AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 25, 2020 among NOVELIS INC., as Canadian Borrower, NOVELIS CORPORATION as a U.S. Borrower, THE OTHER U.S. SUBSIDIARIES OF CANADIAN BORROWER PARTY HERETO AS U.S....
EXHIBIT 10.2
Execution Version
AMENDMENT NO. 5 TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of August 25, 2020
among
as Canadian Borrower,
NOVELIS CORPORATION
as a U.S. Borrower,
THE OTHER U.S. SUBSIDIARIES OF CANADIAN BORROWER
PARTY HERETO AS U.S. BORROWERS,
NOVELIS UK LTD,
as a U.K. Borrower,
NOVELIS AG,
as a Swiss Borrower,
NOVELIS DEUTSCHLAND GMBH,
as a German Borrower,
THE OTHER BORROWERS PARTY HERETO,
AV METALS INC.,
THE OTHER GUARANTORS PARTY HERETO,
THE THIRD PARTY SECURITY PROVIDER,
THE LENDERS PARTY HERETO,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, and as Collateral Agent.
1160297.03A-CHISR02A - MSW
- 1 -
This AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), dated as of August 25, 2020, is entered into among NOVELIS INC., a corporation amalgamated under the Canada Business Corporations Act and having its corporate office at Two Alliance Center, 0000 Xxxxx Xxxx, Xxxxx 0000, Xxxxxxx, XX 00000, XXX (the “Canadian Borrower”), NOVELIS CORPORATION, as a U.S. borrower, the other U.S. borrowers party thereto (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 METALS INC., a corporation formed under the Canada Business Corporations Act (“Holdings”), the other LOAN PARTIES (as defined in the Amended Credit Agreement referred to below), NOVELIS ITALIA S.P.A. (the “Third Party Security Provider”), the LENDERS party hereto, and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as administrative agent (in such capacity, and together with its successors in such capacity, “Administrative Agent”), and as collateral agent (in such capacity, and together with its successors in such capacity, “Collateral Agent”).
RECITALS
WHEREAS, the Borrowers, Holdings, the other Loan Parties, the Administrative Agent, the Collateral Agent, the lenders 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 by Amendment No. 1 to Second Amended and Restated Credit Agreement, dated as of September 14, 2017, as further amended by Amendment No. 2 to Second Amended and Restated Credit Agreement and Amendment to U.S. Security Agreement, dated as of April 15, 2019, as further amended by Amendment No. 3 to Second Amended and Restated Credit Agreement, dated as of December 20, 2019, as further amended by Amendment No. 4 to Second Amended and Restated Credit Agreement and Amendment No. 2 to U.S. Security Agreement, dated as of February 21, 2020, and as further 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 Third Party Security Provider has pledged certain assets to secure the Secured Obligations;
WHEREAS, the Borrowers have requested amendments to the Credit Agreement as herein set forth;
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 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; and
1160297.03A-CHISR02A - MSW
- 2 -
WHEREAS, the Borrowers, Holdings, the other Loan Parties, the Administrative Agent, the Collateral Agent, and each lender party hereto, have agreed to amend the Credit Agreement on the terms and subject to the conditions herein provided.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and obligations herein set forth and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged, and in reliance upon the representations, warranties and covenants herein contained, the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1.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. Subject to the terms and conditions set forth herein, effective as of the Amendment Effective Date (as defined below):
a.the Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined) as set forth in the pages of the Amended Credit Agreement attached as Annex I hereto; and
b.Schedule 1.01(e) of the Credit Agreement is hereby amended and restated in its entirety as set forth in Annex II hereto.
Section 3.Conditions Precedent to Effectiveness of this Amendment. This Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which each of the following conditions precedent shall have been satisfied, or duly waived by the Required Lenders party hereto:
a.Certain Documents. The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent and each of the Lenders party hereto:
i.this Amendment, duly executed by each of the Loan Parties, the Third Party Security Provider, the Required Lenders, the Administrative Agent, and the Collateral Agent; and
ii.a certificate of the secretary or assistant secretary of the Designated Company dated the Amendment Effective Date, certifying (A) that attached thereto is a true and complete copy of its Organizational Documents, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Designated Company authorizing the execution, delivery and performance of, inter alia, this Amendment and that such resolutions, or any other document attached thereto, have not been modified, rescinded, amended or superseded and are in full force and effect, and (C) as to the incumbency and specimen signature of each officer or other authorized signatory executing this Amendment (together with a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate in this clause (ii)); anda good standing certificate (or such other
1160297.03A-CHISR02A - MSW
- 3 -
customary functionally equivalent certificates or abstracts) of the Designated Company, as of a recent date prior to the Amendment Effective Date, from the applicable Governmental Authority of the Designated Company’s jurisdiction of organization.
b.Payment of Fees, Costs, and Expenses. The Administrative Agent shall have received all fees required to be paid, and all expenses (including the reasonable fees and expenses of legal counsels) for which invoices have been presented, on or before the Amendment Effective Date, in connection with this Amendment.
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 and the Administrative Agent shall have received a certificate of a Responsible Officer of the Canadian Borrower, addressed to the Administrative Agent and dated as of the Amendment Effective Date, certifying the same.
d.No Default or Event of Default. Before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing and the Administrative Agent shall have received a certificate of a Responsible Officer of the Canadian Borrower, addressed to the Administrative Agent and dated as of the Amendment Effective Date, certifying the same.
Section 4.Representations and Warranties. Each Loan Party represents and warrants to the Administrative Agent and each Lender 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, each other Loan Party and the Third Party Security Provider of this Amendment, and the performance of this Amendment and the Amended Credit Agreement by the Canadian Borrower, 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, each other Loan Party and the Third Party Security Provider, and each of this Amendment and the Amended Credit Agreement constitutes the Canadian Borrower’s, such Loan Party’s or such 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,
0000000.03A-CHISR02A - MSW
- 4 -
insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity.
d.Before and 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 and each Subsidiary Guarantor hereby (i) acknowledges and agrees to the terms of this Amendment and the Amended Credit 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.
d.Without limiting the generality of this Section 5 or Section 6, (i) neither this Amendment, the Amended Credit 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
1160297.03A-CHISR02A - MSW
- 5 -
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 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 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.The Reaffirming Parties hereby confirm their respective guarantees, assignments, pledges and grants of security interests, as applicable, under the U.S. Security Agreement, and agree 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 the U.S. Security Agreement will include the “Secured Obligations” as defined in the 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 specified herein and therein and shall not constitute an amendment of, or an indication of the Administrative Agent’s or any Lender’s willingness to amend or waive, any other provisions of the Credit Agreement as amended hereby or thereby, or the same sections or any provision of any other Loan Document for any other date or purpose.
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 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.
1160297.03A-CHISR02A - MSW
- 6 -
c.The execution and delivery of this Amendment by any Loan Party or 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 Third Party Security Provider is not a party.
d.This Amendment shall constitute a Loan Document.
Section 8.Intercreditor Amendment. Pursuant to Section 11.02(b) of the Amended Credit Agreement, the Required Lenders hereby authorize the Administrative Agent and the Collateral Agent, in their respective capacities as Revolving Credit Administrative Agent (as defined in the Intercreditor Agreement) and Revolving Credit Collateral Agent (as defined in the Intercreditor Agreement), to enter into an amendment to the Intercreditor Agreement so as to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined) as set forth in the pages of the Intercreditor Agreement attached as Annex III.
Section 9.Further Assurances. The Canadian Borrower, 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 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 10.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 Administrative Agent and shall be as effective as delivery of a manually executed counterpart of the Amendment or notice.
1160297.03A-CHISR02A - MSW
- 7 -
Section 11.Governing Law. This Amendment and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with, the law of the State of New York, without regard to conflicts of law principles that would require the application of the laws of another jurisdiction.
Section 12.Headings. Section headings contained in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purposes.
Section 13.WAIVER OF JURY TRIAL. EACH 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]
1160297.03A-CHISR02A - MSW
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/ Xxxxx Murphey______
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
AV METALS INC., as Holdings and a Canadian Guarantor
By: __/s/ Xxxxx Murphey______
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
NOVELIS CORPORATION, as a U.S. Borrower and a Guarantor
By: __/s/ Xxxxx Murphey______
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
NOVELIS GLOBAL EMPLOYMENT ORGANIZATION, INC., as a U.S. Borrower and a Guarantor
By: __/s/ Xxxxx Murphey______
Name: Xxxxx Xxxxxxx
Title: Assistant Treasurer
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS SOUTH AMERICA HOLDINGS LLC, as a U.S. Borrower and a Guarantor
By: __/s/ Xxxxx Murphey______
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
NOVELIS HOLDINGS INC.,
as a U.S. Borrower and a Guarantor
By: __/s/ Xxxxx Murphey______
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS UK LTD, as U.K. Borrower and a U.K. Guarantor
By: __/s/ Xxxxx Murphey______
Name: Xxxxx Xxxxxxx
Title: Attorney
NOVELIS EUROPE HOLDINGS LIMITED,
as a U.K. Guarantor
By: __/s/ Xxxxx Murphey______
Name: Xxxxx Xxxxxxx
Title: Attorney
NOVELIS SERVICES LIMITED,
as a U.K. Guarantor
By: __/s/ Xxxxx Murphey______
Name: Xxxxx Xxxxxxx
Title: Attorney
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS AG, as Swiss Borrower, a European Administrative Borrower and a Swiss Guarantor
By: __/s/ Xxxxx Murphey______
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
NOVELIS SWITZERLAND SA,
as a Swiss Guarantor
By: __/s/ Xxxxx Murphey______
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
4260848 CANADA INC., as a Canadian Guarantor
By: __/s/ Xxxxx Murphey______
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
4260856 CANADA INC., as a Canadian Guarantor
By: __/s/ Xxxxx Murphey______
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
8018227 CANADA INC., as a Canadian Guarantor
By: __/s/ Xxxxx Murphey______
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 5 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:
By: __/s/ Xxxxx Murphey____________
Name: Xxxxx Xxxxxxx
Title: Attorney
witness:
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Spouse
Address: 0000 Xxxxxxx Xx
Xxxxxxxxxx XX 00000
Occupation: HR Consultant
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS DEUTSCHLAND GMBH,
as German Borrower and a German Guarantor
as German Borrower and a German Guarantor
By: __/s/ Xxxxx Murphey____________
Name: Xxxxx Xxxxxxx
Title: Person Authorized
NOVELIS SHEET INGOT GMBH,
as a German Guarantor
By: __/s/ Xxxxx Murphey____________
Name: Xxxxx Xxxxxxx
Title: Person Authorized
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS DO BRASIL LTDA.,
as Brazilian Guarantor
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney-in-Fact
witness:
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Project Manager
witness:
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Manager Legal Services
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
NOVELIS PAE S.A.S., as French Guarantor
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney-in-Fact
[SIGNATURE PAGE TO AMENDMENT NO. 5 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/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
Novelis Italia S.p.A., as Third Party Security Provider
