EX-10.2 TERM LOAN FACILITY



 





Exhibit
10.2



EXECUTION COPY




$960,000,000




CREDIT AGREEMENT




dated as of July 6, 2007,




among




NOVELIS INC.,

as Canadian Borrower,




NOVELIS CORPORATION

as U.S. Borrower,




AV ALUMINUM INC.,

as Holdings,




and




THE OTHER GUARANTORS PARTY HERETO,




THE LENDERS PARTY HERETO,




UBS AG, STAMFORD BRANCH,

as Administrative Agent and as Collateral Agent,




UBS SECURITIES LLC,

as Syndication Agent,




ABN AMRO INCORPORATED,

as Documentation Agent,




and




UBS SECURITIES LLC,

ABN AMRO INCORPORATED,

as Joint Lead Arrangers and Joint Bookmanagers



 







 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE I. DEFINITIONS	 	 	2	 
	 
	 	 	 	 	 	 
	SECTION 1.01
	 	Defined Terms	 	 	2	 
	SECTION 1.02
	 	Classification of Loans and Borrowings	 	 	52	 
	SECTION 1.03
	 	Terms Generally; Currency Translation	 	 	52	 
	SECTION 1.04
	 	Accounting Terms; GAAP	 	 	53	 
	SECTION 1.05
	 	Resolution of Drafting Ambiguities	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE II. THE CREDITS	 	 	54	 
	 
	 	 	 	 	 	 
	SECTION 2.01
	 	Commitments	 	 	54	 
	SECTION 2.02
	 	Loans	 	 	54	 
	SECTION 2.03
	 	Borrowing Procedure	 	 	55	 
	SECTION 2.04
	 	Repayment of Loans; Evidence of Debt	 	 	56	 
	SECTION 2.05
	 	Fees	 	 	57	 
	SECTION 2.06
	 	Interest on Loans	 	 	57	 
	SECTION 2.07
	 	Termination of Commitments	 	 	58	 
	SECTION 2.08
	 	Interest Elections	 	 	58	 
	SECTION 2.09
	 	Amortization of Term Loan Borrowings	 	 	60	 
	SECTION 2.10
	 	Optional and Mandatory Prepayments of Loans	 	 	60	 
	SECTION 2.11
	 	Alternate Rate of Interest	 	 	65	 
	SECTION 2.12
	 	Yield Protection; Change in Law Generally	 	 	66	 
	SECTION 2.13
	 	Breakage Payments	 	 	67	 
	SECTION 2.14
	 	Payments Generally; Pro Rata Treatment; Sharing of Setoffs	 	 	68	 
	SECTION 2.15
	 	Taxes	 	 	70	 
	SECTION 2.16
	 	Mitigation Obligations; Replacement of Lenders	 	 	72	 
	SECTION 2.17
	 	[INTENTIONALLY OMITTED]	 	 	74	 
	SECTION 2.18
	 	[INTENTIONALLY OMITTED]	 	 	74	 
	SECTION 2.19
	 	Interest Act (Canada); Criminal Rate of Interest; Nominal Rate of Interest	 	 	74	 
	SECTION 2.20
	 	[INTENTIONALLY OMITTED]	 	 	75	 
	SECTION 2.21
	 	[INTENTIONALLY OMITTED]	 	 	75	 
	SECTION 2.22
	 	[INTENTIONALLY OMITTED]	 	 	75	 
	SECTION 2.23
	 	Incremental Term Loan Commitments	 	 	75	 
	 
	 	 	 	 	 	 
	ARTICLE III. REPRESENTATIONS AND WARRANTIES	 	 	77	 
	 
	 	 	 	 	 	 
	SECTION 3.01
	 	Organization; Powers	 	 	77	 
	SECTION 3.02
	 	Authorization; Enforceability	 	 	77	 
	SECTION 3.03
	 	No Conflicts	 	 	78	 
	SECTION 3.04
	 	Financial Statements; Projections	 	 	78	 
	SECTION 3.05
	 	Properties	 	 	79	 
	SECTION 3.06
	 	Intellectual Property	 	 	80	 





 





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	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 3.07
	 	Equity Interests and Subsidiaries	 	 	80	 
	SECTION 3.08
	 	Litigation; Compliance with Laws	 	 	81	 
	SECTION 3.09
	 	Agreements	 	 	81	 
	SECTION 3.10
	 	Federal Reserve Regulations	 	 	82	 
	SECTION 3.11
	 	Investment Company Act	 	 	82	 
	SECTION 3.12
	 	Use of Proceeds	 	 	82	 
	SECTION 3.13
	 	Taxes	 	 	82	 
	SECTION 3.14
	 	No Material Misstatements	 	 	83	 
	SECTION 3.15
	 	Labor Matters	 	 	83	 
	SECTION 3.16
	 	Solvency	 	 	83	 
	SECTION 3.17
	 	Employee Benefit Plans	 	 	84	 
	SECTION 3.18
	 	Environmental Matters	 	 	84	 
	SECTION 3.19
	 	Insurance	 	 	86	 
	SECTION 3.20
	 	Security Documents	 	 	86	 
	SECTION 3.21
	 	Acquisition Documents; Material Indebtedness Documents; Representations and Warranties in Acquisition Agreement	 	 	89	 
	SECTION 3.22
	 	Anti-Terrorism Law	 	 	89	 
	SECTION 3.23
	 	[INTENTIONALLY OMITTED]	 	 	90	 
	SECTION 3.24
	 	Location of Material Inventory and Equipment	 	 	90	 
	SECTION 3.25
	 	[INTENTIONALLY OMITTED]	 	 	90	 
	SECTION 3.26
	 	Senior Notes; Material Indebtedness	 	 	90	 
	SECTION 3.27
	 	Centre of Main Interests and Establishments	 	 	90	 
	SECTION 3.28
	 	Holding and Dormant Companies	 	 	91	 
	SECTION 3.29
	 	Hindalco Acquisition	 	 	91	 
	SECTION 3.30
	 	Excluded Collateral Subsidiaries	 	 	91	 
	SECTION 3.31
	 	Immaterial Subsidiaries	 	 	91	 
	 
	 	 	 	 	 	 
	ARTICLE IV. CONDITIONS TO CREDIT EXTENSIONS	 	 	91	 
	 
	 	 	 	 	 	 
	SECTION 4.01
	 	Conditions to Initial Credit Extension	 	 	91	 
	SECTION 4.02
	 	Conditions to Credit Extensions	 	 	99	 
	SECTION 4.03
	 	Certain Collateral Matters	 	 	100	 
	 
	 	 	 	 	 	 
	ARTICLE V. AFFIRMATIVE COVENANTS	 	 	100	 
	 
	 	 	 	 	 	 
	SECTION 5.01
	 	Financial Statements, Reports, etc.	 	 	100	 
	SECTION 5.02
	 	Litigation and Other Notices	 	 	103	 
	SECTION 5.03
	 	Existence; Businesses and Properties	 	 	103	 
	SECTION 5.04
	 	Insurance	 	 	104	 
	SECTION 5.05
	 	Payment of Taxes	 	 	105	 
	SECTION 5.06
	 	Employee Benefits	 	 	106	 
	SECTION 5.07
	 	Maintaining Records; Access to Properties and Inspections; Annual Meetings	 	 	106	 
	SECTION 5.08
	 	Use of Proceeds	 	 	107	 
	SECTION 5.09
	 	Compliance with Environmental Laws; Environmental Reports	 	 	107	 
	SECTION 5.10
	 	Interest Rate Protection	 	 	107	 
	SECTION 5.11
	 	Additional Collateral; Additional Guarantors	 	 	108	 







 





ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 5.12
	 	Security Interests; Further Assurances	 	 	110	 
	SECTION 5.13
	 	Information Regarding Collateral	 	 	110	 
	SECTION 5.14
	 	Affirmative Covenants with Respect to Leases	 	 	111	 
	SECTION 5.15
	 	Secured Obligations	 	 	111	 
	SECTION 5.16
	 	Post-Closing Covenants	 	 	111	 
	 
	 	 	 	 	 	 
	ARTICLE VI. NEGATIVE COVENANTS	 	 	111	 
	 
	 	 	 	 	 	 
	SECTION 6.01
	 	Indebtedness	 	 	111	 
	SECTION 6.02
	 	Liens	 	 	114	 
	SECTION 6.03
	 	Sale and Leaseback Transactions	 	 	117	 
	SECTION 6.04
	 	Investments, Loan and Advances	 	 	117	 
	SECTION 6.05
	 	Mergers, Amalgamations and Consolidations	 	 	120	 
	SECTION 6.06
	 	Asset Sales	 	 	121	 
	SECTION 6.07
	 	European Cash Pooling Arrangements	 	 	123	 
	SECTION 6.08
	 	Dividends	 	 	123	 
	SECTION 6.09
	 	Transactions with Affiliates	 	 	124	 
	SECTION 6.10
	 	[INTENTIONALLY OMITTED]	 	 	125	 
	SECTION 6.11
	 	Prepayments of Other Indebtedness; Modifications of Organizational Documents and Other Documents, etc.	 	 	125	 
	SECTION 6.12
	 	Limitation on Certain Restrictions on Subsidiaries	 	 	127	 
	SECTION 6.13
	 	Limitation on Issuance of Capital Stock	 	 	128	 
	SECTION 6.14
	 	Limitation on Creation of Subsidiaries	 	 	129	 
	SECTION 6.15
	 	Business	 	 	129	 
	SECTION 6.16
	 	Limitation on Accounting Changes	 	 	129	 
	SECTION 6.17
	 	Fiscal Year	 	 	129	 
	SECTION 6.18
	 	Lease Obligations	 	 	129	 
	SECTION 6.19
	 	No Further Negative Pledge	 	 	129	 
	SECTION 6.20
	 	Anti-Terrorism Law; Anti-Money Laundering	 	 	130	 
	SECTION 6.21
	 	Embargoed Persons	 	 	130	 
	SECTION 6.22
	 	Tax Shelter Reporting	 	 	131	 
	 
	 	 	 	 	 	 
	ARTICLE VII. GUARANTEE	 	 	131	 
	 
	 	 	 	 	 	 
	SECTION 7.01
	 	The Guarantee	 	 	131	 
	SECTION 7.02
	 	Obligations Unconditional	 	 	132	 
	SECTION 7.03
	 	Reinstatement	 	 	133	 
	SECTION 7.04
	 	Subrogation; Subordination	 	 	133	 
	SECTION 7.05
	 	Remedies	 	 	133	 
	SECTION 7.06
	 	Instrument for the Payment of Money	 	 	134	 
	SECTION 7.07
	 	Continuing Guarantee	 	 	134	 
	SECTION 7.08
	 	General Limitation on Guarantee Obligations	 	 	134	 
	SECTION 7.09
	 	Release of Guarantors	 	 	134	 
	SECTION 7.10
	 	Certain Tax Matters	 	 	134	 
	SECTION 7.11
	 	German Guarantor	 	 	135	 
	SECTION 7.12
	 	Swiss Guarantors	 	 	137	 
	SECTION 7.13
	 	Irish Guarantor	 	 	138	 








 





iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 7.14
	 	Brazilian Guarantor	 	 	138	 
	 
	 	 	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT	 	 	138	 
	 
	 	 	 	 	 	 
	SECTION 8.01
	 	Events of Default	 	 	138	 
	SECTION 8.02
	 	Rescission	 	 	141	 
	SECTION 8.03
	 	Application of Proceeds	 	 	142	 
	 
	 	 	 	 	 	 
	ARTICLE IX. [INTENTIONALLY OMITTED]	 	 	143	 
	 
	 	 	 	 	 	 
	ARTICLE X. THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT	 	 	143	 
	 
	 	 	 	 	 	 
	SECTION 10.01
	 	Appointment and Authority	 	 	143	 
	SECTION 10.02
	 	Rights as a Lender	 	 	143	 
	SECTION 10.03
	 	Exculpatory Provisions	 	 	143	 
	SECTION 10.04
	 	Reliance by Agent	 	 	144	 
	SECTION 10.05
	 	Delegation of Duties	 	 	145	 
	SECTION 10.06
	 	Resignation of Agent	 	 	145	 
	SECTION 10.07
	 	Non-Reliance on Agent and Other Lenders	 	 	145	 
	SECTION 10.08
	 	No Other Duties, etc.	 	 	146	 
	SECTION 10.09
	 	Indemnification	 	 	146	 
	SECTION 10.10
	 	[INTENTIONALLY OMITTED]	 	 	146	 
	SECTION 10.11
	 	Concerning the Collateral and the Related Loan Documents	 	 	146	 
	SECTION 10.12
	 	Release	 	 	146	 
	SECTION 10.13
	 	Acknowledgment of Security Trust Deed	 	 	147	 
	 
	 	 	 	 	 	 
	ARTICLE XI. MISCELLANEOUS	 	 	147	 
	 
	 	 	 	 	 	 
	SECTION 11.01
	 	Notices	 	 	147	 
	SECTION 11.02
	 	Waivers; Amendment	 	 	150	 
	SECTION 11.03
	 	Expenses; Indemnity; Damage Waiver	 	 	153	 
	SECTION 11.04
	 	Successors and Assigns	 	 	155	 
	SECTION 11.05
	 	Survival of Agreement	 	 	158	 
	SECTION 11.06
	 	Counterparts; Integration; Effectiveness	 	 	158	 
	SECTION 11.07
	 	Severability	 	 	158	 
	SECTION 11.08
	 	Right of Setoff	 	 	159	 
	SECTION 11.09
	 	Governing Law; Jurisdiction; Consent to Service of Process	 	 	159	 
	SECTION 11.10
	 	Waiver of Jury Trial	 	 	160	 
	SECTION 11.11
	 	Headings	 	 	160	 
	SECTION 11.12
	 	Treatment of Certain Information; Confidentiality	 	 	160	 
	SECTION 11.13
	 	USA PATRIOT Act Notice	 	 	161	 
	SECTION 11.14
	 	Interest Rate Limitation	 	 	161	 
	SECTION 11.15
	 	Lender Addendum	 	 	161	 
	SECTION 11.16
	 	Obligations Absolute	 	 	162	 
	SECTION 11.17
	 	Intercreditor Agreement	 	 	162	 
	SECTION 11.18
	 	Judgment Currency	 	 	162	 
	SECTION 11.19
	 	[INTENTIONALLY OMITTED]	 	 	163	 





 



iv









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	SECTION 11.20
	 	[INTENTIONALLY OMITTED]	 	 	163	 
	SECTION 11.21
	 	Abstract Acknowledgment of Indebtedness and Joint Creditorship	 	 	163	 
	SECTION 11.22
	 	Special Appointment of Collateral Agent for German Security	 	 	164	 
	SECTION 11.23
	 	Special Appointment of Administrative Agent in Relation to South Korea	 	 	165	 
	SECTION 11.24
	 	Designation of Collateral Agent under Civil Code of Quebec	 	 	165	 
	SECTION 11.25
	 	Maximum Liability	 	 	166	 





 



v









 






	 	 	 
	ANNEXES

	 
	 	 
	Annex I
	 	Applicable Margin
	Annex II
	 	Amortization Table
	Annex III
	 	Mandatory Cost Formula
	 
	 	 
	SCHEDULES

	 
	 	 
	Schedule 1.01(a)
	 	Refinancing Indebtedness to Be Repaid
	Schedule 1.01(b)
	 	Subsidiary Guarantors
	Schedule 1.01(c)
	 	Excluded Collateral Subsidiaries
	Schedule 1.01(d)
	 	Immaterial Subsidiaries
	Schedule 1.01(e)
	 	Specified Holders
	Schedule 3.06(c)
	 	Violations or Proceedings
	Schedule 3.17
	 	Pension Matters
	Schedule 3.19
	 	Insurance
	Schedule 3.21
	 	Acquisition Documents
	Schedule 3.24
	 	Location of Material Inventory
	Schedule 4.01(g)
	 	Local and Foreign Counsel
	Schedule 4.01(l)
	 	Sources and Uses
	Schedule 4.01(o)(iii)
	 	Title Insurance Amounts
	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
	 
	 	 
	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
	 	[INTENTIONALLY OMITTED]
	Exhibit I
	 	Form of Lender Addendum
	Exhibit J
	 	Form of Mortgage
	Exhibit K-1
	 	Form of U.S. Term Loan Note
	Exhibit K-2
	 	Form of Canadian Term Loan Note
	Exhibit L-1
	 	Form of Perfection Certificate
	Exhibit L-2
	 	Form of Perfection Certificate Supplement
	Exhibit M-1
	 	Form of U.S. Security Agreement
	Exhibit M-2
	 	Form of Canadian Security Agreement
	Exhibit M-3
	 	Form of U.K. Security Agreement
	Exhibit M-4
	 	Form of Swiss Security Agreement





 



vi









 






	 	 	 
	Exhibit M-5
	 	Form of German Security Agreement
	Exhibit M-6
	 	Form of Irish Security Agreement
	Exhibit M-7
	 	Form of Brazilian Security Agreement
	Exhibit N
	 	Form of Opinion of Company Counsel
	Exhibit O
	 	Form of Solvency Certificate
	Exhibit P
	 	Form of Intercompany Note
	Exhibit Q
	 	Form of Term Loan Collateral Agent Appointment Letter
	Exhibit R
	 	Form of Receivables Purchase Agreement






 



vii











 





CREDIT AGREEMENT




     This CREDIT AGREEMENT (this “Agreement”), dated as of July 6, 2007, is among NOVELIS INC., a
corporation formed under the Canada Business Corporations Act (the “Canadian Borrower”), NOVELIS
CORPORATION, a Texas corporation (the “U.S. Borrower” and, together with Canadian Borrower, the
“Borrowers”), AV ALUMINUM INC., a corporation formed under the Canada Business Corporations Act,
the Subsidiary Guarantors (such term and each other capitalized term used but not defined herein
having the meaning given to it in Article I), the Lenders, UBS AG, STAMFORD BRANCH, as
administrative agent (in such capacity, “Administrative Agent”) for the Lenders, UBS AG, STAMFORD
BRANCH, as collateral agent (in such capacity, “Collateral Agent”) for the Secured Parties, UBS
SECURITIES LLC, as syndication agent (in such capacity, “Syndication Agent”), ABN AMRO
INCORPORATED, as documentation agent (in such capacity, “Documentation Agent”), and UBS SECURITIES
LLC and ABN AMRO INCORPORATED, as joint lead arrangers and joint bookmanagers (in such capacities,
“Arrangers”).



WITNESSETH:




     WHEREAS, Holdings, Canadian Borrower, a direct Wholly Owned Subsidiary of Holdings, and
Hindalco Industries Limited (“Acquiror”) entered into that certain Arrangement Agreement, dated as
of February 10, 2007 (as amended, supplemented or otherwise modified from time to time, together
with any annexes, schedules, exhibits or other attachments thereto, the “Acquisition Agreement”),
pursuant to which Holdings agreed to acquire Canadian Borrower via a plan of arrangement under
Section 192 of the Canada Business Corporations Act (the “Hindalco Acquisition”).



     WHEREAS, the Hindalco Acquisition closed on the Acquisition Closing Date.



     WHEREAS, the Borrowers have requested the Lenders to extend credit in the form of Term Loans
on the Closing Date in an aggregate principal amount not in excess of $960 million, consisting of
(i) U.S. Term Loans in an aggregate principal amount not in excess of $660 million and (ii)
Canadian Term Loans in an aggregate principal amount not in excess of $300 million.



     WHEREAS, the proceeds of the Loans are to be used in accordance with Section 3.12.



     WHEREAS, Holdings, Canadian Borrower, the U.S. Borrower and the other Subsidiary Guarantors
party thereto shall enter into the Revolving Credit Agreement providing for Revolving Credit Loans
at any time and from time to time prior to the Revolving Credit Maturity Date in the aggregate
principal amount of up to $800 million simultaneously herewith.



     NOW, THEREFORE, the Lenders are willing to extend such Term Loans to the Borrowers on the
terms and subject to the conditions set forth herein. Accordingly, the parties hereto 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:




     “ABN AMRO” shall mean ABN AMRO Bank N.V.



     “ABR”, when used in reference to any Loan or Borrowing, is used when such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate
Base Rate.



     “ABR Borrowing” shall mean a Borrowing comprised of ABR Loans.



     “ABR Loan” shall mean any Loan bearing interest at a rate determined by reference to the
Alternate Base Rate in accordance with the provisions of ARTICLE II.



     “Accounts” shall mean all “accounts,” as such term is defined in the UCC as in effect on the
date hereof in the State of New York, in which such Person now or hereafter has rights.



     “Acquiror” shall have the meaning assigned to such term in the recitals hereto.



     “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, (b) acquisition of in excess of
50% of the Equity Interests of any person or otherwise causing a person to become a Subsidiary of
the acquiring person, or (c) merger, consolidation or amalgamation, whereby a person becomes a
Subsidiary of the acquiring person, or any other consolidation with any person, whereby a person
becomes a Subsidiary of the acquiring person.



     “Acquisition Agreement” shall have the meaning assigned to such term in the recitals hereto.



     “Acquisition Closing Date” shall mean May 15, 2007.



     “Acquisition Consideration” shall mean the purchase consideration for any Permitted
Acquisition, whether paid in cash, properties, any assumption of Indebtedness or otherwise (other
than by the issuance of Qualified Capital Stock of Holdings permitted to be issued hereunder) and
whether payable at or prior to the consummation of such Permitted 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






	 	 	 
	 

	 	2

















 







any, required under GAAP at the time of such sale to be established in respect thereof by
Holdings or any of its Subsidiaries.



     “Acquisition Documents” shall have the meaning assigned to such term in Section 3.21.



     “Acquisition Material Adverse Effect” shall mean any change, effect, event, occurrence, state
of facts or development which individually or in the aggregate (a) is or would reasonably be
expected to be materially adverse to the business, operations, results of operations, affairs,
liabilities or obligations (whether absolute, accrued, conditional, contingent or otherwise),
capitalization or financial condition of Canadian Borrower and its Subsidiaries, taken as a whole;
or (b) is or would reasonably be expected to impair in any material respect the ability of Canadian
Borrower to consummate the transactions contemplated by the Acquisition Agreement or to perform its
obligations under the Acquisition Agreement on a timely basis; provided that none of the
following shall be deemed, either individually or in the aggregate, to constitute an Acquisition
Material Adverse Effect: any change, effect, event, occurrence, state of facts or development (A)
in the financial, banking, credit, securities, or commodities markets, the economy in general or
prevailing interest rates of the United States, Canada or any other jurisdiction, where Canadian
Borrower or any of its Subsidiaries has operations or significant revenues, (B) in any industry in
which Canadian Borrower or any of its Subsidiaries operates, (C) in Canadian Borrower’s stock price
or trading volume (provided that this clause (C) shall not be construed as providing that
any cause or factor affecting Canadian Borrower’s stock price or trading volume does not constitute
an Acquisition Material Adverse Effect), (D) arising as a result of a change in U.S. GAAP or
regulatory accounting principles or interpretations thereof after the date hereof, (E) in Law (as
defined in the Acquisition Agreement as of the Acquisition Closing Date) or interpretations thereof
by any Governmental Entity (as defined in the Acquisition Agreement as of the Acquisition Closing
Date), (F) arising or resulting from the announcement of the Acquisition Agreement, the pendency of
the transactions contemplated therein and in the Plan of Arrangement (as defined in the Acquisition
Agreement as of the Acquisition Closing Date), (G) arising or resulting from any failure by
Canadian Borrower to meet any internal or published projections, forecasts or revenue or earnings
predictions (provided that this clause (G) shall not be construed as providing that any
cause or factor giving rise to such failure does not constitute an Acquisition Material Adverse
Effect), (H) any continuation of an adverse trend or condition or the escalation of, or any
developments with respect to, any dispute referred to on Schedule 3.07 of Canadian Borrower
Disclosure Schedule to the Acquisition Agreement on the Acquisition Closing Date, (I) arising or
resulting from any act of war or terrorism (or, in each case, escalation thereof) or declaration of
a national emergency, or (J) arising or resulting from the acts or omissions of Acquiror and/or its
Affiliates, as determined immediately prior to the Acquisition Closing Date; except in the cases of
clauses (A), (B) and (I), to the extent such change, effect, event, occurrence, state of facts or
development has or would reasonably be expected to have a disproportionate effect on Canadian
Borrower and its Subsidiaries, taken as a whole, as compared to other persons in the industries in
which Canadian Borrower and its Subsidiaries operate unless such disproportionate change, effect,
event, occurrence, state of facts or development arises from any metal price ceiling in any of
Canadian Borrower’s customer contracts.



     “Additional Subordinated Debt Loan” shall mean any loan, advance or other extension of credit
extended by the Acquiror or any of its Affiliates (other than any Subsidiary of




	 	 	 
	
 

	 	3


















 







Holdings) to Holdings having the same subordination terms as the subordination terms applicable to the
Subordinated Debt Loan as in effect on the Closing Date; provided that such loan, advance
or extension of credit shall be unsecured Indebtedness of Holdings, (i) with respect to which no
Borrower or Subsidiary has any Contingent Obligation, (ii) that will not mature prior to the 180th
day following the Final Maturity Date, (iii) that has no scheduled amortization of principal prior
to the 180th day following the Final Maturity Date, (iv) that does not require any payments in cash
of interest, principal or other amounts prior to the 180th day following the Final Maturity Date,
and (v) that has no mandatory prepayment, repurchase or redemption requirements; and
provided, further, that at least five Business Days prior to the time of incurrence
of such Indebtedness (or such shorter period as the Administrative Agent may agree), a Responsible
Officer of Holdings delivers a certificate to the Administrative Agent (together with drafts of the
documentation relating thereto) stating that Holdings has determined in good faith that such terms
and conditions satisfy the foregoing requirements.



     “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).



     “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 Novelis Inc., 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.



     “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 Section 6.09, the term “Affiliate” shall also include (i) any person that
directly or indirectly owns more than 15% of any class of Equity Interests of the person specified
or (ii) any person that is an executive officer or director of the person specified.



     “Agents” shall mean the Administrative Agent and the Collateral Agent; and “Agent” shall mean
any of them.



     “Agreement” shall have the meaning assigned to such term in the preamble hereto.



     “Alternate Base Rate” shall mean, for any day, a rate per annum (rounded upward, if necessary,
to the nearest 1/100th of 1%) equal to the greater of (a) the Base Rate in effect on such day and
(b) the Federal Funds Effective Rate in effect on such day plus 0.50%. If the
Administrative Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason,





	 	 	 
	
 

	 	
4



















 







including the inability of the Administrative Agent to obtain sufficient quotations in accordance
with the terms of the definition thereof, the Alternate Base Rate shall be determined without
regard to clause (b) of the preceding sentence until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change in the Base Rate
or the Federal Funds Effective Rate shall be effective on the effective date of such change in the
Base Rate or the Federal Funds Effective Rate, respectively.



     “Anti-Terrorism Laws” shall have the meaning assigned to such term in Section 3.22.



     “Applicable Margin” shall mean, for any day, with respect to any Term Loan the applicable
percentage set forth in Annex I under the appropriate caption.



     “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.



     “Arrangers” shall have the meaning assigned to such term in the preamble hereto.



