates each Mortgage in respect of Real Property located in the United States, Quebec, and the Ouro Preto Real Property located in Brazil, and (y) releases (1) the equipment
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and inventory owned by the Brazilian Guarantor that is located in Ouro Preto Brazil, and (2) the Real Property located in the United States, Quebec, and the Ouro Preto Real Property located in Brazil, in the case of clauses (1) and (2), from securing the Secured Obligations, and agrees that such Real Property and such Brazilian inventory and equipment shall not constitute “Collateral” or “Mortgaged Property” for any purposes hereunder or under any other Loan Document, and (ii) authorizes and directs (x) the Administrative Agent or the Collateral Agent, as applicable, at the Borrowers’ sole cost and expense, promptly upon receipt thereof, to execute and deliver to the Designated Company documents and agreements that release and discharge the Mortgages and Liens encumbering the Real Property located in the United States, Quebec, and the Ouro Preto Real Property located in Brazil, and to otherwise evidence the release and discharge of the equipment and inventory owned by the Brazilian Guarantor that is located in Ouro Preto Brazil, and (y) any Borrower or any of its Subsidiaries to record or cause any title company, attorney, or other Person to record such documents and agreements effecting such releases and discharges in the United States, Quebec and Brazilian land title records (or local equivalent) and, in the case of such Brazilian inventory and equipment, any applicable filing offices in Brazil, in each case as determined by such Borrower or such Subsidiary. Each Secured Party acknowledges as of the Amendment No. 1 Effective Date, that mortgages over Real Property located in the United States in favor of the Term Loan Administrative Agent or the Term Loan Collateral Agent, as the case may be, shall remain in full force and effect, irrespective of the releases described in the immediately preceding sentence, and that no mortgages over Real Property located in the United States shall be entered into to secure the Secured Obligations from and after the Amendment No. 1 Effective Date. Notwithstanding anything to the contrary above, if Intellectual Property or Real Property (and related fixtures) that constitutes Collateral is transferred pursuant to a transaction permitted by the Loan Documents from a Loan Party to another Loan Party (other than Holdings) and the applicable Intellectual Property or Real Property filing office requires the release of the existing Lien in favor of the Collateral Agent prior to reflecting the transfer in the register, then the Collateral Agent shall be permitted, without the consent of any Lender or any other Person, to release its Lien in respect of such Intellectual Property or Real Property (and related fixtures) in order to effect such transfer so long as (i) the Transfer Conditions are satisfied at the time of such transfer and the Designated Company shall have certified the same to the Administrative Agent and the Collateral Agent, (ii) substantially concurrently with the effectiveness of such transfer, such Intellectual Property and/or Real Property is pledged to the Collateral Agent to secure the Obligations on terms substantially the same as the pledge that is released by the Collateral Agent, (iii) the priority of the new Lien in favor of the Collateral Agent, whether pursuant to the Intercreditor Agreement or otherwise, is the same as that of the original Lien, and (iv) the Liens on such Intellectual Property or Real Property (and related fixtures) in favor of holders of Indebtedness under the Term Loan Documents or any Term Loan Credit Agreement Refinancing Indebtedness, Permitted First
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Priority Refinancing Debt, Permitted Second Priority Refinancing Debt, Additional Senior Secured Indebtedness and Junior Secured Indebtedness are also released substantially concurrently with the release granted by the Collateral Agent. Notwithstanding the foregoing, where Intellectual Property and Real Property (and related fixtures) can be transferred pursuant to an assignment and assumption or similar agreement in a manner that would avoid the need to release the Liens in favor of the Collateral Agent as described in the preceding sentence, then the Loan Parties shall effect such transfer pursuant to an assignment and assumption or similar agreement.”.
(xiv)Section 11.09(D) of the Credit Agreement is hereby amended and restated in its entirety as follows:
“SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT, IN THE MANNER PROVIDED FOR NOTICES (OTHER THAN TELECOPIER, E-MAIL OR OTHER ELECTRONIC TRANSMISSION) IN SECTION 11.01. EACH LOAN PARTY HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS NOVELIS CORPORATION, ONE PHIPPS PLAZA, 3550 PEACHTREE ROAD SUITE 1100, ATLANTA, GA 30326, USA, ATTN: CHIRAG SHAH (TELEPHONE NO: (404) 760-0137) (ELECTRONIC MAIL ADDRESS: CHIRAG.SHAH@NOVELIS.ADITYABIRLA.COM) AND KERRIE KRIZNER (TELEPHONE NO: (216) 571-0579) (ELECTRONIC MAIL ADDRESS: KERRIE.KRIZNER@NOVELIS.ADITYABIRLA.COM) (THE “PROCESS AGENT”), IN THE CASE OF ANY SUIT, ACTION OR PROCEEDING BROUGHT IN THE UNITED STATES AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS THAT MAY BE SERVED IN ANY ACTION OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.”
(xv)Schedule 1.01(a) of the Credit Agreement is hereby amended and restated in its entirety by Schedule I hereto.
(xvi)Schedule 2.05(d) is hereby added to the Credit Agreement in the form of Schedule II hereto.
2.02 Subject to the terms and conditions set forth herein, effective as of the Amendment Effective Date (as defined below), the Specified U.S. Security Agreement is hereby amended as follows:
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(i)Section 3.4(e) of the Specified U.S. Security Agreement is hereby amended and restated in its entirety as follows:
“Letter-of-Credit Rights. If any Pledgor is at any time a beneficiary under a Letter of Credit now or hereafter issued (other than a Letter of Credit issued in connection with (i) the construction of the aluminum recycling and rolling facility on the real property located in Bay Minette, Baldwin County, Alabama (the “Bay Minette Project”) or (ii) the construction of the recycling plant in Guthrie, Kentucky (the “Guthrie Project”), such Pledgor shall promptly notify the Collateral Agent thereof and such Pledgor shall, at the request of the Collateral Agent, pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either use commercially reasonable efforts to (i) arrange for the issuer and any confirmer of such Letter of Credit to consent to an assignment to the Collateral Agent of the proceeds of any drawing under the Letter of Credit or (ii) arrange for the Collateral Agent to become the transferee beneficiary of such Letter of Credit, with the Collateral Agent agreeing, in each case, that the proceeds of any drawing under the Letter of Credit are to be applied as provided in the Credit Agreement. The actions in the preceding sentence shall not be required to the extent that the amount of any such Letter of Credit, together with the aggregate amount of all other Letters of Credit for which the actions described above in clauses (i) and (ii) have not been taken, does not exceed $2,500,000 in the aggregate for all Pledgors. No Pledgor shall grant Control of any Letter-of-Credit Right to any Person other than the Collateral Agent and, subject to the terms of the Intercreditor Agreement, the Term Loan Collateral Agent. If any Pledgor becomes at any time a beneficiary under a Letter of Credit issued in connection with the Bay Minette Project or the Guthrie Project, such Pledgor shall include a description of such Letter of Credit in the Perfection Certificate Supplement delivered pursuant to Section 5.01(e) of the Credit Agreement.”
2.03 The Lenders party hereto (which Lenders constitute the Required Lenders under the Credit Agreement) hereby authorize the Administrative Agent and the Collateral Agent to, in connection with the MEA Re-Domiciliation, terminate and release any Dubai Security Agreements (as defined immediately prior to giving effect to this Amendment) if they are replaced substantially concurrently with new Dubai Security Agreements (as defined after giving effect to this Amendment) with respect to the Collateral pledged thereunder.
2.04 The Lenders party hereto (which Lenders constitute the Required Lenders under the Credit Agreement) hereby authorize the Administrative Agent and the Collateral Agent to execute and deliver the amendments to, or amendments and restatements of, the Foreign Security Agreements and Intercreditor Agreement, each in substantially the form attached hereto as Exhibit A. The Lenders party hereto acknowledge that the amendment to, or amendment and restatement of, the Intercreditor Agreement, substantially in the form attached hereto as Exhibit A, shall be executed after the Amendment Effective Date.
Section 3.Conditions Precedent to Effectiveness of this Amendment. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on
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which each of the following conditions precedent shall have been satisfied, or duly waived by the Lenders party hereto, the Issuing Banks party hereto and the Agents party hereto:
(a)Executed Amendment. The Administrative Agent shall have received this Amendment, duly executed by each of the Loan Parties, the Third Party Security Provider, the Lenders party hereto (which constitute the Required Lenders under the Credit Agreement), the Issuing Banks party hereto, the Administrative Agent and the Collateral Agent.
(b)Executed Foreign Security Agreements. The Administrative Agent shall have received amendments to, or amendments and restatements of, the Foreign Security Agreements, each in substantially the form attached hereto as Exhibit A, duly executed by each of the Loan Parties party thereto and the Collateral Agent.
(c)Representations and Warranties. Each of the representations and warranties contained in Section 4 below and in any other Loan Document shall be true and correct in all material respects (or, in the case of any representation or warranty that is qualified as to materiality, “Material Adverse Effect” or similar language, in all respects) on and as of the date hereof.
(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 or would result from the effectiveness of this Amendment.
Section 4.Representations and Warranties. Each Loan Party represents and warrants to the Administrative Agent, the Collateral Agent and each Lender and Issuing Bank as follows:
(a)After giving effect to this Amendment, each of the representations and warranties in the Amended Credit Agreement or in any other Loan Document are true and correct in all material respects (or, in the case of any representation or warranty that is qualified as to materiality, “Material Adverse Effect” or similar language, in all 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, in which case such representations and warranties are true and correct in all material respects (or, in the case of any representation or warranty that is qualified as to materiality, “Material Adverse Effect” or similar language, in all respects) as of such earlier date.
(b)The execution and delivery by the Canadian Borrower, Holdings, each other Loan Party, and the Third Party Security Provider of this Amendment, and the performance of this Amendment, the Amended Credit Agreement and the Amended U.S. Security Agreement by the Canadian Borrower, Holdings, each other Loan Party and the Third Party Security Provider, in each case have been duly authorized by all requisite organizational action on its part and will not violate any of its Organizational Documents.
(c)This Amendment has been duly executed and delivered by the Canadian Borrower, Holdings, each other Loan Party, and the Third Party Security Provider, and each of this Amendment, the Amended Credit Agreement and the Amended U.S. Security Agreement
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constitutes the Canadian Borrower’s, Holdings’, such Loan Party’s, or the Third Party Security Provider’s, as applicable, legal, valid and binding obligation, enforceable against it 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 5.Continuing Effect; Liens and Guarantees; No Novation.