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
ALERIS CORPORATION, as a U.S. Borrower and a Guarantor
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
ALERIS INTERNATIONAL, INC., as a U.S. Borrower and a Guarantor
By: ____/s/ Xxxxx Murphey__________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
ALERIS ROLLED PRODUCTS, INC., as a U.S. Borrower and a Guarantor
By: ____/s/ Xxxxx Murphey__________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
UWA ACQUISITION CO., as a U.S. Borrower and a Guarantor
By: ____/s/ Xxxxx Murphey__________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
NAME ACQUISITION CO., as a U.S. Borrower and a Guarantor
By: ____/s/ Xxxxx Murphey__________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
ALERIS OHIO MANAGEMENT, INC., as a U.S. Borrower and a Guarantor
By: ____/s/ Xxxxx Murphey__________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
INTL ACQUISITION CO., as a U.S. Borrower and a Guarantor
By: ____/s/ Xxxxx Murphey__________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
ALERIS ROLLED PRODUCTS, LLC, as a U.S. Borrower and a Guarantor
By: ____/s/ Xxxxx Murphey__________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
ALERIS ROLLED PRODUCTS SALES CORPORATION, as a U.S. Borrower and a Guarantor
By: ____/s/ Xxxxx Murphey__________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
IMCO RECYCLING OF OHIO, LLC, as a U.S. Borrower and a Guarantor
By: ____/s/ Xxxxx Murphey__________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
XXXXXXX ALUMINUM-ALABAMA LLC, as a U.S. Borrower and a Guarantor
By: ____/s/ Xxxxx Murphey__________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
XXXXXXX ALUMINUM LLC, as a U.S. Borrower and a Guarantor
By: ____/s/ Xxxxx Murphey__________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
ALERIS WORLDWIDE, INC., as a U.S. Borrower and a Guarantor
By: ____/s/ Xxxxx Murphey__________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
ALERIS RM, INC., as a U.S. Borrower and a Guarantor
By: ____/s/ Xxxxx Murphey__________
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
ALERIS DEUTSCHLAND HOLDING GMBH, as a German Guarantor By: ____/s/ Xxxxx Murphey__________ Name: Xxxxx Murphey Title: Person Authorized ALERIS DEUTSCHLAND VIER GMBH & CO. KG, as a German Guarantor By: ____/s/ Xxxxx Murphey__________ Name: Xxxxx Murphey Title: Person Authorized ALERIS ROLLED PRODUCTS GERMANY GMBH, as a German Borrower and a German Guarantor By: ____/s/ Xxxxx Murphey__________ Name: Xxxxx Murphey Title: Person Authorized ALERIS CASTHOUSE GERMANY GMBH, as a German Borrower and a German Guarantor By: ____/s/ Xxxxx Murphey__________ Name: Xxxxx Murphey Title: Person Authorized | |||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
DUTCH ALUMINUM C.V., as a Dutch Guarantor By: ____/s/ Xxxxx Murphey__________ Name: Xxxxx Murphey Title: Authorized Signatory ALERIS ALUMINUM NETHERLANDS B.V., as a Dutch Guarantor By: ____/s/ Xxxxx Murphey__________ Name: Xxxxx Murphey Title: Authorized Signatory | |||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
| ABN AMRO CAPITAL USA LLC, as a Lender | ||||||||||||||
| By: | /s/ Xxxx Xxxxxxx | |||||||||||||
Name: Xxxx Xxxxxxx Title: Executive Director | ||||||||||||||
| By: | /s/ Xxxxx Xxxxx | |||||||||||||
Name: Xxxxx Xxxxx Title: Director | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
Bank of America, N.A., as a Lender | ||||||||||||||
| By: | /s/ Xxxx Xxxxx | |||||||||||||
Name: Xxxx Xxxxx Title: Senior Vice President | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
Bank of Montreal, Chicago Branch, as a Lender | ||||||||||||||
| By: | /s/ Xxxxxxxxx Xxxx | |||||||||||||
Name: Xxxxxxxxx Xxxx Title: Vice President | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
| Bank of Montreal, London Branch, as a Lender | ||||||||||||||
| By: | /s/ Xxx Xxxxxxx | |||||||||||||
Name: Xxx Xxxxxxx Title: Managing Director | ||||||||||||||
| By: | /s/ Xxxxx Xxxxxxxx | |||||||||||||
Name: Xxxxx Xxxxxxxx Title: Managing Director | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
BARCLAYS BANK PLC, as a Lender | ||||||||||||||
| By: | /s/ Xxxxx Xxxxxx | |||||||||||||
Name: Xxxxx Xxxxxx Title: Director | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
| BNP Paribas, as a Lender | ||||||||||||||
| By: | /s/ Xxxx XxXxxxxxx | |||||||||||||
Name: Xxxx XxXxxxxxx Title: Vice President | ||||||||||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||||||||||
Name: Xxxxxxx Xxxxxxx Title: Managing Director | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
CITIBANK, N.A., as a Lender | ||||||||||||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||||||||||
Name: Xxxxxxx Xxxxxx Title: Vice President | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender | ||||||||||||||
| By: | /s/ Xxxxxx Xxxx | |||||||||||||
Name: Xxxxxx Xxxx Title: Authorized Signatory | ||||||||||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||||||||||
Name: Xxxxxx Xxxxxxx Title: Authorized Signatory | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
| DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender | ||||||||||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||||||||||
Name: Xxxxxx Xxxxxxxx Title: Vice President | ||||||||||||||
| By: | /s/ Xxxxx Xxxx | |||||||||||||
Name: Xxxxx Xxxx Title: Vice President | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
HSBC Bank USA, N.A., as a Lender | ||||||||||||||
| By: | /s/ Xxxxx Xxxxxx | |||||||||||||
Name: Xxxxx Xxxxxx Title: Vice President, #22445 | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
ING Capital LLC, as a Lender | ||||||||||||||
| By: | /s/ Xxxx Xxx | |||||||||||||
Name: Xxxx Xxx Title: Director | ||||||||||||||
| By: | /s/ Xxxxxxx Xxxx | |||||||||||||
Name: Xxxxxxx Xxxx Title: Director | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
XX XXXXXX XXXXX BANK, N.A., as a Lender | ||||||||||||||
| By: | /s/ Xxxxx Xxxxxx | |||||||||||||
Name: XXXXX XXXXXX Title: Vice President | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
XXXXXX XXXXXXX BANK, N.A., as a Lender | ||||||||||||||
| By: | /s/ Xxxx Xxxxxx | |||||||||||||
Name: Xxxx Xxxxxx Title: Authorized Signatory | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
SOCIETE GENERALE, as a Lender | ||||||||||||||
| By: | /s/ Michiel van der Voort | |||||||||||||
Name: Michiel van der Voort Title: Managing Director | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
| Standard Chartered Bank as a Lender | ||||||||||||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||||||||||
Name: Xxxxxxx Xxxxxx Title: Executive Director | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, as Collateral Agent and as a Lender | ||||||||||||||
| By: | /s/ Xxxxxxx X. Xxxx | |||||||||||||
Name: Xxxxxxx X. Xxxx Title: Director | ||||||||||||||
[SIGNATURE PAGE TO AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]
Annex I
Amended Credit Agreement
See attached.
1160297.03A-CHISR02A - MSW
EXECUTION VERSION
Annex I to Amendment No. 45 to ABL
$1,500,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of October 6, 2014,
AS AMENDED BY AMENDMENT NO. 1,
dated as of September 14, 2017,
AS AMENDED BY AMENDMENT NO. 2,
dated as of April 15, 2019
AS AMENDED BY AMENDMENT NO. 3,
dated as of December 20, 2019,
AS AMENDED BY AMENDMENT NO. 4,
dated as of February 21, 2020
AS AMENDED BY AMENDMENT NO. 5,
dated as of August 25, 2020
among
as Canadian Borrower,
NOVELIS CORPORATION
as a U.S. Borrower,
THE OTHER U.S. SUBSIDIARIES OF THE DESIGNATED HOLDCO
PARTY HERETO AS U.S. BORROWERS,
NOVELIS UK LTD,
as a U.K. Borrower,
NOVELIS AG,
as athe Swiss Borrower,
NOVELIS DEUTSCHLAND GMBH,
as a German Borrower,
THE OTHER BORROWERS FROM TIME TO TIME PARTY HERETO,
AV METALS INC.,
THE OTHER GUARANTORS PARTY HERETO,
THE LENDERS PARTY HERETO,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Collateral Agent, and U.S. Swingline Lender,
XXXXX FARGO BANK, N.A. (LONDON BRANCH),
as European Swingline Lender, and
BANK OF AMERICA, N.A. AND DEUTSCHE BANK AG NEW YORK BRANCH, AND SOLELY WITH RESPECT TO EXISTING LETTERS OF CREDIT, HSBC BANK USA, N.A.,
as Issuing Banks.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
CITIBANK, N.A.,
DEUTSCHE BANK SECURITIES INC., and
JPMORGAN CHASE BANK, N.A.,
CITIBANK, N.A.,
DEUTSCHE BANK SECURITIES INC., and
JPMORGAN CHASE BANK, N.A.,
0000000.01-CHISR1160299.03H-CHISR02A - MSW
EXECUTION VERSION
Annex I to Amendment No. 45 to ABL
as Co-Syndication Agents.
____________________________________________________________________
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
CITIBANK, N.A.,
DEUTSCHE BANK SECURITIES INC., and
JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arrangers and Joint Bookmanagers.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
CITIBANK, N.A.,
DEUTSCHE BANK SECURITIES INC., and
JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arrangers and Joint Bookmanagers.
1160299.01-CHISR1160299.03H-CHISR02A - MSW
TABLE OF CONTENTS
Page
- 1 -
- 2 -
- 3 -
- 4 -
- 5 -
ANNEXES
Annex I Revolving Commitments
Annex II Applicable Margin
Annex III Mandatory Cost Formula
SCHEDULES
Schedule 1.01(a) Agent’s Account
Schedule 1.01(b) Subsidiary Guarantors
Schedule 1.01(c) Applicable Jurisdiction Requirements
Schedule 1.01(d) Specified Account Debtors
Schedule 1.01(e) Excluded Collateral Subsidiaries
Schedule 1.01(f) Excluded Subsidiaries
Schedule 1.01(g) Joint Venture Subsidiaries
Schedule 2.18(a) Existing Letters of Credit
Schedule 2.21 Lenders to the Swiss BorrowersBorrower
Schedule 3.06(c) Violations or Proceedings
Schedule 3.17 Pension Matters
Schedule 3.21 Material Documents
Schedule 3.24 Location of Material Inventory
Schedule 4.01(g) Local and Foreign Counsel
Schedule 5.11(b) Certain Subsidiaries
Schedule 5.16 Post-Closing Covenants
Schedule 6.01(b) Existing Indebtedness
Schedule 6.02(c) Existing Liens
Schedule 6.04(b) Existing Investments
1
1160299.01-CHISR1160299.03H-CHISR02A - MSW
Schedule 9.01(b) Cash Management
EXHIBITS
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Assumption
Exhibit C Form of Borrowing Request
Exhibit D Form of Compliance Certificate
Exhibit E Form of Interest Election Request
Exhibit F Form of Joinder Agreement
Exhibit G Form of Landlord Access Agreement
Exhibit H Form of LC Request
Exhibit I Form of Borrowing Base Certificate
Exhibit J Form of Mortgage
Exhibit K-1 Form of Revolving Note
Exhibit K-2 Form of European Swingline Note
Exhibit L-1 Form of Perfection Certificate
Exhibit L-2 Form of Perfection Certificate Supplement
Exhibit M [Reserved]
Exhibit N [Reserved]
Exhibit O Form of Solvency Certificate
Exhibit P Form of Intercompany Note
2
1160299.01-CHISR1160299.03H-CHISR02A - MSW
CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 6, 2014 (as amended as of September 4, 2017, as further amended as of April 15, 2019, as further amended as of December 20, 2019, as further amended as of February 21, 2020, as further amended as of August 25, 2020, and as further amended, restated, amended and restated, supplemented or modified, this “Agreement”), is among the DESIGNATED COMPANY (such term and each other capitalized term used but not defined herein having the meaning given to it in ARTICLE I), as a borrower, NOVELIS INC., a corporation amalgamated under the Canada Business Corporations Act (the “Canadian Borrower”), NOVELIS CORPORATION, a Texas corporation, and the other U.S. subsidiaries of the Designated Company signatory hereto as U.S. borrowers (each, an “Initial U.S. Borrower” and, collectively, the “Initial U.S. Borrowers”), NOVELIS UK LTD, a limited liability company incorporated under the laws of England and Wales with registered number 00279596 (“Novelis UK”), NOVELIS DEUTSCHLAND GMBH, a limited liability company organized under the laws of Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Göttingen with registration number HRB 772 (“Novelis Deutschland”), NOVELIS AG, a stock corporation (AG) organized under the laws of Switzerland (“Novelis AG”), and the other Borrowers from time to time party hereto, AV METALS INC., a corporation formed under the Canada Business Corporations Act, the Subsidiary Guarantors, the Lenders, the Issuing Banks, XXXXX FARGO BANK, NATIONAL ASSOCIATION, as U.S. swingline lender (in such capacity, “U.S. Swingline Lender”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, as administrative agent (in such capacity, “Administrative Agent”) for the Secured Parties and each Issuing Bank, XXXXX FARGO BANK, NATIONAL ASSOCIATION, as collateral agent (in such capacity, “Collateral Agent”) for the Secured Parties and each Issuing Bank, and XXXXX FARGO BANK, N.A. (LONDON BRANCH), as European swingline lender (in such capacity, “European Swingline Lender”).
WITNESSETH:
Borrowers have requested that Lenders enter into this Agreement in order to amend and restate the Existing Credit Agreement to finance the mutual and collective business enterprise of the Loan Parties. Upon satisfaction of the conditions set forth in this Agreement, the Existing Credit Agreement shall be, pursuant to the Amendment Agreement, amended and restated in the form of this Agreement, with the effect provided in the Amendment Agreement.
NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms. As used in this Agreement (including the preamble), the following terms shall have the meanings specified below:
1
1160299.01-CHISR1160299.03H-CHISR02A - MSW
“Accepting Lenders” shall have the meaning assigned to such term in Section 11.02(g).
“Account Debtor” shall mean, “Account Debtor,” as such term is defined in the UCC.
“Accounts” shall mean all “accounts,” as such term is defined in the UCC, in which such Person now or hereafter has rights.
