Exhibit 10.1
WAIVER AND CONSENT
THIS WAIVER AND CONSENT, dated as of February 9, 2006 (this "Waiver"), to CREDIT
AGREEMENT, dated as of January 7, 2005 and amended September 19, 2005 (as the
same may be amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among NOVELIS INC., a corporation organized under
the Canada Business Corporations Act (the "Company" or the "Canadian Borrower"),
NOVELIS CORPORATION, a Texas corporation (the "US Borrower"), NOVELIS
DEUTSCHLAND GMBH, a limited liability company (GmbH) organized under the laws of
Germany (the "German Borrower"), NOVELIS UK LIMITED, a limited company organized
under the laws of England and Wales with registered number 00279596 (the "UK
Borrower"), NOVELIS AG, a stock corporation (AG) organized under the laws of
Switzerland (the "Swiss Borrower" and, together with the Canadian Borrower, the
US Borrower, the German Borrower and the UK Borrower, the "Borrowers"), the
Lenders and Issuers party thereto and CITICORP NORTH AMERICA, INC. ("Citicorp"),
as administrative agent and collateral agent for the Lenders and the Issuers (in
such capacity, the "Administrative Agent"). Capitalized terms used herein but
not defined herein are used as defined in the Credit Agreement as amended.
W i t n e s s e t h:
WHEREAS, the Company has requested a waiver of certain reporting covenants under
the Credit Agreement as herein set forth; and
WHEREAS, the Lenders signatory to a consent (an "Acknowledgment and Consent")
and the Administrative Agent have agreed to consent to such waiver on the terms
and subject to the conditions herein provided.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
obligations herein set forth and other good and valuable consideration, the
adequacy and receipt of which is hereby acknowledged, and in reliance upon the
representations, warranties and covenants herein contained, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Waiver. As of the Effective Date, the Administrative Agent and
each Lender signatory to an Acknowledgment and Consent hereby (a) consent to (i)
the delivery of the Financial Statements required by Section 6.1(a)(Quarterly
Reports) and the related Compliance Certificate required by Section
6.1(c)(Compliance Certificate) (x) for the Fiscal Quarter ended September 30,
2005, on or prior to April 14, 2006 (or, if earlier, the 59th day after written
notice with respect to such default is given to the Company under Section
6.01(d) of the Indenture governing the Senior Notes) and (y) for the Fiscal
Quarter ended March 31, 2006, on or prior to June 15, 2006 and (ii) the delivery
of the Financial Statements and related accountant's certificate required by
Section 6.1(b)(Annual Reports) and the related Compliance Certificate required
by Section 6.1(c)(Compliance Certificate) for the Fiscal Year ended December 31,
2005, on or prior to May 31, 2006 and (b) waive any Default or Event of Default
arising under Section 6.1(a)(Quarterly Reports), Section 6.1(b)(Annual Reports)
or Section 6.1(c)(Compliance Certificate) solely as a result of the delay in
delivery of the reports required thereunder as contemplated hereunder; provided,
however, that nothing contained in this Waiver shall be construed as a waiver of
any other Default or Event of Default, including, without limitation, any such
Default or Event of Default arising under Section 9.1(e) (Events of Default).
Section 2. Conditions Precedent. This Waiver shall become effective as of
the date (the "Effective Date") on which each of the following conditions
precedent shall have been satisfied or duly waived:
(a) Certain Documents. The Administrative Agent shall have received each
of the following, in form and substance satisfactory to the Administrative
Agent:
(i) this Waiver, duly executed by the Company, on behalf of itself
and each Loan Party, and the Administrative Agent;
(ii) an Acknowledgment and Consent, in the form set forth hereto as
Exhibit A, duly executed by each of the Requisite Lenders;
(iii) such additional documentation as the Administrative Agent may
reasonably require.
(b) Payment of Fees Costs and Expenses. The Administrative Agent and the
Lenders shall have received payment of all fees, costs and expenses, including,
without limitation, all fees, costs and expenses of the Administrative Agent and
the Lenders (including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent) in connection
with this Waiver, the Credit Agreement and each other Loan Document, as required
by Section 4 and Section 5 hereof.