(a)Each of the Loan Parties and the Third Party Security Provider hereby consents to this Amendment and the Amended Credit Agreement. Each of the Loan Parties and the Third Party Security Provider hereby acknowledges and agrees that all of its Secured Obligations, including all Liens and (in the case of the Loan Parties) Guarantees granted to the Secured Parties under the applicable Loan Documents, are ratified and reaffirmed and that such Liens and Guarantees shall continue in full force and effect on and after Amendment Effective Date to secure and support the Secured Obligations. Each of the Loan Parties hereby further ratifies and reaffirms the validity, enforceability and binding nature of the Secured Obligations.
(b)Holdings, the Canadian Borrower and each Subsidiary Guarantor hereby (i) acknowledges and agrees to the terms of this Amendment, the Amended Credit Agreement and the Amended U.S. Security Agreement and (ii) confirms and agrees that, each of its Guarantee and any Foreign Guarantee is, and shall continue to be, in full force and effect, and shall apply to all Secured Obligations without defense, counterclaim or offset of any kind and each of its Guarantee and any such Foreign Guarantee is hereby ratified and confirmed in all respects. Each Borrower hereby confirms its liability for the Secured Obligations, without defense, counterclaim or offset of any kind.
(c)Holdings, the Canadian Borrower, each other Loan Party and the Third Party Security Provider hereby ratifies and reaffirms the validity and enforceability (without defense, counterclaim or offset of any kind) of the Liens and security interests granted by it to the Collateral Agent for the benefit of the Secured Parties to secure any of the Secured Obligations by Holdings, the Canadian Borrower, any other Loan Party and the Third Party Security Provider pursuant to the Loan Documents to which any of Holdings, the Canadian Borrower, any other Loan Party or the Third Party Security Provider is a party and hereby confirms and agrees that notwithstanding the effectiveness of this Amendment, and except as expressly amended by this Amendment, each such Loan Document is, and shall continue to be, in full force and effect and each is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of this Amendment, each reference in the Loan Documents to the “Credit Agreement”, “thereunder”, “thereof” (and each reference in the Credit Agreement to this “Agreement”, “hereunder” or “hereof”) or words of like import shall mean and be a reference to the Amended Credit Agreement and, in the case of the “U.S. Security Agreement”, shall include the Amended U.S. Security Agreement.
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(d)Without limiting the generality of this Section 5 or Section 6, (i) neither this Amendment, the Amended Credit Agreement, the Amended U.S. Security Agreement, nor any other Loan Document entered into in connection herewith or therewith, shall extinguish the “Secured Obligations” (or any term of like import) as defined or referenced in each Security Agreement, or the “Secured Obligations” under and as defined in the Credit Agreement (collectively, the “Loan Document Secured Obligations”), or discharge or release the priority of any Loan Document, and any security interest previously granted pursuant to each Loan Document is hereby reaffirmed and each such security interest continues in effect and secures the Loan Document Secured Obligations, (ii) nothing contained herein, in the Amended Credit Agreement, the Amended U.S. Security Agreement, or any other Loan Document entered into in connection herewith or therewith shall be construed as a substitution or novation of all or any portion of the Loan Document Secured Obligations or instruments securing any of the foregoing, which shall remain in full force and effect and shall continue as obligations under the Amended Credit Agreement, and (iii) nothing implied in this Amendment, the Amended Credit Agreement, the Amended U.S. Security Agreement, or any other Loan Document entered into in connection herewith or therewith, or in any other document contemplated hereby or thereby shall be construed as a release or other discharge of any Loan Party or the Third Party Security Provider from any of its Loan Document Secured Obligations, it being understood that such obligations shall continue as obligations under the Amended Credit Agreement.
Section 6.U.S. Reaffirmation.
(a)Each Reaffirming Party hereby confirms its guarantees, assignments, pledges and grants of security interests, as applicable, under each Guarantee, the Amended U.S. Security Agreement, and each other U.S. Security Agreement to which it is a party, and agrees that such guarantees, assignments, pledges and grants of security interests shall continue to be in full force and effect and shall accrue to the benefit of the Collateral Agent for the benefit of the Secured Parties.
(b)Each Reaffirming Party hereby confirms and agrees that the “Secured Obligations” (or any term of like import) as defined or referenced in any Guarantee, the Amended U.S. Security Agreement, and any other U.S. Security Agreement will include the “Secured Obligations” as defined in the Amended Credit Agreement.
Section 7.Reference to and Effect on the Loan Documents.
(a)Except as expressly set forth in this Amendment, all of the terms and provisions of the Credit Agreement and the other Loan Documents (including all exhibits and schedules to each of the Credit Agreement and the other Loan Documents) are and shall remain in full force and effect and are hereby ratified and confirmed. The Amendments provided for herein and in the annexes and exhibits hereto are limited to the specific provisions of the Credit Agreement and the U.S. Security Agreement specified herein and therein and shall not constitute an amendment of, or an indication of the Administrative Agent’s or any Lender’s or Issuing Bank’s willingness to amend or waive, any other provisions of the Credit Agreement or the U.S. Security Agreement, in each case as amended hereby or thereby, or the same sections or any provision of any other Loan Document for any other date or purpose.
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(b)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, the Collateral Agent, any Issuing Bank or any Lender under the Credit Agreement, the U.S. Security Agreement, or any Loan Document, or constitute a waiver or amendment of any other provision of the Credit Agreement, the U.S. Security Agreement, or any Loan Document except as and to the extent expressly set forth herein.
(c)The execution and delivery of this Amendment by any Loan Party or the Third Party Security Provider shall not constitute a joinder by, or agreement to be bound by the terms of, any Loan Document to which such Loan Party or the Third Party Security Provider is not a party.
(d)This Amendment shall constitute a Loan Document.
Section 8.Further Assurances; Post-Closing Requirements.
(a)The Canadian Borrower, Holdings, each other Loan Party and the Third Party Security Provider hereby agrees to execute any and all further documents, agreements and instruments and take all further actions that the Administrative Agent deems reasonably necessary or advisable in connection with this Amendment, including to continue and maintain the effectiveness of the Liens and guarantees provided for under the Loan Documents, with the priority contemplated under the Loan Documents. The Administrative Agent and the Collateral Agent are hereby authorized by the Lenders and the Issuing Banks to enter into all such further documents, agreements and instruments, and to file all financing statements deemed by the Administrative Agent to be reasonably necessary or advisable in connection with this Amendment.
Section 9.Counterparts.
(a)This Amendment and any notices delivered under this Amendment, may be executed by means of (a) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (b) an original manual signature; or (c) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. The Administrative Agent reserves the right, in its sole discretion, to accept, deny, or condition acceptance of any electronic signature on this Amendment or on any notice delivered to the Administrative Agent under this Amendment.
(b)This Amendment and any notices delivered under 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 or electronic image scan transmission (e.g., PDF via electronic email) of an executed signature page and any notices as set forth herein shall constitute receipt by the
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Administrative Agent and shall be as effective as delivery of a manually executed counterpart of the Amendment or notice.
Section 10.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, without regard to conflicts of law principles that would require the application of the laws of another jurisdiction.
Section 11.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 12.WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
[SIGNATURE PAGES FOLLOW]
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 first indicated above.
NOVELIS INC., as the Canadian Borrower, Administrative Borrower and a Canadian Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
AV MINERALS (NETHERLANDS) N.V., as Holdings and a Dutch Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
NOVELIS CORPORATION, as a U.S. Borrower and a Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
NOVELIS GLOBAL EMPLOYMENT ORGANIZATION, INC., as a U.S. Borrower and a Guarantor
By: /s/ Randal P. Miller
Name: Randal P. Miller
Title: Treasurer
Name: Randal P. Miller
Title: Treasurer
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS SOUTH AMERICA HOLDINGS LLC, as a U.S. Borrower and a Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
NOVELIS HOLDINGS INC.,
as a U.S. Borrower and a Guarantor
as a U.S. Borrower and a Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS UK LTD, as U.K. Borrower and a U.K. Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Attorney
Name: Gregg Murphey
Title: Attorney
NOVELIS EUROPE HOLDINGS LIMITED,
as a U.K. Guarantor
as a U.K. Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Attorney
Name: Gregg Murphey
Title: Attorney
NOVELIS SERVICES LIMITED,
as a U.K. Guarantor
as a U.K. Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Attorney
Name: Gregg Murphey
Title: Attorney
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS AG, as Swiss Borrower, European Administrative Borrower and a Swiss Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
NOVELIS SWITZERLAND SA,
as a Swiss Guarantor
as a Swiss Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
4260848 CANADA INC., as a Canadian Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
4260856 CANADA INC., as a Canadian Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
8018227 CANADA INC., as a Canadian Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