     “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 (i) sales of Inventory and dispositions of cash and Cash
Equivalents, in each such excluded case, which are in the ordinary course of business, by Holdings
or any of its Subsidiaries, and (ii) sales of Accounts pursuant to the Receivables Purchase
Agreement by any Loan Party or (b) any issuance or sale of any Equity Interests of any Subsidiary
of Holdings; provided that such issuances or sales of Equity Interests to Companies other
than Holdings shall constitute Asset Sales only for purposes of Section 6.06.



     “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(b)), and accepted by the Administrative Agent, in substantially the form of 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).




	 	 	 
	
 

	 	
5

















 





     “AV Aluminum” shall mean AV Aluminum Inc., a corporation formed under the Canada Business
Corporations Act.



     “AV Metals” shall mean AV Metals, Inc., a corporation formed under the Canada Business
Corporations Act.



     “Available Amount” shall have the meaning assigned to such term in Section 7.12(a).



     “Base Rate” shall mean, for any day, a rate per annum that is equal to the corporate base rate
of interest established by the Administrative Agent from time to time; each change in the Base Rate
shall be effective on the date such change is effective. The corporate base rate is not
necessarily the lowest rate charged by the Administrative Agent to its customers.



     “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 of such person, (iii) in the case of any 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 have the meaning assigned to such term in the preamble hereto. Unless the
context otherwise requires, and subject to Section 11.25, each reference in this Agreement
to “each Borrower” or “the applicable Borrower” shall be deemed to be a reference to (x) the U.S.
Borrower and/or (y) Canadian Borrower, as the case may be.



     “Borrowing” shall mean Loans to the U.S. Borrower or Canadian Borrower, in each case, of the
same Class and Type, made, converted or continued on the same date and, in the case of Eurocurrency
Loans, as to which a single Interest Period is in effect.



     “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 Subsidiary of Holdings organized in Brazil party hereto
as a Guarantor, and each other Subsidiary of Holdings organized in Brazil that is required to
become a Guarantor pursuant to the terms hereof.



     “Brazilian Security Agreements” shall mean, collectively, any Security Agreements
substantially in the form of Exhibits M-7-1 to 5 among the Brazilian Guarantor and
the Collateral Agent for the benefit of the Secured Parties.



     “Business Day” shall mean any day other than a Saturday, Sunday or other day on which banks in
New York City are authorized or required by law to close; 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 Eurocurrency Loan, the term “Business Day” shall




	 	 	 
	
 

	 	
6


















 







also exclude any day on which banks are not open for dealings in dollar deposits in the London
interbank market.



     “Canadian Borrower” shall have the meaning assigned to such term in the preamble hereto.



     “Canadian Guarantor” shall mean Holdings and each Subsidiary of Holdings organized in Canada
(other than Canadian Borrower) party hereto as a Guarantor, and each other Subsidiary of Holdings
organized in Canada that is required to become a Guarantor pursuant to the terms hereof.



     “Canadian Loan Parties” shall mean Canadian Borrower and the Canadian Guarantors.



     “Canadian Term Loan” shall have the meaning assigned to such term in Section 2.01(b).



     “Canadian Term Loan Commitment” shall mean, with respect to each Lender, the commitment, if
any, of such Lender to make Canadian Term Loans hereunder up to the amount set forth on Schedule I
to the Lender Addendum executed and delivered by such Lender directly under the column entitled
“Canadian Term Loan Commitment” or in an Increase Joinder. The aggregate amount of the Lenders’
Canadian Term Loan Commitments on the Closing Date is $300 million.



     “Canadian Security Agreement” shall mean the Security Agreements substantially in the form of
Exhibits M-2-1 to 6 among the Canadian Loan Parties and the Collateral Agent for
the benefit of the Secured Parties.



     “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 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 Canadian Borrower and its Subsidiaries during such period for Capital
Assets (whether paid in cash or other consideration, financed by the incurrence of Indebtedness or
accrued as a liability), together with Canadian Borrower’s proportionate share of such amounts for
Norf GmbH for such period, but in each case excluding any portion of such expenditures constituting
the Acquisition Consideration for acquisitions of property, plant and equipment in Permitted
Acquisitions or 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 GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.




	 	 	 
	
 

	 	
7

















 





     “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 any state of the
United States or the District of Columbia or any political subdivision or instrumentality thereof
that, at the time of the acquisition, are rated at least “A-2” by S&P or “P-2” by Moody’s, (c)
certificates of deposit, eurocurrency time deposits, overnight bank deposits and bankers’
acceptances of any commercial bank organized under the laws of 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, are rated at least “A-2” by S&P or
“P-2” by Moody’s, (d) commercial paper of an issuer rated at least “A-2” by S&P or “P-2” by
Moody’s, (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, Dollar Equivalent of which exceeds $500,000,000 and (iii) is rated at least “A-2” by
S&P or “P-2” by Moody’s; 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 clauses (a), (b) and (c)
to the extent that such obligations have a credit rating equal to the sovereign rating of such
jurisdiction.



     “Cash Interest Expense” shall mean, for any period, Consolidated Interest Expense for such
period, less the sum of (a) interest on any debt paid by the increase in the principal amount of
such debt including by issuance of additional debt of such kind, (b) items described in clause (c)
of the definition of “Consolidated Interest Expense” and (c) gross interest income of Canadian
Borrower and its Subsidiaries for such period.



     “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 or any of its Subsidiaries. “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 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) Acquiror at any time ceases to be the beneficial owner (as defined in Rules 13d-3
and 13d-5 under the Exchange Act) of at least 51% of the Equity Interests of Holdings,




     (b) Holdings at any time ceases to be the beneficial owner (as defined in Rules 13d-3
and 13d-5 under the Exchange Act) and the direct record owner of 100% of




	 	 	 
	
 

	 	
8


















 







the Equity Interests of Canadian Borrower; provided that a Permitted Holdings
Amalgamation shall not constitute a Change of Control under this clause (b),




     (c) Canadian Borrower at any time ceases to be the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act) and the direct or indirect owner of 100% of
the Equity Interests of each of the U.S. Borrower and Novelis Deutschland GmbH;




     (d) at any time a change of control occurs under any Material Indebtedness;




     (e) 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 (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except 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
Acquiror representing 50% or more of the voting power of the total outstanding Voting Stock
of Acquiror; or




     (f) during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of Acquiror (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 Acquiror, 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 Acquiror.



     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 date of this Agreement, 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 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.



     “Charges” shall have the meaning assigned to such term in Section 11.14.



     “Chattel Paper” shall mean all “chattel paper,” as such term is defined in the UCC as in
effect on the date hereof in the State of New York, 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.






	 	 	 
	
 

	 	
9

















 





     “Class,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are U.S. Term Loans or Canadian Term Loans and, when used in
reference to any Commitment, refers to whether such Commitment is a U.S. Term Loan Commitment or a
Canadian Term Loan 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 of the initial Credit Extension hereunder.



     “CNI Basket” shall have the meaning assigned to such term in Section 6.08(d).



     “Code” shall mean the Internal Revenue Code of 1986, as amended, and the Treasury Regulations
promulgated thereunder.



     “Collateral” shall mean, collectively, all of the Revolving Credit Priority Collateral and the
Term Loan Priority Collateral.



     “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.



     “Commerzbank Cash Pooling Agreement” shall mean an Agreement regarding an Automatic Cash
Management System entered into between Novelis AG, the “Companies” (as defined therein) and
Commerzbank Aktiengesellschaft, Berlin dated 15 January 2007, together with all ancillary
documentation thereto.



     “Commitment” shall mean, with respect to any Lender, such Lender’s U.S. Term Loan Commitment
and/or Canadian Term Loan Commitment, including any Incremental Term Loan Commitment pursuant to
Section 2.23.



     “Companies” shall mean Holdings and its Subsidiaries; 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
Requirements of Law other than those of the United States.



     “Compliance Certificate” shall mean a certificate of a Financial Officer substantially in the
form of Exhibit D.



     “Confidential Information Memorandum” shall mean that certain confidential information
memorandum of Novelis Inc., dated June 2007.



     “Consolidated Adjusted EBITDA” shall mean, for any period, Consolidated EBITDA for such period
plus, to the extent not otherwise included in Consolidated EBITDA:





	 	 	 
	
 

	 	
10

















 





     (a) 100% of the net income of each Joint Venture Subsidiary and Logan for such period minus
the amount of any dividends or distributions paid to the holder of any interest (other than a
Company) in such Joint Venture Subsidiary or Logan during such period; and



     (b) the Canadian Borrower’s proportionate share of EBITDA of Norf GmbH for such period.



     “Consolidated Amortization Expense” shall mean, for any period, the amortization expense of
Canadian Borrower and its Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.



     “Consolidated Current Assets” shall mean, as at any date of determination, the total assets of
Canadian Borrower and its Subsidiaries which may properly be classified as current assets on a
consolidated balance sheet of Canadian Borrower and its Subsidiaries in accordance with GAAP,
excluding cash and Cash Equivalents.



     “Consolidated Current Liabilities” shall mean, as at any date of determination, the total
liabilities of Canadian Borrower and its Subsidiaries which may properly be classified as current
liabilities (other than the current portion of any Loans) on a consolidated balance sheet of
Canadian Borrower and its Subsidiaries in accordance with GAAP, but excluding (a) the current
portion of any Funded Debt of Canadian Borrower and its Subsidiaries and (b) without duplication of
clause (a) above, all Indebtedness consisting of Revolving Credit Loans to the extent otherwise
included therein.



     “Consolidated Depreciation Expense” shall mean, for any period, the depreciation expense of
Canadian Borrower and its Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.



     “Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period,
adjusted by:



     (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 Hindalco Acquisition and
the Refinancing,




     (f) restructuring charges in an amount not to exceed $15 million in the aggregate
during the term hereof; and





	 	 	 
	
 

	 	
11
















 






     (g) 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;



     (y) subtracting therefrom, the aggregate amount of all non-cash items increasing
Consolidated Net Income (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 Canadian Borrower or
any of its Subsidiaries upon any Asset Sale (other than any dispositions in the ordinary
course of business) by Canadian Borrower or any of its Subsidiaries,




     (b) gains and losses due solely to fluctuations in currency values and the related tax
effects determined in accordance with GAAP for such period,




     (c) earnings or losses resulting from any reappraisal, revaluation or write-up or
write-down of assets,




     (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,




     (e) unrealized gains and losses with respect to Hedging Obligations for such period,
and




     (f) any extraordinary gain (or extraordinary loss), together with any related provision
for taxes on any such gain (or the tax effect of any such loss), recorded or recognized by
Canadian Borrower or any of its Subsidiaries during such period;



     Other than for purposes of calculating Excess Cash Flow, Consolidated EBITDA shall be
calculated on a Pro Forma Basis to give effect to any Permitted 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 million 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 million) 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 Indebtedness” shall mean, as at any date of determination, the aggregate amount
of all Indebtedness of Canadian Borrower and its Subsidiaries (other than (i) Indebtedness
specified in clauses (g) and (h) (unless the lease giving rise to such Attributable Indebtedness is
a Capital Lease) of the definition thereof, (ii) bankers’ acceptances, letters of credit and
similar credit arrangements with respect to which no reimbursement obligation has arisen, (iii)
letters of credit permitted to be incurred under Section 6.01(p) and (iv) from and after




	 	 	 
	
 

	 	
12

















 







the Permitted Holdings Amalgamation, the Subordinated Debt Loan), determined on a consolidated
basis in accordance with GAAP.



     “Consolidated Interest Expense” shall mean, for any period, the total consolidated interest
expense of Canadian Borrower and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP plus, without duplication:




     (a) imputed interest on Capital Lease Obligations and Attributable Indebtedness of
Canadian Borrower and its Subsidiaries for such period;




     (b) commissions, discounts and other fees and charges owed by Canadian Borrower or any
of its Subsidiaries with respect to letters of credit securing financial obligations,
bankers’ acceptance financing and receivables financings for such period;




     (c) amortization of debt issuance costs, debt discount or premium and other financing
fees and expenses incurred by Canadian Borrower or any of its Subsidiaries for such period;




     (d) all interest paid or payable with respect to discontinued operations of Canadian
Borrower or any of its Subsidiaries for such period; and




     (e) the interest portion of any deferred payment obligations of Canadian Borrower or
any of its Subsidiaries for such period.



     Other than for purposes of calculating Excess Cash Flow, Consolidated Interest Expense shall
be calculated on a Pro Forma Basis to give effect to any Indebtedness incurred, assumed or
permanently repaid or extinguished during the relevant Test Period in connection with any Permitted
Acquisitions 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 million 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 million) as if such
incurrence, assumption, repayment or extinguishing had been effected on the first day of such
period.



     “Consolidated Net Income” shall mean, for any period, the consolidated net income (or loss) of
Canadian Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP;
provided, however, that:




     (a) the net income (or loss) of any person in which any person other than Canadian
Borrower and its Subsidiaries has an ownership interest (which interest does not cause the
net income of such other person to be consolidated into the net income of Canadian Borrower
and its Subsidiaries) shall be excluded, except to the extent actually received by Canadian
Borrower or any of its Subsidiaries during such period; and




     (b) the net income of any Subsidiary of Canadian Borrower other than a Loan Party that
is subject to a prohibition on the payment of dividends or similar distributions by such
Subsidiary shall be excluded to the extent of such prohibition.




	 	 	 
	
 

	 	
13

















 





     For purposes of this definition of “Consolidated Net Income,” Consolidated Net Income shall be
reduced (to the extent not already reduced thereby) by the amount of any payments to or on behalf
of Holdings made pursuant to Section 6.08(c).



     “Consolidated Senior Secured Indebtedness” shall mean, as at any date of determination, the
aggregate amount of all Consolidated Indebtedness of the Companies that is secured by a Lien on the
assets of any of such persons.



     “Consolidated Tax Expense” shall mean, for any period, the tax expense of Canadian Borrower
and its Subsidiaries, for such period, determined on a consolidated basis in accordance with GAAP.



     “Contingent Obligation” shall mean, as to any person, any obligation, agreement, understanding
or arrangement of such person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations (“primary obligations”) of any other person (the “primary obligor”)
in any manner, whether directly or indirectly, including any obligation of such person, whether or
not contingent, (a) to purchase any such primary obligation or any property constituting direct or
indirect security therefor; (b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary obligor; (c) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of such primary
obligation; (d) with respect to bankers’ acceptances, letters of credit and similar credit
arrangements, until a reimbursement obligation arises (which reimbursement obligation shall
constitute Indebtedness); or (e) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof; provided, however, that the term
“Contingent Obligation” shall not include endorsements of instruments for deposit or collection in
the ordinary course of business or any product warranties. The amount of any Contingent Obligation
shall be deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made (or, if less, the maximum amount
of such primary obligation for which such person may be liable, whether singly or jointly, pursuant
to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof (assuming such person
is required to perform thereunder) as determined by such person in good faith.



     “Contribution, Intercompany, Contracting and Offset Agreement” shall mean that certain
Contribution, Intercompany, Contracting and Offset Agreement dated as of the date hereof by and
among the Loan Parties (other than certain Foreign Subsidiaries), Collateral Agent and
Administrative Agent.



     “Contribution Notice” shall mean a contribution notice issued by the Pensions Regulator under
Section 38 or Section 47 of the Pensions Act 2004.



     “Control” shall mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a person, whether through the ownership of




	 	 	 
	
 

	 	
14

















 







voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled”
shall have meanings correlative thereto.



     “Control Agreement” shall mean, with respect to a Deposit Account, Securities Account, or
Commodity Account (each as defined in the UCC as in effect on the date hereof in the State of New
York), (i) located in the United States, an agreement in form and substance reasonably satisfactory
to the Collateral Agent establishing the Collateral Agent’s “control” (within the meaning of the
UCC) in such account, or (ii) located in other jurisdictions, agreements with regard to such
accounts establishing and perfecting the First Priority Lien of the Collateral Agent in such
accounts), and otherwise in form and substance reasonably satisfactory to the Collateral Agent.



     “Credit Extension” shall mean the making of a Loan by a Lender.



     “Debt Issuance” shall mean the incurrence by Holdings or any of its Subsidiaries of any
Indebtedness after the Closing Date (other than as permitted by Section 6.01).



     “Debt Service” shall mean, for any period, Cash Interest Expense for such period plus
scheduled principal amortization of all Indebtedness paid in such period.



     “Default” shall mean an Event of Default or an event, occurrence or condition which is, or
upon notice, lapse of time or both would constitute, an Event of Default.



     “Default Rate” shall have the meaning assigned to such term in Section 2.06(c).



     “Delegate” shall mean any delegate, agent, attorney, trustee or co-trustee appointed by the
Collateral Agent or any Receiver.



     “Disqualified Capital Stock” shall mean any Equity Interest which, by its terms (or by the
terms of any security into which it is convertible or for which it is exchangeable), or upon the
happening of any event, (a) matures (excluding any maturity as the result of an optional redemption
by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior
to 180 days after the Final Maturity Date, (b) is convertible into or exchangeable (unless at the
sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interests referred to
in (a) above, in each case at any time on or prior to 180 days after the Final Maturity Date, or
(c) contains any mandatory repurchase obligation which may come into effect prior to 180 days after
the Final Maturity Date; provided, however, that any Equity Interests that would
not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the
holders of any security into or for which such Equity Interests is convertible, exchangeable or
exercisable) the right to require the issuer thereof to redeem such Equity Interests upon the
occurrence of a change in control or an asset sale occurring prior to 180 days after the Final
Maturity Date shall not constitute Disqualified Capital Stock if such Equity Interests provide that
the issuer thereof will not redeem any such Equity Interests pursuant to such provisions prior to
the repayment in full of the Obligations.



     “Distribution” shall mean, collectively, with respect to each Loan Party, all dividends, cash,
options, warrants, rights, instruments, distributions, returns of capital or principal, income,





	 	 	 
	
 

	 	
15
















 







interest, profits and other property, interests (debt or equity) or proceeds, including as a
result of a split, revision, reclassification or other like change of the Pledged Securities, from
time to time received, receivable or otherwise distributed to such Loan Party in respect of or in
exchange for any or all of the Pledged Securities or Pledged Intercompany Notes.



     “Dividend” with respect to any person shall mean that such person has declared or paid a
dividend or returned any equity capital to the holders of its Equity Interests or authorized or
made any other distribution, payment or delivery of property (other than Qualified Capital Stock of
such person) or cash to the holders of its Equity Interests as such, or redeemed, retired,
purchased or otherwise acquired, directly or indirectly, for consideration any of its Equity
Interests outstanding (or any options or warrants issued by such person with respect to its Equity
Interests), or set aside any funds for any of the foregoing purposes, or shall have permitted any
of its Subsidiaries to purchase or otherwise acquire for consideration any of the Equity Interests
of such person outstanding (or any options or warrants issued by such person with respect to its
Equity Interests). Without limiting the foregoing, “Dividends” with respect to any person shall
also include all payments made or required to be made by such person with respect to any stock
appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting
aside of any funds for the foregoing purposes.



     “Documentation Agent” shall have the meaning assigned to such term in the preamble hereto.



     “Dollar Equivalent” shall mean, as to any amount denominated in any currency other than
Dollars as of any date of determination, the amount of Dollars that would be required to purchase
the amount of such currency based upon the Spot Selling Rate as of such date, and as to any amount
denominated in Dollars, such amount in Dollars.



     “Dollars” or “dollars” or “$” shall mean lawful money of the United States.



     “EBITDA of Norf GmbH” shall mean, with respect to any period, the net income of Norf GmbH
plus to the extent deducted in determining net income, interest expense, depreciation and
amortization expense, tax expense and the aggregate amount of all other non-cash charges reducing
such 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 minus the aggregate amount of all non-cash
items increasing such net income (other than the accrual of revenue or recording of receivables in
the ordinary course of business) for such period; provided that in calculating such EBITDA
of Norf GmbH the following shall be excluded:



     (i) 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 Norf GmbH or any of its
Subsidiaries upon an asset sale (other than any dispositions in the ordinary course of business) by
Norf GmbH or any of its Subsidiaries;



     (ii) gains and losses due solely to fluctuations in currency values and the related tax
effects determined in accordance with GAAP for such period;



     (iii) earnings or losses resulting from any reappraisal, revaluation or write-up or write-down
of assets;






	 	 	 
	
 

	 	
16



















 





     (iv) 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;



     (v) unrealized gains and losses with respect to Hedging Obligations for such period; and



     (vi) any extraordinary gain (or extraordinary loss), together with any related provision for
taxes on any such gain (or the tax effect of any such loss), recorded or recognized by Norf GmbH or
any of its Subsidiaries during such period.



     “Eligible Assignee” shall mean (a) any Lender, (b) an Affiliate of any Lender, (c) an Approved
Fund of a Lender and (d) any other person approved by the Administrative Agent and Administrative
Borrower (each such approval not to be unreasonably withheld or delayed); provided that (x) no
approval of Administrative Borrower shall be required during the continuance of a Default or prior
to the earlier of (i) three months after the Closing Date or (ii) the completion of the primary
syndication of the Commitments and Loans (as determined by the Arrangers), (y) “Eligible Assignee”
shall not include Holdings or any of its Affiliates or Subsidiaries or any natural person and (z)
each assignee Lender shall be subject to each other applicable requirement regarding Lenders
hereunder.



     “Embargoed Person” shall have the meaning assigned to such term in Section 6.21.



     “Environment” shall mean the natural environment, including air (indoor or outdoor), surface
water and groundwater (including potable water, navigable water and wetlands), the land surface or
subsurface strata, natural resources, the workplace or as otherwise defined in any Environmental
Law.



     “Environmental Claim” shall mean any claim, notice, demand, order, action, suit, proceeding or
other communication alleging liability for or obligation with respect to any investigation,
remediation, removal, cleanup, response, corrective action, damages to natural resources, personal
injury, property damage, fines, penalties or other costs resulting from, related to or arising out
of (i) the presence, Release or threatened Release in or into the Environment of Hazardous Material
at any location or (ii) any violation or alleged violation of any Environmental Law, and shall
include any claim seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from, related to or arising out of the presence, Release or threatened
Release of Hazardous Material or alleged injury or threat of injury to health, safety or the
Environment.



     “Environmental Law” shall mean any and all treaties, laws, statutes, ordinances, regulations,
rules, decrees, orders, judgments, consent orders, consent decrees, code or other legally binding
requirements, and the common law, relating to protection of public health or the Environment, the
Release or threatened Release of Hazardous Material, natural resources or natural resource damages,
or occupational safety or health, and any and all Environmental Permits.



     “Environmental Permit” shall mean any permit, license, approval, registration, notification,
exemption, consent or other authorization required by or from a Governmental Authority under
Environmental Law.





	 	 	 
	
 

	 	
17
















 





     “Equipment” shall mean “equipment,” as such term is defined in the UCC as in effect on the
date hereof in the State of New York, in which such Person now or hereafter has rights.



     “Equity Interest” shall mean, with respect to any person, any and all shares, interests,
participations or other equivalents, including membership interests (however designated, whether
voting or nonvoting), of equity of such person, including, if such person is a partnership,
partnership interests (whether general or limited) and any other interest or participation that
confers on a person the right to receive a share of the profits and losses of, or distributions of
property of, such partnership, whether outstanding on the date hereof or issued after the Closing
Date, but excluding debt securities convertible or exchangeable into such equity.



     “Equity Issuance” shall mean, without duplication, (i) any issuance or sale by Holdings after
the Closing Date of any Equity Interests (other than Preferred Stock) in Holdings (including any
Equity Interests (other than Preferred Stock) issued upon exercise of any warrant or option) or any
warrants or options to purchase Equity Interests (other than Preferred Stock) or (ii) any
contribution to the capital of Holdings.



     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time.



     “ERISA Affiliate” shall mean, with respect to any person, any trade or business (whether or
not incorporated) that, together with such person, is treated as a single employer under Section
414 of the Code.



     “ERISA Event” shall mean (a) any “reportable event,” as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a Plan (other than an event for which the thirty
(30) day notice period is waived by regulation); (b) the existence with respect to any Plan of an
“accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the failure to make by its due date a required installment under Section
412(m) of the Code with respect to any Plan or the failure to make any required contribution to a
Multiemployer Plan; (d) the filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (e)
the incurrence by any Company or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (f) the receipt by any Company or any of its
ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan, or the occurrence of
any event or condition which could reasonably be expected to constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any Plan; (g) the incurrence by any
Company or any of its ERISA Affiliates of any liability with respect to the withdrawal from any
Plan or Multiemployer Plan; (h) the receipt by any Company or its ERISA Affiliates of any notice,
concerning the imposition of material Withdrawal Liability or a determination that a Multiemployer
Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of
ERISA; (i) the “substantial cessation of operations” within the meaning of Section 4062(e) of ERISA
with respect to a Plan; (j) the making of any amendment to any Plan which could result in the
imposition of a lien or the posting of a bond or other security; and (k) the occurrence of a
nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or




	 	 	 
	 
	 	18






 









 







Section 406 of ERISA) which could reasonably be expected to result in a Material Adverse Effect.



     “Eurocurrency Borrowing” shall mean a Borrowing comprised of Eurocurrency Loans.



     “Eurocurrency Loan” shall mean any Loan bearing interest at a rate determined by reference to
the Adjusted LIBOR Rate in accordance with the provisions of ARTICLE II.



     “Eurofoil” shall mean Eurofoil Inc. (USA), a New York corporation.



     “European Cash Pooling Arrangements” shall mean the cash pooling arrangements operated by the
Swiss Borrower and certain of the other Companies pursuant to the Novelis AG Cash Pooling Agreement
and the Commerzbank Cash Pooling Agreement.



     “Event of Default” shall have the meaning assigned to such term in Section 8.01.



     “Excess Amount” shall have the meaning assigned to such term in Section 2.10.



     “Excess Availability” shall mean “Excess Availability” as defined in the Revolving Credit
Agreement as in effect on the Closing Date.