(c) Representations and Warranties. Each of the representations and
warranties contained in Section 3 below shall be true and correct.
(d) No Default or Event of Default. After giving effect to this Waiver, no
Default or Event of Default shall have occurred and be continuing.
Section 3. Representations and Warranties. The Company, on behalf of itself
and each Loan Party, hereby represents and warrants to the Administrative Agent
and each Lender, with respect to all Loan Parties, as follows:
(a) After giving effect to this Waiver, each of the representations and
warranties in the Credit Agreement and in the other Loan Documents are true and
correct in all material respects on and as of the date hereof as though made on
and as of such date, except to the extent that any such representation or
warranty expressly relates to an earlier date and except for changes therein
expressly permitted by the Credit Agreement.
(b) The execution, delivery and performance by the Company of this Waiver
have been duly authorized by all requisite corporate, action and will not
violate the articles of incorporation or bylaws (or other constituent documents)
of the Company.
(c) After giving effect to this Waiver, no Default or Event of Default has
occurred and is continuing as of the date hereof.
Section 4. Fees. As consideration for the execution of this Waiver, the
Company, on behalf of each Borrower, agrees to pay to the Administrative Agent
for the account of each Lender for which the Administrative Agent shall have
received (by facsimile or otherwise) an executed Acknowledgment and Consent (or
a release from escrow of an Acknowledgment and Consent previously delivered in
escrow) with respect to this Waiver by 12 p.m. (New York Time) on February 8,
2006 (or such later date or time as the Administrative Agent and the Borrowers
may agree), a waiver fee equal to 0.075% of such Lender's aggregate Commitments
then in effect.
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Section 5. Costs and Expenses. As provided in Section 11.3(a) (Costs and
Expenses) of the Credit Agreement, the Company, on behalf of each Borrower,
agrees to reimburse the Administrative Agent for all reasonable fees, costs and
expenses, including the reasonable fees, costs and expenses of counsel or other
advisors for advice, assistance or other representation in connection with this
Waiver.
Section 6. Reference to and Effect on the Loan Documents.
(a) As of the Effective Date, each reference in the Credit Agreement and
the other Loan Documents to "this Agreement," "hereunder," "hereof," "herein,"
or words of like import, and each reference in the other Loan Documents to the
Credit Agreement (including, without limitation, by means of words like
"thereunder", "thereof" and words of like import), shall mean and be a reference
to the Credit Agreement as amended and as waived hereby with respect to the
certain requirements outlined above, and this Waiver and the Credit Agreement
shall be read together and construed as a single instrument.
(b) Except as expressly amended hereby, all of the terms and provisions of
the Credit Agreement and all other Loan Documents are and shall remain in full
force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Waiver shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of the Administrative Agent, any Lender or any Issuer under the Credit
Agreement or any Loan Document, or constitute a waiver or amendment of any other
provision of the Credit Agreement or any Loan Document except as and to the
extent expressly set forth herein.
(d) The Company, on behalf of itself and each Loan Party, hereby confirms
that the guaranties, security interests and liens granted pursuant to the Loan
Documents continue to guarantee and secure the Obligations as set forth in the
Loan Documents and that such guaranties, security interests and liens remain in
full force and effect.
Section 7. Counterparts. This Waiver may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Receipt by the
Administrative Agent of a facsimile copy of an executed signature page hereof
shall constitute receipt by the Administrative Agents of an executed counterpart
of this Waiver.
Section 8. Governing Law. This Waiver and the rights and obligations of the
parties hereto shall be governed by, and construed and interpreted in accordance
with, the law of the State of New York.
Section 9. Headings. Section headings contained in this Waiver are included
herein for convenience of reference only and shall not constitute a part of this
Waiver for any other purposes.
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Section 10. Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS WAIVER OR
ANY OTHER LOAN DOCUMENT.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be executed by
their respective officers and members thereunto duly authorized, on the date
indicated below.
NOVELIS INC.
as Borrower and Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President and Treasurer
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CITICORP NORTH AMERICA, INC.,
as Administrative Agent under the
Credit Agreement
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
February 9, 2006
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