SIGNED AND DELIVERED AS A DEED
for and on behalf of NOVELIS ALUMINIUM HOLDING UNLIMITED COMPANY
by its lawfully appointed attorney,
as Irish Guarantor
in the presence of:
for and on behalf of NOVELIS ALUMINIUM HOLDING UNLIMITED COMPANY
by its lawfully appointed attorney,
as Irish Guarantor
in the presence of:
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Attorney
Name: Gregg Murphey
Title: Attorney
witness:
By: /s/ Kerrie Krizner
Name: Kerrie Krizner
Title: Manager – Legal Services
Name: Kerrie Krizner
Title: Manager – Legal Services
Address: 3550 Peachtree Rd, STE 1100
Atlanta, GA 30326
Occupation: Paralegal
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS DEUTSCHLAND GMBH,
as a German Borrower and a German Guarantor
as a German Borrower and a German Guarantor
By: /s/ Siegfried Adloff
Name: Siegfried Adloff
Title: Managing Director
Name: Siegfried Adloff
Title: Managing Director
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS SHEET INGOT GMBH,
as a German Guarantor
as a German Guarantor
By: /s/ Peter Haycock
Name: Peter Haycock
Title: Managing Director
Name: Peter Haycock
Title: Managing Director
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS DO BRASIL LTDA.,
as Brazilian Guarantor
as Brazilian Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Attorney-in-Fact
Name: Gregg Murphey
Title: Attorney-in-Fact
witness:
By: /s/ Kerrie Krizner
Name: Kerrie Krizner
Title: Manager – Legal Services
Name: Kerrie Krizner
Title: Manager – Legal Services
witness:
By: /s/ Keaston Hall
Name: Keaston Hall
Title: Legal Counsel
Name: Keaston Hall
Title: Legal Counsel
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS PAE S.A.S., as French Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Attorney-in-Fact
Name: Gregg Murphey
Title: Attorney-in-Fact
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS MEA LTD, a Company Limited by Shares under the Companies Law of the Dubai International Financial Centre,
as Dubai Guarantor
as Dubai Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS ITALIA S.P.A., as Third Party Security Provider
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Attorney
Name: Gregg Murphey
Title: Attorney
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS ALR ALUMINUM HOLDINGS CORPORATION, as a U.S. Borrower and a Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
NOVELIS ALR INTERNATIONAL, INC., as a U.S. Borrower and a Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
NOVELIS ALR ROLLED PRODUCTS, INC., as a U.S. Borrower and a Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
NOVELIS ALR ASSET MANAGEMENT CORPORATION, as a U.S. Borrower and a Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS ALR ROLLED PRODUCTS, LLC, as a U.S. Borrower and a Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
NOVELIS ALR ROLLED PRODUCTS SALES CORPORATION, as a U.S. Borrower and a Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
NOVELIS ALR RECYCLING OF OHIO, LLC, as a U.S. Borrower and a Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
NOVELIS ALR ALUMINUM-ALABAMA, LLC, as a U.S. Borrower and a Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
NOVELIS ALR ALUMINUM, LLC, as a U.S. Borrower and a Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey
Title: Authorized Signatory
Name: Gregg Murphey
Title: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
|
NOVELIS DEUTSCHLAND HOLDING GMBH, as a German Guarantor
By: /s/ Roland Leder
Name: Roland Leder
Title: Managing Director
|
|||||
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
|
NOVELIS KOBLENZ GMBH, as a German Guarantor and a German Borrower
By: /s/ NILS LEONHARDT
Name: NILS LEONHARDT
Title: Managing Director
|
|||||
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
|
NOVELIS CASTHOUSE GERMANY GMBH, as a German Guarantor and a German Borrower
By: /s/ NILS LEONHARDT
Name: NILS LEONHARDT
Title: Managing Director
|
|||||
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
|
NOVELIS NETHERLANDS B.V., as a Dutch Guarantor
By: /s/ Gregg Murphey
Name: Gregg Murphey Title: Authorized Signatory |
|||||
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Collateral Agent, U.S. Swingline Lender and as a Lender
By: /s/ Brandi Petrucci
Name: Brandi Petrucci
Title: Director, Authorized Signatory
Name: Brandi Petrucci
Title: Director, Authorized Signatory
WELLS FARGO BANK, N.A. (LONDON BRANCH), as European Swingline Lender
By: /s/ Alison Powell
Name: Alison Powell
Title: Authorised Signatory
Name: Alison Powell
Title: Authorised Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
WELLS FARGO BANK, NATIONAL ASSOCIATION, as an Issuing Bank
By: /s/ Brandi Petrucci
Name: Brandi Petrucci
Title: Director, Authorized Signatory
Name: Brandi Petrucci
Title: Director, Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
BANK OF AMERICA, N.A.,
as a Lender
as a Lender
By: /s/ Cheryl B. Swan
Name: Cheryl B. Swan
Title: SVP
Name: Cheryl B. Swan
Title: SVP
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
BANK OF AMERICA, N.A.,
as an Issuing Bank
as an Issuing Bank
By: /s/ Cheryl B. Swan
Name: Cheryl B. Swan
Title: SVP
Name: Cheryl B. Swan
Title: SVP
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
BANK OF MONTREAL, as a Lender
By: /s/ Beth Izzo
Name: Beth Izzo
Title: Director
Name: Beth Izzo
Title: Director
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
BANK OF MONTREAL, as a Lender
By: /s/ Helen Alvarez-Hernandez
Name: Helen Alvarez-Hernandez
Title: Managing Director
Name: Helen Alvarez-Hernandez
Title: Managing Director
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
BARCLAYS BANK IRELAND PLC,
as a Lender
as a Lender
By: /s/ Mark Pope
Name: Mark Pope
Title: Vice President
Name: Mark Pope
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
BARCLAYS BANK PLC, as an Issuing Bank
By: /s/ Charlene Saldanha
Name: Charlene Saldanha
Title: Vice President
Name: Charlene Saldanha
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
BNP PARIBAS,
as a Lender
as a Lender
By: /s/ Zachary Kaiser
Name: Zachary Kaiser
Title: Director
Name: Zachary Kaiser
Title: Director
By: /s/ Guelay Mese
Name: Guelay Mese
Title: Managing Director
Name: Guelay Mese
Title: Managing Director
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
CITIBANK, N.A.,
as a Lender
as a Lender
By: /s/ David Smith
Name: David Smith
Title: Vice President & Director
Name: David Smith
Title: Vice President & Director
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
Deutsche Bank AG New York Branch,
as a Lender and an Issuing Bank
as a Lender and an Issuing Bank
By: /s/ Philip Tancorra
Name: Philip Tancorra
Title: Director
Name: Philip Tancorra
Title: Director
By: /s/ Lauren Danbury
Name: Lauren Danbury
Title: Vice President
Name: Lauren Danbury
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
HSBC Bank USA, NA,
as a Lender
as a Lender
By: /s/ Soraiya Esmail
Name: Soraiya Esmail
Title: Head of Multinationals Client Desk
Name: Soraiya Esmail
Title: Head of Multinationals Client Desk
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
HSBC Bank USA, NA, as an Issuing Bank
By: /s/ Soraiya Esmail
Name: Soraiya Esmail
Title: Head of Multinationals Client Desk
Name: Soraiya Esmail
Title: Head of Multinationals Client Desk
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
ING CAPITAL LLC,
as a Lender
as a Lender
By: /s/ Jean Grasso
Name: Jean Grasso
Title: Managing Director
Name: Jean Grasso
Title: Managing Director
By: /s/ Jeff Chu
Name: Jeff Chu
Title: Director
Name: Jeff Chu
Title: Director
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
Morgan Stanley Bank, N.A.,
as a Lender
as a Lender
By: /s/ Karina Rodriguez
Name: Karina Rodriguez
Title: Authorized Signatory
Name: Karina Rodriguez
Title: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
PNC BANK, N.A.,
as a Lender
as a Lender
By: /s/ Ryan Maloy
Name: Ryan Maloy
Title: Assistant Vice President
Name: Ryan Maloy
Title: Assistant Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
Regions Bank,
as a Lender
as a Lender
By: /s/ Scott Martin
Name: Scott Martin
Title: Managing Director
Name: Scott Martin
Title: Managing Director
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
Standard Chartered Bank,
as a Lender
as a Lender
By: /s/ Ambrish Mathur
Name: Ambrish Mathur
Title: Relationship Manager
Name: Ambrish Mathur
Title: Relationship Manager
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
Truist Bank,
as a Lender
as a Lender
By: /s/ Edyta Bielawski
Name: Edyta Bielawski
Title: Director
Name: Edyta Bielawski
Title: Director
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK (CANADA BRANCH), as a Lender
By: /s/ Andrew Sidford
Name: Andrew Sidford
Title: Managing Director
Name: Andrew Sidford
Title: Managing Director
By: /s/ Gordon Yip
Name: Gordon Yip
Title: Director
Name: Gordon Yip
Title: Director
[SIGNATURE PAGE TO AMENDMENT NO. 12 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
Schedule I
Schedule 1.01(a)
Agent’s Account
Instructions for all payments, except: (i) payments to be made directly to an Issuing Bank or a Swingline Lender as expressly provided in this Agreement, (ii) payments pursuant to Section 2.12, Section 2.13, Section 2.15, Section 2.16, Section 2.22 and Section 11.03 shall be made directly to the persons entitled thereto, (iii) payments of Fees pursuant to Section 2.05(d) shall be made to the accounts set forth on Schedule 2.05(d) hereto with respect to such Fee and (iv) payments pursuant to other Loan Documents shall be made to the persons specified therein:
USD (US Borrowers)
Bank: Wells Fargo Bank, N.A.
Bank Address: 420 Montgomery Street, San Francisco, CA
ABA Number: 121-000-248
Account Number: 4124923723
Credit To: Wells Fargo Bank, N.A.
Regarding: Novelis
USD (Canadian Borrowers)
Bank: TD Canada Trust
Bank Address: 55 King Street West, Toronto, Ontario, Canada M5K 1A2
Transit Number: 10202
Bank Number: 004
Canadian Clearing Code: 000410202
SWIFT Number TDOMCATTTOR
Beneficiary: Wells Fargo Capital Finance Corporation Canada
Beneficiary Account Number: 7387637
40 King Street West Suite 2500, Toronto, ON M5H 3Y2
Beneficiary Address: Canada
Ordering Customer: Novelis
GBP (UK, Swiss, German, Belgian, US and Canadian Borrowers)
Bank Name Wells Fargo Bank, N.A. London
Swift PNBPGB2L
Account Name Wells Fargo Bank, N.A.
IBAN GB76PNBP16567188000418
Sort Code 16-56-71
Account No: 88000418
Reference Novelis
EUROS (UK, Swiss, German, Belgian, US and Canadian Borrowers)
Bank Name Wells Fargo Bank, N.A. London
Swift PNBPGB2L
Account Name Wells Fargo Bank, N.A.
IBAN GB33PNBP16567188000416
Account No: 88000416
Reference Novelis
CHF (UK, Swiss, Belgian and German Borrowers)
Bank Name Wells Fargo Bank, N.A. London
Swift PNBPGB2L
Account Name 16-56-71
IBAN Wells Fargo Bank, N.A.
Sort Code GB95PNBP16567188000658
Account No: 88000658
Reference Novelis
USD (UK, Swiss, Belgian and German Borrowers)
Bank Name Wells Fargo Bank, N.A. London
Swift PNBPGB2L
Account Name Wells Fargo Bank, N.A.