     “Excess Cash Flow” shall mean, for any Excess Cash Flow Period, Consolidated Adjusted EBITDA
for such Excess Cash Flow Period, minus, without duplication:



               (a) Debt Service for such Excess Cash Flow Period;



               (b) (i) any voluntary prepayments of Term Loans, (ii) any voluntary prepayments of
term loans
of NKL permitted under Section 6.01(m), (iii) any voluntary repayments of Revolving Credit
Loans to the extent accompanied by a simultaneous permanent reduction in an equal amount of the
Revolving Credit Commitments (and excluding any such reduction to the extent relating to the
entering into of a replacement Revolving Credit Agreement) and (iv) any voluntary repayments of
revolving Indebtedness of NKL permitted under Section 6.01(m) to the extent accompanied by
a simultaneous permanent reduction in an equal amount of the commitments in respect of such
Indebtedness (and excluding any such reduction to the extent relating to the entering into of
replacement revolving Indebtedness of NKL), in each case, so long as such amounts are not already
reflected in Debt Service, during such Excess Cash Flow Period;



               (c) Capital Expenditures during such Excess Cash Flow Period (excluding Capital Expenditures
made in such Excess Cash Flow Period where a certificate in the form contemplated by the following
clause (d) was previously delivered) that are paid in cash;



               (d) Capital Expenditures that Canadian Borrower or any of its Subsidiaries shall, during such
Excess Cash Flow Period, become obligated to make but that are not made during such Excess Cash
Flow Period; provided that Canadian Borrower shall deliver a certificate to the
Administrative Agent not later than 90 days after the end of such Excess Cash




	 	 	 
	 
	 	19






 










 







Flow Period, signed by a Responsible Officer of Canadian Borrower and certifying that such
Capital Expenditures will be made in the following Excess Cash Flow Period;



               (e) the aggregate amount of Investments made in cash during such period pursuant to
Sections 6.04(e), (h), (l), (m) and (r);



               (f) (i) taxes of Canadian Borrower and its Subsidiaries that were paid in cash during such
Excess Cash Flow Period (excluding taxes paid in such Excess Cash Flow period where a certificate
contemplated by the following clause (ii) was previously delivered) and (ii) taxes of Canadian
Borrower and its Subsidiaries that will be paid within six months after the end of such Excess Cash
Flow Period and for which reserves have been established; provided that Borrower shall
deliver a certificate to the Administrative Agent not later than 90 days after the end of such
Excess Cash Flow Period, signed by a Responsible Officer of Borrower and certifying that such taxes
will be paid within such six month period;



               (g) the absolute value of the difference, if negative, of the amount of Net Working Capital at
the end of the prior Excess Cash Flow Period (or, in the case of the Excess Cash Flow Period for
the first complete fiscal year of Canadian Borrower commencing after the Closing Date, at the first
day of such Excess Cash Flow Period) over the amount of Net Working Capital at the end of such
Excess Cash Flow Period;



               (h) to the extent added to determine Consolidated EBITDA and paid in cash during such Excess
Cash Flow Period, restructuring charges in an amount not to exceed $15 million during the term
hereof;



               (i) losses excluded from the calculation of Consolidated EBITDA by operation of clauses (z)(a)
and (z)(f) of the definition thereof that are paid or realized in cash during such Excess Cash Flow
Period;



               (j) Dividends paid in cash to Holdings during such Excess Cash Flow period in accordance with
Section 6.08(c); and



               (k) to the extent added to determine Consolidated EBITDA, all items that did not result from a
cash payment to Canadian Borrower or any of its Subsidiaries on a consolidated basis during such
Excess Cash Flow Period;


provided that any amount deducted pursuant of any of the foregoing clauses that will be
paid after the close of such Excess Cash Flow Period shall not be deducted again in a subsequent
Excess Cash Flow Period; plus, without duplication:





               (i) the difference, if positive, of the amount of Net Working Capital at the end of
the
prior Excess Cash Flow Period (or, in the case of the Excess Cash Flow Period for the first
complete fiscal year of Canadian Borrower commencing after the Closing Date, at the first
day of such Excess Cash Flow Period) over the amount of Net Working Capital at the end of
such Excess Cash Flow Period;




               (ii) (1) all net cash proceeds received during such Excess Cash Flow Period of
(x) any
equity issuance by, or capital contribution to, Holdings, Canadian




	 	 	 
	 
	 	20






 










 







Borrower or any other Subsidiary of Canadian Borrower to, or made by, persons other
than Companies and (y) any Indebtedness (other than Revolving Credit Loans), in each case,
to the extent (directly or indirectly) used to finance (A) Investments made pursuant to
Sections 6.04(e), (h), (l), (m) and (r), (B)
voluntary prepayments of term loans of NKL (to the extent such voluntary repayment of term
loans of NKL is deducted from Excess Cash Flow pursuant to clause (b)(ii) above), (C)
voluntary repayments of Revolving Credit Loans (to the extent such voluntary repayment of
Revolving Credit Loans is deducted from Excess Cash Flow pursuant to clause (b)(iii) above)
or (D) voluntary repayments of revolving Indebtedness of NKL (to the extent such voluntary
repayment of revolving Indebtedness of NKL is deducted from Excess Cash Flow pursuant to
clause (b)(iv) above); (2) all net cash proceeds received during such Excess Cash Flow
Period of (x) any equity issuance by, or capital contribution to, Holdings, Canadian
Borrower or any other Subsidiary of Canadian Borrower to, or made by, persons other than
Companies and (y) any Indebtedness (other than Revolving Credit Loans), in each case, to the
extent used to finance any Capital Expenditure; and (3) all Net Cash Proceeds of Asset Sales
utilized to make Capital Expenditures in such Excess Cash Flow Period as permitted under
Section 2.10(c);




               (iii) to the extent any permitted Capital Expenditures referred to in clause
(d) above
do not occur in the Excess Cash Flow Period specified in the certificate of Borrower
provided pursuant to clause (d) above, such amounts of Capital Expenditures that were not so
made in the Excess Cash Flow Period specified in such certificates;




               (iv) to the extent any tax payments referred to in clause (f)(ii) above do not
occur in
the Excess Cash Flow Period specified in the certificate of Canadian Borrower provided
pursuant to clause (f)(ii) above, such amounts of tax payments that were not so made in the
Excess Cash Flow Period specified in such certificates;




               (v) to the extent not reflected in Consolidated EBITDA for such Excess Cash Flow
Period, any return on or in respect of Investments received in cash during such period,
which Investments were made pursuant to Sections 6.04(e), (h), (l),
(m) and (r) (excluding any amounts of such Investments financed with the
proceeds of (x) equity issuances by, or capital contributions to, Holdings, Canadian
Borrower or any other Subsidiary of Canadian Borrower to, or made by, persons other than
Companies or (y) Indebtedness (other than Revolving Credit Loans));




               (vi) if deducted in the computation of Consolidated EBITDA, interest income;




               (vii) income and gains excluded from the calculation of Consolidated EBITDA in any
period by operation of clauses (z)(a) or (z)(f) of the definition thereof that are realized
in cash during such Excess Cash Flow Period (other than pursuant to a sale under Section
6.06(k) to the extent that the proceeds of such sale are reinvested in accordance with
Section 6.04(k) during such Excess Cash Flow Period); and




	 	 	 
	 
	 	21






 










 






               (viii) to the extent subtracted in determining Consolidated EBITDA, all items that
did
not result from a cash payment by Borrower or any of its Subsidiaries on a consolidated
basis during such Excess Cash Flow Period.



     “Excess Cash Flow Period” shall mean each fiscal year of Borrower, beginning with the first
complete fiscal year of Borrower commencing after the Closing Date.



     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



     “Excluded Collateral Subsidiary” shall mean, at any date of determination, any Subsidiary
designated as such in writing by Administrative Borrower to the Administrative Agent that, together
with all other Subsidiaries constituting Excluded Collateral Subsidiaries (i) contributed 1.0% or
less of Consolidated EBITDA for the period of four fiscal quarters most recently ended for which
financial statements have been or are required to have been delivered pursuant to Section
5.01(a) or 5.01(b) prior to the date of determination, (ii) had consolidated assets
representing 1.0% or less of the consolidated total assets of Canadian Borrower and its
Subsidiaries on the last day of the most recent fiscal quarter ended for which financial statements
have been or are required to have been delivered pursuant to Section 5.01(a) or
5.01(b) prior to the date of determination, and (iii) is not a Loan Party. The Excluded
Collateral Subsidiaries as of the Closing Date are listed on Schedule 1.01(c).



     “Excluded Subsidiaries” shall mean Subsidiaries of Holdings that (i) are not Loan Parties and
(ii) are not organized in a Principal Jurisdiction.



     “Excluded Taxes” shall mean, with respect to the Agents, any Lender or any other recipient of
any payment to be made by or on account of any obligation of any Borrower hereunder, (a) taxes
imposed on or measured by its overall net income (however denominated), franchise taxes imposed on
it (in lieu of net income taxes) and branch profits taxes imposed on it, by a jurisdiction (or any
political subdivision thereof) as a result of the recipient being organized or having its principal
office or, in the case of any Lender, its applicable lending office in such jurisdiction and (b) in
the case of a Foreign Lender, any U.S. federal withholding tax that (i) is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new lending office), except (x) to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending office (or assignment),
to receive additional amounts from any Borrower with respect to such withholding tax pursuant to
Section 2.15(a) or (y) if such Foreign Lender designates a new foreign lending office or is
an assignee pursuant to a request by any Borrower under Section 2.16; provided that
this subclause (b)(i) shall not apply to any Tax imposed on a Lender in connection with an interest
or participation in any Loan or other obligation that such Lender was required to acquire pursuant
to Section 2.14(d), or (ii) is attributable to such Foreign Lender’s failure to comply with
Section 2.15(e).



     “Executive Order” shall have the meaning assigned to such term in Section 3.22.



     “Existing Lien” shall have the meaning assigned to such term in Section 6.02(c).



     “Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System of the




	 	 	 
	 
	 	22






 










 







United States arranged by federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for the day for such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing selected by it.



     “Fee Letter” shall mean that certain fee letter among Canadian Borrower, the Arrangers, ABN
AMRO, and UBS Loan Finance LLC, dated as of May 25, 2007, as the same may be amended, amended and
restated, supplemented, revised or modified from time to time.



     “Fees” shall mean the fees payable hereunder or under the Fee Letter.



     “Final Maturity Date” shall mean July 6, 2014.



     “Financial Officer” of any person shall mean the chief financial officer, principal accounting
officer, treasurer or controller of such person.



     “Financial Support Direction” shall mean a financial support direction issued by the Pensions
Regulator under Section 43 of the Pensions Act 2004.



     “FIRREA” shall mean the Federal Institutions Reform, Recovery and Enforcement Act of 1989, as
amended.



     “First Priority” means, with respect to any Lien purported to be created in any Collateral
pursuant to any Security Document, that such Lien is the most senior Lien to which such Collateral
is subject, other than Permitted Liens of the type described in Section 6.02(a),
(b), (c), (d), (f), (g), (h), (i),
(j), (k) (to the extent provided in the Intercreditor Agreement), (n),
(o), (q), (r), (s) and (t) which have priority over the
Liens granted pursuant to the Security Documents (and in each case, subject to the proviso to
Section 6.02).



     “Foreign Guarantee” shall have the meaning assigned to such term in Section 7.01.



     “Foreign Lender” shall mean any Lender that is not, for United States federal income tax
purposes, (i) an individual who is a citizen or resident of the United States, (ii) a corporation,
partnership or other entity treated as a corporation or partnership created or organized in or
under the laws of the United States, or any political subdivision thereof, (iii) an estate whose
income is subject to U.S. federal income taxation regardless of its source or (iv) a trust if a
court within the United States is able to exercise primary supervision over the administration of
such trust and one or more United States persons have the authority to control all substantial
decisions of such trust or a trust that properly elected to be treated as a United States person.



     “Foreign Plan” shall mean any pension or other employee benefit or retirement plan, program,
policy, arrangement or agreement maintained or contributed to by any Company with respect to
employees employed outside the United States.



     “Foreign Subsidiary” shall mean a Subsidiary that is organized under the laws of a
jurisdiction other than the United States or any state thereof or the District of Columbia.




	 	 	 
	 
	 	23






 










 





     “Fund” shall mean any person that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the ordinary course.



     “Funded Debt” shall mean, as to any person, all Indebtedness of such person that matures more
than one year from the date of its creation or matures within one year from such date but is
renewable or extendible, at the option of such person, to a date more than one year from such date
or arises under a revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year from such date, including all current
maturities and current sinking fund payments in respect of such Indebtedness whether or not
required to be paid within one year from the date of its creation and, in the case of Canadian
Borrower and its Subsidiaries, Indebtedness in respect of the Loans and the Revolving Credit Loans.



     “GAAP” shall mean generally accepted accounting principles in the United States applied on a
consistent basis.



     “GBP” or “£” shall mean lawful money of the United Kingdom.



     “German Guarantor” shall mean each Subsidiary of Holdings organized in Germany party hereto as
a Guarantor, and each other Subsidiary of Holdings organized in Germany that is required to become
a Guarantor pursuant to the terms hereof.



     “German Security Agreement” shall mean, collectively, any Security Agreement substantially in
the form of Exhibits M-5-1 to 7 among the German Guarantors and the Collateral
Agent for the benefit of the Secured Parties.



     “German Seller” shall mean Novelis Deutschland GmbH, a company organized under the laws of
Germany (including in its roles as seller and collection agent under the Receivables Purchase
Agreement).



     “Governmental Authority” shall mean the government of the United States or any other nation,
or of any political subdivision thereof, whether state, provincial or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the European Union or the
European Central Bank).



     “Governmental Real Property Disclosure Requirements” shall mean any Requirement of Law of any
Governmental Authority requiring notification of the buyer, lessee, mortgagee, assignee or other
transferee of any Real Property, facility, establishment or business, or notification, registration
or filing to or with any Governmental Authority, in connection with the sale, lease, mortgage,
assignment or other transfer (including any transfer of control) of any Real Property, facility,
establishment or business, of the actual or threatened presence or Release in or into the
Environment, or the use, disposal or handling of Hazardous Material on, at, under or near the Real
Property, facility, establishment or business to be sold, leased, mortgaged, assigned or
transferred.




	 	 	 
	 
	 	24






 










 





     “Guarantee Payment” shall have the meaning assigned to such term in Section 7.12(b).



     “Guaranteed Obligations” shall have the meaning assigned to such term in Section 7.01.



     “Guarantees” shall mean the guarantees issued pursuant to ARTICLE VII by the
Guarantors.



     “Guarantors” shall mean each Borrower, Holdings and the Subsidiary Guarantors (including the
U.S. Borrower, Canadian Borrower, Holdings and each other Canadian Guarantor, each U.S. Guarantor,
each Swiss Guarantor, each U.K. Guarantor, the German Guarantor, the Irish Guarantor, the Brazilian
Guarantor, and each other Subsidiary of Holdings that is required to become a Guarantor hereunder).



     “Hazardous Materials” shall mean the following: hazardous substances; hazardous wastes;
polychlorinated biphenyls (“PCBs”) or any substance or compound containing PCBs; asbestos or any
asbestos-containing materials in any form or condition; radon or any other radioactive materials
including any source, special nuclear or by-product material; petroleum, crude oil or any fraction
thereof; and any other pollutant or contaminant or chemicals, wastes, materials, compounds,
constituents or substances, subject to regulation under or which can give rise to liability under
any Environmental Laws.



     “Hedging Agreement” shall mean any swap, cap, collar, forward purchase or similar agreements
or arrangements dealing with interest rates, currency exchange rates or commodity prices, either
generally or under specific contingencies entered into for the purposes of hedging a Company’s
exposure to interest or exchange rates, loan credit exchanges, security or currency valuations or
commodity prices, in each case not for speculative purposes.



     “Hedging Obligations” shall mean obligations under or with respect to Hedging Agreements.



     “Hindalco Acquisition” shall have the meaning assigned to such term in the recitals hereto.



     “Holdings” shall mean (i) prior to the consummation of the Permitted Holdings Amalgamation, AV
Aluminum, and (ii) upon and after the consummation of the Permitted Holdings Amalgamation, AV
Metals.



     “Immaterial Subsidiary” shall mean, at any date of determination, any Subsidiary designated as
such in writing by Administrative Borrower to the Administrative Agent that, together with all
other Subsidiaries constituting Immaterial Subsidiaries (i) contributed 5.0% or less of
Consolidated EBITDA for the period of four fiscal quarters most recently ended for which financial
statements have been or are required to have been delivered pursuant to Section 5.01(a) or
5.01(b) prior to the date of determination, (ii) had consolidated assets representing 5.0%
or less of the consolidated total assets of Canadian Borrower and its Subsidiaries on the last day
of the most recent fiscal quarter ended for which financial statements have been or are required to
have been delivered pursuant to Section 5.01(a) or 5.01(b) prior to the date of




	 	 	 
	 
	 	25






 










 







determination, and (iii) is not a Loan Party. The Immaterial Subsidiaries as of the Closing
Date are listed on Schedule 1.01(d).



     “Increase Effective Date” shall have the meaning assigned to such term in Section
2.23(a).



     “Increase Joinder” shall have the meaning assigned to such term in Section 2.23(c).



     “Incremental Term Loan” shall have the meaning assigned to such term in Section
2.23(c).



     “Incremental Term Loan Commitment” shall have the meaning assigned to such term in Section
2.23(a).



     “Incremental Term Loan Maturity Date” shall have the meaning assigned to such term in
Section 2.23(c).



     “Indebtedness” of any person shall mean, without duplication, (a) all obligations of such
person for borrowed money or advances; (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments; (c) all obligations of such person under conditional sale
or other title retention agreements relating to property purchased by such person; (d) all
obligations of such person issued or assumed as the deferred purchase price of property or services
(excluding trade accounts payable and accrued obligations incurred in the ordinary course of
business on normal trade terms and not overdue by more than ninety (90) days (other than such
overdue trade accounts payable being contested in good faith and by proper proceedings, for which
appropriate reserves are being maintained with respect to such circumstances in accordance with
GAAP or other applicable accounting standards)); (e) all Indebtedness of others secured by any Lien
on property owned or acquired by such person, whether or not the obligations secured thereby have
been assumed, but limited to the fair market value of such property; (f) all Capital Lease
Obligations, Purchase Money Obligations and synthetic lease obligations of such person; (g) all
Hedging Obligations to the extent required to be reflected on a balance sheet of such person; (h)
all Attributable Indebtedness of such person; (i) all obligations of such person for the
reimbursement of any obligor in respect of letters of credit, letters of guaranty, bankers’
acceptances and similar credit transactions; (j) all obligations of such person under any
Securitization Facility; and (k) all Contingent Obligations of such person in respect of
Indebtedness or obligations of others of the kinds referred to in clauses (a) through (j) above.
The Indebtedness of any person shall include the Indebtedness of any other entity (including any
partnership in which such person is a general partner) to the extent such person is liable therefor
as a result of such person’s ownership interest in or other relationship with such entity, except
(other than in the case of general partner liability) to the extent that terms of such Indebtedness
expressly provide that such person is not liable therefor.



     “Indemnified Taxes” shall mean all Taxes other than Excluded Taxes.



     “Indemnitee” shall have the meaning assigned to such term in Section 11.03(b).



     “Information” shall have the meaning assigned to such term in Section 11.12.




	 	 	 
	 
	 	26






 










 





     “Instruments” shall mean all “instruments,” as such term is defined in the UCC as in effect on
the date hereof in the State of New York, in which any Person now or hereafter has rights.



     “Insurance Policies” shall mean the insurance policies and coverages required to be maintained
by each Loan Party which is an owner of Mortgaged Property with respect to the applicable Mortgaged
Property pursuant to Section 5.04 and all renewals and extensions thereof.



     “Insurance Requirements” shall mean, collectively, all provisions of the Insurance Policies,
all requirements of the issuer of any of the Insurance Policies and all orders, rules, regulations
and any other requirements of the National Board of Fire Underwriters (or any other body exercising
similar functions) binding upon each Loan Party which is an owner of Mortgaged Property and
applicable to the Mortgaged Property or any use or condition thereof.



     “Intellectual Property” shall have the meaning assigned to such term in Section
3.06(a).



     “Interbank Rate” shall mean, for any period, (i) in respect of Loans denominated in dollars,
the Federal Funds Effective Rate, and (ii) in respect of Loans denominated in any other currency,
the Administrative Agent’s cost of funds for such period.



     “Intercompany Note” shall mean a promissory note substantially in the form of Exhibit
P, or such other form as may be agreed to by the Administrative Agent in its sole discretion.



     “Intercreditor Agreement” shall mean that certain Intercreditor Agreement dated as of the date
hereof by and among the Companies party thereto, the Administrative Agent, the Collateral Agent,
the Revolving Credit Funding Agent, the Revolving Credit Canadian Administrative Agent, the
Revolving Credit Canadian Administrative Agent and the Revolving Credit Collateral Agent, as the
same may be amended, restated, supplemented or otherwise modified from time to time.



     “Interest Election Request” shall mean a request by Administrative Borrower to convert or
continue a Borrowing in accordance with Section 2.08(b), substantially in the form of
Exhibit E.



     “Interest Payment Date” shall mean (a) with respect to any ABR Loan, the last Business Day of
each March, June, September and December to occur during any period in which such Loan is
outstanding, (b) with respect to any Eurocurrency Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Loan
with an Interest Period of more than three months’ duration, each day prior to the last day of such
Interest Period that occurs at intervals of three months’ duration after the first day of such
Interest Period, and (c) with respect to any Term Loan, the Final Maturity Date.



     “Interest Period” shall mean, with respect to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months, as Administrative Borrower may elect;
provided that (a) if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless such next




	 	 	 
	 
	 	27






 










 







succeeding Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the immediately preceding Business Day, (b) any Interest Period that
commences on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest Period) shall end on the
last Business Day of the last calendar month of such Interest Period, (c) Administrative Borrower
shall not select a Interest Period that would extend beyond the Final Maturity Date, (d)
Administrative Borrower shall not select Interest Periods so as to require a payment or prepayment
of any Eurocurrency Loans during an Interest Period for such Loans and (e) any Eurocurrency
Borrowings made or continued during the period ending on the earlier of (x) three months following
the Closing Date and (y) the completion of the primary syndication of the Commitments (as
determined by the Arrangers), shall have a Interest Period of one month. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation of such Borrowing.



     “Inventory” shall mean all “inventory,” as such term is defined in the UCC as in effect on the
date hereof in the State of New York, wherever located, in which any Person now or hereafter has
rights.



     “Investments” shall have the meaning assigned to such term in Section 6.04.



     “Irish Guarantor” shall mean each Subsidiary of Holdings organized in Ireland party hereto as
a Guarantor, and each other Subsidiary of Holdings organized in Ireland that is required to become
a Guarantor pursuant to the terms hereof.



     “Irish Security Agreement” shall mean, collectively, any Security Agreement substantially in
the form of Exhibits M-6-1 to 5 among the Irish Guarantors and the Collateral Agent
for the benefit of the Secured Parties.



     “Joinder Agreement” shall mean a joinder agreement substantially in the form of Exhibit
F, or such other form as may be agreed to by the Administrative Agent in its sole discretion.



     “Joint Venture” shall mean any person (a) that is not a direct or indirect Subsidiary of
Holdings and (b) in which Canadian Borrower, in the aggregate, together with its Subsidiaries, is
directly or indirectly, the beneficial owner of 5% or more of any class of Equity Interests of such
person.



     “Joint Venture Subsidiary” shall mean each of (i) Aluminum Company of Malaysia Berhard
(Malaysia), (ii) NKL and (iii) any other person that is a Subsidiary in which persons other than
Holdings or its Affiliates own 10% or more of the Equity Interests of such person, excluding Logan
and Norf GmbH.



     “Judgment Currency” shall have the meaning assigned to such term in Section 11.18(a).



     “Judgment Currency Conversion Date” shall have the meaning assigned to such term in
Section 11.18(a).




	 	 	 
	 
	 	28






 










 





     “Land Registry” shall mean the Land Registry of England and Wales.



     “Landlord Access Agreement” shall mean a Landlord Access Agreement, substantially in the form
of Exhibit G, or such other form as may reasonably be acceptable to the Administrative
Agent.



     “Leases” shall mean any and all leases, subleases, tenancies, options, concession agreements,
rental agreements, occupancy agreements, franchise agreements, access agreements and any other
agreements (including all amendments, extensions, replacements, renewals, modifications and/or
guarantees thereof), whether or not of record and whether now in existence or hereafter entered
into, affecting the use or occupancy of all or any portion of any Real Property.



     “Lender Addendum” shall mean with respect to any Lender on the Closing Date, a lender addendum
in the form of Exhibit I, to be executed and delivered by such Lender on the Closing Date
as provided in Section 11.15, as the same may be amended, restated, supplemented or
otherwise modified from time to time.



     “Lenders” shall mean (a) the financial institutions that have become a party hereto pursuant
to a Lender Addendum and (b) any financial institution that has become a party hereto pursuant to
an Assignment and Assumption, other than, in each case, any such financial institution that has
ceased to be a party hereto pursuant to an Assignment and Assumption.



     “LIBOR Rate” shall mean, with respect to any Eurocurrency Borrowing for any Interest Period,
the rate per annum determined by the Administrative Agent to be the arithmetic mean of the offered
rates for deposits in Dollars with a term comparable to such Interest Period that appears on the
Telerate British Bankers Assoc. Interest Settlement Rates Page (as defined below) at approximately
11:00 a.m., London, England time, on the second full Business Day preceding the first day of such
Interest Period; provided, however, that (i) if no comparable term for an Interest
Period is available, the LIBOR Rate shall be determined using the weighted average of the offered
rates for the two terms most nearly corresponding to such Interest Period and (ii) if there shall
at any time no longer exist a Telerate British Bankers Assoc. Interest Settlement Rates Page,
“LIBOR Rate” shall mean, with respect to each day during each Interest Period pertaining to
Eurocurrency Borrowings comprising part of the same Borrowing, the rate per annum equal to the rate
at which the Administrative Agent is offered deposits in Dollars at approximately 11:00 a.m.,
London, England time, two (2) Business Days prior to the first day of such Interest Period in the
London interbank market for delivery on the first day of such Interest Period for the number of
days comprised therein and in an amount comparable to the amount of such Eurocurrency Borrowing to
be outstanding during such Interest Period (or such other amount as the Administrative Agent may
reasonably determine). “Telerate British Bankers Assoc. Interest Settlement Rates Page” shall mean
the display designated as Page 3750 on the Telerate System Incorporated Service (or such other page
as may replace such page on such service for the purpose of displaying the rates at which Dollar
deposits are offered by leading banks in the London interbank deposit market).



     “Lien” shall mean, with respect to any property, (a) any mortgage, deed of trust, lien,
pledge, encumbrance, charge, assignment, hypothecation, security interest or similar




	 	 	 
	 
	 	29






 










 







encumbrance of any kind or any arrangement to provide priority or preference in respect of such property or any
filing of any financing statement or any financing change statement under the UCC, the PPSA or any other similar
notice of lien under any similar notice or recording statute of any Governmental Authority (other than any unauthorized
notice or filing filed after the Closing Date for which there is not otherwise any underlying lien or obligation, so long as the
Borrowers are (if aware of same) using commercially reasonable efforts to cause the removal of
same), including any easement, right-of-way or other encumbrance on title to Real Property, in each
of the foregoing cases whether voluntary or imposed by law, and any agreement to give any of the
foregoing; (b) the interest of a vendor or a lessor under any conditional sale agreement, capital
lease or title retention agreement (or any financing lease having substantially the same economic
effect as any of the foregoing) relating to such property; and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such securities.



     “Loan Documents” shall mean this Agreement, the Intercreditor Agreement, the Contribution,
Intercompany, Contracting and Offset Agreement, the Notes (if any), the Security Documents, each
Foreign Guaranty, the Fee Letter, each Hedging Agreement entered into with any counterparty that is
a Secured Party (provided that such Hedging Agreements shall be deemed not to be Loan
Documents for purposes of Sections 1.03 and 1.04 and Articles II,
VI, VIII and XI hereof), and all other pledges, powers of attorney,
consents, assignments, certificates, agreements or documents, whether heretofore, now or hereafter
executed by or on behalf of any Loan Party for the benefit of any Agent or any Lender in connection
with this Agreement.