“Acquisition” shall mean any transaction or series of related transactions for the direct or indirect (a) acquisition of all or substantially all of the property and assets or business of any Person, or of any business unit, line of business or division of any Person or assets constituting a business unit, line of business or division of any other Person (other than a Person that is a Restricted Subsidiary on the Closing Date), (b) acquisition of in excess of 50% of the Equity Interests of any Person or otherwise causing a person to become a Restricted Subsidiary of the acquiring Person (other than in connection with the formation or creation of a Restricted Subsidiary of the Designated Company by any Company), or (c) merger, consolidation or amalgamation, whereby a person becomes a Restricted Subsidiary of the acquiring person, or any other consolidation with any Person, whereby a Person becomes a Restricted Subsidiary of the acquiring Person.
“Acquisition Consideration” shall mean the purchase consideration for any Acquisition, whether paid in cash, properties, any assumption of Indebtedness or otherwise (other than by the issuance of Qualified Capital Stock of Holdings (and, after the Specified AV Minerals Joinder Date, AV Minerals) permitted to be issued hereunder) permitted to be issued hereunder) and whether payable at or prior to the consummation of such Acquisition or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and includes any and all payments representing “earn-outs” and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of any person or business; provided that any such future payment that is subject to a contingency shall be considered Acquisition Consideration only to the extent of the reserve, if any, required under U.S. GAAP at the time of such sale to be established in respect thereof by Holdings (and, after the Specified AV Minerals Joinder Date, AV Minerals), the Designated Company or any of its Restricted Subsidiaries.
“Activation Notice” has the meaning assigned to such term in Section 9.01(c).
“Additional German Borrowers” shall have the meaning assigned to such term in clause (b) of the definition of German Borrowers.
“Additional U.S. Borrowers” shall have the meaning assigned to such term in clause (b) of the definition of U.S. Borrowers.
“Additional Lender” shall have the meaning assigned to such term in Section 2.23(a).
“Additional Senior Secured Indebtedness” shall mean any senior secured Indebtedness secured by Collateral and incurred, created, assumed or permitted to exist in reliance of
2
1160299.01-CHISR1160299.03H-CHISR02A - MSW
Section 6.01(l) or (y); provided that no such Indebtedness shall constitute Additional Senior Secured Indebtedness unless at all times it meets the following requirements: (i) the terms of such Indebtedness do not require any amortization, mandatory prepayment or redemption or repurchase at the option of the holder thereof (other than (x) amortization not to exceed 1.0% per annum of the outstanding principal amount of such Indebtedness and (y) customary asset sale or change of control provisions, which asset sale provisions may require the application of proceeds of asset sales and casualty events co-extensive with those set forth in Section 2.10(c), as applicable, to make mandatory prepayments or prepayment offers out of such proceeds on a pari passu basis with the Secured Obligations, all Permitted First Priority Refinancing Debt and all other Additional Senior Secured Indebtedness) earlier than the earlier of the Maturity Date and the final maturity date of such Indebtedness, (ii) such Indebtedness has terms and conditions (excluding pricing and premiums) that, when taken as a whole, are not materially more restrictive or less favorable to the Companies and the Lenders than the terms of the Term Loan Documents (or, if the Term Loan Documents are no longer in effect, than the Term Loan Documents as in effect immediately prior to their termination) (except with respect to terms and conditions that are applicable only after the Maturity Date), (iii) the Liens securing such Indebtedness shall be pari passu with the Liens securing the Pari Passu Secured Obligations (other than with respect to control of remedies), such Liens shall only be on assets that constitute Collateral and, to the extent such Liens attach to Revolving Credit Priority Collateral, such Liens on Revolving Credit Priority Collateral shall be junior to the Liens securing the Secured Obligations hereunder, (iv) the security agreements relating to such Indebtedness shall be substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (v) such Indebtedness and the holders thereof or the Senior Representative thereunder shall be subject to the Intercreditor Agreement and the Liens securing such Indebtedness shall be subject to the Intercreditor Agreement, and (vi) after giving effect to the incurrence of such Indebtedness and to the consummation of any Permitted Acquisition or other Investment or application of funds made with the proceeds of such incurrence on a Pro Forma Basis (Leverage), the Senior Secured Net Leverage Ratio at such date shall not be greater than 3.25 to 1.0 (provided that in calculating the Senior Secured Net Leverage Ratio, the proceeds of the incurrence of such Indebtedness shall be excluded from Unrestricted Cash).
“Additional Senior Secured Indebtedness Documents” shall mean all documents executed and delivered with respect to the Additional Senior Secured Indebtedness or delivered in connection therewith.
“Additional Unsecured Indebtedness” shall mean any unsecured Indebtedness incurred, created, assumed or permitted to exist in reliance of Section 6.01(l); provided that (i) the terms of such Indebtedness do not require any amortization, mandatory prepayment or redemption or repurchase at the option of the holder thereof (other than customary offers to purchase upon a change of control or asset sale) earlier than earlier of the final maturity date of such Indebtedness and 180 days after the Maturity Date, (ii) such Indebtedness has terms and conditions (excluding pricing, premiums and subordination terms) that, when taken as a whole, are not materially more restrictive or less favorable to the Companies, and are not materially less favorable to the Lenders, than the terms of the Term Loan Documents (or, if the Term Loan Documents are no
3
1160299.01-CHISR1160299.03H-CHISR02A - MSW
longer in effect, than the Term Loan Documents as in effect immediately prior to their termination) (except with respect to terms and conditions that are applicable only after the Maturity Date), and (iii) after giving effect to the incurrence of such Indebtedness and to the consummation of any Permitted Acquisition or other Investment or application of funds made with the proceeds of such incurrence on a Pro Forma Basis (Leverage), the Consolidated Interest Coverage Ratio at such date shall be greater than 2.0 to 1.0.
“Adjusted EURIBOR Rate” shall mean, with respect to any EURIBOR Borrowing for any Interest Period, an interest rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) determined by the Administrative Agent to be equal to the sum of (a) (i) the EURIBOR Rate for such EURIBOR Borrowing in effect for such Interest Period divided by (ii) 1 minus the Statutory Reserves (if any) for such EURIBOR Borrowing for such Interest Period plus, (b) without duplication of any increase in interest rate attributable to Statutory Reserves pursuant to the foregoing clause (ii), the Mandatory Cost (if any).
“Adjusted Excess Availability” shall mean, at any time, an amount, expressed in Dollars, equal to (a) Excess Availability plus (b) Qualified Cash, in the case of this clause (b), in an aggregate amount not to exceed 5% of the lesser of (i) the Revolving Commitments of all of the Lenders and (ii) the Total Borrowing Base on the date of determination.
“Adjusted LIBOR Rate” shall mean, with respect to any Eurocurrency Borrowing for any Interest Period, an interest rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) determined by the Administrative Agent to be equal to the sum of (a) (i) the LIBOR Rate for such Eurocurrency Borrowing in effect for such Interest Period divided by (ii) 1 minus the Statutory Reserves (if any) for such Eurocurrency Borrowing for such Interest Period plus, (b) without duplication of any increase in interest rate attributable to Statutory Reserves pursuant to the foregoing clause (ii), the Mandatory Cost (if any).
“Adjusted Total Revolving Commitment” shall mean, at any time, lesser of (i) the Total Revolving Commitment and (ii) the Term Loan Revolver Cap.
“Administrative Agent” shall have the meaning assigned to such term in the preamble hereto and includes each other person appointed as the successor pursuant to ARTICLE X.
“Administrative Borrower” shall mean the Designated Company, or any successor entity serving in that role pursuant to Section 2.03(b).
“Administrative Questionnaire” shall mean an Administrative Questionnaire in substantially the form of Exhibit A.
“Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” shall mean, when used with respect to a specified person, another person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the person specified; provided, however, that, for purposes of
4
1160299.01-CHISR1160299.03H-CHISR02A - MSW
Section 6.09, the term “Affiliate” shall also include (i) any person that directly or indirectly owns more than 10% of the voting power of the total outstanding Voting Stock of the person specified or (ii) any person that is an executive officer or director of the person specified.
“Agent Indemnitees” shall mean the Agents (and any sub-agent thereof) and their officers, directors, employees, Affiliates, agents and attorneys.
“Agent Professionals” shall mean attorneys, accountants, appraisers, auditors, business valuation experts, environmental engineers or consultants, turnaround consultants, and other professionals and experts retained by any Agent.
“Agents” shall mean the Administrative Agent and the Collateral Agent; and “Agent” shall mean either of them.
“Agent’s Account” shall have the meaning assigned to such term in Schedule 1.01(a) to Amendment No. 2.
“Aggregate Individual Aleris U.S. Revolving Exposure” shall mean at any time, the sum of the U.S. Revolving Exposure (Individual Aleris) of each of the Lenders at such time.
“Aggregate Individual German Revolving Exposure” shall mean at any time, the sum of the German Revolving Exposure (Individual) of each of the Lenders at such time.
“Aggregate Individual Swiss Revolving Exposure” shall mean at any time, the sum of the Swiss Revolving Exposure (Individual) of each of the Lenders at such time.
“Aggregate Total German Revolving Exposure” shall mean at any time, the sum of the German Revolving Exposure (Total) of each of the Lenders at such time.
“Aggregate Total Individual Aleris U.S. Revolving Exposure” shall mean at any time, the sum of the U.S. Revolving Exposure (Total Individual Aleris) of each of the Lenders at such time.
“Aggregate Total Swiss Revolving Exposure” shall mean at any time, the sum of the Swiss Revolving Exposure (Total) of each of the Lenders at such time.
“Agreed Guarantee and Security Principles” shall mean the following principles that embody a recognition by all parties to this Agreement that there may be certain legal and practical limitations on the scope and enforceability of guarantees and security from the Guarantors in certain jurisdictions outside of the United States and Canada that become parties to this agreement after the Amendment No. 2 Effective Date. In particular:
(a) general statutory limitations, capital maintenance, financial assistance, corporate benefit, fraudulent preference, “thin capitalization” rules, regulatory restrictions and similar principles may require that the guarantee and/or security be limited by an amount or otherwise. If any such limit applies, the guarantees and security provided may be limited to the maximum
5
1160299.01-CHISR1160299.03H-CHISR02A - MSW
amount which the relevant Guarantor may provide having regard to applicable law under the jurisdiction of organization of such Guarantor; and
(b) to the extent required to comply with applicable law, guarantees and security may be limited to mitigate a risk to the directors or officers of the relevant grantor of such guarantee and security of contravention of any statutory duty in such capacity or their fiduciary duties and/or which could reasonably be expected to result in personal, civil or criminal liability on the part of any such director or officer.
“Agreement” shall have the meaning assigned to such term in the preamble hereto.
“Aleris” shall mean Aleris Corporation, a Delaware corporation.
“Aleris Acquisition” shall mean the acquisition by Novelis Acquisitions of Aleris pursuant to the terms of the Aleris Merger Agreement on the Aleris Acquisition Closing Date, the repayment of certain Indebtedness of Aleris and its subsidiaries in connection with the Aleris Acquisition, and the payment of all fees, costs and expenses in connection with the foregoing.
“Aleris Acquisition Closing Date” shall mean the date that the Aleris Acquisition is consummated in accordance with the terms of the Aleris Merger Agreement and the conditions precedent in Section 7 of Amendment No. 2 are satisfied (or waived in accordance with the terms hereof).
“Aleris Belgium” shall mean Aleris Aluminum Duffel BVBA (or, if converted or recharacterized prior to the Aleris Acquisition Closing Date, Aleris Aluminum Duffel BV), a private limited liability company organized under the laws of Belgium, with registered office at 2570 Duffel (Belgium), Xxxxx Xxxxxxxxxxx 00 and with company number 0403.045.292 (RLE - Antwerp, division Mechelen), and including any sales offices thereof.
“Aleris Borrowers” shall mean, to the extent that such Person has become a party to this Agreement as a Borrower and a Guarantor on or after the Aleris Acquisition Closing Date in accordance with the terms of this Agreement and (if applicable) Section 7 of Amendment No. 2 (as amended or otherwise modified by Amendment No. 4), and has granted Liens on its assets to secure the Secured Obligations on terms consistent with the terms of the Loan Documents, and in accordance with the terms of this Agreement and the other Loan Documents and (if applicable) Amendment No. 2 (as amended or otherwise modified by Amendment No. 4) and Amendment Xx. 0, Xxxxxx, Xxxxxx Xxxxxxxxxxx, the Additional German Borrowers and the Additional U.S. Borrowers (including, for the avoidance of doubt, the Individual Aleris U.S. Borrowers).
“Aleris Casthouse” shall mean Aleris Casthouse Germany GmbH, a company with limited liability organized under the laws of Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Koblenz with registration number HRB 1064.