IBAN GB65PNBP16567188000422
Account No: 88000422
Reference Novelis
Schedule II
Schedule 2.05(d)
Fees
| Type of Fee | Approved Currency for Payment | Timing for Payment | Wire Instructions for Payment | ||||||||
| LC Participation Fees, Fronting Fees and all other Fees with respect to Letters of Credit denominated in Can$ | Can$ | 3:00 p.m., New York time |
Bank Name: Wells Fargo Bank, N.A. London
Bank Address: 33 King William Street, London EC4R 9AT
SWIFT: PNBPGB2L
Account Name: Wells Fargo Bank, N.A. – Capital Finance
IBAN: GB76PNBP16567188000414
Account No.: 88000414
Reference: Novelis
|
||||||||
| LC Participation Fees, Fronting Fees and all other Fees with respect to Letters of Credit denominated in CHF | CHF | 12:00 noon, London time |
Bank Name: Wells Fargo Bank, N.A. London
Bank Address: 33 King William Street, London EC4R 9AT
SWIFT: PNBPGB2L
Account Name: Wells Fargo Bank, N.A. – Capital Finance
IBAN: GB95PNBP16567188000658
Sort Code: 16-56-71
Account No.: 88000658
Reference: Novelis
|
||||||||
| LC Participation Fees, Fronting Fees and all other Fees with respect to Letters of Credit denominated in EUR | EUR | 12:00 noon, London time |
Bank Name: Wells Fargo Bank, N.A. London
Bank Address: 33 King William Street, London EC4R 9AT
SWIFT: PNBPGB2L
Account Name: Wells Fargo Bank, N.A. – Capital Finance
IBAN: GB33PNBP16567188000416
Account No.: 88000416
Reference: Novelis
|
||||||||
| LC Participation Fees, Fronting Fees and all other Fees with respect to Letters of Credit denominated in GBP | GBP | 12:00 noon, London time |
Bank Name: Wells Fargo Bank, N.A. London
Bank Address: 33 King William Street, London EC4R 9AT
SWIFT: PNBPGB2L
Account Name: Wells Fargo Bank, N.A.
IBAN: GB76PNBP16567188000418
Account No.: 88000418
Reference: Novelis
|
||||||||
| LC Participation Fees, Fronting Fees and all other Fees with respect to Letters of Credit denominated in USD | USD | 3:00 p.m., New York time |
U.S. Borrowers:
Bank Name: Wells Fargo Bank, N.A.
Bank Address: 420 Montgomery Street, San Francisco, CA 94104
ABA Number: 121-000-248
Beneficiary Information:
Account Name: Wells Fargo Bank, N.A.
Account No.: 37235547964501665
Reference: Novelis Corp – AR
Address: 1800 Century Park E, 13th Floor, Los Angeles, CA 90067
U.K., Swiss and German Borrowers:
Bank Name: Wells Fargo Bank, N.A. London
Bank Address: 33 King William Street, London EC4R 9AT
SWIFT: PNBPGB2L
Account Name: Wells Fargo Bank, N.A. – Capital Finance
IBAN: GB65PNBP16567188000422
Account No.: 88000422
Reference: Novelis
Canadian Borrower:
Bank: TD Canada Trust
Bank Address: 55 King Street West, Toronto, Ontario, Canada M5K 1A2
Transit Number: 10202
Bank Number: 004
Canadian Clearing Code: 000410202
SWIFT Number: TDOMCATTTOR
Beneficiary: Wells Fargo Capital Finance Corporation Canada
Beneficiary Account Number: 7387637
40 King Street West Suite 2500, Toronto, ON M5H 3Y2
Beneficiary Address: Canada
Ordering Customer: Novelis
|
||||||||
EXHIBIT A
FORM OF FOREIGN SECURITY AGREEMENTS
AND INTERCREDITOR AGREEMENT AMENDMENT
AND INTERCREDITOR AGREEMENT AMENDMENT
[See attached.]
Execution version
Dated 2024
Between
NOVELIS UK LTD
NOVELIS SERVICES LIMITED
NOVELIS EUROPE HOLDINGS LIMITED
as Chargors
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Collateral Agent
___________________________________________
AMENDMENT DEED
RELATING TO
THE EXISTING GUARANTEE AND SECURITY
AGREEMENTS (AS DEFINED HEREIN)
___________________________________________
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO THE COLLATERAL AGENT FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT TO THE EXISTING GUARANTEE AND SECURITY AGREEMENTS (AS DEFINED IN THIS DEED) AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT HEREUNDER AND THEREUNDER ARE SUBJECT TO THAT CERTAIN INTERCREDITOR AGREEMENT, DATED AS OF DECEMBER 17, 2010 (AS AMENDED, RESTATED, AMENDED AND RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE "INTERCREDITOR AGREEMENT"), AMONG NOVELIS INC., AV MINERALS (NETHERLANDS) N.V. (AS SUCCESSOR IN INTEREST TO AV METALS INC.) ("HOLDINGS"), THE OTHER SUBSIDIARIES OF HOLDINGS OR NOVELIS INC. FROM TIME TO TIME PARTY THERETO, WELLS FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT FOR THE REVOLVING CREDIT LENDERS (AS DEFINED IN THE INTERCREDITOR AGREEMENT) (AS SUCCESSOR TO BANK OF AMERICA, N.A. PURSUANT TO THAT CERTAIN INTERCREDITOR JOINDER AGREEMENT DATED AS OF MAY 13, 2013), WELLS FARGO BANK, NATIONAL ASSOCIATION, AS COLLATERAL AGENT FOR THE REVOLVING CREDIT CLAIMHOLDERS (AS DEFINED IN THE INTERCREDITOR AGREEMENT) (AS SUCCESSOR TO BANK OF AMERICA, N.A. PURSUANT TO THAT CERTAIN INTERCREDITOR JOINDER AGREEMENT DATED AS OF MAY 13, 2013), STANDARD CHARTERED BANK, AS ADMINISTRATIVE AGENT FOR THE PARI PASSU SECURED PARTIES (AS DEFINED IN THE INTERCREDITOR AGREEMENT) (PURSUANT TO THAT CERTAIN INTERCREDITOR JOINDER AGREEMENT DATED AS OF JANUARY 13, 2017), STANDARD CHARTERED BANK, AS COLLATERAL AGENT FOR THE PARI PASSU SECURED PARTIES (AS DEFINED IN THE INTERCREDITOR AGREEMENT) (PURSUANT TO THAT CERTAIN INTERCREDITOR JOINDER AGREEMENT DATED AS OF JANUARY 13, 2017), AND CERTAIN OTHER PERSONS WHICH MAY BE OR BECOME PARTIES THERETO OR BECOME BOUND THERETO FROM TIME TO TIME. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THIS DEED, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.
CONTENTS
Clause Page
Clause Page
1.INTERPRETATION.................................................................................1
2. AMENDMENTS…...................................................................................4
3. REPRESENTATIONS AND UNDERTAKINGS....................................5
4. GUARANTEE AND SECURITY CONFIRMATION.............................5
5. ELECTRONIC SIGNATURES AND COUNTERPARTS......................6
6. NOTICES…..............................................................................................7
7. GOVERNING LAW….............................................................................8
8. ENFORCEMENT….................................................................................8
THE SCHEDULE
AMENDMENTS TO ORIGINAL GUARANTEE AND SECURITY
AGREEMENT…....................................................................................10
AMENDMENTS TO ORIGINAL GUARANTEE AND SECURITY
AGREEMENT…....................................................................................10
ii
THIS DEED is dated 2024
BETWEEN:
(1)NOVELIS UK LTD (registered number 00279596) with its registered office at Latchford Locks Works, Thelwall Lane, Warrington, Cheshire, WA4 1NN (Novelis UK);
(2)NOVELIS SERVICES LIMITED (registered number 06628654) with its registered office at Latchford Locks Works, Thelwall Lane, Warrington, Cheshire, WA4 1NN (Novelis Services);
(3)NOVELIS EUROPE HOLDINGS LIMITED (registered number 05308334) with its registered office at Latchford Locks Works, Thelwall Lane, Warrington, Cheshire, WA4 1NN (Novelis Europe and together with Novelis UK and Novelis Services, the Chargors); and
(4)WELLS FARGO BANK, NATIONAL ASSOCIATION as collateral agent and trustee for the Secured Parties (as defined in the Amended Credit Agreement (defined below)) (the Collateral Agent).
BACKGROUND:
(A)This Deed is supplemental to and amends the Existing Guarantee and Security Agreements.
(B)This Deed is entered into in connection with Amendment No. 12.
(C)It is intended that this document takes effect as a deed notwithstanding the fact that a Party may only execute this document under hand.
IT IS AGREED as follows:
1.INTERPRETATION
1.1Definitions
Unless otherwise defined in this Deed, terms defined in the Amended Credit Agreement shall have the same meaning when used in this Deed.
Additionally, in this Deed (including its Recitals):
2022 Refinancing Amendment means Amendment No. 10 to the Credit Agreement dated as of August 18, 2022 between, among others, the Borrowers, Holdings, the other Loan Parties, the Administrative Agent, the Collateral Agent, the U.S. Swingline Lender, the European Swingline Lender, the Issuing Banks and the Lenders party thereto.
Amended Credit Agreement means the Existing Credit Agreement as amended by Amendment No. 12 and as otherwise amended, restated, supplemented, novated or otherwise modified from time to time.
Amended Guarantee and Security Agreements means the Existing Guarantee and Security Agreements as amended by this Deed.
Amendment No. 11 means Amendment No. 11 to the Credit Agreement dated as of March 31, 2023 between, among others, the Borrowers, Holdings, the other Loan Parties, the Administrative Agent, the Collateral Agent, the U.S. Swingline Lender, the European Swingline Lender, the Issuing Banks, and the Lenders party thereto.
Amendment No. 12 means Amendment No. 12 to the Credit Agreement dated on or around the date of this Deed between, among others, the Borrowers, Holdings, the other Loan Parties, the Administrative Agent, the Collateral Agent, the U.S. Swingline Lender, the European Swingline Lender, the Issuing Banks and the Lenders party thereto.
Effective Date means the date of this Deed.
Existing Credit Agreement means that certain second amended and restated credit agreement dated as of October 6, 2014 (as amended prior to the date hereof, and as further amended by the 2022 Refinancing Amendment and Amendment No. 11) between, among others, the Borrowers, Holdings, the other Loan Parties, the Administrative Agent, the Collateral Agent the U.S. Swingline Lender, the European Swingline Lender, the Issuing Banks and the Lenders from time to time party thereto.
Existing Guarantee and Security Agreements means the Original Guarantee and Security Agreement and the Supplemental Guarantee and Security Agreement.
Existing Security means the Security Interests created, evidenced or conferred by or under the Existing Guarantee and Security Agreements.
Intercreditor Agreement has the meaning given to that term on the cover page of this Deed.
Original Guarantee and Security Agreement means the Guarantee and Security Agreement dated 13 May 2013 between the Chargors as original chargors and the Collateral Agent.
Party means a party to this Deed.
Receiver means an administrative receiver, a receiver and manager or a receiver, in each case, appointed under this Deed and that term will include any appointee under a joint and/or several appointment.
Secured Obligations has the meaning given to that term in the Amended Credit Agreement.