     “Loan Parties” shall mean Holdings, the Borrowers and the Subsidiary Guarantors.



     “Loans” shall mean Term Loans.



     “Logan” shall mean Logan Aluminum Inc., a Delaware corporation.



     “Logan Location” shall mean the premises of Logan Aluminum Inc., Route 431, North
Russellville, Kentucky 42276.



     “Mandatory Cost” shall mean the per annum percentage rate calculated by the Administrative
Agent in accordance with Annex III.



     “Margin Stock” shall have the meaning assigned to such term in Regulation U.



     “Material Adverse Effect” shall mean (a) a material adverse effect on the business, property,
results of operations, or financial condition of the Loan Parties and their Subsidiaries, taken as
a whole; (b) material impairment of the ability of the Loan Parties to perform their payment and
other material obligations under the Loan Documents; (c) material impairment of the rights of or
benefits or remedies available to the Lenders or the Collateral Agent under the Loan Documents,
taken as a whole; or (d)(i) a material adverse effect on the Revolving Credit Priority Collateral
or the Liens in favor of the Collateral Agent (for its benefit and for the benefit of the other
Secured Parties) on such Collateral or the priority of such Liens, in each case for this clause
(d)(i) taken as a whole, or (ii) a material adverse effect on the Term Loan Priority Collateral or
the Liens in favor of the Collateral Agent (for its benefit and for the benefit of the




	 	 	 
	 
	 	30






 










 







other Secured Parties) on such Collateral or the priority of such Liens, in each case for this clause
(d)(ii) taken as a whole.



     “Material Indebtedness” shall mean (a) Indebtedness under the Revolving Credit Loan Documents
and any Permitted Revolving Credit Facility Refinancings thereof, (b) Indebtedness under the Senior
Notes, the Subordinated Debt Loan and any Permitted Refinancings thereof and (c) any other
Indebtedness (other than the Loans and intercompany Indebtedness of the Companies permitted
hereunder) of the Loan Parties in an aggregate outstanding principal amount exceeding $50 million.



     “Material Subsidiary” shall mean any Subsidiary of Canadian Borrower that is not an Immaterial
Subsidiary.



     “Maximum Rate” shall have the meaning assigned to such term in Section 11.14.



     “Maximum Revolving Credit Facility Amount” shall mean, at any time, the greater of (i) $900
million and (ii) the amount, at such time, of the Total Borrowing Base under and as defined in the
Revolving Credit Agreement as in effect on the Closing Date.



     “Minimum Amount” shall mean (i) an integral multiple of $1 million and not less than $5
million for ABR Loans and (ii) an integral multiple of $1 million and not less than $5 million for
Eurocurrency Loans.



     “Moody’s” shall mean Moody’s Investors Service, Inc.



     “Mortgage” shall mean an agreement, including, but not limited to, a mortgage, charge, deed of
trust, deed of hypothec or any other document, creating and evidencing a Lien on a Mortgaged
Property, which shall be substantially in the form of Exhibit J or, subject to the terms of
the Intercreditor Agreement, other form reasonably satisfactory to the Collateral Agent, in each
case, with such schedules and including such provisions as shall be necessary to conform such
document to applicable local or foreign law or as shall be customary under applicable local or
foreign law.



     “Mortgaged Property” shall mean (a) each Real Property identified as a Mortgaged Property on
Schedule 8(a) to any Perfection Certificate dated the Closing Date, (b) each future Real
Property covered by the terms of any Mortgage, and (c) each Real Property, if any, which shall be
subject to a Mortgage (or other Lien created by a Security Document) delivered after the Closing
Date pursuant to Section 5.11(c).



     “Multiemployer Plan” shall mean a multiemployer plan within the meaning of Section 4001(a)(3)
or Section 3(37) of ERISA (a) to which any Company or any ERISA Affiliate is then making or
accruing an obligation to make contributions; (b) to which any Company or any ERISA Affiliate has
within the preceding five plan years made contributions; or (c) with respect to which any Company
could incur liability.



     “Net Cash Proceeds” shall mean:




	 	 	 
	 
	 	31






 










 






     (a) with respect to any Asset Sale, the cash proceeds received by Holdings or any of
its Subsidiaries (including cash proceeds subsequently received (as and when received by
Holdings or any of its Subsidiaries) in respect of non-cash consideration initially
received) net of (without duplication) (i) selling expenses (including reasonable
brokers’ fees or commissions, legal, accounting and other professional and
transactional fees, transfer and similar taxes and Administrative Borrower’s good faith
estimate of income taxes paid or payable in connection with such sale and repatriation Taxes
that are or would be payable in connection with any sale by a Foreign Subsidiary); (ii)
amounts provided as a reserve, in accordance with GAAP, against (x) any liabilities under
any indemnification obligations associated with such Asset Sale or (y) any other liabilities
retained by Holdings or any of its Subsidiaries associated with the properties sold in such
Asset Sale (provided that, to the extent and at the time any such amounts are
released from such reserve, such amounts shall constitute Net Cash Proceeds); (iii)
Administrative Borrower’s good faith estimate of payments required to be made with respect
to unassumed liabilities relating to the properties sold within ninety (90) days of such
Asset Sale (provided that, to the extent such cash proceeds are not used to make
payments in respect of such unassumed liabilities within ninety (90) days of such Asset
Sale, such cash proceeds shall constitute Net Cash Proceeds); (iv) the principal amount,
premium or penalty, if any, interest and other amounts on any Indebtedness for borrowed
money (other than the Revolving Credit Loans) which is secured by a Lien on the properties
sold in such Asset Sale (so long as such Lien was permitted to encumber such properties
under the Loan Documents at the time of such sale) and which is repaid with such proceeds
(other than any such Indebtedness assumed by the purchaser of such properties); and (v) so
long as any Revolving Credit Loans remain outstanding, the proceeds of any Revolving Credit
Priority Collateral of any Loan Party sold in such Asset Sale (which shall include, for the
avoidance of doubt, the portion of the sale price of the Equity Interests or all or
substantially all of the property, assets or business of any Subsidiary of Holdings
consisting of the net book value of any such Revolving Credit Priority Collateral) to the
extent the proceeds thereof are required to be (and are) applied to the repayment of the
Revolving Credit Loans pursuant to the terms of the Revolving Credit Agreement;




     (b) with respect to any Debt Issuance or any Preferred Stock Issuance, the cash
proceeds thereof, net of customary fees, commissions, costs and other expenses incurred in
connection therewith; and




     (c) with respect to any Equity Issuance or any other issuance of Equity Interests
(other than Preferred Stock) by Holdings, the cash proceeds thereof, net of customary fees,
commissions, costs and other expenses incurred in connection therewith; and




     (d) with respect to any Casualty Event, the cash insurance proceeds, condemnation
awards and other compensation received in respect thereof, net of (i) all reasonable costs
and expenses incurred in connection with the collection of such proceeds, awards or other
compensation in respect of such Casualty Event; and (ii) so long as any Revolving Credit
Loans remain outstanding, any such cash insurance proceeds, condemnation awards and other
compensation received in respect of Revolving




	 	 	 
	 
	 	32






 










 







Credit Priority Collateral of any Loan Party to the extent such amounts are required to be (and are) applied to the repayment of the
Revolving Credit Loans pursuant to the terms of the Revolving Credit Agreement;


provided, however, that Net Cash Proceeds arising from any Asset Sale, Preferred
Stock Issuance or Casualty Event by or applicable to a non-Wholly Owned Subsidiary shall equal the
amount of such Net Cash Proceeds calculated as provided above less the percentage thereof equal to
the percentage of any Equity Interests of such non-Wholly Owned Subsidiary not owned by Holdings
and its Subsidiaries.




     “Net Cash Proceeds Account” means any segregated Deposit Account or Securities Account
established by any Borrower or any other Guarantor with one or more financial institutions
reasonably satisfactory to the Collateral Agent (which, in the case of an account established by
Canadian Borrower, shall not be a Lender or an Affiliate of a Lender) that (i) is subject to a
Control Agreement, (ii) is subject to a First Priority security interest in favor of the Collateral
Agent for the ratable benefit of the Secured Parties to secure the Secured Obligations and (iii)
solely contains proceeds of Term Loan Priority Collateral (and any products of such proceeds), and
which has been designated in writing to the Revolving Credit Agents as a “Net Cash Proceeds
Account” on or prior to the time that the Net Cash Proceeds from any sale of Term Loan Priority
Collateral shall be deposited therein, pending application of such proceeds (and any products of
such proceeds) in accordance with the terms hereof.



     “Net Working Capital” shall mean, at any time, Consolidated Current Assets at such time minus
Consolidated Current Liabilities at such time.



     “Net Yield” shall have the meaning assigned to such term in Section 2.23(c).



     “NKL” shall mean Novelis Korea Limited.



     “Non-Guarantor Subsidiary” shall mean each Subsidiary that is not a Guarantor.



     “Norf GmbH” shall mean Aluminium Norf GmbH, a limited liability company (GmbH) organized under
the laws of Germany.



     “Notes” shall mean any notes evidencing the U.S. Term Loans or Canadian Terms Loans issued
pursuant to this Agreement, if any, substantially in the form of Exhibit K-1 or
K-2.



     “Novelis AG” shall mean Novelis AG, a stock corporation (AG) organized under the laws of
Switzerland.



     “Novelis AG Cash Pooling Agreement” shall mean a Cash Management Agreement entered into among
Novelis AG and certain “European Affiliates” (as identified therein) dated 1 February 2007,
together with all ancillary documentation thereto.



     “Novelis Corporation” shall mean Novelis Corporation, a Texas corporation.



     “Novelis Inc.” shall mean Novelis Inc., a corporation formed under the Canada Business
Corporations Act.




	 	 	 
	 
	 	33






 










 





     “Obligation Currency” shall have the meaning assigned to such term in Section
11.18(a).



     “Obligations” shall mean (a) obligations of the Borrowers and the other Loan Parties from time
to time arising under or in respect of the due and punctual payment of (i) the principal of and
premium, if any, and interest (including interest accruing (and interest that would have accrued
but for such proceeding) during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans,
when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or
otherwise and (ii) all other monetary obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations
incurred during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of the Borrowers and
the other Loan Parties under this Agreement and the other Loan Documents, and (b) the due and
punctual performance of all covenants, agreements, obligations and liabilities of the Borrowers and
the other Loan Parties under or pursuant to this Agreement and the other Loan Documents.



     “OFAC” shall have the meaning assigned to such term in Section 3.22.



     “Officers’ Certificate” shall mean a certificate executed by a Responsible Officer in his or
her official (and not individual) capacity.



     “Organizational Documents” shall mean, with respect to any person, (i) in the case of any
corporation, the certificate of incorporation and by-laws (or similar documents) of such person,
(ii) in the case of any limited liability company, the certificate of formation and operating
agreement (or similar documents) of such person, (iii) in the case of any limited partnership, the
certificate of formation and limited partnership agreement (or similar documents) of such person,
(iv) in the case of any general partnership, the partnership agreement (or similar document) of
such person and (v) in any other case, the functional equivalent of the foregoing.



     “Other Taxes” shall mean all present or future stamp, recording, documentary, excise,
transfer, sales, property or similar taxes, charges or levies arising from any payment made
hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document.



     “Parent Guarantor” shall mean (i) prior to the consummation of the Permitted Holdings
Amalgamation, AV Aluminum, and (ii) upon and after the consummation of the Permitted Holdings
Amalgamation, AV Metals.



     “Participant” shall have the meaning assigned to such term in Section 11.04(d).



     “Participating Member States” shall mean the member states of the European Communities that
adopt or have adopted the euro as their lawful currency in accordance with the legislation of the
European Union relating to European Monetary Union.



     “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.





	 	 	 
	 
	 	34






 












 





     “Pensions Regulator” shall mean the body corporate called the Pensions Regulator established
under Part I of the Pensions Act 2004.



     “Perfection Certificate” shall mean, individually and collectively, as the context may
require, each certificate of a Loan Party in the form of Exhibit L-1 or any other form
approved by the Collateral Agent, as the same shall be supplemented from time to time by a
Perfection Certificate Supplement or otherwise.



     “Perfection Certificate Supplement” shall mean a certificate supplement in the form of
Exhibit L-2 or any other form approved by the Collateral Agent.



     “Permitted Acquisition” shall mean any Acquisition, if each of the following conditions is
met:




     (i) no Default is then continuing or would result therefrom;




     (ii) no Company shall, in connection with any such transaction, assume or remain liable
with respect to any Indebtedness of the related seller or the business, person or properties
acquired, except to the extent permitted under Section 6.01, and any other such
Indebtedness not permitted to be assumed or otherwise supported by any Company hereunder
shall be paid in full or released as to the business, persons or properties being so
acquired on or before the consummation of such acquisition;




     (iii) the person or business to be acquired shall be, or shall be engaged in, a
business of the type that the Loan Parties and the Subsidiaries are permitted to be engaged
in under Section 6.15, and the person or business and any property acquired in
connection with any such transaction shall be free and clear of any Liens, other than
Permitted Liens;




     (iv) the Board of Directors of the person to be acquired shall not have indicated
publicly its opposition to the consummation of such acquisition (which opposition has not
been publicly withdrawn);




     (v) all transactions in connection therewith shall be consummated in all material
respects in accordance with all applicable Requirements of Law;




     (vi) with respect to any transaction involving Acquisition Consideration of more than
$25 million, unless the Administrative Agent shall otherwise agree, Administrative Borrower
shall have provided the Administrative Agent with (A) ten (10) Business Days’ prior written
notice of such transaction, which notice shall describe in reasonable detail the terms and
conditions of such transaction and the person or business to be acquired and (B) all such
other information and data relating to such transaction or the person or business to be
acquired as may be reasonably requested by the Administrative Agent;




     (vii) the property acquired in connection with any such transaction shall be made
subject to the Lien of the Security Documents, and any person acquired in connection with
any such transaction shall become a Guarantor, in each case, to the



	 	 	 
	 
	 	35






 









 







extent required under, and within the relevant time periods provided in, Section
5.11, on terms reasonably satisfactory to the Agents, and the Agents shall have received
all opinions, certificates, lien search results and other documents in connection therewith
reasonably requested by the Agents;




     (viii) with respect to any transaction involving Acquisition Consideration that, when
added to the fair market value of Equity Interests, including Equity Interests of Holdings,
constituting purchase consideration, exceeds $10 million, Administrative Borrower shall have
delivered to the Administrative Agent an Officers’ Certificate certifying that (A) such
transaction complies with this definition and (B) such transaction could not reasonably be
expected to result in a Material Adverse Effect;




     (ix) the Acquisition Consideration for such acquisition shall not exceed $250 million,
and the aggregate amount of the Acquisition Consideration for all Permitted Acquisitions
since the Closing Date shall not exceed $500 million; and




     (x) not more than 35% of the aggregate amount of all such Permitted Acquisitions (as
determined by reference to the aggregate amount of the Acquisition Consideration applied in
respect thereof) shall be of persons that do not become Loan Parties in accordance with
Section 5.11 upon consummation of such Permitted Acquisitions.



     “Permitted Factoring Facility” shall mean a sale of Accounts on a discounted basis by any
Company that is not a Borrower and is not organized under the laws of, and does not conduct
business in, a Principal Jurisdiction, so long as (i) no Loan Party has any obligation, contingent
or otherwise in connection with such sale (other than to deliver the Accounts purported to be sold
free and clear of any encumbrance), and (ii) such sale is for cash and fair market value.



     “Permitted Holdings Amalgamation” shall mean the amalgamation of AV Aluminum and Canadian
Borrower on a single occasion following the Closing Date; provided that (i) no Default
exists or would result therefrom, (ii) the person resulting from such amalgamation shall be named
Novelis Inc., and shall be a corporation formed under the Canada Business Corporations Act (such
resulting person, the “Successor Canadian Borrower”), and the Successor Canadian Borrower shall
expressly confirm its obligations as Canadian Borrower under this Agreement and the other Loan
Documents to which Canadian Borrower is a party pursuant to a confirmation in form and substance
reasonably satisfactory to the Administrative Agent, (iii) immediately upon consummation of such
amalgamation, AV Metals shall (A) be an entity organized or existing under the laws of Canada, (B)
directly own 100% of the Equity Interests in the Successor Canadian Borrower, (C) execute a
supplement or joinder to this Agreement in form and substance reasonably satisfactory to the
Administrative Agent to become a Guarantor and execute Security Documents (or supplements or
joinder agreements thereto) in form and substance reasonably satisfactory to the Administrative
Agent, and take all actions necessary or advisable in the opinion of the Administrative Agent or
the Collateral Agent to cause the Lien created by the applicable Security Documents to be a duly
perfected First Priority Lien in accordance with all applicable Requirements of Law, including the
filing of financing statements (or other applicable filings) in such jurisdictions as may be
reasonably requested by



	 	 	 
	 
	 	36






 









 





the Administrative Agent or the Collateral Agent and (D) subject to the terms of the
Intercreditor Agreement, pledge and deliver to the Collateral Agent the certificates, if any,
representing all of the Equity Interests of the Successor Canadian Borrower, together with undated
stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly
authorized officer of AV Metals, (iv) immediately after giving effect to any such amalgamation, the
Senior Secured Leverage Ratio is not greater than the Senior Secured Leverage Ratio immediately
prior to such amalgamation, and evidenced by a certificate from the chief financial officer of
Canadian Borrower demonstrating such compliance calculation in reasonable detail, (v) the Successor
Canadian Borrower shall have no Indebtedness after giving effect to the Permitted Holdings
Amalgamation other than Indebtedness of Canadian Borrower in existence prior to the date of the
Permitted Holdings Amalgamation and the Subordinated Debt Loan so long as the Subordinated Debt
Loan shall have been amended in a manner satisfactory to the Funding Agent to reflect the
subordination of the Subordinated Debt Loan to Canadian Borrower’s Secured Obligations and the
Subordinated Debt Loan, if any, has been pledged by AV Metals as security for its guarantee of the
Secured Obligations in a manner satisfactory to the Administrative Agent, (vi) each other
Guarantor, shall have by a confirmation in form and substance reasonably satisfactory to the
Administrative Agent, confirmed that its guarantee of the Guaranteed Obligations (including its
Guarantee) shall apply to the Successor Canadian Borrower’s obligations under this Agreement, (vii)
Canadian Borrower and each other Guarantor shall have by confirmations and any required supplements
to the applicable Security Documents reasonably requested by the Administrative Agent, in each
case, in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its
obligations thereunder shall apply to the Successor Canadian Borrower’s obligations under this
Agreement and (viii) each Loan Party shall have delivered opinions of counsel and related officers’
certificates reasonably requested by the Administrative Agent with respect to the execution and
delivery and enforceability of the documents referred to above and the compliance of such
amalgamation with the provisions hereof, and all such opinions of counsel shall be satisfactory to
the Administrative Agent; and provided, further, that (x) if the foregoing are
satisfied, (1) AV Metals will be substituted for and assume all obligations of AV Aluminum under
this Agreement and each of the other Loan Documents and (2) the Successor Canadian Borrower shall
be substituted for Novelis Inc. under this Agreement and each of the other Loan Documents and all
references hereunder and under the other Loan Documents to Canadian Borrower shall be references to
the Successor Canadian Borrower and (y) notwithstanding any provision of Section 11.02, the
Agents are hereby authorized by the Lenders to make any amendments to the Loan Documents that are
necessary to reflect such changes in the parties to the applicable Loan Documents.




     “Permitted Holdings Indebtedness” shall mean unsecured Indebtedness of Holdings (i) with
respect to which no Borrower or Subsidiary has any Contingent Obligation, (ii) that will not mature
prior to the 180th day following the Final Maturity Date, (iii) that has no scheduled
amortization of principal prior to the 180th day following the Final Maturity Date, (iv)
does not require any payments in cash of interest or other amounts in respect of the principal
thereof (other than optional redemption provisions customary for senior discount or “pay-in-kind”
notes) for a number of years from the date of issuance or incurrence thereof equal to at least
one-half of the term to maturity thereof, (v) has mandatory prepayment, repurchase or redemption,
covenant, default and remedy provisions customary for senior discount or “pay-in-kind” notes of an
issuer that is the parent of a borrower under senior secured asset based revolving credit
facilities and (vi) that is issued to a person that is not an Affiliate of Canadian Borrower or any
of its



	 	 	 
	 
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Subsidiaries in an arm’s-length transaction on fair market terms; provided that at
least five Business Days prior to the incurrence of such Indebtedness, a Responsible Officer of
Holdings shall have delivered a certificate to the Administrative Agent (together with a reasonably
detailed description of the material terms and conditions of such Indebtedness or drafts of the
documentation relating thereto) stating that Holdings has determined in good faith that such terms
and conditions satisfy the foregoing requirements.




     “Permitted Liens” shall have the meaning assigned to such term in Section 6.02.



     “Permitted Refinancing” shall mean, with respect to any person, any refinancing or renewal of
any Indebtedness of such person; provided that (a) (i) in the case of any such refinancing
or renewal of the Subordinated Debt Loan, if the aggregate principal amount (or accreted value, if
applicable) of such refinancing or renewal exceeds the aggregate principal amount (or accreted
value, if applicable) of the Indebtedness so refinanced or renewed plus accrued interest
thereon and reasonable fees and expenses payable in connection with such refinancing, the amount of
any such excess is contributed by Holdings to Canadian Borrower concurrently with such refinancing
or renewal and (ii) in the case of any refinancing or renewal of any other Indebtedness, the
aggregate principal amount (or accreted value, if applicable) thereof does not exceed the aggregate
principal amount (or accreted value, if applicable) of the Indebtedness so refinanced or renewed
except by an amount equal to unpaid accrued interest and premium thereon and any make-whole
payments applicable thereto plus other reasonable amounts paid, and fees and expenses
reasonably incurred, in connection with such refinancing or renewal and by an amount equal to any
existing commitments unutilized thereunder, (b) such refinancing or renewal has a final maturity
date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity
equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being
refinanced or renewed (excluding the effects of nominal amortization in the amount of no greater
than one percent per annum and prepayments of Indebtedness), (c) no Default is then continuing or
would result therefrom, (d) the persons that are (or are required to be) obligors under such
refinancing or renewal are the same persons as those that are (or are required to be) obligors
under the Indebtedness being so refinanced or renewed (or, in the case of a Permitted Refinancing
of the Senior Notes, such obligors are Loan Parties (other than Holdings)) and (e) the
subordination provisions thereof (if any) shall be, in the aggregate, no less favorable to the
Lenders than those contained in the Indebtedness being so refinanced or renewed; provided
that at least five Business Days prior to the incurrence of such refinancing or renewal, a
Responsible Officer of Administrative Borrower shall have delivered an Officers’ Certificate to the
Administrative Agent (together with a reasonably detailed description of the material terms and
conditions of such Indebtedness or drafts of the documentation relating thereto) certifying that
Administrative Borrower has determined in good faith that such terms and conditions satisfy the
foregoing requirements.



     “Permitted Revolving Credit Facility Refinancing” shall mean any refinancing or renewal of the
Indebtedness incurred under the Revolving Credit Loan Documents; provided that (a) the
aggregate principal amount (or accreted value, if applicable) of all such Indebtedness, after
giving effect to such refinancing or renewal, shall not exceed the Maximum Revolving Credit
Facility Amount then in effect plus an amount equal to unpaid accrued interest and premium
on the Indebtedness being so refinanced or renewed plus other reasonable amounts paid, and
fees and expenses reasonably incurred, in connection with such refinancing or renewal,



	 	 	 
	 
	 	38






 









 





(b) the “Applicable Margin” or similar component of the interest rate or yield provisions
applicable to such Indebtedness, after giving effect to such refinancing or renewal, is not
increased from the highest “Applicable Margin” set forth in the Revolving Credit Loan Documents as
of the Closing Date by more than 3% per annum (excluding increases resulting from the accrual of
interest at the default rate specified in the Revolving Credit Agreement), (c) such refinancing or
renewal has a final maturity date equal to or later than the final maturity date of the
Indebtedness being so refinanced or renewed, (d) no Default is existing or would result therefrom
and (e) the persons that are (or are required to be) obligors under such refinancing or renewal are
the same persons as those that are (or are required to be) obligors under the Indebtedness being so
refinanced or renewed (unless, in the case of a refinancing of Indebtedness of a Loan Party, such
persons are or become obligors under the Loan Documents); provided that at least five
Business Days prior to the incurrence of such refinancing or renewal, a Responsible Officer of
Administrative Borrower shall have delivered an Officers’ Certificate to the Administrative Agent
(together with a reasonably detailed description of the material terms and conditions of such
Indebtedness or drafts of the documentation relating thereto) certifying that Administrative
Borrower has determined in good faith that such terms and conditions satisfy the foregoing
requirements.




     “Permitted Uses” shall mean, as to any person, (a) investments in Cash Equivalents, (b) the
payment of Capital Lease Obligations of such person, (c) Capital Expenditures of such person, (d)
the payment of trade payables in the ordinary course of its business, and (e) the payment of its
Taxes and other statutory obligations.



     “person” or “Person” shall mean any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority or other entity.



     “Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject
to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA which is
maintained or contributed to by any Company or its ERISA Affiliate or with respect to which any
Company could incur liability (including under Section 4069 of ERISA).



     “Platform” shall have the meaning assigned to such term in Section 11.01(d).



     “Pledged Intercompany Notes” shall mean, with respect to each Loan Party, all intercompany
notes described in Schedule 11 to the Perfection Certificate as of the Closing Date and
intercompany notes hereafter acquired by such Loan Party and all certificates, instruments or
agreements evidencing such intercompany notes, and all assignments, amendments, restatements,
supplements, extensions, renewals, replacements or modifications thereof to the extent permitted
pursuant to the terms hereof.



     “Pledged Securities” shall mean, collectively, with respect to each Loan Party, (i) all issued
and outstanding Equity Interests of each issuer set forth on Schedule 10 to the Perfection
Certificate as of the Closing Date as being owned by such Loan Party and all options, warrants,
rights, agreements and additional Equity Interests of whatever class of any such issuer acquired by
such Loan Party (including by issuance), together with all rights, privileges, authority and powers
of such Loan Party relating to such Equity Interests in each such issuer or under any



	 	 	 
	 
	 	39






 









 





Organizational Document of each such issuer, and the certificates, instruments and agreements
representing such Equity Interests and any and all interest of such Loan Party in the entries on
the books of any financial intermediary pertaining to such Equity Interests, (ii) all Equity
Interests of any issuer, which Equity Interests are hereafter acquired by such Loan Party
(including by issuance) and all options, warrants, rights, agreements and additional Equity
Interests of whatever class of any such issuer acquired by such Loan Party (including by issuance),
together with all rights, privileges, authority and powers of such Loan Party relating to such
Equity Interests or under any Organizational Document of any such issuer, and the certificates,
instruments and agreements representing such Equity Interests and any and all interest of such Loan
Party in the entries on the books of any financial intermediary pertaining to such Equity
Interests, from time to time acquired by such Loan Party in any manner, and (iii) all Equity
Interests issued in respect of the Equity Interests referred to in clause (i) or (ii) upon any
consolidation or merger of any issuer of such Equity Interests.




     “Post-Increase Lenders” shall have the meaning assigned to such term in Section
2.23(d).