“Aleris Deemed Borrowing Base Collateral Conditions” shall mean, with respect to each Aleris Borrower, that such Aleris Borrower has satisfied the conditions precedent applicable
6
1160299.01-CHISR1160299.03H-CHISR02A - MSW
to such Aleris Borrower in Section 7 or Section 8 of Amendment No. 2 (as amended or otherwise modified by Amendment No. 4) or has otherwise joined this Agreement as a Borrower and as a Guarantor, and has granted Liens on its assets to secure the Secured Obligations on terms consistent with the terms of the Loan Documents, and in accordance with the terms of Amendment No. 2 (as amended or otherwise modified by Amendment No. 4), Amendment No. 4, this Agreement and the other Loan Documents; provided that, with respect to each Aleris Borrower, the Aleris Deemed Borrowing Base Collateral Conditions applicable to such Aleris Borrower shall be deemed not to be satisfied at any time that the Collateral Agent, on behalf of the Secured Parties, does not have a valid, perfected First Priority Lien on the Accounts, Inventory and, subject to the grace periods set forth in Section 5.11(g) as it relates to control agreements, bank accounts into which such Accounts are or are required to be deposited, of such Aleris Borrower.
“Aleris German GP Holdco” shall mean Aleris Deutschland Vierte Verwaltungs GmbH.
“Aleris German Non-Wholly Owned Subsidiaries” shall mean Aleris Deutschland Vier GmbH & Co. KG, Aleris Rolled Products, Aleris Casthouse and, at any time that it constitutes a Restricted Subsidiary, Aleris German GP Holdco.
“Aleris Germany” shall mean Aleris Deutschland Holding GmbH.
“Aleris Hedging Collateral Requirements” shall have the meaning assigned to such term in Section 5.16(e).
“Aleris Hong Kong” shall mean Aleris Asia Pacific Limited, a private company with limited liability organized under the laws of Hong Kong.
“Aleris Issuing Bank” shall have the meaning assigned to such term in Amendment No. 2.
“Aleris Italy” shall mean Aleris Aluminum Italy Srl, and including any sales offices thereof.
“Aleris Luxembourg” shall mean Aleris Holding Luxembourg S.à.x.x.
“Aleris Merger Agreement” means that certain Agreement and Plan of Merger, dated as of July 26, 2018, among the Canadian Borrower, Novelis Acquisitions, Aleris, and OCM Opportunities ALS Holdings, L.P., a Delaware limited partnership, as amended, modified or supplemented, together with any consent or waiver with respect thereto, but only to the extent that such amendment, modification, restatement, consent or waiver is not materially adverse to the Lenders or the Agents in their capacities as such, it being understood that (i) any modification, amendment, consent or waiver to the definition of “Material Adverse Effect” in the Aleris Merger Agreement, or which has the effect of modifying, amending or waiving the representation or condition as to the absence of a Material Adverse Effect (as defined in the Aleris Merger Agreement as of the Amendment No. 2 Effective Date) shall be deemed to be materially adverse to the Lenders and the Agents, (ii) any decrease in the purchase price payable
7
1160299.01-CHISR1160299.03H-CHISR02A - MSW
under the Aleris Merger Agreement shall not be deemed to be materially adverse to the Lenders or the Agents, so long as such decrease does not exceed 10% of the consideration contemplated to be paid under the Aleris Merger Agreement as of July 26, 2018, and (iii) any increase in the purchase price contemplated to be paid under the Aleris Merger Agreement shall not be deemed to be materially adverse to the Lenders or the Agents, so long as such increase is funded by additional common equity contributions to Specified Holders that directly or indirectly own Equity Interests in the Designated Company and its Restricted Subsidiaries immediately prior to such contribution or by cash on hand or borrowings under this Agreement (so long as, in the case of a funding of borrowings under this Agreement, the Availability Conditions are satisfied at the time the Aleris Acquisition is consummated); provided, that adjustments to working capital and earn-out payments in accordance with the terms of the Aleris Merger Agreement shall not constitute an increase or decrease in purchase price for purposes of this definition.
“Aleris Mexico” shall mean Aleris Rolled Products Mexico, S. de X.X. de C.V., a company organized under the laws of Mexico.
“Aleris Rolled Products” shall mean Aleris Rolled Products Germany GmbH, a company with limited liability organized under the laws of Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Koblenz with registration number HRB 4239.
“Aleris Switzerland” shall mean Aleris Switzerland GmbH, a company organized under the laws of Switzerland.
“Aleris U.S. Hold Separate Release Date” means the later of (i) the first date after the Aleris Acquisition Closing Date on which no assets of any Company are subject to restrictions under the U.S. Hold Separate Order or any U.S. Hold Separate Agreement and (ii) the date specified in a certificate signed by a Responsible Officer of the Administrative Borrower, which certificate shall certify that such date is the first date after the Aleris Acquisition Closing Date on which no assets of any Company are subject to restrictions under the U.S. Hold Separate Order or any U.S. Hold Separate Agreement. Each party to this Agreement agrees that the Administrative Agent may rely conclusively on the certificate described in the immediately preceding sentence without further inquiry.
“Aleris U.S. Borrower Certificate” shall mean a certificate signed by a Responsible Officer of the Administrative Borrower delivered to the Administrative Agent after the Amendment No. 4 Effective Date and prior to the Aleris U.S. Hold Separate Release Date, dated as of the Aleris Acquisition Closing Date, and certifying:
(i) as to a list of U.S. Subsidiaries of Aleris (other than an Excluded Collateral Subsidiary) that, together with, if applicable, Aleris, (x) directly or indirectly, are not required to be held separate, and the assets of which, directly or indirectly, are not required to be held separate (other than as a result of the ownership of Equity Interests in another U.S. Subsidiary of Aleris), in each case under the U.S. Hold Separate Order or any U.S. Hold Separate Agreement and (y) are permitted to guarantee the Obligations and to pledge all of their assets in favor of the Collateral Agent to secure the Obligations in accordance with, and to the extent required by, this
8
1160299.01-CHISR1160299.03H-CHISR02A - MSW
Agreement and the U.S. Security Agreements, which Persons that satisfy the requirements of this clause (i) shall constitute Additional U.S. Borrowers that are not Individual Aleris U.S. Borrowers on and after the date that such Persons have joined this Agreement as a Borrower and a Guarantor pursuant to a Joinder Agreement and have complied with all requirements for becoming Additional U.S. Borrowers and Guarantors in this Agreement and in each amendment hereto (including, without limitation, Section 7 of Amendment No. 2 (as amended by Amendment No. 4), and Section 5.11), the Intercreditor Agreement, and each applicable U.S. Security Document; and
(ii) as to a list of U.S. Subsidiaries of Aleris (other than an Excluded Collateral Subsidiary) that do not satisfy the requirements of clause (i) above, which Persons shall, until the Aleris U.S. Hold Separate Release Date, be deemed designated as Individual Aleris U.S. Borrowers for all purposes under the Loan Documents on and after the date that such Persons join this Agreement as a Borrower and a Guarantor pursuant to a Joinder Agreement and complied with all requirements for becoming Individual Aleris U.S. Borrowers and Guarantors in this Agreement and in each amendment hereto (including, without limitation, Section 7 of Amendment No. 2 (as amended by Amendment No. 4), and Section 5.11), the Intercreditor Agreement, and each applicable U.S. Security Document.
Each party to this Agreement agrees that the Administrative Agent may rely conclusively on the Aleris U.S. Borrower Certificate without further inquiry.
“Alternate Currency” shall mean each of euros and GBP and, with regard only to European Swingline Loans or European Letters of Credit, Swiss francs.
“Alternate Currency Equivalent” shall mean, as to any amount denominated in Dollars as of any date of determination, the amount of the applicable Alternate Currency that could be purchased with such amount of Dollars based upon the Spot Selling Rate.
“Alternate Currency Letter of Credit” shall mean any Letter of Credit to the extent denominated in an Alternate Currency.
“Alternate Currency Revolving Loan” shall mean each Revolving Loan denominated in an Alternate Currency.
“Amendment Agreement” shall mean that certain Amendment and Restatement Agreement, dated as of the Closing Date, among the Loan Parties party thereto, the Lenders party thereto, the Administrative Agent, the Collateral Agent, the Issuing Banks party thereto, the U.S. Swingline Lender, the European Swingline Lender, and the other parties thereto, which effects the second amendment and restatement of this Agreement.
“Amendment No. 1” means that certain Amendment No. 1 to Second Amended and Restated Credit Agreement, dated as of September 14, 2017, among Holdings, the Borrowers party thereto, the other Loan Parties party thereto, Novelis Italia, S.p.A., as third party security provider, the Administrative Agent, the Collateral Agent, the European Swingline Lender, each Issuing Bank party thereto and each Lender party thereto.
9
1160299.01-CHISR1160299.03H-CHISR02A - MSW
“Amendment No. 1 Effective Date” means the “Amendment Effective Date” as defined in Amendment No. 1.
“Amendment No. 2” means that certain Amendment No. 2 to Second Amended and Restated Credit Agreement, dated as of April 15, 2019, among Holdings, the Borrowers party thereto, the other Loan Parties party thereto, Novelis Italia, S.p.A., as third party security provider, the Administrative Agent, the Collateral Agent, the European Swingline Lender, each Issuing Bank party thereto, each Aleris Issuing Bank party thereto, and each Lender party thereto.
“Amendment No. 2 Effective Date” means the “Amendment Effective Date” as defined in Amendment No. 2.
“Amendment No. 2 Insurance Disclosure Letter” means that certain letter of the Designated Company, dated as of the Amendment No. 2 Effective Date and delivered on the Amendment No. 2 Effective Date to the Agents, Issuing Banks and Lenders.
“Amendment No. 4” means that certain Amendment No. 4 to Second Amended and Restated Credit Agreement and Amendment No. 2 to U.S. Security Agreement, dated as of February 21, 2020, among Holdings, the Borrowers party thereto, the other Loan Parties party thereto, Novelis Italia, S.p.A., as third party security provider, the Administrative Agent, the Collateral Agent, the European Swingline Lender, each Issuing Bank party thereto, the Aleris Issuing Bank party thereto, and each Lender party thereto.
“Amendment No. 4 Effective Date” means the “Amendment Effective Date” as defined in Amendment No. 4.
“Amendment No. 5” means that certain Amendment No. 5 to Second Amended and Restated Credit Agreement, dated as of August 25, 2020, among Holdings, the Borrowers party thereto, the other Loan Parties party thereto, Novelis Italia, S.p.A., as third party security provider, the Administrative Agent, the Collateral Agent, and each Lender party thereto.
“Amendment No. 5 Effective Date” means the “Amendment Effective Date” as defined in Amendment No. 5.
“Anti-Corruption Laws” shall mean (a) the U.S. Foreign Corrupt Practices Act of 1977, as amended; (b) the U.K. Xxxxxxx Xxx 0000, as amended; and (c) any other anti-bribery or anti-corruption laws, regulations or ordinances in any jurisdiction in which any Loan Party or any of its Subsidiaries or their respective Related Parties is located or doing business.
“Anti-Money Laundering Laws” shall mean applicable laws or regulations in any jurisdiction in which any Loan Party or any of its Subsidiaries or their respective Related Parties are located or doing business that relates to money laundering or terrorism financing, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto.
10
1160299.01-CHISR1160299.03H-CHISR02A - MSW
“Applicable Administrative Borrower” shall mean the Administrative Borrower and/or the European Administrative Borrower, as the context may require.
“Applicable Eligible Jurisdiction” shall mean:
(i) in the case of Eligible Accounts of the U.S. Borrowers, the United States, Canada, Mexico and Puerto Rico;
(ii) in the case of Eligible Accounts of the Canadian Loan Parties, Canada and the United States;
(iii) in the case of Eligible Accounts of each U.K. Borrower and each other Borrowing Base Guarantor incorporated in England and Wales, an Applicable European Jurisdiction, the United States and Canada;
(iv) in the case of Eligible Accounts of eachthe Swiss Borrower to the extent that it is not a party to a Receivables Purchase Agreement in the capacity of a seller thereunder, Switzerland, Germany, Poland, the United States, Canada or such other Applicable European Jurisdiction as the Administrative Agent may approve in its Permitted Discretion;
(v) in the case of Eligible Accounts of each German Borrower that is not a party to a Receivables Purchase Agreement in the capacity of a seller thereunder, Germany, Poland, the United States, Canada or such other Applicable European Jurisdiction as the Administrative Agent may approve in its Permitted Discretion; and
(vi) in the case of Eligible Accounts of the U.S. Borrowers or of the Canadian Loan Parties with respect to which either (x) the Account Debtor’s senior unsecured debt rating is at least BBB- by S&P and Baa3 by Xxxxx’x or (y) the Account Debtor’s credit quality is acceptable to the Administrative Agent, such Applicable European Jurisdictions, as may be approved by the Administrative Agent.
“Applicable European Jurisdiction” shall mean Germany, United Kingdom, France, Netherlands, Italy, Ireland, Belgium, Spain, Sweden, Finland, Austria, Denmark, Greece, Portugal, Luxembourg, and Switzerland or any other country that from time to time is a Participating Member State that is approved by the Administrative Agent in its Permitted Discretion as an “Applicable European Jurisdiction”.