Secured Party has the meaning given to that term in the Amended Credit Agreement.
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Security Interest means any mortgage, pledge, lien, charge (fixed or floating), assignment, hypothecation, set-off or trust arrangement for the purpose of creating security, reservation of title or security interest or any other agreement or arrangement having a similar effect.
Supplemental Guarantee and Security Agreement means the Guarantee and Security Agreement dated 18 August 2022 between the Chargors as chargors and the Collateral Agent.
1.2Construction
In this Deed (including its Recitals):
(a)an agreement includes any legally binding arrangement, agreement, contract, deed or instrument (in each case whether oral or written);
(b)an amendment includes any amendment, supplement, variation, waiver, novation, modification, replacement or restatement (however fundamental) and amend and amended shall be construed accordingly;
(c)assets includes properties, assets, businesses, undertakings, revenues and rights of every kind (including uncalled share capital), present or future, actual or contingent, and any interest in any of the above;
(d)including means including without limitation and includes and included shall be construed accordingly;
(e)a person includes any individual, trust, firm, fund, company, corporation, partnership, joint venture, government, state or agency of a state or any undertaking or other association (whether or not having separate legal personality) or any two or more of the foregoing;
(f)unless a contrary intention appears:
(i)a reference to any person includes a reference to that person's permitted successors, assignees and transferees and, in the case of the Collateral Agent or the Administrative Agent, any person for the time being appointed as Collateral Agent or Administrative Agent (as appropriate) in accordance with the Loan Documents, and in the case of the Collateral Agent and any Receiver, any Delegate of the Collateral Agent or Receiver (as appropriate);
(ii)references to Clauses, Subclauses and the Schedule are references to, respectively, clauses and subclauses of and the schedule to this Deed and references to this Deed include the Schedule;
(iii)a reference to (or to any specified provision of) any agreement is to that agreement (or that provision) as amended, restated or otherwise modified from time to time;
(iv)a reference to a statute, statutory instrument or provision of law is to that statute, statutory instrument or provision of law, as it may be applied, amended or re-enacted from time to time;
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(v)the index to and the headings in this Deed are for convenience only and are to be ignored in construing this Deed; and
(vi)words imparting the singular include the plural and vice versa; and
(g)this Deed is a Loan Document.
1.3Third Party Rights
The provisions of clause 1.3 (Third Party Rights) of the Original Guarantee and Security Agreement are hereby incorporated, mutatis mutandis, and shall apply to this Deed as if set forth herein, provided that references to "this Deed" are to be construed as references to this Deed.
1.4Conflict with the provisions of this Deed
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO THE COLLATERAL AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT TO THE EXISTING GUARANTEE AND SECURITY AGREEMENTS AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT AND THE OTHER SECURED PARTIES HEREUNDER AND THEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THIS DEED, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL. EXCEPT AS PROVIDED FOR IN THIS PARAGRAPH, NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE AMENDED CREDIT AGREEMENT, SHALL GOVERN AND CONTROL THE EXERCISE OF REMEDIES BY COLLATERAL AGENT.
WITHOUT PREJUDICE TO THE ABOVE, IN THE EVENT OF A DIRECT CONFLICT BETWEEN THE TERMS AND PROVISIONS CONTAINED IN THIS DEED AND THE TERMS AND PROVISIONS CONTAINED IN THE AMENDED CREDIT AGREEMENT, IT IS THE INTENTION OF THE PARTIES HERETO THAT SUCH TERMS AND PROVISIONS IN SUCH DOCUMENTS SHALL BE READ TOGETHER AND CONSTRUED, TO THE FULLEST EXTENT POSSIBLE, TO BE IN CONCERT WITH EACH OTHER. IN THE EVENT OF ANY ACTUAL, IRRECONCILABLE CONFLICT THAT CANNOT BE RESOLVED AS AFORESAID, THE TERMS AND PROVISIONS OF THE AMENDED CREDIT AGREEMENT SHALL CONTROL AND GOVERN.
2.AMENDMENTS
2.1Amendments
(a)The Original Guarantee and Security Agreement will be amended, with effect on and from the Effective Date, as set out in the Schedule and so that reference in the Original Guarantee and Security Agreement to "this Deed" or similar references will be read as references to the Original Guarantee and Security Agreement as amended by this Deed.
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(b)Pursuant to paragraph (m)(iii) of clause 1.2 (Construction) and clause 6 (Incorporation of Terms from Existing Guarantee and Security Agreement) of the Supplemental Guarantee and Security Agreement, as a result of the amendments made by Paragraph (a) above, the Supplemental Guarantee and Security Agreement will be amended, with effect on and from the Effective Date, so that reference in the Supplemental Guarantee and Security Agreement to "the Existing Guarantee and Security Agreement" or similar references will be read as references to the Original Guarantee and Security Agreement as amended by this Deed.
3.REPRESENTATIONS AND UNDERTAKINGS
3.1Representations
(a)Each Chargor represents and warrants to each Secured Party that:
(i)it has the power, authority and capacity to enter into and perform, and has taken all necessary action to authorise the entry into and performance of, this Deed and the transactions contemplated by this Deed;
(ii)this Deed is its legal, valid and binding obligation and is enforceable against it in accordance with its terms;
(iii)the entry into and performance by it of, and the transactions contemplated by, this Deed do not and will not conflict with:
(1)any material requirement of law applicable to it;
(2)its constitutional documents; or
(3)except for any conflict which could not reasonably be expected to have a Material Adverse Effect, any contractual obligation which is binding on it or any of its assets; and
(iv)all authorisations required by it in connection with the entry into, performance, validity and enforceability of, and the transactions contemplated by, this Deed have been obtained or effected (as appropriate) and are in full force and effect.
(b)The representations and warranties set out in this Deed (including in this Clause) are made by each Chargor on the Effective Date.
3.2Further assurance
Each Chargor shall, at its own expense, promptly upon the request of the Collateral Agent, execute and do all other acts, assurances and things as the Collateral Agent may reasonably require for the purpose of giving effect to the provisions of this Deed.
4.GUARANTEE AND SECURITY CONFIRMATION
4.1Confirmation
With effect on and from the Effective Date, each Chargor:
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5
(a)confirms its acceptance of the terms of each of the Amended Guarantee and Security Agreements;
(b)agrees that it is bound by the terms of each of the Amended Guarantee and Security Agreements;
(c)confirms that the covenant to pay, all guarantees and all of its other obligations under, and all terms of, the Amended Guarantee and Security Agreements:
(i)continue in full force and effect on the terms of each of the Amended Guarantee and Security Agreements; and
(ii)extend to the Secured Obligations;
(d)confirms that:
(i)the Existing Security extends to the Secured Obligations; and
(ii)the Existing Security continues in full force and effect on the terms of each of the Amended Guarantee and Security Agreements,
notwithstanding (A) the amendments to the Existing Credit Agreement effected by Amendment No. 12, (B) the amendments to the Existing Guarantee and Security Agreements effected by this Deed, (C) any other additions, amendments, novation, substitution or supplements of or to the Existing Credit Agreement or the Existing Guarantee and Security Agreements and/or (D) the imposition of any amended, new or more onerous obligations under the Amended Credit Agreement or the Amended Guarantee and Security Agreements in relation to the Loan Parties.
4.2No new Security Interest
No part of this Deed is intended to or will create a registrable Security Interest.
5.ELECTRONIC SIGNATURES AND COUNTERPARTS
(a)Each Party hereby:
(i)agrees that this Deed and any notices delivered under this Deed, may be executed by means of an electronic signature, an original manual signature, or a faxed, scanned, or photocopied manual signature;
(ii)agrees that each electronic signature or faxed, scanned, or photocopied manual signature is intended to authenticate this writing and shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature; and
(iii)agrees and undertakes not to argue that the execution of this Deed was invalid, lacking in legal effect or inadmissible in evidence by reason of the use of electronic signatures or faxed, scanned, or photocopied manual signatures.
For the purposes of this Deed, "electronic signature" includes any electronic sound, symbol, or process attached to or logically associated with a record and
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executed and adopted by a Party with the intent to sign such record, including facsimile and email electronic signatures.
(b)The Collateral Agent reserves the right, in its sole discretion, to accept, deny, or condition acceptance of any electronic signature on this Deed or on any notice delivered to the Collateral Agent under this Deed.
(c)This Deed may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute only one instrument. Delivery of an executed counterpart of a signature page of this Deed and any notices as set forth herein will be as effective as delivery of a manually executed counterpart of the Deed or notice.
6.NOTICES
6.1Communications in Writing
Each communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, shall be made by letter or email.
6.2Addresses
(a)Any notice or other communication herein required or permitted to be given to a party to this Deed shall be sent to the relevant party's address set out in paragraph (b) or as set forth in the Amended Credit Agreement or any substitute address, email address, department or officer as the relevant party may notify to the Collateral Agent (or the Collateral Agent may notify to the other parties, if a change is made by the Collateral Agent) by not less than five business days' notice.
(b)For the purposes of paragraph (a), the address of each Chargor shall be:
Novelis Europe Holdings Limited
Latchford Locks Works
Thelwell Lane
Warrington
Cheshire
United Kingdom
Attention: Mr Alan Sweeney
Email address: tony.lucido@novelis.adityabirla.com
Attention: Legal Department
with a copy to –
Novelis AG
Sternenfeldstrasse 19
CH 8700 Küsnacht ZH
Switzerland
Attention: Legal Department
Sternenfeldstrasse 19
CH 8700 Küsnacht ZH
Switzerland
Attention: Legal Department
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6.3Delivery
(a)Any communication or document made or delivered by one person to another under or in connection with this Deed will only be effective:
(i) if by way of letter, when it has been left at the relevant address or, as the case may be, five days after being deposited in the post postage prepaid in an envelope addressed to it at that address; or
(ii) if by way of email, when received in accordance with the Amended Credit Agreement.
(b)Any communication or document to be made or delivered to the Collateral Agent under or in connection with this Deed shall be effective only when actually received by the Collateral Agent and then only if it is expressly marked for the attention of the department or officer identified with the Collateral Agent's communication details (or any substitute department or officer as the Collateral Agent shall specify for this purpose).
6.4Notification of address and email address
The Collateral Agent shall notify the other Parties promptly upon receipt of any notification of change of address or email address or upon changing its own address or email address pursuant to this Clause.
7.GOVERNING LAW
This Deed and any non-contractual obligations arising out of or in connection with it are governed by English law.