     “PPSA” shall mean the Personal Property Security Act (Ontario) and the regulations promulgated
thereunder and other applicable personal property security legislation of the applicable Canadian
province or provinces in respect of the Canadian Loan Parties (including the Civil Code of Quebec
and the regulations respecting the register of personal and movable real rights promulgated
thereunder) as all such legislation now exists or may from time to time hereafter be amended,
modified, recodified, supplemented or replaced, together with all rules, regulations and
interpretations thereunder or related thereto.



     “Pre-Increase Lenders” shall have the meaning assigned to such term in Section
2.23(d).



     “Preferred Stock” shall mean, with respect to any person, any and all preferred or preference
Equity Interests (however designated) of such person whether now outstanding or issued after the
Closing Date.



     “Preferred Stock Issuance” shall mean the issuance or sale by Holdings or any of its
Subsidiaries of any Preferred Stock after the Closing Date.



     “Prepayment Offer Amounts” shall have the meaning assigned to such term in Section
2.10(i)(ii).



     “Prepayment Offer Notice” shall have the meaning assigned to such term in Section
2.10(i)(ii).



     “Principal Jurisdiction” shall mean the United States, Canada, the United Kingdom,
Switzerland, Germany and any state, province or other political subdivision of the foregoing.



     “Pro Forma Basis” shall mean on a basis in accordance with GAAP and Regulation S-X and
otherwise reasonably satisfactory to the Administrative Agent.



	 	 	 
	 
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     “Pro Rata Percentage” of any Lender at any time shall mean the percentage of the sum of the
total outstanding Loans and unused Commitments of all Lenders represented by such Lender’s
outstanding Loans and unused Commitments.



     “Process Agent” shall have the meaning assigned to such term in Section 11.09(d).



     “property” shall mean any right, title or interest in or to property or assets of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible and including Equity
Interests or other ownership interests of any person and whether now in existence or owned or
hereafter entered into or acquired, including all Real Property.



     “Property Material Adverse Effect” shall mean, with respect to any Mortgaged Property, as of
any date of determination and whether individually or in the aggregate, any event, circumstance,
occurrence or condition which has caused or resulted in (or would reasonably be expected to cause
or result in) a material adverse effect on (a) the business or operations of any Company as
presently conducted at the Mortgaged Property; (b) the value or utility of the Mortgaged Property;
or (c) the legality, priority or enforceability of the Lien created by the Mortgage or the rights
and remedies of the Mortgagee thereunder.



     “PTR Scheme” shall mean the Provisional Treaty Relief scheme as described in the HM Revenue &
Customs (formerly the Inland Revenue Guidelines dated January 2003 and administered by HM Revenue &
Customs’ Centre for Non-Residents.



     “Purchase Money Obligation” shall mean, for any person, the obligations of such person in
respect of Indebtedness (including Capital Lease Obligations) incurred for the purpose of financing
all or any part of the purchase price of any property (including Equity Interests of any person) or
the cost of installation, construction or improvement of any property and any refinancing thereof;
provided, however, that (i) such Indebtedness is incurred within one year after
such acquisition, installation, construction or improvement of such property by such person and
(ii) the amount of such Indebtedness does not exceed 100% of the cost of such acquisition,
installation, construction or improvement, as the case may be.



     “Qualified Capital Stock” of any person shall mean any Equity Interests of such person that
are not Disqualified Capital Stock.



     “Real Property” shall mean, collectively, all right, title and interest (including any
freehold, leasehold, mineral or other estate) in and to any and all parcels of or interests in real
property owned, leased or operated by any person, whether by lease, license or other means,
together with, in each case, all easements, hereditaments and appurtenances relating thereto, all
improvements and appurtenant fixtures, all general intangibles and contract rights and other
property and rights incidental to the ownership, lease or operation thereof.



     “Receivable” shall mean the indebtedness and other obligations owed to any Company (other than
any Loan Party or any Company organized under the laws of Germany) (at the time such indebtedness
and other obligations arise, and before giving effect to any transfer or conveyance contemplated
under any Securitization Facility documentation) or in which such person has a security interest or
other interest, including any indebtedness, obligation or interest constituting an Account,
contract right, payment intangible, promissory note, chattel paper,



	 	 	 
	 
	 	41






 









 





instrument, document, investment property, financial asset or general intangible, arising in
connection with the sale of goods or the rendering of services by such person, and further
includes, the obligation to pay any finance charges with respect thereto.




     “Receivables Purchase Agreement” shall mean the receivables purchase agreement and any related
servicing agreements between the German Seller, on the one hand, and Novelis AG, on the other hand,
in substantially the form of Exhibit R or otherwise in form and substance reasonably
satisfactory to the Administrative Agent, in each case providing, inter alia, for the sale and
transfer of Accounts by the German Seller to Novelis AG, as each such agreement may be amended,
modified, supplemented or replaced from time to time in accordance with the terms thereof.



     “Receiver” shall mean a receiver or receiver and manager or, where permitted by law, an
administrative receiver of the whole or any part of the Collateral, and that term will include any
appointee under a joint and/or several appointments.



     “Refinancing” shall mean the repayment in full and the termination of any commitment to make
extensions of credit under all of the outstanding indebtedness listed on Schedule 1.01(a)
of Canadian Borrower or any of its Subsidiaries.



     “Register” shall have the meaning assigned to such term in Section 11.04(c).



     “Regulation” shall have the meaning assigned to such term in Section 3.27.



     “Regulation D” shall mean Regulation D of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



     “Regulation S-X” shall mean Regulation S-X promulgated under the Securities Act.



     “Regulation T” shall mean Regulation T of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



     “Regulation U” shall mean Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



     “Regulation X” shall mean Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



     “Related Business Assets” shall mean assets (other than cash or Cash Equivalents) used or
useful in a Similar Business; provided that any assets received by any Loan Party in
exchange for assets transferred by a Loan Party shall not be deemed to be Related Business Assets
if they consist of securities of a person, unless upon receipt of the securities of such person,
such person would become a Loan Party.



     “Related Parties” shall mean, with respect to any person, such person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such person and of such person’s
Affiliates.



	 	 	 
	 
	 	42






 









 






     “Related Security” shall mean, with respect to any Receivable, all of the applicable
Securitization Subsidiary’s interest in the inventory and goods (including returned or repossessed
inventory or goods), if any, the sale of which by the applicable Company gave rise to such
Receivable, and all insurance contracts with respect thereto, all other security interests or liens
and property subject thereto from time to time, if any, purporting to secure payment of such
Receivable, whether pursuant to the contract related to such Receivable or otherwise, together with
all financing statements and security agreements describing any collateral securing such
Receivable, all guaranties, letters of credit, letter-of-credit rights, supporting obligations,
insurance and other agreements or arrangements of whatever character from time to time supporting
or securing payment of such Receivable whether pursuant to the contract related to such Receivable
or otherwise, all service contracts and other contracts and agreements associated with such
Receivable, all records related to such Receivable, and all of the applicable Securitization
Subsidiaries’ right, title and interest in, to and under the applicable Securitization Facility
documentation.



     “Release” shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating
or migrating of any Hazardous Material in, into, onto or through the Environment.



     “Required Class Lenders” shall mean, with respect to any Class of Loans, Lenders having more
than 50% of the sum of all Loans and unused Commitments (if any) of such Class outstanding.



     “Required Lenders” shall mean Lenders having more than 50% of the sum of all Loans outstanding
and unused Commitments (if any).



     “Requirements of Law” shall mean, collectively, any and all legally binding requirements of
any Governmental Authority including any and all laws, judgments, orders, decrees, ordinances,
rules, regulations, statutes or case law.



     “Response” shall mean (a) “response” as such term is defined in CERCLA, 42 U.S.C. § 9601(24),
and (b) all other actions required by any Governmental Authority or voluntarily undertaken to (i)
clean up, remove, treat, abate or in any other way address any Hazardous Material in the
Environment; (ii) prevent the Release or threat of Release, or minimize the further Release, of any
Hazardous Material; or (iii) perform studies and investigations in connection with, or as a
precondition to, or to determine the necessity of the activities described in, clause (i) or (ii)
above.



     “Responsible Officer” shall mean, with respect to any Person, any of the principal executive
officers, managing members or general partners of such Person but, in any event, with respect to
financial matters, the chief financial officer, treasurer or controller of such person.



     “Restricted Grantor” shall mean a Loan Party that has granted a Guarantee that is subject to
limitations that impair in any material respect the benefit of such Guarantee (as determined by the
Administrative Agent in its reasonable discretion) (it being expressly understood and agreed that
(i) no Loan Party that is Canadian Borrower, a Canadian Guarantor, a U.K. Guarantor, U.S. Borrower
or a U.S. Guarantor shall be a Restricted Grantor and (ii) except



	 	 	 
	 
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as may be otherwise determined by the Administrative Agent in its reasonable discretion, each
Loan Party that is a German Guarantor, an Irish Guarantor, a Swiss Guarantor or a Brazilian
Guarantor shall be a Restricted Grantor).




     “Revolving Credit Agents” shall mean the “Agents” (as defined in the Revolving Credit Loan
Documents, including the Revolving Credit Funding Agent, the Revolving Credit Canadian
Administrative Agent and the Revolving Credit Collateral Agent).



     “Revolving Credit Agreement” shall mean (i) that certain credit agreement dated as of the date
hereof among the Loan Parties, the Revolving Credit Lenders, ABN AMRO Bank N.V., as U.S./European
issuing bank, as U.S. swingline lender, and as administrative agent, the Revolving Credit Canadian
Administrative Agent, ABN AMRO Bank N.V., acting through its Canadian branch, as Canadian issuing
bank and as Canadian funding agent, the Revolving Credit Collateral Agent, the Revolving Credit
Funding Agent, UBS Securities LLC, as syndication agent, Bank of America, N.A., National City
Business Credit, Inc. and CIT Business Credit Canada Inc., as documentation agents, and ABN AMRO
Incorporated and UBS Securities LLC, as joint lead arrangers and joint bookmanagers, as amended,
restated, supplemented or modified from time to time to the extent permitted by this Agreement and
the Intercreditor Agreement and (ii) any other credit agreement, loan agreement, note agreement,
promissory note, indenture or other agreement or instrument evidencing or governing the terms of
any indebtedness or other financial accommodation that has been incurred to extend (subject to the
limitations set forth herein and in the Intercreditor Agreement) or refinance in whole or in part
the indebtedness and other obligations outstanding under the (x) credit agreement referred to in
clause (i) or (y) any subsequent Revolving Credit Agreement, in each case which constitutes a
Permitted Revolving Credit Facility Refinancing with respect to the Revolving Credit Loans, unless
such agreement or instrument expressly provides that it is not intended to be and is not a
Revolving Credit Agreement hereunder. Any reference to the Revolving Credit Agreement hereunder
shall be deemed a reference to any Revolving Credit Agreement then in existence.



     “Revolving Credit Canadian Administrative Agent” shall mean ABN AMRO Bank N.V., acting through
its Canadian branch, in its capacity as Canadian administrative agent under the Revolving Credit
Agreement, and its successors and assigns in such capacity.



     “Revolving Credit Canadian Funding Agent” shall mean ABN AMRO Bank N.V., acting through its
Canadian branch, in its capacity as Canadian funding agent under the Revolving Credit Agreement,
and its successors and assigns in such capacity.



     “Revolving Credit Collateral Agent” shall mean LaSalle Business Credit, LLC, in its capacity
as collateral agent under the Revolving Credit Agreement, and its successors and assigns in such
capacity.



     “Revolving Credit Commitments” shall mean the commitments of the Revolving Credit Lenders to
make Revolving Credit Loans under the Revolving Credit Agreement.



     “Revolving Credit Funding Agent” shall mean LaSalle Business Credit, LLC, in its capacity as
funding agent under the Revolving Credit Agreement, and its successors and assigns in such
capacity.



	 	 	 
	 
	 	44






 









 






     “Revolving Credit Lenders” shall mean the banks, financial institutions and other entities
from time to time party to the Revolving Credit Agreement as lenders.



     “Revolving Credit Loan Documents” shall mean the Revolving Credit Agreement and the other
“Loan Documents” as defined in the Revolving Credit Agreement, including the mortgages and other
security documents, guaranties and the notes issued thereunder.



     “Revolving Credit Loans” shall mean the revolving loans and swingline loans outstanding under
the Revolving Credit Agreement.



     “Revolving Credit Maturity Date” shall have meaning assigned to the term “Final Maturity Date”
in the Revolving Credit Agreement (and any corresponding term in any successor Revolving Credit
Agreement permitted hereby).



     “Revolving Credit Obligations” shall mean the Revolving Credit Loans and the guarantees by the
Loan Parties under the Revolving Credit Loan Documents.



     “Revolving Credit Priority Collateral” shall mean all “Revolving Credit Priority Collateral”
as defined in the Intercreditor Agreement.



     “Revolving Credit Secured Parties” shall mean the Revolving Credit Funding Agent, the
Revolving Credit Canadian Administrative Agent, the Revolving Credit Collateral Agent and each
other Person that is a “Secured Party” under the Revolving Credit Agreement.



     “Revolving Credit Security Documents” shall have the meaning assigned to the term “Security
Documents” in the Revolving Credit Agreement (and any corresponding term in any successor Revolving
Credit Agreement permitted hereby).



     “S&P” shall mean Standard & Poor’s Rating Services.



     “Sale and Leaseback Transaction” shall have the meaning assigned to such term in Section
6.03.



     “Sarbanes-Oxley Act” shall mean the United States Sarbanes-Oxley Act of 2002, as amended, and
all rules and regulations promulgated thereunder.



     “Section 347” shall have the meaning assigned to such term in Section 2.19(a).



     “Secured Debt Agreement” shall mean (i) this Agreement and (ii) the other Loan Documents.



     “Secured Obligations” shall mean (a) the Obligations and (b) the due and punctual payment and
performance of all obligations of the Borrowers and the other Loan Parties under each Hedging
Agreement entered into with any counterparty that is a Secured Party.



     “Secured Parties” shall mean, collectively, the Administrative Agent, the Collateral Agent,
the Administrative Agent, any Receiver or Delegate, each other Agent, the Lenders and each
counterparty to a Hedging Agreement with a Loan Party, if at the date of entering into such



	 	 	 
	 
	 	45






 









 





Hedging Agreement (or, with respect to Hedging Agreements in effect at the date hereof, at the
date hereof) such person was a Lender, Revolving Credit Lender, Arranger or Agent (or an Affiliate
of a Lender, Revolving Credit Lender, Arranger or Agent), and in each case, such person executes
and delivers to the Administrative Agent a letter agreement substantially in the form of
Exhibit Q attached hereto or in such other form as may be acceptable to the Administrative
Agent pursuant to which such person (i) appoints the Collateral Agent as its agent under the
applicable Loan Documents and (ii) agrees to be bound by the provisions of Section 10.03,
Section 10.09, the Intercreditor Agreement and the Security Documents as if it were a
Lender.




     “Securities Act” shall mean the Securities Act of 1933.



     “Securities Collateral” shall mean, collectively, the Pledged Securities, the Pledged
Intercompany Notes and the Distributions.



     “Securitization Assets” means all existing or hereafter acquired or arising (i) Receivables
that are sold, assigned or otherwise transferred pursuant to a Securitization Facility, (ii) the
Related Security with respect to the Receivables referred to in clause (i) above, (iii) the
collections and proceeds of the Receivables and Related Security referred to in clauses (i) and
(ii) above, (iv) all lockboxes, lockbox accounts, collection accounts or other deposit accounts
into which such collections are deposited (and in any event excluding any lockboxes, lockbox
accounts, collection accounts or deposit accounts that any Loan Party or any Company organized
under the laws of Germany has an interest in) and which have been specifically identified and
consented to by the Administrative Agent, and (v) all other rights and payments which relate solely
to such Receivables.



     “Securitization Facility” means each transaction or series of related transactions that effect
the securitization of Receivables of a person; provided that no Receivables or other
property of any Borrower or any Company organized or conducting business in a Principal
Jurisdiction shall be subject to a Securitization Facility.



     “Securitization Subsidiary” means any special purpose financial subsidiary established by a
Company for the sole purpose of consummating one or more Securitization Facilities and in respect
of which no Company (other than a Securitization Subsidiary) has any obligation to maintain or
preserve such Securitization Subsidiary’s financial condition or cause such Securitization
Subsidiary to achieve specified levels of operating results.



     “Security Agreement” shall mean each U.S. Security Agreement, each Canadian Security
Agreement, each U.K. Security Agreement, each Swiss Security Agreement, each German Security
Agreement, each Irish Security Agreement, each Brazilian Security Agreement, and each other
Security Agreement entered into pursuant to Section 5.11(b), individually and collectively,
as the context may require.



     “Security Agreement Collateral” shall mean all property pledged or granted as collateral
pursuant to any Security Agreement (a) on the Closing Date or (b) thereafter pursuant to
Section 5.11.



	 	 	 
	 
	 	46






 









 






     “Security Documents” shall mean each Security Agreement, the Mortgages, any Security Trust
Deed, and each other security document, deed of trust, charge or pledge agreement delivered in
accordance with applicable local or foreign law to grant a valid, perfected security interest in
any property as collateral for the Secured Obligations, and all UCC or other financing statements
or financing change statements, control agreements, bailee notification letters, or instruments of
perfection required by this Agreement, any Security Agreement, any Mortgage or any other such
security document, charge or pledge agreement to be filed with respect to the security interests in
property and fixtures created pursuant to any Security Agreement or any Mortgage and any other
document or instrument utilized to pledge or grant or purport to pledge or grant a security
interest or lien on any property as collateral for the Secured Obligations or to perfect, obtain
control over or otherwise protect the interest of the Collateral Agent therein.



     “Security Trust Deed” shall mean any security trust deed to be executed by, among others, the
Collateral Agent, the Administrative Agent and any Loan Party granting security over U.K. or Irish
assets of any Loan Party.



     “Senior Note Agreement” shall mean the indenture dated as of February 3, 2005, pursuant to
which the Senior Notes were issued and any other indenture, note purchase agreement or other
agreement pursuant to which Senior Notes are issued in a Permitted Refinancing of the Senior Notes.



     “Senior Note Documents” shall mean the Senior Notes, the Senior Note Agreement, the Senior
Note Guarantees and all other documents executed and delivered with respect to the Senior Notes or
the Senior Note Agreement.



     “Senior Note Guarantees” shall mean the guarantees of the Loan Parties (other than Holdings)
and the other guarantors pursuant to the Senior Note Agreement.



     “Senior Notes” shall mean Canadian Borrower’s 7-1/4% Senior Notes due 2015 issued pursuant to
the Senior Note Agreement and any senior notes issued pursuant to a Permitted Refinancing of the
Senior Notes (including the registered notes issued in exchange for Senior Notes with substantially
identical terms as the Senior Notes so exchanged).



     “Senior Secured Leverage Ratio” shall mean, at any date of determination, the ratio of
Consolidated Senior Secured Indebtedness on such date to Consolidated Adjusted EBITDA for the four
consecutive fiscal quarters of Canadian Borrower then last ended (in each case taken as one
accounting period) for which financial statements have been delivered (or if financial statements
with respect to the most recently ended fiscal quarter are required to but, have not been
delivered, for which financial statements are then required to have been delivered).



     “Significant Event of Default” shall mean any Event of Default under Section 8.01(a),
(b), (g) or (h).



     “Similar Business” shall mean any business conducted by Canadian Borrower and the other Loan
Parties on the Closing Date as described in the Confidential Information Memorandum (or, in the
good faith judgment of the Board of Directors, which are substantially related thereto or are
reasonable extensions thereof).



	 	 	 
	 
	 	47






 









 






     “Specified Holders” shall mean the Persons listed on Schedule 1.01(e).



     “Spot Selling Rate” shall mean, on any date of determination, the spot selling rate determined
by the Administrative Agent which shall be the spot selling rate posted by Reuters on its website
for the sale of the applicable currency for Dollars at approximately 5:00 p.m. (New York City time)
on the prior Business Day; provided that if such rate is not available, such rate shall be
the spot selling rate posted by the Federal Reserve Bank of New York on its website for the sale of
the applicable currency for Dollars at approximately 5:00 p.m. (New York City time) on the prior
Business Day.



     “Statutory Reserves” shall mean, for any Interest Period for any Eurocurrency Borrowing in
dollars, the average maximum rate at which reserves (including any marginal, supplemental or
emergency reserves) are required to be maintained during such Interest Period under Regulation D by
member banks of the United States Federal Reserve System in New York City with deposits exceeding
one billion dollars against “Eurocurrency liabilities” (as such term is used in Regulation D).
Eurocurrency Borrowings shall be deemed to constitute Eurocurrency liabilities and to be subject to
such reserve requirements without benefit of or credit for proration, exceptions or offsets which
may be available from time to time to any Lender under Regulation D.



     “Subordinated Debt Loan” shall mean that certain loan extended by AV Metals to Holdings in the
aggregate principal amount of $900,000,000, as evidenced by the Promissory Note, dated May 15,
2007, made by Holdings in favor of AV Metals, as such loan may be increased by any Additional
Subordinated Debt Loan or amended, in each case, in accordance with the terms hereof;
provided that to the extent the provisions of the definition of Permitted Holdings
Amalgamation are complied with, the Subordinated Debt Loan in effect on the Closing Date and any
Additional Subordinated Debt Loan incurred after the Closing Date and prior to the date of the
Permitted Holdings Amalgamation may become an obligation of the Canadian Borrower after the
Permitted Holdings Amalgamation occurs; and provided, further, that all other
Subordinated Debt Loans, if any, shall at all times be and remain unsecured obligations solely of
Holdings.



     “Subordinated Indebtedness” shall mean Indebtedness of a Loan Party that is subordinated by
its terms (including pursuant to the terms of any subordination agreement, intercreditor agreement,
or otherwise) in right of payment to the Obligations of such Loan Party, including the Subordinated
Debt Loan.



     “Subsidiary” shall mean, with respect to any person (the “parent”) at any date, (i) any person
the accounts of which would be consolidated with those of the parent in the parent’s consolidated
financial statements if such financial statements were prepared in accordance with GAAP as of such
date, (ii) any other corporation, limited liability company, association or other business entity
of which securities or other ownership interests representing more than 50% of the voting power of
all Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the
election of the Board of Directors thereof are, as of such date, owned, controlled or held by the
parent and/or one or more subsidiaries of the parent, (iii) any partnership (a) the sole general
partner or the managing general partner of which is the parent and/or one or more subsidiaries of
the parent or (b) the only general partners of which are the



	 	 	 
	 
	 	48






 









 





parent and/or one or more subsidiaries of the parent and (iv) any other person that is
otherwise Controlled by the parent and/or one or more subsidiaries of the parent. Unless the
context requires otherwise, “Subsidiary” refers to a Subsidiary of Holdings. Notwithstanding the
foregoing, Logan shall not be treated as a Subsidiary hereunder or under the other Loan Documents
unless it qualifies as a Subsidiary under clause (ii) of this definition.




     “Subsidiary Guarantor” shall mean each Subsidiary listed on Schedule 1.01(b), and each
other Subsidiary that is or becomes a party to this Agreement as a Subsidiary Guarantor pursuant to
Section 5.11.



     “Survey” shall mean a survey of any Mortgaged Property (and all improvements thereon) which is
(a) (i) prepared by a surveyor or engineer licensed to perform surveys in the jurisdiction where
such Mortgaged Property is located, (ii) current as of a date which shows all exterior construction
on the site of such Mortgaged Property or any easement, right of way or other interest in the
Mortgaged Property has been granted or become effective through operation of law or otherwise with
respect to such Mortgaged Property which, in either case, can be depicted on a survey, unless
otherwise acceptable to the Collateral Agent, (iii) certified by the surveyor (in a manner
reasonably acceptable to the Administrative Agent) to the Administrative Agent, the Collateral
Agent and the Title Company, (iv) complying in all respects with the minimum detail requirements of
the American Land Title Association (or the local equivalent) as such requirements are in effect on
the date of preparation of such survey and (v) sufficient for the Title Company to remove all
standard survey exceptions from the title insurance policy (or commitment) relating to such
Mortgaged Property and issue the endorsements of the type required by Section 4.01(o)(iii)
or (b) otherwise acceptable to the Collateral Agent.



     “Swiss Guarantor” shall mean each Subsidiary of Holdings organized in Switzerland party hereto
as a Guarantor, and each other Subsidiary of Holdings organized in Switzerland that is required to
become a Guarantor pursuant to the terms hereof.



     “Swiss Security Agreement” shall mean, collectively, any Security Agreement substantially in
the form of Exhibits M-4-1 to 7 among the Swiss Guarantors and the Collateral Agent
for the benefit of the Secured Parties.



     “Swiss Withholding Tax” shall mean any withholding tax in accordance with the Swiss Federal
Statute on Anticipatory Tax of 13 October 1965 (Bundesgesetz uber die Verrechnungssteuer) and any
successor provision, as appropriate.



     “Syndication Agent” shall have the meaning assigned to such term in the preamble hereto.



     “Tax Return” shall mean all returns, statements, filings, attachments and other documents or
certifications required to be filed in respect of Taxes.



     “Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions,
withholdings, payroll, social security, employment and unemployment taxes, assessments, fees or
other charges imposed by any Taxing Authority, including any interest, additions to tax or
penalties applicable thereto.



	 	 	 
	 
	 	49






 









 






     “Taxing Authority” shall mean any governmental entity of any jurisdiction or political
subdivision thereof with the authority to impose, assess, and collect Taxes and engage in
activities of a similar nature with respect to such Taxing Authority.



     “Term Loans” shall have the meaning assigned to such term in Section 2.01(b).



     “Term Loan Commitments” shall mean the Canadian Term Loan Commitments and the U.S. Term Loan
Commitments, collectively.



     “Term Loan Priority Collateral” shall mean all “Term Loan Priority Collateral” as defined in
the Intercreditor Agreement.



     “Term Loan Repayment Date” shall have the meaning assigned to such term in Section
2.09.



     “Test Period” shall mean, at any time, the four consecutive fiscal quarters of Canadian
Borrower then last ended (in each case taken as one accounting period).



     “Title Company” shall mean any title insurance company as shall be retained by Borrower and
reasonably acceptable to the Administrative Agent.



     “Title Policy” shall have the meaning assigned to such term in Section 4.01(o)(iii).



     “Transaction Documents” shall mean the Loan Documents (other than Hedging Agreements) and the
Revolving Credit Loan Documents.



     “Transactions” shall mean, collectively, the transactions to occur on or prior to the Closing
Date pursuant to the Transaction Documents, including (a) the execution, delivery and performance
of the Loan Documents and the initial borrowings hereunder; (b) the Refinancing; (c) the execution,
delivery and performance of the Revolving Credit Loan Documents and the borrowings thereunder; and
(d) the payment of all fees and expenses to be paid on or prior to the Closing Date and owing in
connection with the foregoing.



     “Transferred Guarantor” shall have the meaning assigned to such term in Section 7.09.



     “Type,” when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBOR Rate or the Alternate Base Rate.



     “UCC” shall mean the Uniform Commercial Code as in effect from time to time (except as
otherwise specified) in any applicable state or jurisdiction.