“Applicable Fee” shall mean, as of any date of determination, a rate per annum equal to the applicable percentage set forth below based upon average daily Total Revolving Exposure as a percentage of Total Revolving Commitment for the three-fiscal month period immediately preceding such date:
11
1160299.01-CHISR1160299.03H-CHISR02A - MSW
Total Revolving Exposure as a percentage of Total Revolving Commitment | Applicable Fee | ||||
| Greater than 50% | 0.25% | ||||
| Less than or equal to 50% | 0.35% | ||||
For purposes of computing the Applicable Fee with respect to Revolving Commitments, a Revolving Commitment of a Lender shall be deemed to be used to the extent of the outstanding Revolving Loans, Swingline Exposure and LC Exposure of such Lender. The Applicable Fee shall be calculated by the Administrative Agent and such calculations shall be presumed to be correct, absent manifest error.
“Applicable Law” shall mean all laws, rules, regulations and legally binding governmental guidelines applicable to the Person, conduct, transaction, agreement or matter in question, including all applicable statutory law, common law and equitable principles, and all provisions of constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities, including, without limitation, the U.S. Hold Separate Order.
“Applicable LC Applicant” shall mean the Administrative Borrower, the Canadian Borrower, and/or the European Administrative Borrower, as the context may require.
“Applicable Margin” shall mean, for any day, with respect to any Revolving Loan or Swingline Loan, as the case may be, the applicable percentage set forth in Annex II under the appropriate caption.
“Approved Currency” shall mean each of Dollars and each Alternate Currency.
“Approved Fund” shall mean any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Approved Member State” shall mean Belgium, France, Germany, Ireland, Italy, Luxembourg, The Netherlands, Spain, Sweden and the United Kingdom.
“Arranger” shall mean Xxxxx Fargo Bank, National Association, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Citibank, N.A., Deutsche Bank Securities Inc., and JPMorgan Chase Bank, N.A., as joint lead arrangers.
“Asset Sale” shall mean (a) any conveyance, sale, lease, sublease, assignment, transfer or other disposition (including by way of merger or consolidation and including any Sale and Leaseback Transaction) of any property, excluding sales of Inventory, dispositions of cash and Cash Equivalents and settlements under Hedging Agreements, in each such excluded case, which are in the ordinary course of business, by Holdings (and, on and after the Specified AV Minerals
12
1160299.01-CHISR1160299.03H-CHISR02A - MSW
Joinder Date, AV Minerals) or any of its Restricted Subsidiaries, or (b) any issuance of any Equity Interests of any Restricted Subsidiary of Holdings.
“Asset Swap” shall mean the substantially concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between any Company and another person; provided that any cash or Cash Equivalents received must be applied in accordance with Section 2.10(c).
“Assignment and Assumption” shall mean an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.04(c)), and accepted by the Administrative Agent, in substantially the form of Exhibit B (including electronic documentation generated by use of an electronic platform containing substantially the same information as set forth in Exhibit B), or any other form approved by the Administrative Agent.
“Attributable Indebtedness” shall mean, when used with respect to any Sale and Leaseback Transaction, as at the time of determination, the present value (discounted at the rate implicit in the lease) of the total obligations of the lessee for rental payments during the remaining term of the lease included in any such Sale and Leaseback Transaction.
“Auditor’s Determination” shall have the meaning assigned to such term in Section 7.11(b).
“Auto-Extension Letter of Credit” shall have the meaning assigned to such term in Section 2.18(a)(v).
“AV Metals” shall mean AV Metals Inc., a corporation formed under the Canada Business Corporations Act.
“AV Minerals” shall mean AV Minerals (Netherlands) N.V., a company organized under the laws of the Netherlands.
“Availability Conditions” shall mean that, with respect to any Proposed Transaction, each of the following conditions are satisfied, as applicable:
(a) both immediately prior to and after giving effect to such Proposed Transaction, no Default shall have occurred and be continuing; and
(b) when used with regard to Section 6.08 (Dividends), immediately after giving effect to such Proposed Transaction, (i)(A) Adjusted Excess Availability on the date such Proposed Transaction is consummated and (B) average daily Adjusted Excess Availability for the 30 day period immediately preceding such Proposed Transaction (assuming such Proposed Transaction occurred on the first day of such 30 day period), in each case is greater than or equal to 20% of the lesser of (y) the Total Revolving Commitment and (z) the Total Borrowing Base or (ii)(A)(1) Adjusted Excess Availability on the date such Proposed Transaction is consummated and (2) average daily Adjusted Excess Availability for the 30 day period immediately preceding
13
1160299.01-CHISR1160299.03H-CHISR02A - MSW
such Proposed Transaction (assuming such Proposed Transaction occurred on the first day of such 30 day period), in each case is greater than or equal to 15% of the lesser of (y) the Total Revolving Commitment and (z) the Total Borrowing Base and (B) the Consolidated Fixed Charge Coverage Ratio as of the end of the most recent fiscal quarter (on a trailing four quarter basis, on a Pro Forma Basis after giving effect to each such Proposed Transaction as if such Proposed Transaction occurred on the first day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) and (b)) shall not be less than 1.25 to 1.0; or
(c) when used with regard to Sections 6.06 (Asset Sales) and 6.11 (Prepayments of other Indebtedness, etc.), immediately after giving effect to such Proposed Transaction, (i) Adjusted Excess Availability (or, in the case of a transaction under Section 6.06 (Asset Sales) other than a Specified Asset Sale, Excess Availability) on the date such Proposed Transaction is consummated is greater than or equal to 20% of the lesser of (y) the Total Revolving Commitment and (z) the Total Borrowing Base or (ii)(A) Adjusted Excess Availability (or, in the case of a transaction under Section 6.06 (Asset Sales) involving any Revolving Priority Collateral, Excess Availability) on the date such Proposed Transaction is consummated is greater than or equal to 15% of the lesser of (y) the Total Revolving Commitment and (z) the Total Borrowing Base and (B) the Consolidated Fixed Charge Coverage Ratio as of the end of the most recent fiscal quarter (on a trailing four quarter basis, on a Pro Forma Basis after giving effect to each such Proposed Transaction as if such Proposed Transaction occurred on the first day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) and (b)) shall not be less than 1.25 to 1.0; or
(d) when used with regard to Section 6.04 (Investments, Loans and Advances) (including with respect to Permitted Acquisitions), and for all other Proposed Transactions not referred to in clauses (b) or (c) above, immediately after giving effect to such Proposed Transaction, (i) Adjusted Excess Availability on the date such Proposed Transaction is consummated is greater than or equal 20% of the lesser of (y) the Total Revolving Commitment and (z) the Total Borrowing Base or (ii)(A) Adjusted Excess Availability on the date such Proposed Transaction is consummated is greater than or equal to 15% of the lesser of (y) the Total Revolving Commitment and (z) the Total Borrowing Base and (B) the Consolidated Fixed Charge Coverage Ratio as of the end of the most recent fiscal quarter (on a trailing four quarter basis, on a Pro Forma Basis after giving effect to each such Proposed Transaction as if such Proposed Transaction occurred on the first day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) and (b)) shall not be less than 1.25 to 1.0; and
(e) in each case, prior to undertaking any Proposed Transaction involving (i) payment of a Dividend of $37,500,000 or more, (ii) any payment (or transfer of property having a fair market value) of $150,000,000 or more, or (iii) any calculation based on Adjusted Excess Availability, the Loan Parties shall deliver to the Administrative Agent an Officer’s Certificate demonstrating in reasonable details the satisfaction of the conditions contained in clause (b), (c) or (d) above, as applicable, which shall specify whether Qualified Cash was included in such calculation, and if so, shall include a reporting of the cash balances in the applicable deposit
14
1160299.01-CHISR1160299.03H-CHISR02A - MSW
accounts in which Qualified Cash is deposited (attaching bank statements or other statements or supporting information satisfactory to the Administrative Agent) for the periods described in such clause (b), in form satisfactory to the Administrative Agent.
“Availability Reserve” shall mean reserves established from time to time by the Administrative Agent pursuant to Section 2.01(d) or otherwise in accordance with this Agreement, with respect to potential cash liabilities of the Borrowers and Borrowing Base Guarantors, costs, expenses or other amounts that may be charged against the Revolving Credit Priority Collateral prior to payment of the Obligations, and including reserves of the type described in clauses (i), (ii), (iii), (v) and (vi) of Section 2.01(d).
“Available Amount” shall have the meaning assigned to such term in Section 7.12(a).
“Average Quarterly Excess Availability” shall mean, as of any date of determination, the average daily Excess Availability for the three-fiscal month period immediately preceding such date (with the Borrowing Base for any day during such period calculated by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent on or prior to such day); provided that, for purposes of calculation of Average Quarterly Excess Availability, the percentage of such Excess Availability based on German Excess Availability shall not be limited as otherwise provided in the definition of Excess Availability. Average Quarterly Excess Availability shall be calculated by the Administrative Agent and such calculations shall be presumed to be correct, absent manifest error.
“Bailee Letter” shall mean an agreement in form substantially similar to Exhibit 7 to the U.S. Security Agreement or otherwise in form and substance reasonably satisfactory to the Collateral Agent.
“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” shall mean (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank of America” shall mean Bank of America, N.A., a national banking association, and its successors.
“Bank Product” shall mean any of the following products, services or facilities extended to any Company by a Lender or any of its Affiliates: (a) Cash Management Services;
15
1160299.01-CHISR1160299.03H-CHISR02A - MSW
(b) commercial credit card and merchant card services (including so-called “purchase cards”, “procurement cards” or “p-cards”), payment card processing services, debit cards, and stored value cards; and (c) other banking products or services as may be requested by any Company; provided that, anything to the contrary contained in the foregoing notwithstanding, Bank Products shall exclude Letters of Credit, Hedging Agreements, and any Excluded Swap Obligations.
“Bank Product Agreement” shall mean any agreement related to Bank Products or Secured Bank Product Obligations.
“Bank Product Debt” shall mean (a) all Indebtedness and other obligations, liabilities, reimbursement obligations, fees, or expenses owing by each Loan Party and its Subsidiaries to any Secured Bank Product Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and (b) all amounts that any Agent, any Lender or any Issuing Bank is obligated to pay to a Secured Bank Product Provider as a result of such Agent, such Lender or such Issuing Bank purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Secured Bank Product Provider with respect to the Bank Products provided by such Secured Bank Product Provider to a Loan Party or its Subsidiaries.
“Bank Product Reserve” shall mean the aggregate amount of reserves established by Administrative Agent from time to time in respect of Secured Bank Product Obligations.
“Bankruptcy Code” shall mean Title 11 of the United States Code.
“Base Rate” shall mean the greatest of (a) the Federal Funds Rate plus ½%, (b) the Adjusted LIBOR Rate (which rate shall be calculated based upon an Interest Period of one month and shall be determined on a daily basis), plus one percentage point, and (c) the rate of interest announced, from time to time, within Xxxxx Fargo at its principal office in San Francisco as its “prime rate”, with the understanding that the “prime rate” is one of Xxxxx Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Xxxxx Fargo may designate (and, if any such announced rate is below zero, then the rate determined pursuant to this clause (c) shall be deemed to be zero).
“Base Rate Borrowing” shall mean a Borrowing comprised of Base Rate Loans.
“Base Rate Loan” shall mean any Base Rate Revolving Loan, European Swingline Loan denominated in Dollars, or U.S. Swingline Loan.
“Base Rate Revolving Loan” shall mean any U.S. Revolving Loan bearing interest at a rate determined by reference to the Base Rate.
16
1160299.01-CHISR1160299.03H-CHISR02A - MSW
“Belgian Guarantor” shall mean each Restricted Subsidiary of the Designated Company organized under the laws of Belgium that becomes a Guarantor pursuant to the terms hereof.
“Belgian Hold Separate Business” means the Equity Interests in, and businesses of, Aleris Belgium and Aleris Italy (and certain assets of Aleris (Shanghai) Trading Co. Ltd. that are directly related to the business of Aleris Belgium and/or Aleris Italy) that are subject to the Belgian Purchase Documents.
“Belgian Pledge Certificate” shall mean a certificate from the Administrative Borrower delivered to the Administrative Agent after the Amendment No. 4 Effective Date and on or prior to the Aleris Acquisition Closing Date, signed by a Responsible Officer of the Administrative Borrower, and certifying that either (i) Aleris Belgium is permitted to pledge some or all of its Revolving Credit Priority Collateral to the Collateral Agent to secure the Obligations (and, if less than all of its Revolving Credit Priority Collateral, specifying the Revolving Credit Priority Collateral that is permitted to be pledged), and is permitted to become a Belgian Guarantor and to perform all of its obligations in such capacity under each Loan Document, and that the foregoing, together with any enforcement actions permitted to be taken by any Secured Party under the Loan Documents, in each case is not prohibited by any Belgian Purchase Document or any binding act or decision of the European Commission or any trustee appointed on the European Commission’s behalf (the certification described in this clause (i), the “Belgian Pledge Inclusion Certification”), or (ii) pursuant to a Belgian Purchase Document or otherwise pursuant to a requirement of the European Commission in connection with its approval of the Aleris Acquisition, the Revolving Credit Priority Collateral of Aleris Belgium cannot be pledged to the Collateral Agent to secure the Obligations, and Aleris Belgium cannot become a Belgian Guarantor (the certification described in this clause (ii), the “Belgian Pledge Exclusion Certification”). Each party to this Agreement agrees that the Administrative Agent may rely conclusively on the certificate described in the immediately preceding sentence without further inquiry.