8.ENFORCEMENT
8.1Jurisdiction
(a)The English courts have exclusive jurisdiction to settle any dispute in connection with this Deed, save that the Collateral Agent (and only the Collateral Agent) has the right to have any dispute settled by the courts of the State of New York, in which case the courts of the State of New York have exclusive jurisdiction in respect of that dispute, and any proceedings before the English courts in respect of that dispute shall be stayed with immediate effect.
(b)The English courts are the most appropriate and convenient courts to settle any such dispute in connection with this Deed, save that, if the Collateral Agent invokes the jurisdiction of the New York courts in respect of any dispute, the courts of the State of New York are the most appropriate and convenient courts to settle such dispute, even if the jurisdiction of the English Courts has already been seised. Each Chargor agrees not to argue to the contrary and waives objection to the provisions of this Clause on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with this Deed.
(c)This Clause is for the benefit of the Secured Parties only. To the extent allowed by law, a Secured Party may take:
(i)proceedings in any other court; and
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(ii)concurrent proceedings in any number of jurisdictions.
(d)References in this Clause to a dispute in connection with this Deed include any dispute as to the existence, validity or termination of this Deed.
8.2Waiver of immunity
Each Chargor irrevocably and unconditionally:
(a)agrees not to claim any immunity from proceedings brought by a Secured Party against it in relation to this Deed and to ensure that no such claim is made on its behalf;
(b)consents generally to the giving of any relief or the issue of any process in connection with those proceedings; and
(c)waives all rights of immunity in respect of it or its assets.
8.3Waiver of trial by jury
EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION IN CONNECTION WITH THIS DEED OR ANY TRANSACTION CONTEMPLATED BY THIS DEED. THIS DEED MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY THE COURT.
This Deed has been executed and delivered as a deed on the date stated at the beginning of this Deed.
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SCHEDULE
AMENDMENTS TO ORIGINAL GUARANTEE AND SECURITY AGREEMENT
On and from the Effective Date, Clause 7.2 (Certificated Investments) of the Original Guarantee and Security Agreement shall be deleted in full and replaced with the following wording:
"(a) Each Chargor must:
(i)deposit with the Collateral Agent, or as the Collateral Agent may direct, any bearer instrument, share certificate or other document of title or evidence of ownership in relation to any Investment, immediately in respect of any Investment subject to this Security on the date of this Deed and thereafter, within 30 days (or such shorter period as noted below) following the acquisition by, or the issue to, that Chargor of any certificated Investment; this includes:
(1)delivering, within such 30 day period, executed and (unless exempt from stamp duty), pre-stamped share transfers in favour of the Collateral Agent or any of its nominees as transferee or, if the Collateral Agent so directs, with the transferee left blank;
(2)delivering, within such 30 day period, share certificates in the name of the Chargor to the Collateral Agent; and
(3)procuring, within 5 days following the acquisition by, or the issue to, that Chargor of such certificated Investment, that those share transfers are registered by the Charged Company in which the Investments are held in the share register of that Charged Company, and delivering a copy of the same to the Collateral Agent within such 30 day period; and
(ii)take any action and execute and deliver to the Collateral Agent any share transfer or other document which may be requested by the Collateral Agent in order to enable the transferee to be registered as the owner or otherwise obtain a legal title to that Investment.
(b) Without prejudice to Clause 12.1 (Timing) of this Deed, the Collateral Agent may, at any time, complete the instruments of transfer on behalf of the Chargor in favour of itself or such other person as it shall select."
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SIGNATORIES
(AMENDMENT DEED RELATING TO THE EXISTING GUARANTEE AND SECURITY AGREEMENTS)
Chargors
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SIGNED as a Deed by Gregg Murphey
NOVELIS UK LTD acting by its attorney in the presence of a witness:
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……….…………….Attorney
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________________________________ Signature of witness
________________________________ Name of witness
________________________________ Address of witness
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________________________________ Occupation of witness
[Signature Page - Amendment Deed - Guarantee and Security Agreement (ABL)]
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SIGNED as a Deed by Gregg Murphey
NOVELIS SERVICES LIMITED acting by its attorney in the presence of a witness:
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……….…………….Attorney
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________________________________ Signature of witness
________________________________ Name of witness
________________________________ Address of witness
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________________________________ Occupation of witness
[Signature Page - Amendment Deed - Guarantee and Security Agreement (ABL)]
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SIGNED as a Deed by Gregg Murphey
NOVELIS EUROPE HOLDINGS LIMITED acting by its attorney in the presence of a witness:
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……….…………….Attorney
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________________________________ Signature of witness
________________________________ Name of witness
________________________________ Address of witness
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________________________________ Occupation of witness
[Signature Page - Amendment Deed - Guarantee and Security Agreement (ABL)]
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The Collateral Agent
SIGNED as a deed by
WELLS FARGO BANK, NATIONAL ASSOCIATION
in its capacity as Collateral Agent
acting by director:
Name:
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[Signature Page - Amendment Deed - Guarantee and Security Agreement (ABL)]
Execution version
Dated 2024
Between
NOVELIS INC.
as Chargor
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Collateral Agent
___________________________________________
AMENDMENT DEED
RELATING TO
THE EXISTING SHARE MORTGAGES (AS DEFINED HEREIN)
THE EXISTING SHARE MORTGAGES (AS DEFINED HEREIN)
___________________________________________
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO THE COLLATERAL AGENT FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT TO THE EXISTING SHARE MORTGAGES (AS DEFINED IN THIS DEED) AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT HEREUNDER AND THEREUNDER ARE SUBJECT TO THAT CERTAIN INTERCREDITOR AGREEMENT, DATED AS OF DECEMBER 17, 2010 (AS AMENDED, RESTATED, AMENDED AND RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE “INTERCREDITOR AGREEMENT”), AMONG NOVELIS INC., AV MINERALS (NETHERLANDS) N.V. (AS SUCCESSOR IN INTEREST TO AV METALS INC.) ("HOLDINGS"), THE OTHER SUBSIDIARIES OF HOLDINGS OR NOVELIS INC. FROM TIME TO TIME PARTY THERETO, WELLS FARGO BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT FOR THE REVOLVING CREDIT LENDERS (AS DEFINED IN THE INTERCREDITOR AGREEMENT) (AS SUCCESSOR TO BANK OF AMERICA, N.A. PURSUANT TO THAT CERTAIN INTERCREDITOR JOINDER AGREEMENT DATED AS OF MAY 13, 2013), WELLS FARGO BANK, NATIONAL ASSOCIATION, AS COLLATERAL AGENT FOR THE REVOLVING CREDIT CLAIMHOLDERS (AS DEFINED IN THE INTERCREDITOR AGREEMENT) (AS SUCCESSOR TO BANK OF AMERICA, N.A. PURSUANT TO THAT CERTAIN INTERCREDITOR JOINDER AGREEMENT DATED AS OF MAY 13, 2013), STANDARD CHARTERED BANK, AS ADMINISTRATIVE AGENT FOR THE PARI PASSU SECURED PARTIES (AS DEFINED IN THE INTERCREDITOR AGREEMENT), (PURSUANT TO THAT CERTAIN INTERCREDITOR JOINDER AGREEMENT DATED AS OF JANUARY 13, 2017), STANDARD CHARTERED BANK, AS COLLATERAL AGENT FOR THE PARI PASSU SECURED PARTIES (AS DEFINED IN THE INTERCREDITOR AGREEMENT) (PURSUANT TO THAT CERTAIN INTERCREDITOR JOINDER AGREEMENT DATED AS OF JANUARY 13, 2017) AND CERTAIN OTHER PERSONS WHICH MAY BE OR BECOME PARTIES THERETO OR BECOME BOUND THERETO FROM TIME TO TIME. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THIS DEED, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.
CONTENTS
Clause Page
Clause Page
1.INTERPRETATION.................................................................................1
2. AMENDMENTS…...................................................................................4
3. REPRESENTATIONS AND UNDERTAKINGS....................................4
4. SECURITY CONFIRMATION...............................................................5
5. ELECTRONIC SIGNATURES AND COUNTERPARTS......................6
6. NOTICES…..............................................................................................6
7. GOVERNING LAW….............................................................................7
8. ENFORCEMENT….................................................................................7
THE SCHEDULE
AMENDMENTS TO ORIGINAL SHARE MORTGAGE......................9
AMENDMENTS TO ORIGINAL SHARE MORTGAGE......................9
ii
THIS DEED is dated 2024
BETWEEN:
(5)NOVELIS INC. a corporation amalgamated under the Canada Business Corporations Act (the Chargor); and
(6)WELLS FARGO BANK, NATIONAL ASSOCIATION as collateral agent and trustee for the Secured Parties (as defined in the Amended Credit Agreement (defined below)) (the Collateral Agent).
BACKGROUND:
(D)This Deed is supplemental to and amends the Existing Share Mortgages.
(E)This Deed is entered into in connection with Amendment No. 12.
(F)It is intended that this document takes effect as a deed notwithstanding the fact that a Party may only execute this document under hand.
IT IS AGREED as follows:
1.INTERPRETATION
1.1 Definitions
Unless otherwise defined in this Deed, terms defined in the Amended Credit Agreement shall have the same meaning when used in this Deed.
Additionally, in this Deed (including its Recitals):
2022 Refinancing Amendment means Amendment No. 10 to the Credit Agreement dated as of August 18, 2022 between, among others, the Borrowers, Holdings, the other Loan Parties, the Administrative Agent, the Collateral Agent, the U.S. Swingline Lender, the European Swingline Lender, the Issuing Banks, and the Lenders party thereto.
Amended Credit Agreement means the Existing Credit Agreement as amended by Amendment No. 12 and as otherwise amended, restated, supplemented, novated or otherwise modified from time to time.
Amended Share Mortgages means the Existing Share Mortgages as amended by this Deed.
Amendment No. 11 means Amendment No. 11 to the Credit Agreement dated as of March 31, 2023 between, among others, the Borrowers, Holdings, the other Loan Parties, the Administrative Agent, the Collateral Agent, the U.S. Swingline Lender, the European Swingline Lender, the Issuing Banks, and the Lenders party thereto.
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Amendment No. 12 means Amendment No. 12 to the Credit Agreement dated on or around the date of this Deed between, among others, the Borrowers, Holdings, the other Loan Parties, the Administrative Agent, the Collateral Agent, the U.S. Swingline Lender, the European Swingline Lender, the Issuing Banks and the Lenders party thereto.
Effective Date means the date of this Deed.