     “U.K. Guarantor” shall mean each Subsidiary of Holdings incorporated in England and Wales
party hereto as a Guarantor, and each other Subsidiary of Holdings incorporated in England and
Wales that is required to become a Guarantor pursuant to the terms hereof.



	 	 	 
	 
	 	50






 









 






     “U.K. Security Agreement” shall mean, collectively, any Security Agreement substantially in
the form of Exhibits M-3-1 to 3 among the U.K. Guarantors and the Collateral Agent
for the benefit of the Secured Parties, including the U.K. Share Charge.



     “U.K. Share Charge” shall mean shall mean a Security Agreement in substantially the form of
Exhibit M-3-2, among Canadian Borrower and the Collateral Agent.



     “United States” shall mean the United States of America.



     “Unrestricted Grantors” shall mean Loan Parties that are not Restricted Grantors.



     “U.S. Borrower” shall have the meaning assigned to such term in the preamble hereto.



     “U.S. Guarantor” shall mean each Subsidiary of Holdings organized in the United States, any
state thereof or the District of Columbia, party hereto as a Guarantor, and each other Subsidiary
of Holdings organized in the United States, any state thereof or the District of Columbia that is
required to become a Guarantor pursuant to the terms hereof.



     “U.S. Loan Parties” shall mean the U.S. Borrower and the U.S. Guarantors.



     “U.S. Security Agreement” shall mean a Security Agreement substantially in the form of
Exhibit M-1 among Canadian Borrower, the U.S. Loan Parties and the Collateral Agent for the
benefit of the Secured Parties.



     “U.S. Term Loan” shall have the meaning assigned to such term in Section 2.01(a).



     “U.S. Term Loan Commitment” shall mean shall mean, with respect to each Lender, the
commitment, if any, of such Lender to make U.S. Term Loans hereunder up to the amount set forth on
Schedule I to the Lender Addendum executed and delivered by such Lender directly under the column
entitled “U.S. Term Loan Commitment” or in an Increase Joinder. The aggregate amount of the
Lenders’ U.S. Term Loan Commitments on the Closing Date is $660 million.



     “Voting Stock” shall mean, with respect to any person, any class or classes of Equity
Interests pursuant to which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the Board of Directors of such person.



     “Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date,
the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i)
the amount of each then remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between such date and the
making of such payment; by (b) the then outstanding principal amount of such Indebtedness.



     “Wholly Owned Subsidiary” shall mean, as to any person, (a) any corporation 100% of whose
capital stock (other than directors’ qualifying shares) is at the time owned by such person and/or
one or more Wholly Owned Subsidiaries of such person and (b) any partnership,



	 	 	 
	 
	 	51






 









 





association, joint venture, limited liability company or other entity in which such person
and/or one or more Wholly Owned Subsidiaries of such person have a 100% equity interest at such
time.




     “Wind-Up” shall have the meaning assigned to such term in Section 6.05(g), and the
term “Winding-Up” shall have a meaning correlative thereto.



     “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle
E of Title IV of ERISA.



     “525 Amortization Amount” shall have the meaning assigned to such term in Section
2.09(b).



     “525 Catch-Up Date” shall mean, with respect to any Loan, the date that is five (5) years plus
a day following the date of borrowing thereof.



     “525 Collateral Account” shall have the meaning assigned to such term in Section
2.09(b).



     “525 Prepayment Amount” shall have the meaning assigned to such term in Section
2.10(h)(vi).


SECTION 1.02 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g., a “U.S. Term Loan” or a “Canadian Term Loan”) or by Type
(e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a “Eurocurrency U.S. Term Loan” or
“Eurocurrency Canadian Term Loan”). Borrowings also may be classified and referred to by Class
(e.g., a “U.S. Term Loan Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing”) or by Class and
Type (e.g., a “Eurocurrency U.S. Term Loan Borrowing”).



SECTION 1.03 Terms Generally; Currency Translation. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and neuter forms. The words
“include,” “includes” and “including” shall be deemed to be followed by the phrase “without
limitation.” The word “will” shall be construed to have the same meaning and effect as the word
“shall.” Unless the context requires otherwise (a) any definition of or reference to any Loan
Document, agreement, instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any person shall be construed to include such person’s
successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e)
any reference to any law or regulation herein shall refer to such law or regulation as
amended, modified or supplemented from time to time, (f) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all




	 	 	 
	 
	 	52






 









 





tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (g) “on,” when
used with respect to the Mortgaged Property or any property adjacent to the Mortgaged Property,
means “on, in, under, above or about.” For purposes of this Agreement and the other Loan
Documents, where the permissibility of a transaction or determinations of required actions or
circumstances depend upon compliance with, or are determined by reference to, amounts stated in
dollars, such amounts shall be deemed to refer to Dollars or Dollar Equivalents and any requisite
currency translation shall be based on the Spot Selling Rate in effect on the Business Day
immediately preceding the date of such transaction or determination and the permissibility of
actions taken under Article VI shall not be affected by subsequent fluctuations in exchange
rates (provided that if Indebtedness is incurred to refinance other Indebtedness, and such
refinancing would cause the applicable dollar denominated limitation to be exceeded if calculated
at the Spot Selling Rate in effect on the Business Day immediately preceding the date of such
refinancing, such dollar denominated restriction shall be deemed not to have been exceeded so long
as (x) such refinancing Indebtedness is denominated in the same currency as such Indebtedness being
refinanced and (y) the principal amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced except as permitted by the definition of
Permitted Refinancing Indebtedness). For purposes of this Agreement and the other Loan Documents,
the word “foreign” shall refer to jurisdictions other than the United States, the states thereof
and the District of Columbia. From and after the effectiveness of the Permitted Holdings
Amalgamation (x) all references to Canadian Borrower in any Loan Document shall refer to the
Successor Canadian Borrower and (y) all references to Holdings or Parent Guarantor in any Loan
Document shall refer to AV Metals.



SECTION 1.04 Accounting Terms; GAAP. Except as otherwise expressly provided herein, all financial
statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as
in effect from time to time and all terms of an accounting or financial nature shall be construed
and interpreted in accordance with GAAP, as in effect from time to time unless otherwise agreed to
by Administrative Borrower and the Required Lenders; provided that (i) if at any time any
change in GAAP would affect the computation of any financial ratio or requirement set forth in any
Loan Document, and either Administrative Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and Administrative Borrower shall negotiate in good faith to
amend such ratio or requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so amended,
(i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) Administrative Borrower shall provide to the Administrative Agent and the
Lenders any documents required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made before and after
giving effect to such change in GAAP.



SECTION 1.05 Resolution of Drafting Ambiguities. Each Loan Party acknowledges and agrees that it was represented by counsel in connection
with the execution and delivery of the Loan Documents to which it is a party, that it and its
counsel reviewed and participated in the preparation and negotiation hereof and thereof and that
any rule of construction to the effect that ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation hereof or thereof.




	 	 	 
	 
	 	53






 









 






ARTICLE II.




THE CREDITS



SECTION 2.01 Commitments.




     (a) Subject to the terms and conditions and relying upon the representations and warranties
herein set forth, each Lender with a U.S. Term Loan Commitment agrees, severally and not jointly,
to make a Term Loan in Dollars to the U.S. Borrower (each, a “U.S. Term Loan”) on the Closing Date
in the principal amount not to exceed its U.S. Term Loan Commitment.



     (b) Subject to the terms and conditions and relying upon the representations and warranties
herein set forth, each Lender with a Canadian Term Loan Commitment agrees, severally and not
jointly, to make a Term Loan in Dollars to Canadian Borrower (each, a “Canadian Term Loan” and,
together with the U.S. Term Loans, the “Term Loans” and each being called a “Term Loan”) on the
Closing Date in the principal amount not to exceed its Canadian Term Loan Commitment.



     (c) Amounts paid or prepaid in respect of Term Loans may not be reborrowed.


SECTION 2.02 Loans.




     (a) Each Loan shall be made as part of a Borrowing consisting of Loans made by the Lenders
ratably in accordance with their applicable Commitments; provided that the failure of any
Lender to make its Loan shall not in itself relieve any other Lender of its obligation to lend
hereunder (it being understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender). Each Borrowing shall be
in an aggregate principal amount that is not less than (and in integral amounts consistent with)
the Minimum Amount.



     (b) Subject to Section 2.11 and Section 2.12, each Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as Administrative Borrower may request
pursuant to Section 2.03; provided that all Loans comprising the same Borrowing
shall at all times be of the same Type. Each Lender may at its option make any Eurocurrency Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the applicable
Borrower to repay such Loan in accordance with the terms of this Agreement. Borrowings of more
than one Type may be outstanding at the same time; provided that Borrower shall not be
entitled to request any Borrowing that, if made, would result in more than eight (8) Eurocurrency
Borrowings of U.S. Term Loans or more than four (4) Eurocurrency Borrowings of Canadian Term Loans
outstanding hereunder at any one time. For purposes of the foregoing, Borrowings having
different Interest Periods, regardless of whether they commence on the same date, shall be
considered separate Borrowings.



     (c) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds to such account in New York City as the
Administrative Agent may designate not later than 11:00 a.m., New York City time, and the



	 	 	 
	 
	 	54






 









 





Administrative Agent shall promptly credit the amounts so received to an account of the applicable
Borrower as directed by Administrative Borrower in the applicable Borrowing Request maintained with
the Administrative Agent or, if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the amounts so received to the
respective Lenders.




     (d) Unless the Administrative Agent shall have received notice from a Lender prior to the date
of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s
portion of such Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in accordance with
paragraph (c) above, and the Administrative Agent may, in reliance upon such assumption, make
available to the applicable Borrower on such date a corresponding amount. If the Administrative
Agent shall have so made funds available, then, to the extent that such Lender shall not have made
such portion available to the Administrative Agent, each of such Lender and such Borrower severally
agrees to repay to the Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available to such Borrower
until the date such amount is repaid to the Administrative Agent at (i) in the case of such
Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii)
in the case of such Lender, the greater of the Interbank Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation. If such
Lender shall repay to the Administrative Agent such corresponding amount, such amount shall
constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement, and the
applicable Borrower’s obligation to repay the Administrative Agent such corresponding amount
pursuant to this Section 2.02(d) shall cease.



     (e) Notwithstanding anything to the contrary contained herein, no Borrower shall be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Final Maturity Date.


SECTION 2.03 Borrowing Procedure.




     (a) To request a Borrowing, Administrative Borrower, on behalf of the applicable Borrower,
shall deliver, by hand delivery, telecopier or, to the extent separately agreed by the
Administrative Agent, by an electronic communication in accordance with the second sentence of
Section 11.01(b) and the second paragraph of Section 11.01(d), a duly completed and
executed Borrowing Request to the Administrative Agent (i) in the case of a Eurocurrency Borrowing,
not later than 11:00 a.m., New York City time, three (3) Business Days before the date of the
proposed Borrowing, or (ii) in the case of an ABR Borrowing, not later than 9:00
a.m., New York City time, on the date of the proposed Borrowing. Each Borrowing Request shall
be irrevocable and shall specify the following information in compliance with Section 2.02:




     (i) the aggregate amount of such Borrowing;




     (ii) the date of such Borrowing, which shall be a Business Day;



	 	 	 
	 
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     (iii) whether such Borrowing shall constitute a Borrowing of U.S. Term Loans or Canadian Term
Loans;




     (iv) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;




     (v) in the case of a Eurocurrency Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term “Interest Period”;




     (vi) the location and number of the applicable Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.02(c);




     (vii) in the case of the initial Credit Extension hereunder or under any Incremental Term Loan
Commitments, that the conditions set forth in Section 4.02(b) — (d) have been satisfied as
of the date of the notice.



     If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be
an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency
Borrowing, then Administrative Borrower on behalf of the applicable Borrower shall be deemed to
have selected an Interest Period of one month’s duration. Promptly following receipt of a
Borrowing Request in accordance with this Section, the Administrative Agent shall advise each
applicable Lender of the details thereof and of the amount of such Lender’s Loan to be made as part
of the requested Borrowing.



     (b) Appointment of Administrative Borrower. Each Borrower hereby irrevocably appoints
and constitutes Administrative Borrower as its agent to request Loans pursuant to this Agreement in
the name or on behalf of such Borrower. The Administrative Agent and Lenders may disburse the
Loans to such bank account of Administrative Borrower or a Borrower or otherwise make such Loans to
a Borrower as Administrative Borrower may designate or direct, without notice to any other Borrower
or Guarantor. Administrative Borrower hereby accepts the appointment by Borrowers to act as the
agent of Borrowers and agrees to ensure that the disbursement of any Loans to a Borrower requested
by or paid to or for the account of such Borrower shall be paid to or for the account of such
Borrower. Each Borrower hereby irrevocably appoints and constitutes Administrative Borrower as its
agent to receive statements on account and all other notices from the Agents and Lenders with
respect to the Obligations or otherwise under or in connection with this Agreement and the other
Loan Documents, including the Intercreditor Agreement. Any notice, election, representation,
warranty, agreement or undertaking by or on behalf of any other Borrower by Administrative Borrower
shall be deemed for all purposes to have been made by such Borrower, as the case may be, and shall
be binding upon and enforceable against such Borrower to the same extent as if made directly by
such
Borrower. No purported termination of the appointment of Administrative Borrower as agent as
aforesaid shall be effective, except after ten (10) days’ prior written notice to the
Administrative Agent and appointment by the Borrowers of a replacement Administrative Borrower.


SECTION 2.04 Repayment of Loans; Evidence of Debt.




	 	 	 
	 
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     (a) Promise to Repay. The U.S. Borrower hereby unconditionally promises to pay to the
Administrative Agent, for the account of each applicable Lender, the then unpaid principal amount
of each U.S. Term Loan of such Lender on the Final Maturity Date. Canadian Borrower hereby
unconditionally promises to pay to the Administrative Agent, for the account of each applicable
Lender, the then unpaid principal amount of each Canadian Term Loan of such Lender on the Final
Maturity Date. All payments or repayments of Loans made pursuant to this Section 2.04(a)
shall be made in Dollars.



     (b) Lender and Administrative Agent Records. Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the Indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under this Agreement. The
Administrative Agent shall maintain accounts in which it will record (i) the amount of each Loan
made hereunder, the Borrower to which such Loan is made, the Type and Class thereof and the
Interest Period applicable thereto; (ii) the amount of any principal or interest due and payable or
to become due and payable from each Borrower to each Lender hereunder; and (iii) the amount of any
sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s
share thereof. The entries made in the accounts maintained pursuant to this paragraph shall be
prima facie evidence of the existence and amounts of the obligations therein recorded as well as
the Borrower which received such Loans; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in any manner affect
the obligations of any Borrower to repay the Loans in accordance with their terms.



     (c) Promissory Notes. Any Lender by written notice to Administrative Borrower (with a
copy to the Administrative Agent) may request that Loans of any Class made by it be evidenced by a
promissory note. In such event, the applicable Borrower or Borrowers shall prepare, execute and
deliver to such Lender one or more promissory notes payable to such Lender or its registered
assigns in the form of Exhibit K-1 or K-2, as the case may be. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 11.04) be represented by one or more promissory notes in
such form payable to such payee or its registered assigns.


SECTION 2.05 Fees.




     (a) Fees. Canadian Borrower agrees to pay or to cause the applicable Borrower to pay
all Fees payable pursuant to the Fee Letter, in the amounts and on the dates set forth therein.



     (b) All Fees shall be paid on the dates due, in immediately available funds in dollars, to the
Administrative Agent. Once paid, none of the Fees shall be refundable under any circumstances.


SECTION 2.06 Interest on Loans.




     (a) ABR Loans. Subject to the provisions of Section 2.06(c), the Loans
comprising each ABR Borrowing shall bear interest at a rate per annum equal to the Alternate Base
Rate plus the Applicable Margin in effect from time to time.



	 	 	 
	 
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     (b) Eurocurrency Loans. Subject to the provisions of Section 2.06(c), the
Loans comprising each Eurocurrency Borrowing shall bear interest at a rate per annum equal to the
Adjusted LIBOR Rate for the Interest Period in effect for such Borrowing plus the
Applicable Margin in effect from time to time.



     (c) Default Rate. Notwithstanding the foregoing, if at any time any principal of or
interest on any Loan or any fee or other amount payable by the Loan Parties hereunder has not been
paid when due, whether at stated maturity, upon acceleration or otherwise and for so long as such
amounts have not been paid, all Obligations shall, to the extent permitted by applicable law, bear
interest, after as well as before judgment, at a per annum rate equal to (i) in the case of
principal of or interest on any Loan, 2% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section 2.06 or (ii) in the case of any other
amount, 2% plus the rate applicable to ABR Loans as provided in Section 2.06(a) (in
either case, the “Default Rate”).



     (d) Interest Payment Dates. Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to
Section 2.06(c) shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable
on the date of such repayment or prepayment and (iii) in the event of any conversion of any
Eurocurrency Loan prior to the end of the current Interest Period therefor, accrued interest on
such Loan shall be payable on the effective date of such conversion.



     (e) Interest Calculation. All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate Base Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year) and, in each case, shall
be payable for the actual number of days elapsed (including the first day but excluding the last
day). The applicable Alternate Base Rate or Adjusted LIBOR Rate shall be determined by the
Administrative Agent in accordance with the provisions of this Agreement and such determination
shall be conclusive absent manifest error.



     (f) Currency for Payment of Interest. All interest paid or payable pursuant to this
Section 2.06 shall be paid in Dollars.


SECTION 2.07 Termination of Commitments. The Term Loan Commitments shall automatically terminate at 5:00 p.m., New York City time,
on the Closing Date.



SECTION 2.08 Interest Elections.




     (a) Generally. Each Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurocurrency Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, Administrative Borrower may
elect to convert such Borrowing to an ABR Borrowing or to rollover or continue such Borrowing and,
in the case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all as provided in
this Section. Administrative Borrower may elect different options with respect to different
portions (not less than the Minimum Amount) of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans comprising



	 	 	 
	 
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such Borrowing,
and the Loans comprising
each such portion shall be considered a separate Borrowing.
Notwithstanding anything to the contrary, Borrowers shall not be entitled to request any
conversion, rollover or continuation that, if made, would result in more than eight (8)
Eurocurrency Borrowings of U.S. Term Loans or more than four (4) Eurocurrency Borrowings of
Canadian Term Loans outstanding hereunder at any one time.




     (b) Interest Election Notice. To make an election pursuant to this Section,
Administrative Borrower shall deliver, by hand delivery or telecopier, a duly completed and
executed Interest Election Request to the Administrative Agent not later than the time that a
Borrowing Request would be required under Section 2.03 if Administrative Borrower were
requesting a Borrowing of the Type resulting from such election to be made on the effective date of
such election. Each Interest Election Request shall be irrevocable. Each Interest Election
Request shall specify the following information in compliance with Section 2.02:




     (i) the Borrowing to which such Interest Election Request applies and, if different options
are being elected with respect to different portions thereof, or if outstanding Borrowings are
being combined, allocation to each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);




     (ii) the effective date of the election made pursuant to such Interest Election Request, which
shall be a Business Day;




     (iii) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;




     (iv) if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period contemplated, as
applicable, by the definition of the term “Interest Period”.



     If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify
an Interest Period, then applicable Borrower shall be deemed to have selected an Interest Period of
one month’s duration.



     Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.



     (c) Automatic Conversion to ABR Borrowings. If an Interest Election Request with
respect to a Eurocurrency Borrowing is not timely delivered prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such
Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing, the
Administrative Agent or the Required Lenders may require, by notice to Administrative Borrower,
that (i) no outstanding Borrowing may be converted to or continued as a Eurocurrency Borrowing and
(ii) unless repaid, each Eurocurrency Borrowing shall be converted to an ABR Borrowing at the end
of the Interest Period applicable thereto.



	 	 	 
	 
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SECTION 2.09 Amortization of Term Loan Borrowings.




     (a) U.S. Borrower shall pay to the Administrative Agent, for the account of the Lenders, on
the dates set forth on Annex II, or if any such date is not a Business Day, on the
immediately preceding Business Day (each such date, a “Term Loan Repayment Date”), a principal
amount of the U.S. Term Loans equal to the amount set forth on Annex II for such date (as
adjusted from time to time pursuant to Section 2.10(h)), together in each case with accrued
and unpaid interest on the principal amount to be paid to but excluding the date of such payment.
Canadian Borrower shall pay to the Administrative Agent, for the account of the Lenders, on each
Term Loan Repayment Date, a principal amount of the Canadian Term Loans equal to the amount set
forth on Annex II for such date (as adjusted from time to time pursuant to Section
2.10(h)), together in each case with accrued and unpaid interest on the principal amount to be
paid to but excluding the date of such payment.



     (b) Notwithstanding the foregoing provisions of this Section 2.09, if any scheduled
repayment of Canadian Term Loans required under this Section 2.09 (together with the
aggregate amount of all prior (x) prepayments of Canadian Term Loans made pursuant to Section
2.10(d), (e) and (g), and Section 2.10(c) (to the extent arising from
an Asset Sale of the type described in clause (b) of the definition thereof), and (y) scheduled
repayments of Canadian Term Loans made pursuant to this Section 2.09) would result in more
than 25.0% of the original outstanding principal amount of the Canadian Term Loans borrowed on any
date being repaid on or before the applicable 525 Catch-Up Date, then, solely to the extent
necessary to avoid such repayment within such time period, such repayment amount (a “525
Amortization Amount”) shall be applied first, to the prepayment of the U.S. Term Loans in
accordance with clauses (iii) through (vi) of Section 2.10(h) and second, if no U.S. Term
Loans are then outstanding, deposited in the 525 Collateral Account and applied in accordance with
Section 2.10(j) on the first day following the 525 Catch-Up Date. The term “525 Collateral
Account” shall mean a cash collateral account established with a financial institution reasonably
satisfactory to the Administrative Agent (which shall not be a Lender or an Affiliate of a Lender)
on terms and conditions (and subject to a Control Agreement) reasonably satisfactory to the
Administrative Agent and will be subject to a First Priority security interest in favor of the
Collateral Agent for the ratable benefit
of the Secured Parties to secure the Obligations. Beneficial ownership of all funds held in
the Prepayment Collateral Account will remain with Canadian Borrower and Canadian Borrower shall at
all times be entitled to access such funds solely for purposes of (i) optional prepayments of
Canadian Term Loans in accordance with Section 2.10(a), (ii) mandatory prepayments of
Canadian Term Loans in accordance with Section 2.10(j) and (iii) Permitted Uses, and all
gains, losses and income from the investment or use of such funds shall be for the account of, and,
in the case of gains and income, shall be distributed to, Canadian Borrower.



     (c) To the extent not previously paid, all U.S. Term Loans and all Canadian Term Loans shall
be due and payable on the Final Maturity Date.


SECTION 2.10 Optional and Mandatory Prepayments of Loans.




     (a) Optional Prepayments. Borrowers shall have the right at any time and from time to
time to prepay any Borrowing, in whole or in part, subject to the requirements of this Section
2.10; provided that each partial prepayment shall be in a principal amount that is not
less than



	 	 	 
	 
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(and in integral amounts consistent with) the Minimum Amount or, if less, the outstanding
principal amount of such Borrowing.




     (b) Net Cash Proceeds Account. Subject to the terms of the Intercreditor Agreement,
the Net Cash Proceeds of any Term Loan Priority Collateral arising from an Asset Sale or Casualty
Event which Net Cash Proceeds are being reinvested in accordance with Sections 2.10(c) or
(f), respectively, shall be deposited in one or more Net Cash Proceeds Accounts pending
final application of such proceeds (and any products of such proceeds) in accordance with the terms
hereof (provided that prior to such final application, and without affecting the Borrowers’
obligations under Sections 2.10(c) and (f), such proceeds may be utilized to make
repayments of the Revolving Credit Loans without reducing Revolving Credit Commitments).



     (c) Asset Sales. Not later than three (3) Business Days following the receipt of any
Net Cash Proceeds of any Asset Sale by Holdings or any of its Subsidiaries, Borrowers shall make
prepayments and prepayment offers in accordance with Section 2.10(h) and (i) in an
aggregate amount equal to 100% of such Net Cash Proceeds; provided that:



          (i) no such prepayment or prepayment offer shall be required under this Section
2.10(c) with respect to (A) any Asset Sale permitted by Section 6.06 other than clauses
(b), (i) and (k) thereof, (B) the disposition of property which constitutes a Casualty Event, or
(C) Asset Sales for fair market value resulting in less than $5 million in Net Cash Proceeds in any
fiscal year; and




          (ii) so long as no Event of Default shall then exist or would arise therefrom, such proceeds
shall not be required to be so applied on such date to the extent that Administrative Borrower
shall have delivered an Officers’ Certificate to the Administrative Agent on or prior to such date
stating that such Net Cash Proceeds are expected to be reinvested in fixed or capital assets or to
make Permitted Acquisitions (and, in the case of Net Cash Proceeds from an Asset Sale made pursuant
to Section 6.06(k), such Net Cash Proceeds may also be used to make investments in joint
ventures so long as a Company owns at least 50% of the
Equity Interests in such joint venture) within 365 days following the date of such Asset Sale
(which Officers’ Certificate shall set forth the estimates of the proceeds to be so expended);
provided that if all or any portion of such Net Cash Proceeds is not so reinvested within
such 365-day period, such unused portion shall be applied on the last day of such period to
mandatory prepayments and prepayment offers as provided in this Section 2.10(c);
provided, further, that if the property subject to such Asset Sale constituted
Collateral, then all property purchased with the Net Cash Proceeds thereof pursuant to this
subsection shall be made subject to the Lien of the applicable Security Documents in favor of the
Collateral Agent, for its benefit and for the benefit of the other Secured Parties in accordance
with Sections 5.11 and 5.12.




     (d) Debt Issuance or Preferred Stock Issuance. Not later than one (1) Business Day
following the receipt of any Net Cash Proceeds of any Debt Issuance or Preferred Stock Issuance by
Holdings or any of its Subsidiaries, Borrowers shall make prepayments in accordance with
Section 2.10(h) and (i) in an aggregate amount equal to 100% of such Net Cash
Proceeds; provided that if, at the time of any such prepayment with the Net Cash Proceeds
of any Preferred Stock Issuance pursuant to this Section 2.10(d) Excess Availability shall
be less than $90 million immediately prior to or after giving effect to such prepayment and all
extensions of credit under



	 	 	 
	 
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the Revolving Credit Agreement on such date, such prepayment shall be
applied first, to the repayment of outstandings under the Revolving Credit Agreement until Excess
Availability (after giving effect to all extensions of credit under the Revolving Credit Agreement
on such date) equals $90 million and second, to the extent of any remaining amounts, to make
prepayments in accordance with Sections 2.10(h) and (i).