“Belgian Purchase Documents” shall mean, collectively, (i) (x) that certain Sale & Purchase Agreement, dated November 22, 2019, among Aleris Aluminum Netherlands BV, a corporation incorporated under the laws of the Netherlands, Novelis Europe Holdings Limited, a company incorporated under the laws of the United Kingdom, and Liberty House Group Pte. Ltd, a company incorporated under the laws of Singapore, pursuant to which Aleris Aluminum Netherlands BV and Novelis Europe Holdings Limited agreed to sell or cause its Subsidiaries to sell 100% of the Equity Interests in Aleris Belgium and, indirectly, 100% of the Equity Interests in Aleris Italy, (y) the purchase agreement or agreements to be entered into after the Aleris Acquisition Closing Date pursuant to which Novelis Inc. and/or any of its Subsidiaries will agree to sell or cause its Subsidiaries to sell certain assets of Aleris (Shanghai) Trading Co. Ltd. that are directly related to the business of Aleris Belgium and/or Aleris Italy, and (z) the agreements and documents entered into in connection with the documents described in clauses (x) and (y) above, or (ii) solely to the extent that the sale of the Belgian Hold Separate Business does not occur pursuant to the terms of the documents described in clause (i)(x) above and such documents are terminated, the purchase agreement (and the agreements and documents entered into in connection therewith) negotiated and entered into after the Aleris Acquisition Closing
17
1160299.01-CHISR1160299.03H-CHISR02A - MSW
Date by Novelis Inc. and/or any of its Subsidiaries, or the European Commission or any trustee appointed on the European Commission’s behalf, on the one hand, and a prospective buyer of Aleris Belgium and Aleris Italy, on the other hand, pursuant to which Novelis Inc. and/or any of its Subsidiaries will agree to sell or cause its Subsidiaries to sell 100% of the Equity Interests in Aleris Belgium and, indirectly, 100% of the Equity Interests in Aleris Italy, and, if applicable, certain assets of Aleris (Shanghai) Trading Co. Ltd. that are directly related to the business of Aleris Belgium and/or Aleris Italy.
“Belgian Security Agreements” shall mean, collectively (i) any Security Agreements, including all subparts thereto, among any Belgian 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 Belgian Guarantor or any Person who is the holder of Equity Interests in any Belgian Guarantor in favor of the Collateral Agent and/or the Term Loan Collateral Agent 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 Belgium, 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.
“Beneficially Own,” “Beneficial Owner” and “Beneficial Ownership” shall each have the meaning assigned to such term in Rules 13d-3 and 13d-5 under the Exchange Act.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” shall mean any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Blocked Account” shall have the meaning assigned to such term in Section 9.01.
“Blocked Loan Party” shall have the meaning assigned to such term in Section 2.22.
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States.
“Board of Directors” shall mean, with respect to any person, (i) in the case of any corporation, the board of directors of such person, (ii) in the case of any limited liability company, the board of managers (or the functional equivalent) of such person, (iii) in the case of
18
1160299.01-CHISR1160299.03H-CHISR02A - MSW
any limited partnership, the Board of Directors of the general partner of such person and (iv) in any other case, the functional equivalent of the foregoing.
“Borrowers” shall mean the U.S. Borrowers, the Canadian Borrower, the U.K. Borrowers, the German Borrowers, and the Swiss BorrowersBorrower. Unless the context otherwise requires, each reference in this Agreement to “each Borrower” or “the applicable Borrower” shall be deemed to be a reference to (i) each U.S. Borrower on a joint and several basis, (ii) the Canadian Borrower, (iii) each U.K. Borrower on a several and not joint basis, (iv) each German Borrower on a several and not joint basis, and/or (v) eachthe Swiss Borrower on a several and not joint basis, as the case may be.
“Borrowing” shall mean (a) Revolving Loans to one of (i) the U.S. Borrowers, jointly and severally, (ii) the Canadian Borrower, (iii) the U.K. Borrowers, on a several and not joint basis, (iv) the German Borrowers, on a several and not joint basis, or (v) the Swiss BorrowersBorrower, on a several and not joint basis, in each case of the same currency, Class, Sub-Class and Type, made, converted or continued on the same date and, in the case of Eurocurrency Loans and EURIBOR Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.
“Borrowing Base” shall mean the U.S. Borrowing Base, each U.S. Borrowing Base (Aleris), the Canadian Borrowing Base, the U.K. Borrowing Base, each German Borrowing Base, each Swiss Borrowing Base and/or the Total Borrowing Base, as the context may require.
“Borrowing Base Certificate” shall mean an Officer’s Certificate from Administrative Borrower, substantially in the form of (or in such other form as may, from time to time, be mutually agreed upon by Administrative Borrower, Collateral Agent and Administrative Agent), and containing the information prescribed by Exhibit I, delivered to the Administrative Agent and the Collateral Agent setting forth the Administrative Borrower’s calculation of the Borrowing Base.
“Borrowing Base Guarantor” shall mean (a) as of the Closing Date, each Canadian Guarantor and (b) in addition thereafter, any other Wholly Owned Subsidiary of the Designated Company that (i) is organized in Canada or incorporated in England and Wales, (ii) is able to prepare all collateral reports in a comparable manner to the reporting procedures of the Borrowers and (iii) has executed and delivered to Administrative Agent a joinder agreement hereto and such joinder agreements to guarantees, contribution and set-off agreements and other Loan Documents as Administrative Agent has reasonably requested (all of which shall be in form and substance acceptable to, and provide a level of security and guaranty acceptable to, Administrative Agent in its Permitted Discretion), so long as Administrative Agent has received and approved, in its Permitted Discretion, (A) a collateral audit conducted by an independent appraisal firm reasonably acceptable to Administrative Agent, (B) all UCC or other search results necessary to confirm Collateral Agent’s Lien on all of such Borrowing Base Guarantor’s personal property, subject to Permitted Liens, which Lien is a First Priority Lien with regard to the Revolving Credit Priority Collateral, and (C) such customary certificates (including a solvency certificate), resolutions, financial statements, legal opinions, and other documentation
19
1160299.01-CHISR1160299.03H-CHISR02A - MSW
as the Administrative Agent may reasonably request (including as required by Sections 5.11 and 5.12).
“Borrowing Base Loan Party” shall have the meaning assigned to such term in Section 9.01.
“Borrowing Request” shall mean a request by a Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit C, or such other form as shall be approved by the Administrative Agent.
“Brazilian Guarantor” shall mean each Restricted Subsidiary of the Designated Company organized in Brazil party hereto as a Guarantor, and each other Restricted Subsidiary of the Designated Company organized in Brazil that becomes a Guarantor pursuant to the terms hereof.
“Brazilian Security Agreements” shall mean, collectively (i) any Security Agreements, including all subparts thereto, among any Brazilian 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 Brazilian Guarantor or any Person who is the holder of Equity Interests in any Brazilian Guarantor in favor of the Collateral Agent and/or the Term Loan Collateral Agent 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 Brazil, 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.
“Business Day” shall mean any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, New York; provided, however, that when used in connection with notices and determinations in connection with, and payments of principal and interest on or with respect to, (a) a Eurocurrency Loan or EURIBOR Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market, (b) an Alternate Currency Revolving Loan denominated in euros, the term “Business Day” shall also exclude any day that is not a TARGET Day (as determined in good faith by the Administrative Agent), and (c) a European Swingline Loan, the term “Business Day” shall mean any day other than a Saturday, Sunday or other day on which banks in Zurich are authorized or required by law to close.
“Calculation Date” shall have the meaning assigned to such term in the definition of “Senior Secured Net Leverage Ratio”.
“Canadian Borrower” shall have the meaning assigned to such term in the preamble hereto.
20
1160299.01-CHISR1160299.03H-CHISR02A - MSW
“Canadian Borrowing Base” shall mean at any time an amount equal to the sum of the Dollar Equivalent of, without duplication:
(i) the book value of Eligible Canadian Accounts multiplied by the advance rate of 85%, plus
(ii) the lesser of (i) the advance rate of 75% of the Cost of Eligible Canadian Inventory, or (ii) the advance rate of 85% of the Net Recovery Cost Percentage multiplied by the Cost of Eligible Canadian Inventory, minus
(iii) any Reserves established from time to time by the Administrative Agent with respect to the Canadian Borrowing Base in accordance with Section 2.01(d) and the other terms of this Agreement.
The Canadian Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate theretofore delivered to the Administrative Agent with such adjustments as Administrative Agent deems appropriate in its Permitted Discretion to assure that the Canadian Borrowing Base is calculated in accordance with the terms of this Agreement.
“Canadian Defined Benefit Plan” shall mean any Canadian Pension Plan which contains a “defined benefit provision” as defined in subsection 147.1(l) of the Income Tax Act (Canada).
“Canadian Dollar Denominated Letter of Credit” shall have the meaning assigned to such term in Section 2.18.
“Canadian Dollars” or “Can$” shall mean the lawful money of Canada.
“Canadian Guarantor” shall mean AV Metals (unless AV Metals is released as a Guarantor pursuant to Section 7.09 upon completion of a Qualified Canadian Borrower IPO), Successor Holdings (solely to the extent that it is organized in Canada), the Canadian Borrower and each Restricted Subsidiary of the Designated Company organized in Canada party hereto as a Guarantor, and each other Restricted Subsidiary of the Designated Company organized in Canada that becomes a Guarantor pursuant to the terms hereof.
“Canadian Loan Party” shall mean each of the Canadian Borrower and each Canadian Guarantor.
“Canadian Pension Plan” shall mean each pension plan required to be registered under Canadian federal or provincial law which is maintained or contributed to by, or to which there is or may be an obligation to contribute by, any Borrower or Guarantor in respect of any Person’s employment in Canada with such Borrower or Guarantor, but does not include (a) the Canada Pension Plan or the Quebec Pension Plan as maintained by the Government of Canada or the Province of Quebec, respectively; or (b) plans to which any Borrower or Guarantor contributes which are not maintained or administered by the Borrower or Guarantor or any of its Affiliates.
21
1160299.01-CHISR1160299.03H-CHISR02A - MSW
“Canadian Pension Plan Reserve” means (a) employer contributions required to be made with respect to Canadian Defined Benefit Plans (including, for greater certainty, normal cost contributions and any special payments); and (b) any amounts representing any Canadian Wind Up Deficiency with respect to any Canadian Defined Benefit Plan, in each case to the extent that a trust or deemed trust to provide for payment or a Lien capable of ranking prior to or pari passu with Liens serving the Obligations under Applicable Laws of Canada has been or may be imposed provided that the amount of the Priority Payables or Reserves established or maintained in respect of such required contributions or Canadian Wind Up Deficiency shall be calculated as follows (notice of which shall be provided to the Designated Company):
(i) if a Wind Up Triggering Event has not occurred or has occurred and is not continuing, such amount as the Administrative Agent determines as reasonable and appropriate in the circumstances;
(ii) if a Wind Up Triggering Event has occurred and so long as the Wind Up Triggering Event is continuing or remains in effect, such amount shall be equal to an amount (not exceeding the amount of the related Canadian Wind Up Deficiency) as determined by the Administrative Agent in its Permitted Discretion, including after taking into account the type of Wind Up Triggering Event that has occurred and the jurisdiction of the affected Canadian Defined Benefit Plan; provided that to the extent that a Wind Up Triggering Event relates to a partial wind up or termination of a Canadian Defined Benefit Plan, the Canadian Wind Up Deficiency in respect of the non-wound up or non-terminated component of such Canadian Defined Benefit Plan shall not be included in such amount; and
(iii) an additional amount as determined by the Designated Company in its sole discretion including to avoid a Lien coming into effect that may not otherwise be a Permitted Lien.
“Canadian Pension Termination Event” shall mean, with respect to any Canadian Defined Benefit Plan, the occurrence of a Wind Up Triggering Event, other than an event described in item (iv) of the definition of the term “Wind Up Triggering Event”.
“Canadian Security Agreement” shall mean, collectively (i) the Security Agreements, including all subparts thereto, among the Canadian Loan Parties (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, deed of hypothec, debenture, bond, security agreement, guarantee or other agreement that is entered into by any Canadian Loan Party or any Person who is the holder of Equity Interests in any Canadian Loan Party in favor of the Collateral Agent and/or the Term Loan Collateral Agent 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 Canada (or any province thereof), 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.