Existing Credit Agreement means that certain second amended and restated credit agreement governed by the laws of the State of New York, dated as of October 6, 2014 (as amended prior to the date hereof, and as further amended by the 2022 Refinancing Amendment and Amendment No. 11) between, among others, the Borrowers, Holdings, the other Loan Parties, the Administrative Agent, the Collateral Agent, the U.S. Swingline Lender, the European Swingline Lender, the Issuing Banks and the Lenders from time to time party thereto.
Existing Security means the Security Interests created, evidenced or conferred by or under the Existing Share Mortgages.
Existing Share Mortgages means the Original Share Mortgage and the Supplemental Share Mortgage.
Intercreditor Agreement has the meaning given to that term on the cover page of this Deed.
Original Share Mortgage means the Share Mortgage dated 13 May 2013 between the Chargor as chargor and the Collateral Agent.
Party means a party to this Deed.
Receiver means an administrative receiver, a receiver and manager or a receiver, in each case, appointed under this Deed and that term will include any appointee under a joint and/or several appointment.
Secured Obligations has the meaning given to that term in the Amended Credit Agreement.
Secured Party has the meaning given to that term in the Amended Credit Agreement.
Security Interest means any mortgage, pledge, lien, charge (fixed or floating), assignment, hypothecation, set-off or trust arrangement for the purpose of creating security, reservation of title or security interest or any other agreement or arrangement having a similar effect.
Supplemental Share Mortgage means the Supplemental Share Mortgage dated 18 August 2022 between the Chargor as chargor and the Collateral Agent.
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1.2 Construction
In this Deed (including its Recitals):
(a)an agreement includes any legally binding arrangement, agreement, contract, deed or instrument (in each case whether oral or written);
(b)an amendment includes any amendment, supplement, variation, waiver, novation, modification, replacement or restatement (however fundamental) and amend and amended shall be construed accordingly;
(c)assets includes properties, assets, businesses, undertakings, revenues and rights of every kind (including uncalled share capital), present or future, actual or contingent, and any interest in any of the above;
(d)including means including without limitation and includes and included shall be construed accordingly;
(e)a person includes any individual, trust, firm, fund, company, corporation, partnership, joint venture, government, state or agency of a state or any undertaking or other association (whether or not having separate legal personality) or any two or more of the foregoing;
(f)unless a contrary intention appears:
(i)a reference to any person includes a reference to that person’s permitted successors, assignees and transferees and, in the case of the Collateral Agent or the Administrative Agent, any person for the time being appointed as Collateral Agent or Administrative Agent (as appropriate) in accordance with the Loan Documents, and in the case of the Collateral Agent and any Receiver, any Delegate of the Collateral Agent or Receiver (as appropriate);
(ii)references to Clauses, Subclauses and the Schedule are references to, respectively, clauses and subclauses of and the schedule to this Deed and references to this Deed include the Schedule;
(iii)a reference to (or to any specified provision of) any agreement is to that agreement (or that provision) as amended, restated or otherwise modified from time to time;
(iv)a reference to a statute, statutory instrument or provision of law is to that statute, statutory instrument or provision of law, as it may be applied, amended or re-enacted from time to time;
(v)the index to and the headings in this Deed are for convenience only and are to be ignored in construing this Deed; and
(vi)words imparting the singular include the plural and vice versa; and
(g)this Deed is a Loan Document.
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1.3 Third Party Rights
The provisions of clause 1.3 (Third Party Rights) of the Original Share Mortgage are hereby incorporated, mutatis mutandis, and shall apply to this Deed as if set forth herein, provided that references to "this Deed" are to be construed as references to this Deed.
1.4 Conflict with the provisions of this Deed.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO THE COLLATERAL AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT TO THE EXISTING SHARE MORTGAGES AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE COLLATERAL AGENT AND THE OTHER SECURED PARTIES HEREUNDER AND THEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THIS DEED, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL. EXCEPT AS PROVIDED FOR IN THIS PARAGRAPH, NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE AMENDED CREDIT AGREEMENT, SHALL GOVERN AND CONTROL THE EXERCISE OF REMEDIES BY COLLATERAL AGENT.
WITHOUT PREJUDICE TO THE ABOVE, IN THE EVENT OF A DIRECT CONFLICT BETWEEN THE TERMS AND PROVISIONS CONTAINED IN THIS DEED AND THE TERMS AND PROVISIONS CONTAINED IN THE AMENDED CREDIT AGREEMENT, IT IS THE INTENTION OF THE PARTIES HERETO THAT SUCH TERMS AND PROVISIONS IN SUCH DOCUMENTS SHALL BE READ TOGETHER AND CONSTRUED, TO THE FULLEST EXTENT POSSIBLE, TO BE IN CONCERT WITH EACH OTHER. IN THE EVENT OF ANY ACTUAL, IRRECONCILABLE CONFLICT THAT CANNOT BE RESOLVED AS AFORESAID, THE TERMS AND PROVISIONS OF THE AMENDED CREDIT AGREEMENT SHALL CONTROL AND GOVERN.
2.AMENDMENTS
2.1 Amendments
(a)The Original Share Mortgage will be amended, with effect on and from the Effective Date, as set out in the Schedule and so that reference in the Original Share Mortgage to "this Deed" or similar references will be read as references to the Original Share Mortgage as amended by this Deed.
(b)Pursuant to paragraph (m)(iii) of clause 1.2 (Construction) and clause 5 (Incorporation of Terms from Existing Share Mortgage) of the Supplemental Share Mortgage, as a result of the amendments made by Paragraph (a) above, the Supplemental Share Mortgage will be amended, with effect on and from the Effective Date, so that reference in the Supplemental Share Mortgage to
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"the Existing Share Mortgage" or similar references will be read as references to the Original Share Mortgage as amended by this Deed.
3.REPRESENTATIONS AND UNDERTAKINGS
3.1 Representations
(a)The Chargor represents and warrants to each Secured Party that:
(i)it has the power, authority and capacity to enter into and perform, and has taken all necessary action to authorise the entry into and performance of, this Deed and the transactions contemplated by this Deed;
(ii)this Deed is its legal, valid and binding obligation and is enforceable against it in accordance with its terms;
(iii)the entry into and performance by it of, and the transactions contemplated by, this Deed do not and will not conflict with:
(1)any material requirement of law applicable to it;
(2)its constitutional documents; or
(3)except for any conflict which could not reasonably be expected to have a Material Adverse Effect, any contractual obligation which is binding on it or any of its assets; and
(iv)all authorisations required by it in connection with the entry into, performance, validity and enforceability of, and the transactions contemplated by, this Deed have been obtained or effected (as appropriate) and are in full force and effect.
(b)The representations and warranties set out in this Deed (including in this Clause) are made by the Chargor on the Effective Date.
3.2 Further assurance
The Chargor shall, at its own expense, promptly upon the request of the Collateral Agent, execute and do all other acts, assurances and things as the Collateral Agent may reasonably require for the purpose of giving effect to the provisions of this Deed.
4.SECURITY CONFIRMATION
4.1 Confirmation
With effect on and from the Effective Date, the Chargor:
(a)confirms its acceptance of the terms of each of the Amended Share Mortgages;
(b)agrees that it is bound by the terms of each of the Amended Share Mortgages;
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(c)confirms that the covenant to pay and all of its other obligations under, and all terms of, the Amended Share Mortgages:
(i)continue in full force and effect on the terms of each of the Amended Share Mortgages; and
(ii)extend to the Secured Obligations;
(d)confirms that:
(i)the Existing Security extends to the Secured Obligations; and
(ii)the Existing Security continues in full force and effect on the terms of each of the Amended Share Mortgages,
notwithstanding (A) the amendments to the Existing Credit Agreement effected by Amendment No. 12, (B) the amendments to the Existing Share Mortgages effected by this Deed, (C) any other additions, amendments, novation, substitution or supplements of or to the Existing Credit Agreement or the Existing Share Mortgages and/or (D) the imposition of any amended, new or more onerous obligations under the Amended Credit Agreement or the Amended Share Mortgages in relation to the Loan Parties.
4.2 No new Security Interest
No part of this Deed is intended to or will create a registrable Security Interest.
5.ELECTRONIC SIGNATURES AND COUNTERPARTS
(a)Each Party hereby:
(i)agrees that this Deed and any notices delivered under this Deed, may be executed by means of an electronic signature, an original manual signature, or a faxed, scanned, or photocopied manual signature;
(ii)agrees that each electronic signature or faxed, scanned, or photocopied manual signature is intended to authenticate this writing and shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature; and
(iii)agrees and undertakes not to argue that the execution of this Deed was invalid, lacking in legal effect or inadmissible in evidence by reason of the use of electronic signatures or faxed, scanned, or photocopied manual signatures.
For the purposes of this Deed, "electronic signature" includes any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a Party with the intent to sign such record, including facsimile and email electronic signatures.
(b)The Collateral Agent reserves the right, in its sole discretion, to accept, deny, or condition acceptance of any electronic signature on this Deed or on any notice delivered to the Collateral Agent under this Deed.
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(c)This Deed may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute only one instrument. Delivery of an executed counterpart of a signature page of this Deed and any notices as set forth herein will be as effective as delivery of a manually executed counterpart of the Deed or notice.
6.NOTICES
6.1 Communications in Writing
Each communication to be made under or in connection with this Deed shall be made in writing and, unless otherwise stated, shall be made by letter or email.
6.2 Addresses
Any notice or other communication herein required or permitted to be given to a party to this Deed shall be sent to the relevant party’s address as set forth in the Amended Credit Agreement or any substitute address, email address, department or officer as the relevant party may notify to the Collateral Agent (or the Collateral Agent may notify to the Chargor, if a change is made by the Collateral Agent) by not less than five business days' notice.
6.3 Delivery
(a)Any communication or document made or delivered by one person to another under or in connection with this Deed will only be effective:
(i)if by way of letter, when it has been left at the relevant address or, as the case may be, five days after being deposited in the post postage prepaid in an envelope addressed to it at that address; or
(ii)if by way of email, when received in accordance with the Amended Credit Agreement.
(b)Any communication or document to be made or delivered to the Collateral Agent under or in connection with this Deed shall be effective only when actually received by the Collateral Agent and then only if it is expressly marked for the attention of the department or officer identified with the Collateral Agent’s communication details (or any substitute department or officer as the Collateral Agent shall specify for this purpose).