     (e) Equity Issuance. Not later than three (3) Business Days following the receipt of
any Net Cash Proceeds of any Equity Issuance, Borrowers shall make prepayments in accordance with
Section 2.10(h) and (i) in an aggregate amount equal to 50% of such Net Cash
Proceeds; provided, however, that if on the date of such Equity Issuance, (i) no
Default has occurred and is continuing and (ii) the Senior Secured Leverage Ratio is less than 3.0
to 1.0, then no such prepayment shall be required to be made in respect of such Equity Issuance;
provided, further, that this clause (e) shall not apply to the proceeds of any
Qualified Capital Stock issued by Holdings after the Closing Date to the Acquiror or any of its
Affiliates; and provided, further, that if, at the time of any such prepayment
pursuant to this Section 2.10(e) Excess Availability shall be less than $90 million
immediately prior to or after giving effect to such prepayment and all extensions of credit under
the Revolving Credit Agreement on such date, such prepayment shall be applied first, to the
repayment of outstandings under the Revolving Credit Agreement until Excess Availability (after
giving effect to all extensions of credit under the Revolving Credit Agreement on such date) equals
$90 million and second, to the extent of any remaining amounts, to make prepayments in accordance
with Sections 2.10(h) and (i).



     (f) Casualty Events. Not later than three (3) Business Days following the receipt of
any Net Cash Proceeds from a Casualty Event by Holdings or any of its Subsidiaries, Borrowers shall
make prepayments and prepayment offers in accordance with Section 2.10(h) and (i)
in an aggregate amount equal to 100% of such Net Cash Proceeds; provided that:



          (i) so long as no Event of Default shall then exist or arise therefrom, such proceeds shall
not be required to be so applied on such date to the extent that (A) in the event such Net Cash
Proceeds exceed $1 million but shall not exceed $20 million, Administrative
Borrower shall have delivered an Officers’ Certificate to the Administrative Agent on or prior
to such date stating that such proceeds are expected to be used, or (B) in the event that such Net
Cash Proceeds exceed $20 million, the Administrative Agent (to the extent such Casualty Event
relates to Term Loan Priority Collateral) has agreed by notice to Administrative Borrower on or
prior to such date to allow such proceeds to be used, in each case, to repair, replace or restore
any property in respect of which such Net Cash Proceeds were paid or to reinvest in other fixed or
capital assets, no later than 365 days following the date of receipt of such proceeds;
provided that if the property subject to such Casualty Event constituted Collateral under
the Security Documents, then all property purchased with the Net Cash Proceeds thereof pursuant to
this subsection shall be made subject to the Lien of the applicable Security Documents in favor of
the Collateral Agent, for its benefit and for the benefit of the other Secured Parties in
accordance with Sections 5.11 and 5.12; and




          (ii) if any portion of such Net Cash Proceeds shall not be so applied within such 365-day
period, such unused portion shall be applied on the last day of such period to mandatory
prepayments and prepayment offers as provided in this Section 2.10(f).




	 	 	 
	 
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     (g) Excess Cash Flow. No later than five (5) Business Days after the earlier of (i)
90 days after the end of each Excess Cash Flow Period and (ii) the date on which the financial
statements with respect to such fiscal year in which such Excess Cash Flow Period occurs are
delivered pursuant to Section 5.01(a), Borrower shall make prepayments in accordance with
Sections 2.10(h) and (i) in an aggregate amount equal to 50% of Excess Cash Flow
for the Excess Cash Flow Period then ended; provided, however, that if (i) on the
date such prepayment is required to be made, no Event of Default has occurred and is continuing,
and (ii) the Senior Secured Leverage Ratio, as of the last day of such Excess Cash Flow Period, is
less than 3.0 to 1.0, then such percentage shall be 25%.



     (h) Application of Prepayments and Prepayment Offers. (i) In the event any optional
prepayment, or any mandatory prepayment pursuant to Section 2.10(d), (e) or
(g) or Section 2.10(c) (to the extent arising from an Asset Sale of the type
described in clause (b) of the definition thereof) is made at a time when Term Loan Borrowings of
more than one Class remain outstanding, the aggregate amount of such prepayment shall be allocated
between the U.S. Term Loans and the Canadian Term Loans in the manner directed by Administrative
Borrower.



          (ii) Amounts required to be applied to mandatory prepayments and prepayment offers pursuant to
Section 2.10(c) (except to the extent arising from an Asset Sale of the type described in
clause (b) of the definition thereof) and (f) shall be allocated between the U.S. Term
Loans and the Canadian Term Loans in the manner directed by Administrative Borrower. Amounts
allocated in respect of the U.S. Term Loans shall be applied as mandatory prepayments as set forth
below in this Section 2.10(h) and amounts allocated in respect of Canadian Term Loans shall
be offered for prepayment as set forth in Section 2.10(i)(ii).




          (iii) Prior to any optional or mandatory prepayment and/or prepayment offer hereunder,
Administrative Borrower shall select the Borrowing or Borrowings to be prepaid and/or offered to be
prepaid and shall specify such selection in the notice of such prepayment and/or prepayment offer
pursuant to Section 2.10(i), subject to the provisions of this Section 2.10(h); provided that after an Event of Default has occurred and is
continuing or after the acceleration of the Obligations, Section 8.03 shall apply.




          (iv) Any prepayments of any Class of Term Loans pursuant to Section 2.10(a),
(c), (d), (e), (f), (g) and (j) shall be applied to
reduce scheduled repayments of such Class of Term Loans required under Section 2.09 on a
pro rata basis among the repayments of such Class remaining to be made on each Term Loan Repayment
Date.




          (v) Amounts to be applied pursuant to this Section 2.10 to the prepayment of Term
Loans (including any amounts in respect of prepayment offers that have been accepted by Lenders)
shall be applied first to reduce outstanding ABR Loans. Any amounts remaining after each such
application shall be applied to prepay Eurocurrency Loans.




          (vi) Notwithstanding any of the foregoing, (A) if the amount of any prepayment of Loans
required under this Section 2.10 shall be in excess of the amount of the ABR Loans at the
time outstanding (an “Excess Amount”), only the portion of the amount of such prepayment as is
equal to the amount of such outstanding ABR Loans shall be immediately prepaid and, at the election
of Administrative Borrower, the Excess Amount shall be either (1) deposited in an




	 	 	 
	 
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escrow account on
terms satisfactory to the Collateral Agent and applied to the prepayment of Eurocurrency Loans on
the last day of the then next-expiring Interest Period for Eurocurrency Loans; provided
that (i) interest in respect of such Excess Amount shall continue to accrue thereon at the rate
provided hereunder for the Loans which such Excess Amount is intended to repay until such Excess
Amount shall have been used in full to repay such Loans and (ii) at any time while a Default has
occurred and is continuing, the Administrative Agent may, and upon written direction from the
Required Lenders shall, apply any or all proceeds then on deposit to the payment of such Loans in
an amount equal to such Excess Amount or (2) prepaid immediately, together with any amounts owing
to the Lenders under Section 2.13 and (B) if any prepayment of Canadian Term Loans required
under Section 2.10(d), (e) or (g) or Section 2.10(c) (to the extent
arising from an Asset Sale of the type described in clause (b) of the definition thereof) (together
with the aggregate amount of all prior (x) prepayments of Canadian Term Loans made pursuant to
Section 2.10(d), (e) and (g) and Section 2.10(c) (to the extent
arising from an Asset Sale of the type described in clause (b) of the definition thereof) and (y)
scheduled repayments of Canadian Term Loans made pursuant to Section 2.09) would result in
more than 25.0% of the original outstanding principal amount of the Canadian Term Loans borrowed on
any date being repaid on or before the applicable 525 Catch-Up Date, then, solely to the extent
necessary to avoid such repayment within such time period, such prepayment amount (a “525
Prepayment Amount”) shall be applied first, to the prepayment of the U.S. Term Loans in accordance
with clauses (iii) through (vi) of Section 2.10(h) and second, if no U.S. Term Loans are
then outstanding, deposited in the 525 Collateral Account and applied in accordance with
Section 2.10(j) on the first day following the 525 Catch-Up Date (and, prior to such date,
as permitted by the final sentence of Section 2.09(b)).




     
     (i) Notice of Prepayments and Prepayment Offers. (i) Administrative Borrower shall
notify the Administrative Agent by written notice of any prepayment hereunder (A) in the case of
prepayment of a Eurocurrency Borrowing, not later than 11:00 a.m., New York City time, three (3)
Business Days before the date of prepayment, and (B) in the case of prepayment of a ABR Borrowing,
not later than 11:00 a.m., New York City time, one (1) Business Day before the
date of prepayment. Each such notice shall be irrevocable. Each such notice shall specify
the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and,
in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such
prepayment. Promptly following receipt of any such notice, the Administrative Agent shall advise
the Lenders of the contents thereof.



          (ii) With respect to any amounts in respect of the Net Cash Proceeds of Asset Sales or
Casualty Events that are allocated to Canadian Term Loans pursuant to Section 2.10(h)(ii)
(such amounts, the “Prepayment Offer Amounts”), Administrative Borrower will, on the applicable
payment date specified in Section 2.10(c) or (f), as the case may be, notify the
Administrative Agent by telephonic notice (promptly confirmed in writing) specifying the Type of
each Canadian Term Loan being offered to be prepaid and the principal amount of each such Loan (or
portion thereof) being offered to be prepaid, and shall provide to each Lender that holds a
Canadian Term Loan notice of such prepayment offer (each, a “Prepayment Offer Notice”). Each
Prepayment Offer Notice shall (A) include an offer by Canadian Borrower to prepay on the date that
is five (5) Business Days after the date of the Prepayment Offer Notice, the relevant Canadian Term
Loans of such Lender in an amount equal to the portion of the Prepayment Offer Amount indicated in
such Lender’s Prepayment Offer Notice as being applicable to such




	 	 	 
	 
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Lender’s Canadian Term Loans
(which shall equal such Lender’s ratable share of the Prepayment Offer Amounts, based on the
proportion that such Lender’s Canadian Tem Loans bears to all Canadian Term Loans), (B) specify the
principal amount of each Borrowing or portion thereof being offered to be prepaid and (C) set forth
the option of such Lender to (x) accept or decline such offer or (y) accept such offer and accept
or decline Prepayment Offer Amounts declined by other Lenders. Each such Lender shall notify the
Administrative Agent no later than 12:00 Noon, New York City time on the second Business Day
immediately preceding the date on which such prepayment is to be made of its intent to accept such
offer for prepayment or decline such offer (and, if such offer is accepted by such Lender, the
amount of Canadian Term Loans with respect to which such Lender shall elect to accept the offer of
prepayment and whether such Lender shall accept Prepayment Offer Amounts declined by other
Lenders); provided that to the extent any such Lender shall not notify the Administrative
Agent by such time, such Lender shall be deemed to have accepted such offer for prepayment and not
elected to accept any such declined Prepayment Offer Amounts. After application of Prepayment
Offer Amounts to mandatory prepayments of the Canadian Term Loans pursuant to this Section, and to
the extent there are Prepayment Offer Amounts remaining after such application, an amount equal to
the total of such amounts shall be applied to the prepayment of the U.S. Term Loans in accordance
with clauses (iii) through (vi) of Section 2.10(h).




          (iii) Each partial prepayment of any Borrowing shall be in an amount that would be permitted
in the case of a Credit Extension of the same Type as provided in Section 2.02(a), except
as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a
Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing and otherwise in
accordance with this Section 2.10. Prepayments shall be accompanied by accrued interest to
the extent required by Section 2.06.




     (j) On the first day following the 525 Catch-Up Date with respect to any Canadian Term Loans,
such Canadian Term Loans shall be prepaid, in accordance with clauses (iii) through (vi) of
Section 2.10(h), in an amount equal to the aggregate of all 525 Amortization
Amounts and 525 Prepayment Amounts originally deposited in the 525 Collateral Account in
respect of prepayments and amortization payments on such Canadian Term Loans (and without regard to
the amount actually on deposit on the 525 Collateral Account at such time); provided that
the amount of any such prepayment shall be decreased by the amount of any optional prepayments of
such Canadian Term Loans made with funds held in the 525 Collateral Account.


SECTION 2.11 Alternate Rate of Interest. If prior to the commencement of any Interest Period for a
Eurocurrency Borrowing:




     (a) the Administrative Agent determines (which determination shall be final and conclusive
absent manifest error) that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBOR Rate for such Interest Period; or



     (b) the Administrative Agent is advised in writing by the Required Lenders that the Adjusted
LIBOR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders
of making or maintaining their Loans included in such Borrowing for such Interest Period;



	 	 	 
	 
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then the Administrative Agent shall give written notice thereof to Administrative Borrower and the
Lenders as promptly as practicable thereafter and, until the Administrative Agent notifies
Administrative Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffective and (ii) if any
Borrowing Request requests a Eurocurrency Borrowing, such Borrowing shall be made as an ABR
Borrowing.



SECTION 2.12 Yield Protection; Change in Law Generally.




     (a) Increased Costs Generally. If any Change in Law shall:



          (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for the account of, or credit
extended or participated in, by any Lender (except any reserve requirement reflected in the
Adjusted LIBOR Rate);




          (ii) subject any Lender to any Tax of any kind whatsoever with respect to this Agreement or
any Eurocurrency Loan made by it, or change the basis of taxation of payments to such Lender in
respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.15 and
the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender); or




          (iii) impose on any Lender or the interbank market any other condition, cost or expense
affecting this Agreement or Eurocurrency Loans made by such Lender;



and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Loan), or to
reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal,
interest or any other amount), then, upon request of such Lender, Borrowers will pay to such
Lender, as the case may be, such additional amount or amounts as will compensate such Lender, as
the case may be, for such additional costs incurred or reduction suffered.




     (b) Capital Requirements. If any Lender determines (in good faith, but in its sole
absolute discretion) that any Change in Law affecting such Lender or any lending office of such
Lender or such Lender’s holding company, if any, regarding capital requirements has or would have
the effect of reducing the rate of return on such Lender’s capital or on the capital of such
Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by such Lender, to a level below that which such Lender or such Lender’s
holding company could have achieved but for such Change in Law (taking into consideration such
Lender’s policies and the policies of such Lender’s holding company with respect to capital
adequacy), then from time to time Borrowers will pay to such Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or such Lender’s holding company for
any such reduction suffered.



     (c) Certificates for Reimbursement. A certificate of a Lender setting forth the
amount or amounts necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section 2.12 and delivered to Administrative



	 	 	 
	 
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Borrower shall be conclusive absent manifest error. Borrowers shall pay such Lender, as the case
may be, the amount shown as due on any such certificate within ten (10) Business Days after receipt
thereof.




     (d) Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to this Section 2.12 shall not constitute a waiver of such Lender’s
right to demand such compensation; provided that Borrowers shall not be required to
compensate a Lender pursuant to this Section for any increased costs incurred or reductions
suffered more than nine months prior to the date that such Lender, as the case may be, notifies
Administrative Borrower of the Change in Law giving rise to such increased costs or reductions and
of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the nine-month period referred to
above shall be extended to include the period of retroactive effect thereof).



     (e) Change in Legality Generally. Notwithstanding any other provision of this
Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain any
Eurocurrency Loan or to give effect to its obligations as contemplated hereby with respect to any
Eurocurrency Loan, then, upon written notice by such Lender to Administrative Borrower and the
Administrative Agent:



          (i) the Commitments of such Lender (if any) to fund the affected Type of Loan shall
immediately terminate; and




          (ii) (x) such Lender may declare that Eurocurrency Loans will not thereafter (for the duration
of such unlawfulness) be continued for additional Interest Periods and ABR
Loans will not thereafter (for such duration) be converted into Eurocurrency Loans, whereupon
any request to convert an ABR Borrowing to a Eurocurrency Borrowing or to continue a Eurocurrency
Borrowing for an additional Interest Period shall, as to such Lender only, be deemed a request to
continue an ABR Loan as such, or to convert a Eurocurrency Loan into an ABR Loan, as the case may
be, unless such declaration shall be subsequently withdrawn and (y) all such outstanding
Eurocurrency Loans made by such Lender shall be automatically converted to ABR Loans on the last
day of the then current Interest Period therefor or, if earlier, on the date specified by such
Lender in such notice (which date shall be no earlier than the last day of any applicable grace
period permitted by applicable law).



SECTION 2.13 Breakage Payments. In the event of (a) the payment or prepayment, whether optional or
mandatory, of any principal of any Eurocurrency Loan earlier than the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any
Eurocurrency Loan earlier than the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Term Loan on the date specified in any notice
delivered pursuant hereto or (d) the assignment of any Eurocurrency Loan earlier than the last day
of the Interest Period applicable thereto as a result of a request by Administrative Borrower
pursuant to Section 2.16(c), then, in any such event, the applicable Borrower shall
compensate each Lender for the loss, cost and expense attributable to such event. In the case of
any Eurocurrency Loan, such loss, cost or expense to any Lender shall be deemed to include an
amount determined by such Lender to be the excess, if any, of (i) the amount of interest which
would have accrued on the principal amount of such Loan had such event not




	 	 	 
	 
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occurred, at the
Adjusted LIBOR Rate that would have been applicable to such Loan, for the period from the date of
such event to the last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the Interest Period for
such Loan) (excluding, however, the Applicable Margin included therein, if any), over (ii) the
amount of interest which would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such period, for deposits of a
comparable currency, amount and period from other banks in the applicable interbank market. A
certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender
is entitled to receive pursuant to this Section 2.13 shall be delivered to Administrative
Borrower (with a copy to the Administrative Agent) and shall be conclusive and binding absent
manifest error. The applicable Borrower shall pay such Lender the amount shown as due on any such
certificate within five (5) days after receipt thereof.



SECTION 2.14 Payments Generally; Pro Rata Treatment; Sharing of Setoffs.




     (a) Payments Generally. Each Loan Party shall make each payment required to be made
by it hereunder or under any other Loan Document (whether of principal, interest or fees, or of
amounts payable under Section 2.12, Section 2.13, Section 2.15, Section
2.16 or Section 11.03, or otherwise) on or before the time expressly required hereunder
or under such other Loan Document for such payment (or, if no such time is expressly required,
prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds,
without setoff, deduction
or counterclaim. Any amounts received after such time on any date may, in the discretion of
the Administrative Agent, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to the Administrative
Agent at its offices at 677 Washington Boulevard, Stamford, Connecticut, except that payments
pursuant to Section 2.12, Section 2.13, Section 2.15, Section 2.16
and Section 11.03 shall be made directly to the persons entitled thereto and payments
pursuant to other Loan Documents shall be made to the persons specified therein. The
Administrative Agent shall distribute any such payments received by it for the account of any other
person to the appropriate recipient promptly following receipt thereof. If any payment under any
Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the
date for payment shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of such extension. All
payments under each Loan Document shall be made in dollars, except as expressly specified
otherwise.



     (b) Pro Rata Treatment.



          (i) Each payment by Borrowers of interest in respect of the Loans of any Class shall be
applied to the amounts of such obligations owing to the Lenders pro rata according to the
respective amounts then due and owing to the Lenders, except in the case of holders of Canadian
Term Loans that have declined prepayment offers with respect to interest on the principal amount
prepaid in such offer.




          (ii) Each payment by Borrowers on account of principal of the Borrowings of any Class shall be
made pro rata according to the respective outstanding principal amounts of the Loans of such Class
then held by the Lenders, except in the case of holders of Canadian Term Loans that have declined
prepayment offers.




	 	 	 
	 
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     (c) Insufficient Funds. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, interest and fees then
due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, toward payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of principal then due to
such parties.



     (d) Sharing of Set-Off. Subject to the terms of the Intercreditor Agreement, if any
Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Loans or other Obligations resulting in such
Lender’s receiving payment of a proportion of the aggregate amount of its Loans and accrued
interest thereon or other Obligations greater than its pro rata share thereof as provided herein,
then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such
fact, and (b) purchase (for cash at face value) participations in the Loans and such other
obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans and other amounts
owing them, provided that:



          (i) if any such participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest; and




          (ii) the provisions of this paragraph shall not be construed to apply to (x) any payment made
by any Loan Party pursuant to and in accordance with the express terms of this Agreement or (y) any
payment obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Loans to any assignee or participant, other than to any Loan Party or any Subsidiary
thereof (as to which the provisions of this paragraph shall apply).



Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under
applicable Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation. If under applicable bankruptcy, insolvency or any similar law any
Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this
Section 2.14(d) applies, such Secured Party shall to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights to which the Secured
Party is entitled under this Section 2.14(d) to share in the benefits of the recovery of
such secured claim.




     (e) Borrower Default. Unless the Administrative Agent shall have received notice from
Administrative Borrower prior to the date on which any payment is due to the Administrative Agent
for the account of the Lenders hereunder that the applicable Borrower will not make such payment,
the Administrative Agent may assume that the applicable Borrower have made such payment on such
date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders,
as the case may be, the amount due. In such event, if the



	 	 	 
	 
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applicable Borrower have not in fact made such payment, then each of the Lenders, as the case
may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Administrative Agent, at
the greater of the Interbank Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.




     (f) Lender Default. If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.02(c), Section 2.14(e) or Section 11.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any contrary provision
hereof), apply any amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied
obligations are fully paid.


SECTION 2.15 Taxes.




     (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Loan Parties hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any Indemnified Taxes or Other Taxes; provided that if
any Loan Party shall be required by applicable Requirements of Law to deduct any Indemnified Taxes
(including any Other Taxes) from such payments, then (i) such Loan Party shall increase the sum
payable as necessary so that after all required deductions and withholdings (including deductions
and withholdings applicable to additional sums payable under this Section) each Agent or Lender, as
the case may be, receives an amount equal to the sum it would have received had no such deductions
been made, (ii) the applicable Loan Party shall make such deductions and (iii) the applicable Loan
Party shall timely pay the full amount deducted to the relevant Taxing Authority in accordance with
applicable Requirements of Law.



     (b) Payment of Other Taxes by Borrowers. Without limiting the provisions of paragraph
(a) above, each Loan Party shall timely pay any Other Taxes to the relevant Taxing Authority in
accordance with applicable Requirements of Law.



     (c) Indemnification by Loan Parties. Each Loan Party shall indemnify each Agent and
each Lender, within ten (10) Business Days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by such Agent or such Lender, as the
case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Taxing Authority. A certificate as to the amount of such payment or
liability delivered to Administrative Borrower by a Lender (with a copy to the Administrative
Agent), or by an Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error. No Borrower shall be obliged to provide indemnity under this Section where the
Indemnified Tax or Other Tax in question is (i) compensated for by an
increased payment under Sections 2.12(a)(ii) or 2.15(a) or (ii) would have
been compensated for by an increased payment under Section 2.15(a) but was not so
compensated solely because of one of the exclusions in that Section.



	 	 	 
	 
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     (d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by any Loan Party to a Taxing Authority, the relevant Loan Party shall deliver
to the Administrative Agent the original or a certified copy of a receipt issued by such Taxing
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.



     (e) Status of Lenders. Any Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the applicable Loan Party is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall, to the extent it may lawfully do so, deliver to
Administrative Borrower (with a copy to the Administrative Agent), at the time or times prescribed
by applicable Requirements of Law or reasonably requested by Administrative Borrower or the
Administrative Agent (and from time to time thereafter, as requested by Administrative Borrower or
Administrative Agent), such properly completed and executed documentation prescribed by applicable
Requirements of Law or any subsequent replacement or substitute form that may lawfully be provided
as will permit such payments to be made without withholding or at a reduced rate of withholding.
In addition, any Lender, if requested by Administrative Borrower or the Administrative Agent, shall
deliver such other documentation prescribed by applicable Requirements of Law or reasonably
requested by Administrative Borrower or the Administrative Agent as will enable the applicable Loan
Parties or the Administrative Agent to determine whether or not such Lender is subject to backup
withholding or information reporting requirements; provided, however, that
Administrative Borrower may treat any Agent or Lender as an “exempt recipient” based on the
indicators described in Treasury Regulations Section 1.6049-4(c) and if it may be so treated, such
Agent or Lender shall not be required to provide such documentation, except to the extent such
documentation is required pursuant to the Treasury Regulations promulgated under the Code Section
1441.



     Each Lender which so delivers any document requested by Administrative Borrower or
Administrative Agent in this Section 2.15(e) further undertakes to deliver to
Administrative Borrower (with a copy to Administrative Agent), upon request of Administrative
Borrower or Administrative Agent, copies of such requested form (or a successor form) on or before
the date that such form expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent form so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by Administrative Borrower or Administrative Agent,
in each case, unless an event (including any change in treaty, law or regulation) has occurred
prior to the date on which any such delivery would otherwise be required that renders all such
forms inapplicable or that would prevent such Lender from duly completing and delivering any such
form with respect to it. For avoidance of doubt, Borrowers shall not be required to pay additional
amounts to any Lender or Administrative Agent pursuant to this Section 2.15(e) to the
extent the obligation to pay such additional amount would not have arisen but for the failure of
such Lender or Administrative Agent to comply with this paragraph.



     (f) Treatment of Certain Refunds. If an Agent or a Lender determines, in its sole
discretion, that it has received a refund of, credit against, relief or remission for any
Indemnified Taxes or Other Taxes as to which it has been indemnified by the Loan Parties or with
respect to which any Loan Party has paid additional amounts pursuant to this Section or Section
2.12(a)(ii), it shall pay to such Loan Party an amount equal to such refund, credit, relief or
remission (but



	 	 	 
	 
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only to the extent of indemnity payments made, or additional amounts paid, by such
Loan Party under this Section with respect to the Indemnified Taxes or Other Taxes giving rise to
such refund or any additional amounts under Section 2.12(a)(ii)), net of all reasonable and
customary out-of-pocket expenses of such Agent or Lender, as the case may be, and without interest
(other than any interest paid by the relevant Taxing Authority with respect to such refund or any
additional amounts under Section 2.12(a)(ii));
provided that each Loan Party, upon the
request of such Agent or such Lender, agrees to repay the amount paid over to such Loan Party (plus
any penalties, interest or other charges imposed by the relevant Taxing Authority) to such Agent or
such Lender in the event such Agent or such Lender is required to repay such refund to such Taxing
Authority. Nothing in this Agreement shall be construed to require any Agent or any Lender to make
available its tax returns (or any other information relating to its taxes that it deems
confidential) to any Loan Party or any other person. Notwithstanding anything to the contrary, in
no event will any Agent or any Lender be required to pay any amount to any Loan Party the payment
of which would place such Agent or such Lender in a less favorable net after-tax position than such
Agent or such Lender would have been in if the additional amounts giving rise to such refund of any
Indemnified Taxes or Other Taxes had never been paid.




     (g) Co-operation. Notwithstanding anything to the contrary in Section
2.15(e), with respect to non-U.S. withholding taxes, the Administrative Agent, the relevant
Lender(s) (at the written request of the relevant Loan Party) and the relevant Loan Party shall,
co-operate in completing any procedural formalities necessary (including delivering any
documentation prescribed by the applicable Requirement of Law and making any necessary reasonable
approaches to the relevant Taxing Authorities) for the relevant Loan Party to obtain authorization
to make a payment to which the Administrative Agent or such Lender(s) is entitled without a
deduction or withholding for, or on account of, Taxes; provided, however, that none
of the Administrative Agent or any Lender shall be required to provide any documentation that it is
not legally entitled to provide, or take any action that, in the Administrative Agent’s or the
relevant Lender’s reasonable judgment, would subject the Administrative Agent or such Lender to any
material unreimbursed costs or otherwise be disadvantageous to it in any material respect.