22
1160299.01-CHISR1160299.03H-CHISR02A - MSW
“Canadian Wind Up Deficiency” means, with respect to any Canadian Defined Benefit Plan, the amount representing the wind up deficiency or position with respect to a Canadian Defined Benefit Plan as reflected in the most recently filed actuarial valuation.
“Capital Assets” shall mean, with respect to any person, all equipment, fixed assets and Real Property or improvements of such person, or replacements or substitutions therefor or additions thereto, that, in accordance with U.S. GAAP, have been or should be reflected as additions to property, plant or equipment on the balance sheet of such person.
“Capital Expenditures” shall mean, for any period, without duplication, all expenditures made directly or indirectly by the Designated Company and its Restricted Subsidiaries during such period for the maintenance, refurbishment, renovation, replacement or restoration of Capital Assets in the ordinary course of business of the Designated Company and its Restricted Subsidiaries, in each case to the extent capitalized in accordance with U.S. GAAP, as detailed to the Administrative Agent (whether paid in cash or other consideration, financed by the incurrence of Indebtedness or accrued as a liability), together with the Designated Company’s proportionate share of such amounts for Norf GmbH for such period, but in each case excluding (solely for purposes of determining Consolidated Fixed Charge Coverage Ratio) any portion of such expenditures paid for with insurance proceeds.
“Capital Lease Obligations” of any person shall mean the obligations of such person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such person under U.S. GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with U.S. GAAP. It is understood that with respect to the accounting for leases as either operating leases or capital leases and the impact of such accounting on the definitions and covenants herein, U.S. GAAP as in effect on the Closing Date shall be applied.
“Cash Collateral Account” shall mean a collateral account in the form of a deposit account established and maintained by the Collateral Agent for the benefit of the Secured Parties.
“Cash Dominion Recovery Event” shall mean, with respect to any Cash Dominion Trigger Event at any time (a) no Default or Event of Default shall have been outstanding for a period of thirty (30) consecutive days then ended and (b) Excess Availability shall be at least the greater of (i) $90,000,000 (or, on and after the Specified Incremental Commitment Availability Date, $115,000,000) and (ii) 10.0% of the lesser of (A) the Total Revolving Commitment and (B) the then-applicable Total Borrowing Base, for a period of thirty (30) consecutive days then ended.
“Cash Dominion Trigger Event” shall mean at any time (a) an Event of Default shall have occurred and is continuing and/or (b) Excess Availability shall for a period of three (3) consecutive Business Days be less than the greater of (i) $90,000,000 (or, on and after the Specified Incremental Commitment Availability Date, $115,000,000) and (ii) 10.0% of the lesser of (A) the Total Revolving Commitment and (B) the then-applicable Total Borrowing Base and/or (c) in the sole discretion of the Administrative Agent, if Excess Availability shall at any time
23
1160299.01-CHISR1160299.03H-CHISR02A - MSW
be less than 7.5% of the lesser of (A) the Total Revolving Commitment and (B) the then-applicable Total Borrowing Base.
“Cash Equivalents” shall mean, as to any person, (a) securities issued or fully guaranteed or insured by the federal government of the United States, Canada, Switzerland, any Approved Member State or any agency of the foregoing, (b) marketable direct obligations issued by Canada or any province thereof, any state of the United States or the District of Columbia or any political subdivision, government-sponsored entity or instrumentality thereof that, at the time of the acquisition, are rated at least “A-2” by S&P, “P-2” by Xxxxx’x or in the “R-2” category by the Dominion Bond Rating Service Limited, (c) certificates of deposit, Eurocurrency time deposits, overnight bank deposits and bankers’ acceptances of any commercial bank or trust company organized under the laws of Canada or any province thereof, the United States, any state thereof, the District of Columbia, any non-U.S. bank, or its branches or agencies (fully protected against currency fluctuations) that, at the time of acquisition, is rated at least “A-2” by S&P, “P-2” by Xxxxx’x or in the “R-2” category by the Dominion Bond Rating Service Limited, (d) commercial paper of an issuer rated at least “A-2” by S&P, “P-2” by Xxxxx’x or in the “R-2” category by the Dominion Bond Rating Service Limited, and (e) shares of any money market fund that (i) has at least 95% of its assets invested continuously in the types of investments referred to in clauses (a), (b) and (c) above, (ii) has net assets, the Dollar Equivalent of which exceeds $500,000,000 and (iii) is rated at least “A-2” by S&P, “P-2” by Xxxxx’x or in the “R-2” category by the Dominion Bond Rating Service Limited; provided, however, that the maturities of all obligations of the type specified in clauses (a), (b) and (c) above shall not exceed 365 days; provided, further, that, to the extent any cash is generated through operations in a jurisdiction outside of the United States, Canada, Switzerland or an Approved Member State, such cash may be retained and invested in obligations of the type described in clause (a), (c) or (d) applicable to such jurisdiction to the extent that such obligations are customarily used in such other jurisdiction for short term cash management purposes.
“Cash Management Services” shall mean any cash management or related services provided from time to time by any Lender or any of its Affiliates to any Company in connection with operating, collections, payroll, trust, or other depository or disbursement accounts, treasury, depository, return items, merchant store value cards, including automated clearinghouse transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system), e-payables services, interstate depository network, electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository, information reporting, lockbox and stop payment services, and other cash management arrangements.
“Cash Management System” shall have the meaning assigned to such term in Section 9.01.
“Cash Pooling Arrangements” shall mean (i) the DB Cash Pooling Arrangement and the European Cash Pooling Agreement and (ii) any other cash pooling arrangements (including, without limitation, any notional cash pool arrangements), in each case, including all documentation pertaining thereto, entered into by any Company in accordance with Section 6.07.
24
1160299.01-CHISR1160299.03H-CHISR02A - MSW
“Casualty Event” shall mean any involuntary loss of title, any involuntary loss of, damage to or any destruction of, or any expropriation, condemnation or other taking (including by any Governmental Authority) of, any property of Holdings, the Designated Company or any of its Restricted Subsidiaries, or, on and after the Specified AV Minerals Joinder Date, AV Minerals. “Casualty Event” shall include but not be limited to any taking of all or any part of any Real Property of any person or any part thereof, in or by expropriation, condemnation or other eminent domain proceedings pursuant to any requirement of Applicable Law, or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property of any person or any part thereof by any Governmental Authority, civil or military, or any settlement in lieu thereof.
“CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq. and all implementing regulations.
A “Change in Control” shall be deemed to have occurred if:
(a) (i) prior to the Designated Holdco Effective Date, Hindalco ceases to be the Beneficial Owner of Voting Stock representing more than 50% of the voting power of the total outstanding Voting Stock of AV Minerals and Holdings, (ii) on and after the Designated Holdco Effective Date, Hindalco ceases to be the Beneficial Owner of Voting Stock representing more than 50% of the voting power of the total outstanding Voting Stock of each of AV Minerals, Holdings and Designated Holdco, or (iii) on and after the Designated Holdco Effective Date, Holdings ceases to be the Beneficial Owner of Voting Stock representing 100% of the voting power of the total outstanding Voting Stock of Designated Holdco;
(b) Holdings (or, on and after the Designated Holdco Effective Date, Designated Holdco) at any time ceases to be the Beneficial Owner and the direct or indirect record owner of 100% of the Equity Interests of the Canadian Borrower, except as a result of a Qualified Canadian Borrower IPO; provided that Hindalco continues to be the Beneficial Owner of Voting Stock representing more than 50% of the voting power of the total outstanding Voting Stock of the Canadian Borrower at all times after giving effect to such Qualified Canadian Borrower IPO; and provided, further, that a Permitted Holdings Amalgamation shall not constitute a Change in Control;
(c) the Designated Company at any time ceases to be the Beneficial Owner and the direct or indirect owner of 100% of the Equity Interests of any other Borrower (other than the Canadian Borrower prior to the Designated Holdco Effective Date, and the Designated Company on and after the Designated Holdco Effective Date), except (i) to the extent otherwise permitted under clause (c) of the definition of Permitted Reorganization Action or under clause (b) of the definition of Permitted Aleris Foreign Subsidiary Transfer or (ii) the Tulip Foundation may indirectly own Equity Interests in Aleris Rolled Products and Aleris Casthouse, but not any other Borrower, if the Tulip Conditions are satisfied at all times;
(d) at any time a change in control (or change of control or similar event) with respect to the Designated Holdco, the Canadian Borrower, Novelis Corporation, Novelis Acquisitions, or
25
1160299.01-CHISR1160299.03H-CHISR02A - MSW
on and after the Aleris Acquisition Closing Date after giving effect to the Aleris Acquisition, Aleris, occurs under (and as defined in) any Material Indebtedness of any Loan Party;
(e) (i) at any time after a Qualified IPO (other than a Qualified Canadian Borrower IPO), any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than the Specified Holders is or becomes the Beneficial Owner (provided that for purposes of this clause (except as set forth below) such person or group shall be deemed to have Beneficial Ownership of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time) of Voting Stock of Holdings (or, at any time after a Qualified IPO of U.K. Holdco, U.K. Holdco) representing 35% or more of the voting power of the total outstanding Voting Stock of Holdings (or, at any time after a Qualified IPO of U.K. Holdco, U.K. Holdco) unless the Specified Holders at all times Beneficially Own Voting Stock of Holdings (or, at any time after a Qualified IPO of U.K. Holdco, U.K. Holdco) representing greater voting power of the total outstanding Voting Stock of Holdings (or, at any time after a Qualified IPO of U.K. Holdco, U.K. Holdco) than such voting power held by such person or group; or (ii) at any time after a Qualified Canadian Borrower IPO, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than the Specified Holders is or becomes the Beneficial Owner (provided that for purposes of this clause (except as set forth below) such person or group shall be deemed to have Beneficial Ownership of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time) of Voting Stock of the Canadian Borrower representing 35% or more of the voting power of the total outstanding Voting Stock of the Canadian Borrower unless the Specified Holders at all times Beneficially Own Voting Stock of the Canadian Borrower representing greater voting power of the total outstanding Voting Stock of the Canadian Borrower than such voting power held by such person or group; or
(f) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors of Holdings, any Borrower or, on and after the Designated Holdco Effective Date, Designated Holdco, or, on and after the Specified AV Minerals Joinder Date, AV Minerals (together with any new directors whose election to such Board of Directors or whose nomination for election was approved by the Specified Holders or by a vote of at least a majority of the members of the Board of Directors of such Person, as the case may be, which members comprising such majority are then still in office and were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors of such Person.
For purposes of this definition, a person shall not be deemed to have Beneficial Ownership of Equity Interests subject to a stock purchase agreement, merger agreement or similar agreement until the consummation of the transactions contemplated by such agreement.
“Change in Law” shall mean the occurrence, after the Existing Credit Agreement Closing Date, of any of the following: (a) the adoption or taking into effect of any law, treaty, order, policy, rule or regulation, (b) any change in any law, treaty, order, policy, rule or
26
1160299.01-CHISR1160299.03H-CHISR02A - MSW
regulation or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, however, that notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith, and (ii) all requests, rules, regulations, guidelines, requirements and directives promulgated or issued by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Chattel Paper” shall mean all “chattel paper,” as such term is defined in the UCC, in which any Person now or hereafter has rights.
“Chief Executive Office” shall mean, with respect to any Person, the location from which such Person manages the main part of its business operations or other affairs.
“Chinese Subsidiary Equity Interests” shall mean all Equity Interests of each Person organized under the laws of the People’s Republic of China that is a Subsidiary of a Loan Party, in each case that is owned by a Loan Party.
“Claim” shall mean all liabilities, obligations, losses, damages, penalties, judgments, proceedings, interest, costs and expenses of any kind (including remedial response costs, reasonable attorneys’ fees and Extraordinary Expenses) at any time (including after Full Payment of the Secured Obligations, resignation or replacement of any Agent, or replacement of any Lender) incurred by or asserted against any Indemnitee in any way relating to (a) any Loans, Letters of Credit, Loan Documents, or the use thereof or transactions relating thereto, (b) any action taken or omitted to be taken by any Indemnitee in connection with any Loan Documents, (c) the existence or perfection of any Liens, or realization upon any Collateral, (d) exercise of any rights or remedies under any Loan Documents or Applicable Law, (e) any actual or alleged presence or Release or threatened Release of Hazardous Materials on, at, under or from any property owned, leased or operated by any Company at any time, or any Environmental Claim related in any way to any Company, or (f) failure by any Loan Party to perform or observe any terms of any Loan Document, in each case including all costs and expenses relating to any investigation, litigation, arbitration or other proceeding (including an Insolvency Proceeding or appellate proceedings), whether or not the applicable Indemnitee is a party thereto.
“Class,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans or European Swingline Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment or European Swingline Commitment, in each case, under this Agreement as originally in effect or pursuant to Section 2.23, of which such Loan, Borrowing or Commitment shall be a part.
“Closing Date” shall mean the date on which the conditions set forth in Article IV are satisfied or duly waived. The Closing Date occurred on October 6, 2014.