6.4 Notification of address and email address
The Collateral Agent shall notify the Chargor promptly upon receipt of any notification of change of address or email address or upon changing its own address or email address pursuant to this Clause.
7.GOVERNING LAW
This Deed and any non-contractual obligations arising out of or in connection with it are governed by English law.
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8.ENFORCEMENT
8.1 Jurisdiction
(a)The English courts have exclusive jurisdiction to settle any dispute in connection with this Deed, save that the Collateral Agent (and only the Collateral Agent) has the right to have any dispute settled by the courts of the State of New York, in which case the courts of the State of New York have exclusive jurisdiction in respect of that dispute, and any proceedings before the English courts in respect of that dispute shall be stayed with immediate effect.
(b)The English courts are the most appropriate and convenient courts to settle any such dispute in connection with this Deed, save that, if the Collateral Agent invokes the jurisdiction of the New York courts in respect of any dispute, the courts of the State of New York are the most appropriate and convenient courts to settle such dispute, even if the jurisdiction of the English Courts has already been seised. The Chargor agrees not to argue to the contrary and waives objection to the provisions of this Clause on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with this Deed.
(c)This Clause is for the benefit of the Secured Parties only. To the extent allowed by law, a Secured Party may take:
(i)proceedings in any other court; and
(ii)concurrent proceedings in any number of jurisdictions.
(d)References in this Clause to a dispute in connection with this Deed include any dispute as to the existence, validity or termination of this Deed.
8.2 Service of process
(a)The Chargor appoints Novelis Europe Holdings Limited, a company registered in England and Wales with registered number 05308334, as its agent under this Deed for service of process in any proceedings before the English courts in connection with this Deed and will procure that Novelis Europe Holdings Limited accepts such appointment.
(b)If any person appointed as process agent under this Clause is unable for any reason to so act, the Chargor must immediately (and in any event within 14 days of such event taking place) appoint another agent on terms acceptable to the Collateral Agent. Failing this, the Collateral Agent may appoint another process agent for this purpose.
(c)The Chargor agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings.
(d)This Subclause does not affect any other method of service allowed by law.
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8.3 Waiver of immunity
The Chargor irrevocably and unconditionally:
(a)agrees not to claim any immunity from proceedings brought by a Secured Party against it in relation to this Deed and to ensure that no such claim is made on its behalf;
(b)consents generally to the giving of any relief or the issue of any process in connection with those proceedings; and
(c)waives all rights of immunity in respect of it or its assets.
8.4 Waiver of trial by jury
EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION IN CONNECTION WITH THIS DEED OR ANY TRANSACTION CONTEMPLATED BY THIS DEED. THIS DEED MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY THE COURT.
This Deed has been executed and delivered as a deed on the date stated at the beginning of this Deed.
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SCHEDULE
AMENDMENTS TO ORIGINAL SHARE MORTGAGE
AMENDMENTS TO ORIGINAL SHARE MORTGAGE
On and from the Effective Date, Clause 5.1 (Certificated Charged Shares) of the Original Share Mortgage shall be deleted in full and replaced with the following wording:
"(a) The Chargor must:
(i)deposit with the Collateral Agent, or as the Collateral Agent may direct, any bearer instrument, share certificate or other document of title or evidence of ownership in relation to any Charged Share, immediately in respect of any Charged Share subject to this Security on the date of this Deed and thereafter, within 30 days (or such shorter period as noted below) following the acquisition by, or the issue to, that Chargor of any certificated Charged Share; this includes:
(1)delivering, within such 30 day period, executed and (unless exempt from stamp duty), pre-stamped share transfers in favour of the Collateral Agent or any of its nominees as transferee or, if the Collateral Agent so directs, with the transferee left blank;
(2)delivering, within such 30 day period, share certificates in the name of the Chargor to the Collateral Agent; and
(3)procuring, within 5 days following the acquisition by, or the issue to, that Chargor of such certificated Charged Share, that those share transfers are registered by the Charged Company in which the Charged Shares are held in the share register of that Charged Company, and delivering a copy of the same to the Collateral Agent within such 30 day period; and
(ii)take any action and execute and deliver to the Collateral Agent any share transfer or other document which may be requested by the Collateral Agent in order to enable the transferee to be registered as the owner or otherwise obtain a legal title to that Charged Share.
(b) Without prejudice to Clause 6.1 (Timing) of this Deed, the Collateral Agent may, at any time, complete the instruments of transfer on behalf of the Chargor in favour of itself or such other person as it shall select."
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SIGNATORIES
(AMENDMENT DEED RELATING TO THE EXISTING SHARE MORTGAGES)
The Chargor
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Executed as a deed by
NOVELIS INC. acting by
Gregg Murphey
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)
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……….……………. Attorney
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[Signature Page - Amendment Deed - Share Mortgage (ABL)]
The Collateral Agent
SIGNED as a deed by
WELLS FARGO BANK, NATIONAL ASSOCIATION
in its capacity as Collateral Agent
acting by director:
Name:
[Signature Page - Amendment Deed - Share Mortgage (ABL)]
EXECUTION VERSION
AMENDMENT TO INTERCREDITOR AGREEMENT
This CONSENT TO INTERCREDITOR AGREEMENT (this “Amendment”) is made as of , 2024, by and among Wells Fargo Bank, National Association, as Administrative Agent to the Revolving Credit Lenders (as defined in the Intercreditor Agreement, as defined below) (in such capacity, the “Revolving Credit Administrative Agent”), Wells Fargo Bank, National Association, as Collateral Agent for the Revolving Credit Claimholders (as defined in the Intercreditor Agreement, as defined below) (in such capacity, the “Revolving Credit Collateral Agent”), Standard Chartered Bank, as Administrative Agent for the Term Loan Lenders (as defined in the Intercreditor Agreement, as defined below) (in such capacity, the “Term Loan Administrative Agent”) and Standard Chartered Bank, as Collateral Agent for the Term Loan Secured Parties (as defined in the Intercreditor Agreement, as defined below) (in such capacity, the “Term Loan Collateral Agent”).
RECITALS
WHEREAS, the Revolving Credit Administrative Agent, the Revolving Credit Collateral Agent, the Term Loan Administrative Agent and the Term Loan Collateral Agent are parties to that certain Intercreditor Agreement, dated as of December 17, 2010 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), among, inter alia Novelis Inc., AV Minerals (Netherlands) N.V., the subsidiaries of Novelis Inc. from time to time party thereto, and certain other persons which may be or become parties thereto or become bound thereto from time to time (unless otherwise defined herein, capitalized terms used herein shall have the same meanings as given to such terms in the Intercreditor Agreement); and
WHEREAS, the parties hereto have agreed to amend the Intercreditor Agreement as set forth herein.
NOW THEREFORE, in consideration of the provisions set forth herein, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree, as follows:
1.Amendment to Intercreditor Agreement. Subject to the terms and conditions set forth herein, effective as of the Amendment Effective Date (as defined below), Section 11.9 of the Intercreditor Agreement is hereby amended and restated as follows:
“11.9 Notices. All notices to the Revolving Credit Claimholders permitted or required under this Agreement shall be sent to the Revolving Credit Agents, on
behalf of the Revolving Credit Claimholders (and the Revolving Credit Agents shall distribute such notices to the other Revolving Credit Claimholders). All notices to the Pari Passu Secured Parties permitted or required under this Agreement shall be sent to the Pari Passu Representatives, on behalf of the Pari Passu Secured Parties (and the Pari Passu Representatives shall distribute such notices to the other Pari Passu Secured Parties). All notices to the Subordinated Lien Secured Parties permitted or required under this Agreement shall be sent to the Subordinated Lien Representatives on behalf of the Subordinated Lien Secured Parties (and the Subordinated Lien Representatives for further distribution to the other Subordinated Lien Secured Parties). Unless otherwise specifically provided herein, any notice hereunder shall be in writing and may be personally served, or sent by telefacsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of telefacsimile, or three Business Days after depositing it in the United States mail with postage prepaid and properly addressed.
For the purposes hereof, the addresses of the parties hereto shall be as set forth below each party’s name on the signature pages hereto, or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties.
In addition, any notice hereunder may be sent by e-mail, in which case notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient. In addition, any designation of a person as a “Secured Hedge Provider” in a notice to the Term Loan Agents as contemplated by clause (ii)(B) of the definition of Secured Hedge Provider may be sent in accordance with the notice provisions of the Term Loan Credit Agreement (or if the Discharge of Term Loan Secured Obligations has occurred, to any other Pari Passu Representative).”.
2.Conditions Precedent to Effectiveness. 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:
(a)Executed Amendment. Each party hereto shall have received this Amendment, duly executed by each party hereto.
(b)Executed Credit Agreement Amendments. The Revolving Credit Administrative Agent shall have received an executed copy of Amendment No. 12 to Second
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Amended and Restated Credit Agreement, and the Amendment Effective Date (as defined therein) shall have occurred, and the Term Loan Administrative Agent shall have received an executed copy of Amendment No. 8 to Credit Agreement and Amendment to U.S. Security Agreement, and the Amendment Effective Date (as defined therein) shall have occurred.
3.Governing Law, Consent to Jurisdiction and Service of Process; Waiver of Jury Trial. Sections 11.6 through 11.8 of the Intercreditor Agreement are hereby incorporated by reference, mutatis mutandis, as if a part hereof.
4.Counterparts.
(c)This Amendment and any notices delivered under this Amendment, may be executed by means of (a) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (b) an original manual signature; or (c) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto reserves the right, in its sole discretion, to accept, deny, or condition acceptance of any electronic signature on this Amendment or on any notice delivered to such party under this Amendment.
(d)This Amendment and any notices delivered under 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 parties hereto of a facsimile copy or electronic image scan transmission (e.g., PDF via electronic email) of an executed signature page and any notices as set forth herein shall constitute receipt by such party and shall be as effective as delivery of a manually executed counterpart of the Amendment or notice.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Consent Agreement to be duly executed by their respective officers or representatives as of the date first written above.
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Revolving Credit Administrative Agent and as Revolving Credit Collateral Agent, and in such capacity, as authorized representative of the Revolving Credit Claimholders
By:
Name:
Title:
By:
Name:
Title:
[Signature Page to Amendment to the Intercreditor Agreement]
STANDARD CHARTERED BANK, as Term Loan Administrative Agent and as Term Loan Collateral Agent, and in such capacity, as authorized representative of the Term Loan Secured Parties
By:
Name:
Title:
By:
Name:
Title:
[Signature Page to Amendment to the Intercreditor Agreement]