27
1160299.01-CHISR1160299.03H-CHISR02A - MSW
“Code” shall mean the Internal Revenue Code of 1986, as amended and the Treasury Regulations promulgated thereunder.
“Collateral” shall mean, all of the “Collateral”, “Pledged Collateral” and “Mortgaged Property” referred to in the Security Documents and all of the other property that is or is intended under the terms of the Security Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties.
“Collateral Agent” shall have the meaning assigned to such term in the preamble hereto and includes each other person appointed as the successor pursuant to ARTICLE X.
“Collection Account” has the meaning assigned to such term in Section 9.01(c).
“Commercial Letter of Credit” shall mean any letter of credit or similar instrument issued for the purpose of providing credit support in connection with the purchase of materials, goods or services by the Designated Company or any of its Subsidiaries in the ordinary course of their businesses.
“Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Commitment and/or European Swingline Commitment, including any Commitment pursuant to Section 2.23, and, prior to the Specified Incremental Commitment Availability Date, such Lender’s Specified Incremental Commitment.
“Commitment Fee” shall have the meaning assigned to such term in Section 2.05(a).
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications” shall have the meaning assigned to such term in Section 11.01(d).
“Companies” shall mean Holdings (unless Holdings has been released as a Guarantor pursuant to Section 7.09(d)), the Designated Company, Holdings’ (or, if Holdings has been released as a Guarantor pursuant to Section 7.09(d), the Designated Company’s) Restricted Subsidiaries and, after the Specified AV Minerals Joinder Date if Holdings is not AV Minerals, AV Minerals; and “Company” shall mean any one of them.
“Compensation Plan” shall mean any program, plan or similar arrangement (other than employment contracts for a single individual) relating generally to compensation, pension, employment or similar arrangements with respect to which any Company, any Affiliate of any Company or any ERISA Affiliate of any of them has any obligation or liability, contingent or otherwise, under any Applicable Law other than that of the United States.
“Compliance Certificate” shall mean a certificate of a Financial Officer of the Designated Company substantially in the form of Exhibit D.
“Concentration Account” shall have the meaning assigned to such term in Section 9.01(c).
28
1160299.01-CHISR1160299.03H-CHISR02A - MSW
“Concentration Account Bank” shall have the meaning assigned to such term in Section 9.01(c).
“Confidential Information Memorandum” shall mean that certain confidential information memorandum of the Designated Company, dated February, 2019.
“Consolidated Amortization Expense” shall mean, for any period, the amortization expense of the Designated Company and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with U.S. GAAP.
“Consolidated Current Liabilities” shall mean, as at any date of determination, the total liabilities of the Designated Company and its Restricted Subsidiaries which may properly be classified as current liabilities (other than the current portion of any Loans) on a consolidated balance sheet of the Designated Company and its Restricted Subsidiaries in accordance with U.S. GAAP, but excluding (a) the current portion of any Funded Debt of the Designated Company and its Restricted Subsidiaries and (b) without duplication of clause (a) above, all Indebtedness consisting of Loans to the extent otherwise included therein.
“Consolidated Depreciation Expense” shall mean, for any period, the depreciation expense of the Designated Company and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with U.S. GAAP.
“Consolidated EBITDA (Fixed Charge)” shall mean, for any period, the sum of (A) Consolidated Net Income (Fixed Charge) for such period, adjusted by (without duplication):
(x) adding thereto, in each case only to the extent (and in the same proportion) deducted in determining such Consolidated Net Income and without duplication:
(a) Consolidated Interest Expense for such period,
(b) Consolidated Amortization Expense for such period,
(c) Consolidated Depreciation Expense for such period,
(d) Consolidated Tax Expense for such period,
(e) non-recurring cash expenses and charges relating to the Transactions to the extent paid on or about the Closing Date,
(f) restructuring charges in an amount not to exceed $25,000,000 in the aggregate during any four consecutive fiscal quarters;
(g) solely in connection with the Aleris Acquisition, the business of Aleris and its Subsidiaries, or the Permitted Reorganization, during the five consecutive fiscal quarter period commencing with the fiscal quarter in which the Aleris Acquisition Closing Date occurs, non-recurring items or unusual charges or expenses, severance, relocation costs or expenses, other business optimization expenses (including costs and
29
1160299.01-CHISR1160299.03H-CHISR02A - MSW
expenses relating to business optimization programs), new systems design and implementation costs, project start-up costs, restructuring charges or reserves, and/or costs related to the closure and/or consolidation of facilities, in the case of all of the foregoing, in an aggregate amount not to exceed $100,000,000;
(h) the aggregate amount of all other non-cash charges reducing Consolidated Net Income (excluding any non-cash charge that results in an accrual of a reserve for cash charges in any future period) for such period; and
(i) the amount of net income (loss) attributable to non-controlling interests deducted (and not added back) in computing Consolidated Net Income (Fixed Charge);
(y) subtracting therefrom, the aggregate amount of all non-cash items increasing Consolidated Net Income (Fixed Charge) (other than the accrual of revenue or recording of receivables in the ordinary course of business) for such period; and
(z) excluding therefrom,
(a) any gain (or loss), together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized during such period by the Designated Company or any of its Restricted Subsidiaries upon any Asset Sale (other than any dispositions in the ordinary course of business) by the Designated Company or any of its Restricted Subsidiaries,
(b) any gain or loss relating to cancellation or extinguishment of Indebtedness,
(c) earnings or losses resulting from any reappraisal, revaluation or write-up or write-down of assets (other than write-downs of Inventory), including any changes resulting from the effects of adjustments in the property, plant and equipment, inventories, goodwill, intangible assets and debt line items in the Designated Company’s consolidated financial statements pursuant to U.S. GAAP resulting from the application of purchase accounting in relation to any acquisition or the amortization or write-off of any amounts thereof,
(d) any one-time increase or decrease to net income that is required to be recorded because of the adoption of new accounting policies, practices or standards required by GAAP, and
(e) unrealized gains and losses with respect to Hedging Obligations for such period (other than any unrealized gains or losses resulting from foreign currency re-measurement hedging activities).
plus (B) the proportionate interest of the Designated Company and its consolidated Restricted Subsidiaries in Non-consolidated Affiliate EBITDA for such period.
30
1160299.01-CHISR1160299.03H-CHISR02A - MSW
Consolidated EBITDA (Fixed Charge) shall be calculated on a Pro Forma Basis to give effect to any Acquisition and Asset Sales (other than any dispositions in the ordinary course of business, dispositions where the value of the assets disposed of is less than $15,000,000 and Permitted Acquisitions where the amount of the Acquisition Consideration plus any Equity Interests constituting all or a portion of the purchase price is less than $15,000,000) consummated at any time on or after the first day of the Test Period thereof as if each such Permitted Acquisition had been effected on the first day of such period and as if each such Asset Sale had been consummated on the day prior to the first day of such period.
Consolidated EBITDA (Fixed Charge) shall not include the Consolidated EBITDA (Fixed Charge) of any Non-consolidated Affiliate if such Non-consolidated Affiliate is subject to a prohibition, directly or indirectly, on the payment of dividends or the making of distributions, directly or indirectly, to the Borrower, to the extent of such prohibition.
“Consolidated EBITDA (Leverage)” shall mean (subject to Section 11.02(k)), for any period, the sum of (A) Consolidated Net Income (Leverage) for such period, adjusted by (without duplication):
(x) adding thereto, in each case only to the extent (and in the same proportion) deducted in determining such Consolidated Net Income (Leverage) and without duplication:
(a) Consolidated Interest Expense for such period,
(b) Consolidated Amortization Expense for such period,
(c) Consolidated Depreciation Expense for such period,
(d) Consolidated Tax Expense for such period,
(e) non-recurring items or unusual charges or expenses, severance, relocation costs or expenses, other business optimization expenses (including costs and expenses relating to business optimization programs), new systems design and implementation costs, project start-up costs, restructuring charges or reserves, costs related to the closure and/or consolidation of facilities and one-time costs associated with a Qualified IPO,
(f) to the extent covered by insurance and actually reimbursed or, so long as the Designated Company has made a good faith determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (x) not denied by the applicable carrier in writing within 180 days and (y) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), losses and expenses with respect to Casualty Events or business interruption,
31
1160299.01-CHISR1160299.03H-CHISR02A - MSW
(g) the aggregate amount of all other non-cash charges reducing Consolidated Net Income (Leverage) (excluding any non-cash charge that results in an accrual of a reserve for cash charges in any future period) for such period,
(h) the amount of net income (loss) attributable to non-controlling interests deducted (and not added back) in computing Consolidated Net Income (Leverage), and
(i) Management Fees paid in compliance with Section 6.08(c);
(y) subtracting therefrom, (a) the aggregate amount of all non-cash items increasing Consolidated Net Income (Leverage) (other than the accrual of revenue or recording of receivables in the ordinary course of business) for such period and (b) interest income; and
(z) excluding therefrom,
(a) [intentionally omitted]
(b) earnings or losses resulting from any reappraisal, revaluation or write-up or write-down of assets;
(c) non-recurring or unusual gains; and
(d) any gain or loss relating to cancellation or extinguishment of Indebtedness;
plus (B) the proportionate interest of the Designated Company and its consolidated Restricted Subsidiaries in Non-consolidated Affiliate EBITDA for such period;
plus (C) the annualized amount of net cost savings, operating expense reductions and synergies reasonably projected by the Designated Company in good faith to be realized as a result of specified actions (x) taken since the beginning of the Test Period in respect of which Consolidated EBITDA (Leverage) is being determined or (y) initiated prior to or during the Test Period (in each case, which cost savings shall be added to Consolidated EBITDA (Leverage) until fully realized, but in no event for more than four fiscal quarters) (calculated on a pro forma basis as though such annualized cost savings, operating expense reductions and synergies had been realized on the first day of such Test Period, net of the amount of actual benefits realized during such Test Period from such actions); provided that (1) such cost savings, operating expense reductions and synergies are reasonably identifiable, quantifiable and factually supportable in the good faith judgment of the Designated Company, and (2) no cost savings, operating expense reductions and synergies shall be added pursuant to this clause (C) to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA (Leverage), whether through a pro forma adjustment or otherwise, for such Test Period; provided that the aggregate amount added to Consolidated EBITDA (Leverage) pursuant to this clause (C) shall not exceed in the aggregate 15% of Consolidated EBITDA (Leverage) for any one Test Period; provided, further that projected (and not yet realized) amounts may no longer be added in
32
1160299.01-CHISR1160299.03H-CHISR02A - MSW
calculating Consolidated EBITDA (Leverage) pursuant to this clause (C) to the extent occurring more than four full fiscal quarters after the specified action taken or initiated in order to realize such projected cost savings, operating expense reductions and synergies.
Notwithstanding the foregoing clause (x), the provision for taxes and the depreciation, amortization and non-cash items of a Restricted Subsidiary shall be added to Consolidated Net Income (Leverage) to compute Consolidated EBITDA (Leverage) only to the extent (and in the same proportion) that the net income of such Restricted Subsidiary was included in calculating Consolidated Net Income (Leverage).
Consolidated EBITDA (Leverage) shall not include the Consolidated EBITDA (Leverage) of any Non-consolidated Affiliate if such Non-consolidated Affiliate is subject to a prohibition, directly or indirectly, on the payment of dividends or the making of distributions, directly or indirectly, to the Designated Company or any other Borrower, to the extent of such prohibition.
“Consolidated Fixed Charge Coverage Ratio” shall mean, for any Test Period, the ratio of (a) (i) Consolidated EBITDA (Fixed Charge) for such Test Period minus (ii) the aggregate amount of Capital Expenditures for such period minus (iii) all cash payments in respect of income taxes (including all taxes imposed on or measured by overall net income (however denominated), and franchise taxes imposed in lieu of net income taxes) made during such period (net of any cash refund in respect of income taxes actually received during such period) to (b) Consolidated Fixed Charges for such Test Period.
“Consolidated Fixed Charges” shall mean, for any period, the sum, without duplication, of:
(a) Consolidated Interest Expense payable in cash for such period;
(b) the principal amount of all scheduled amortization payments on all Indebtedness (including the principal component of all Capital Lease Obligations) and the principal amount of all mandatory prepayments of all Indebtedness of the Designated Company and its Restricted Subsidiaries based on excess cash flow of the Designated Company and its Restricted Subsidiaries for such period;
(c) Dividends paid in cash pursuant to Section 6.08(c) or (i); and
(d) Management Fees (except to the extent such payments reduce Consolidated Net Income (Fixed Charge)).
“Consolidated Interest Coverage Ratio” shall mean, for any period, the ratio of (a) Consolidated EBITDA (Leverage) for such period to (b) Consolidated Interest Expense for such period.
“Consolidated Interest Expense” shall mean, for any period, the total consolidated interest expense of the Designated Company and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with U.S. GAAP plus, without duplication:
33
1160299.01-CHISR1160299.03H-CHISR