     (h) Tax Returns. If, as a result of executing a Loan Document, entering into the
transactions contemplated thereby or with respect thereto, receiving a payment or enforcing its
rights thereunder, any Agent or any Lender is required to file a Tax Return in a jurisdiction in
which it would not otherwise be required file, the Loan Parties shall promptly provide such
assistance as the relevant Agent or Lender shall reasonably request with respect to the completion
and filing of such Tax Return. For clarification, any expenses incurred in connection with such
filing shall be subject to Section 11.03.


SECTION 2.16 Mitigation Obligations; Replacement of Lenders.









     (a) Designation of a Different Lending Office. Each Lender may at any time or from
time to time designate, by written notice to the Administrative Agent, one or more lending offices
(which, for this purpose, may include Affiliates of the respective Lender) for the various Loans
made by such Lender; provided that to the extent such designation shall result, as of the
time of such designation, in increased costs under Section 2.12 or Section 2.15 in
excess of those which would be charged in the absence of the designation of a different lending
office (including a different Affiliate of the respective Lender), then the Borrowers shall not be
obligated to pay



	 	 	 
	 
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such excess increased costs (although the Borrowers, in accordance with and
pursuant to the other provisions of this Agreement, shall be obligated to pay the costs which would
apply in the absence of such designation and any subsequent increased costs of the type described
above resulting from changes after the date of the respective designation). Each lending office
and Affiliate of any Lender designated as provided above shall, for all purposes of this Agreement,
be treated in the same manner as the respective Lender (and shall be entitled to all indemnities
and similar provisions in respect of its acting as such hereunder). Each lending office and
Affiliate of any Lender designated as provided above shall, for all purposes of this Agreement, be
treated in the same manner as the respective Lender (and shall be entitled to all indemnities and
similar provisions in respect of its acting as such hereunder). The proviso to the first sentence
of this Section 2.16(a) shall not apply to changes in a lending office pursuant to
Section 2.16(b) if such change was made upon the written request of the Administrative
Borrower.




     (b) Mitigation Obligations. If any Lender requests compensation under Section
2.12, or requires any Loan Party to pay any additional amount to any Lender or any Taxing
Authority for the account of any Lender pursuant to Section 2.15, then such Lender shall
use reasonable efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.12 or Section 2.15, as the case may
be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. Each Loan Party hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such designation or
assignment. A certificate setting forth such costs and expenses submitted by such Lender to
Administrative Borrower shall be conclusive absent manifest error.



     (c) Replacement of Lenders. If any Lender requests compensation under Section
2.12, or if any Borrower is required to pay any additional amount to any Lender or any Taxing
Authority for the account of any Lender pursuant to Section 2.15, or if any Lender defaults
in its obligation to fund Loans hereunder, or if Administrative Borrower exercises its replacement
rights under Section 11.02(d), then Borrowers may, at their sole expense and effort, upon
notice by Administrative Borrower to such Lender and the Administrative Agent, require such Lender
to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 11.04), all of its interests, rights and
obligations under this Agreement and the other Loan Documents to an Eligible Assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that:



          (i) Borrowers or the assignee shall have paid to the Administrative Agent the processing and
recordation fee specified in Section 11.04(b);




          (ii) such Lender shall have received payment of an amount equal to the outstanding principal
of its Loans, accrued interest thereon, and all other amounts payable to it hereunder and under the
other Loan Documents (including any amounts under Section 2.13), from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the applicable Borrowers (in
the case of all other amounts);




	 	 	 
	 
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          (iii) in the case of any such assignment resulting from a claim for compensation under
Section 2.12 or payments required to be made pursuant to Section 2.15, such
assignment will result in a reduction in such compensation or payments thereafter; and




          (iv) such assignment does not conflict with applicable Requirements of Law.



A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling Borrowers to require
such assignment and delegation cease to apply.



SECTION 2.17 [INTENTIONALLY OMITTED].



SECTION 2.18 [INTENTIONALLY OMITTED].



SECTION 2.19 Interest Act (Canada); Criminal Rate of Interest; Nominal Rate of Interest.




     (a) Notwithstanding anything to the contrary contained in this Agreement or in any other Loan
Document, solely to the extent that a court of competent jurisdiction finally determines that the
calculation or determination of interest or any fee payable by the any Canadian Loan Party in
respect of the Obligations pursuant to this Agreement and the other Loan Documents shall be
governed by the laws of any province of Canada or the federal laws of Canada, in no event shall the
aggregate interest (as defined in Section 347 of the Criminal Code, R.S.C. 1985, c. C-46, as the
same shall be amended, replaced or re-enacted from time to time, “Section 347”) payable by the
Canadian Loan Parties to the Agents or any Lender under this Agreement or any other Loan Document
exceed the effective annual rate of interest on the Credit advances (as defined in Section 347)
under this Agreement or such other Loan Document lawfully permitted under Section 347 and, if any
payment, collection or demand pursuant to this Agreement or any other Loan Document in respect of
Interest (as defined in Section 347) is determined to be contrary to the provisions of Section 347,
such payment, collection or demand shall be deemed to have been made by mutual mistake of the
Agents, the Lenders and the Canadian Loan Parties and the amount of such payment or collection
shall be refunded by the relevant Agents and Lenders to the applicable Canadian Loan Parties. For
the purposes of this Agreement and each other Loan Document to which the Canadian Loan Parties are a party, the
effective annual rate of interest payable by the Canadian Loan Parties shall be determined in
accordance with generally accepted actuarial practices and principles over the term of the loans on
the basis of annual compounding for the lawfully permitted rate of interest and, in the event of
dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the for the
account of the Canadian Loan Parties will be conclusive for the purpose of such determination in
the absence of evidence to the contrary.



     (b) For the purposes of the Interest Act (Canada) and with respect to Canadian Loan Parties
only:



          (i) whenever any interest or fee payable by the Canadian Loan Parties is calculated using a
rate based on a year of 360 days or 365 days, as the case may be, the rate determined pursuant to
such calculation, when expressed as an annual rate, is equivalent to (x) the applicable rate based
on a year of 360 days or 365 days, as the case may be, (y) multiplied by




	 	 	 
	 
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the actual number of days in the calendar year in which such rate is to be ascertained and (z) divided by 360 or 365, as the
case may be; and




          (ii) all calculations of interest payable by the Canadian Loan Parties under this Agreement or
any other Loan Document are to be made on the basis of the nominal interest rate described herein
and therein and not on the basis of effective yearly rates or on any other basis which gives effect
to the principle of deemed reinvestment of interest.



The parties hereto acknowledge that there is a material difference between the stated nominal
interest rates and the effective yearly rates of interest and that they are capable of making the
calculations required to determine such effective yearly rates of interest.



SECTION 2.20 [INTENTIONALLY OMITTED].



SECTION 2.21 [INTENTIONALLY OMITTED].



SECTION 2.22 [INTENTIONALLY OMITTED].



SECTION 2.23 Incremental Term Loan Commitments.




     (a) Borrowers Request. The Borrowers may by written notice to the Administrative
Agent elect to request the establishment of one or more new U.S. Term Loan Commitments and/or
Canadian Term Loan Commitments (each, an “Incremental Term Loan Commitment”) (x) in an aggregate
principal amount (for all Incremental Term Loan Commitments pursuant to this Section) not in excess
of $400 million and (y) in an aggregate principal amount of not less
than $25 million individually. Each such notice shall specify (i) the allocation of such
Incremental Term Loan Commitments between the U.S. Term Loan Commitments and the Canadian Term Loan
Commitments, (ii) the date on which the Borrowers propose that such Incremental Term Loan
Commitments shall be effective (each, an “Increase Effective Date”), which shall be a date not less
than 10 Business Days after the date on which such notice is delivered to the Administrative Agent
and (iii) the identity of each Eligible Assignee to whom Borrowers propose any portion of such
Incremental Term Loan Commitments be allocated and the amounts and Class of such allocations;
provided that any existing Lender approached to provide all or a portion of any Incremental
Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental
Term Loan Commitments.



     (b) Conditions. Such Incremental Term Loan Commitments shall become effective, as of
such Increase Effective Date; provided that:



          (i) each of the conditions set forth in Section 4.02 shall be satisfied;




          (ii) no Default shall have occurred and be continuing or would result from the borrowings to
be made on the Increase Effective Date;




          (iii) after giving pro forma effect to the borrowings to be made on the Increase Effective
Date and to any change in Consolidated EBITDA and any increase in Indebtedness resulting from the
consummation of any Permitted Acquisition or other Investment concurrently




	 	 	 
	 
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with such borrowings, the Senior Secured Leverage Ratio at such date shall be not greater than 3.0 to 1.0; and




          (iv) the Borrowers shall deliver or cause to be delivered any legal opinions or other
documents reasonably requested by the Administrative Agent in connection with any such transaction.




     (c) Terms of Incremental Term Loans and Commitments. The terms and provisions of
Loans made pursuant to the new Commitments shall be as follows:



          (i) terms and provisions of Loans made pursuant to Incremental Term Loan Commitments
(“Incremental Term Loans”) shall be, except as otherwise set forth herein or in the Increase
Joinder, identical to the existing Term Loans of the same Class;




          (ii) the Weighted Average Life to Maturity of all Incremental Term Loans shall be no shorter
than the Weighted Average Life to Maturity of the existing Term Loans of the same Class;




          (iii) the maturity date of Incremental Term Loans (the “Incremental Term Loan Maturity Date”)
shall not be earlier than the Final Maturity Date and, in the case of any Incremental Loans that
are Canadian Term Loans, the maturity date of such Incremental Term Loans shall not be earlier than
the 525 Catch-Up Date with respect to such Loans; and




          (iv) the Applicable Margins for the Incremental Term Loans shall be determined by Borrower and
the applicable new Lenders; provided, however, that the Net Yield for the
Incremental Term Loans shall not be greater than the highest Net Yield (excluding
interest payable at the Default Rate) that may, under any circumstances, be payable with
respect to the Term Loans advanced on the Closing Date plus 50 basis points (and the Applicable
Margins applicable to the Term Loans advanced on the Closing Date shall be increased to the extent
necessary to achieve the foregoing; and provided that to the extent the Net Yield
applicable to the Term Loans advanced on the Closing Date are so increased, the Net Yield on the
Term Loans advanced after the Closing Date but prior to the relevant Increase Effective Date shall
be increased (by increasing the per annum rate of interest applicable to such Term Loans) such that
the difference between the Net Yield applicable to the Term Loans advanced on the Closing Date and
such Term Loans remains constant (or, if such Net Yield of both such series of Term Loans was
equal, such Net Yield remains equal)). “Net Yield”, for purposes of any Term Loans, shall mean the
sum of (1) the per annum rate of interest applicable to such Term Loans (determined at the relevant
Increase Effective Date) plus (2) any original issue discount offered to Lenders making such Term
Loans amortized equally over the period from the date such Term Loans were made to the applicable
maturity date of such Term Loans; provided that such original issue discount shall not be
amortized over a period of greater than three years. All determinations by the Administrative
Agent as to Net Yield or other matters contemplated by this Section 2.23 shall be
conclusive absent manifest error.



The Incremental Term Loan Commitments shall be effected by a joinder agreement (the “Increase
Joinder”) executed by the Loan Parties, the Administrative Agent and each Lender making such
Incremental Term Loan Commitment, in form and substance satisfactory to each of




	 	 	 
	 
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them. The Increase Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and
the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative
Agent, to effect the provisions of this Section 2.23. In addition, unless otherwise
specifically provided herein, all references in Loan Documents to Term Loans shall be deemed,
unless the context otherwise requires, to include references to Term Loans made pursuant to
Incremental Term Loan Commitments made pursuant to this Agreement, and all references in Loan
Documents to Commitments of a Class shall be deemed, unless the context otherwise requires, to
include references to new Commitments of such Class made pursuant to this Agreement (for the
avoidance of doubt, it being expressly understood and agreed that, inter alia, the provisions of
Section 2.09(b) and Section 2.10(h)(vi)(B) shall apply to any Incremental Term
Loans that are Canadian Term Loans).




     (d) Making of New Term Loans. On any Increase Effective Date on which Incremental
Term Loan Commitments are effective, subject to the satisfaction of the foregoing terms and
conditions, each Lender of such Incremental Term Loan Commitments shall make a Term Loan to
Borrower in an amount equal to its new Commitment.



     (e) Equal and Ratable Benefit. The Loans and Commitments established pursuant to this
paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits
afforded by, this Agreement and the other Loan Documents, and shall, without limiting the
foregoing, benefit equally and ratably from the Guarantees and security interests created by the
Security Documents. The Loan Parties shall take any actions reasonably required by the
Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by
the Security Documents continue to be perfected under the UCC, the PPSA or otherwise after
giving effect to the establishment of any such Incremental Term Loan Commitments or any such
new Term Loans.



ARTICLE III.




REPRESENTATIONS AND WARRANTIES




     Each Loan Party represents and warrants to the Administrative Agent, the Collateral Agent, and
each of the Lenders (with references to the Companies being references thereto after giving effect
to the Transactions unless otherwise expressly stated) that:


SECTION 3.01 Organization; Powers. Each Company (a) is duly organized or incorporated (as
applicable) and validly existing under the laws of the jurisdiction of its organization or
incorporation (as applicable), (b) has all requisite organizational or constitutional power and
authority to carry on its business as now conducted and to own and lease its property and (c) is
qualified and in good standing (to the extent such concept is applicable in the applicable
jurisdiction) to do business in every jurisdiction where such qualification is required, except in
such jurisdictions where the failure to so qualify or be in good standing, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.



SECTION 3.02 Authorization; Enforceability. The Transactions to be entered into by each Loan Party
are within such Loan Party’s organizational or constitutional powers and




	 	 	 
	 
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have been duly authorized by all necessary organizational or constitutional action on the part of such Loan Party. This
Agreement has been duly executed and delivered by each Loan Party and constitutes, and each other
Loan Document to which any Loan Party is to be a party, when executed and delivered by such Loan
Party, will constitute, a legal, valid and binding obligation of such Loan Party, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.



SECTION 3.03 No Conflicts. The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority, except (i) such as
have been obtained or made and are in full force and effect, (ii) filings necessary to perfect
Liens created by the Loan Documents (as reflected in the applicable Perfection Certificate) and
(iii) consents, approvals, registrations, filings, permits or actions the failure to obtain or
perform which could not reasonably be expected to result in a Material Adverse Effect, (b) will not
violate the Organizational Documents of any Company, (c) will not violate any Requirement of Law,
(d) will not violate or result in a default or require any consent or approval under any indenture,
agreement or other instrument binding upon any Company or its property, or give rise to a right
thereunder to require any payment to be made by any Company, except for violations, defaults or the
creation of such rights that could not reasonably be expected to result in a Material Adverse
Effect, and (e) will not result in the creation or imposition of any Lien on any property of any
Company, except Liens created by the Loan Documents and Permitted Liens. The execution,
delivery and performance of the Loan Documents will not violate, or result in a default under, or
require any consent or approval under, the Senior Notes, the Senior Note Documents, or the
Revolving Credit Loan Documents.



SECTION 3.04 Financial Statements; Projections.




     (a) Historical Financial Statements. Administrative Borrower has heretofore delivered
to the Lenders the consolidated balance sheets and related statements of income, stockholders’
equity and cash flows of Canadian Borrower (i) as of and for the fiscal years ended 2005 and 2006,
audited by and accompanied by the unqualified opinion of PricewaterhouseCoopers, independent public
accountants, and (ii) as of and for the three-month period ended March 30, 2007, and for the
comparable period of the preceding fiscal year, in each case, certified by the chief financial
officer of Canadian Borrower. Such financial statements and all financial statements delivered
pursuant to Section 5.01(a), Section 5.01(b) and Section 5.01(c) have been
prepared in accordance with GAAP and present fairly in all material respects the financial
condition and results of operations and cash flows of Canadian Borrower as of the dates and for the
periods to which they relate.



     (b) No Liabilities. Except as set forth in the most recent financial statements
referred to in Section 3.04(a), as of the Closing Date there are no liabilities of any
Company of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise,
which could reasonably be expected to result in a Material Adverse Effect, and there is no existing
condition, situation or set of circumstances which could reasonably be expected to result in such a
liability, other than liabilities under the Loan Documents, the Revolving Credit Loan Documents and
the Senior Notes. Since December 31, 2006, there has been no event, change, circumstance or



	 	 	 
	 
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occurrence that, individually or in the aggregate, has had or could reasonably be expected to
result in a Material Adverse Effect.




     (c) Pro Forma Financial Statements. Borrowers have heretofore delivered to the
Lenders in the Confidential Information Memorandum, Canadian Borrower’s unaudited pro forma
consolidated capitalization table as of March 31, 2007, after giving effect to the Transactions as
if they had occurred on such date. Such capitalization table has been prepared in good faith by
the Loan Parties, based on the assumptions stated therein (which assumptions are believed by the
Loan Parties on the date hereof to be reasonable), are based on the best information available to
the Loan Parties as of the date of delivery thereof, accurately reflect all adjustments required to
be made to give effect to the Transactions and present fairly in all material respects the pro
forma capitalization of Holdings as of such date assuming the Transactions had occurred at such
date, except as required to adjust for the final allocation as between the Term Loans and the
Revolving Credit Loans.



     (d) Forecasts. The forecasts of financial performance of Canadian Borrower and its
subsidiaries furnished to the Lenders have been prepared in good faith by the Loan Parties and
based on assumptions believed by the Loan Parties to reasonable.


SECTION 3.05 Properties.




     (a) Generally. Each Company has good title to, valid leasehold interests in, or
license of, all its property material to its business, free and clear of all Liens except for
Permitted Liens. The property of the Companies, taken as a whole, (i) is in good operating order,
condition and repair in all material respects (ordinary wear and tear excepted) and (ii)
constitutes all the property which is required for the business and operations of the Companies as
presently conducted.



     (b) Real Property. Schedules 8(a) and 8(b) to the Perfection
Certificate dated the Closing Date contain a true and complete list of each interest in Real
Property (i) owned by any Loan Party as of the date hereof having fair market value of $1 million
or more and describes the type of interest therein held by such Loan Party and whether such owned
Real Property is leased to a third party and (ii) leased, subleased or otherwise occupied or
utilized by any Loan Party, as lessee, sublessee, franchisee or licensee, as of the date hereof
having annual rental payments of $1 million or more and describes the type of interest therein held
by such Loan Party.



     (c) No Casualty Event. No Company has as of the date hereof received any notice of,
nor has any knowledge of, the occurrence or pendency or contemplation of any Casualty Event
affecting all or any material portion of its property. No Mortgage encumbers improved Real
Property located in the United States that is located in an area that has been identified by the
Secretary of Housing and Urban Development as an area having special flood hazards within the
meaning of the National Flood Insurance Act of 1968 unless flood insurance available under such Act
has been obtained in accordance with Section 5.04.



     (d) Collateral. Each Company owns or has rights to use all of the Collateral used in,
necessary for or material to each Company’s business as currently conducted, except where the
failure to have such ownership or rights of use could not reasonably be expected to have a



	 	 	 
	 
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Material Adverse Effect. The use by each Company of such Collateral does not infringe on the rights of any
person other than such infringement which could not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect. No claim has been made and remains outstanding
that any Company’s use of any Collateral does or may violate the rights of any third party that
could, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.



SECTION 3.06 Intellectual Property.




     (a) Ownership/No Claims. Each Loan Party owns, or is licensed to use, all patents,
software, trademarks, mask works, inventions, designs, trade names, service marks, copyrights,
technology, trade secrets, proprietary information and data, domain names, know-how, processes and
other comparable intangible rights necessary for the conduct of its business as currently conducted
(“Intellectual Property”), except for those the failure to own or license which, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect. As of the
date hereof, no material claim has been asserted and is pending by any person,
challenging or questioning the use by any Loan Party of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor does any Loan Party know of any
valid basis for any such claim. The use of any Intellectual Property by each Loan Party, and the
conduct of such Loan Party’s business as currently conducted, does not infringe or otherwise
violate the rights of any person in respect of Intellectual Property, except for such claims and
infringements that, individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.



     (b) Registrations. Except pursuant to non-exclusive licenses and other non-exclusive
user agreements entered into by each Loan Party in the ordinary course of business, on and as of
the date hereof (i) each Loan Party owns and possesses the right to use, and has not authorized or
enabled any other person to use, any Intellectual Property listed on any schedule to the relevant
Perfection Certificate, or any other Intellectual Property that is material to its business, and
(ii) all registrations listed in Schedule 12(a) or 12(b) to the Perfection
Certificate are valid and in full force and effect, in each case where the failure to do so or the
absence thereof could reasonably be expected to have a Material Adverse Effect.



     (c) No Violations or Proceedings. To each Loan Party’s knowledge, on and as of the
date hereof, (i) there is no material infringement or other violation by others of any right of
such Loan Party with respect to any Intellectual Property listed on any schedule to the relevant
Perfection Certificate, or any other Intellectual Property that is material to its business, except
as may be set forth on Schedule 3.06(c), and (ii) no claims are pending or threatened to
such effect except as set forth on Schedule 3.06(c).


SECTION 3.07 Equity Interests and Subsidiaries.




     (a) Equity Interests. Schedules 1(a) and 10 to the Perfection
Certificate dated the Closing Date set forth a list of (i) all the Subsidiaries of Holdings and
their jurisdictions of organization as of the Closing Date and (ii) the number of each class of its
Equity Interests authorized, and the number outstanding, on the Closing Date and the number of
shares covered by all outstanding options, warrants, rights of conversion or purchase and similar
rights at the



	 	 	 
	 
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Closing Date. As of the Closing Date, all Equity Interests of each Company held by
Holdings or a Subsidiary thereof are duly and validly issued and are fully paid and non-assessable,
and, other than the Equity Interests of Holdings, are owned by Holdings, directly or indirectly
through Wholly Owned Subsidiaries except as indicated on Schedules 1(a) and 10 to
the Perfection Certificate. All Equity Interests of Canadian Borrower are owned directly by
Holdings. As of the Closing Date, each Loan Party is the record and beneficial owner of, and has
good and marketable title to, the Equity Interests pledged by it under the Security Documents, free
of any and all Liens, rights or claims of other persons, except Permitted Liens, and as of the
Closing Date there are no outstanding warrants, options or other rights to purchase, or
shareholder, voting trust or similar agreements outstanding with respect to, or property that is
convertible into, or that requires the issuance or sale of, any such Equity Interests.




     (b) No Consent of Third Parties Required. Except as have previously been obtained, no
consent of any person including any other general or limited partner, any other member of a
limited liability company, any other shareholder or any other trust beneficiary is necessary
in connection with the creation, perfection or First Priority status of the security interest of
the Collateral Agent in any Equity Interests pledged to the Collateral Agent for the benefit of the
Secured Parties under the Security Documents or the exercise by the Collateral Agent of the voting
or other rights provided for in the Security Documents or the exercise of remedies in respect
thereof.



     (c) Organizational Chart. An accurate organizational chart, showing the ownership
structure of Holdings, Borrowers and each Subsidiary on the Closing Date is set forth on
Schedule 10 to the Perfection Certificate dated the Closing Date.


SECTION 3.08 Litigation; Compliance with Laws. There are no actions, suits or proceedings at law
or in equity by or before any Governmental Authority now pending or, to the knowledge of any
Company, threatened against or affecting any Company or any business, property or rights of any
Company (i) that involve any Loan Document or (ii) as to which there is a reasonable possibility of
an adverse determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect. No Company or any of its
property is in violation of, nor will the continued operation of its property as currently
conducted violate, any Requirements of Law (including any zoning or building ordinance, code or
approval or any building permits) or any restrictions of record or agreements affecting any
Company’s Real Property or is in default with respect to any Requirement of Law, where such
violation or default, individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.



SECTION 3.09 Agreements. No Company is a party to any agreement or instrument or subject to any
corporate or other constitutional restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect. No Company is in default in any manner under any provision of
any indenture or other agreement or instrument evidencing Indebtedness, or any other agreement or
instrument to which it is a party or by which it or any of its property is or may be bound, where
such default could reasonably be expected to result in a Material Adverse Effect. There is no
existing default under any Organizational Document of any Company or any event which, with the
giving of notice or passage of time or both, would constitute a default by any party thereunder
that in each case could reasonably be expected to




	 	 	 
	 
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have an adverse effect on the Agents or the Lenders or their respective rights and benefits hereunder.



SECTION 3.10 Federal Reserve Regulations. No Company is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of buying or carrying
Margin Stock. No part of the proceeds of any Loan will be used, whether directly or indirectly,
and whether immediately, incidentally or ultimately, for any purpose that entails a violation of,
or that is inconsistent with, the provisions of the regulations of the Board, including Regulation
T, U or X. The pledge of the Securities Collateral pursuant to the Security Documents does not
violate such regulations.



SECTION 3.11 Investment Company Act. No Company is an “investment company” or a company
“controlled” by an “investment company,” as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended.



SECTION 3.12 Use of Proceeds. Borrowers will use the proceeds of (a) the Loans on the Closing Date
for the Refinancing and for payment of fees, premiums and expenses in connection with the
Transactions and (b) any Incremental Term Loans after the Closing Date for general corporate
purposes (including to effect Permitted Acquisitions); provided that in no event shall any
proceeds of any Loans (including any Incremental Term Loans) be remitted, directly or indirectly,
to any Swiss tax resident Company or Swiss tax resident permanent establishment, where this
remittance could be viewed as a use of such proceeds in Switzerland (whether through an
intercompany loan or advance by any other Company or otherwise) as per the practice of the Swiss
Federal Tax Administration, unless the Swiss Federal Tax Administration confirms in a written
advance tax ruling (based on a fair description of the fact pattern in the tax ruling request made
by a Loan Party) that such use of proceeds in Switzerland does not lead to Swiss Withholding Tax
becoming due on or in respect any Loans (including any Incremental Term Loans) or parts thereof.



SECTION 3.13 Taxes. Each Company has (a) timely filed or caused to be timely filed all material
Tax Returns required to have been filed by it and (b) duly and timely paid, collected or remitted
or caused to be duly and timely paid, collected or remitted all material Taxes due and payable,
collectible or remittable by it and all assessments received by it, except Taxes (i) that are being
contested in good faith by appropriate proceedings and for which such Company has set aside on its
books adequate reserves in accordance with GAAP or other applicable accounting rules and (ii) which
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. Each Company has made adequate provision in accordance with GAAP or other applicable
accounting rules for all material Taxes not yet due and payable. Each Company is unaware of any
proposed or pending tax assessments, deficiencies or audits that could be reasonably expected to,
individually or in the aggregate, result in a Material Adverse Effect. No Company has ever been a
party to any understanding or arrangement constituting a “tax shelter” within the meaning of
Section 6111(c), Section 6111(d) or Section 6662(d)(2)(C)(iii) of the Code, or has ever
“participated” in a “reportable transaction” within the meaning of Treasury Regulation Section
1.6011-4, except as could not be reasonably expected to, individually or in the aggregate, result
in a Material Adverse Effect.




	 	 	 
	 
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SECTION 3.14 No Material Misstatements. The written information (including the Confidential
Information Memorandum), reports, financial statements, certificates, exhibits or schedules
furnished by or on behalf of any Company to any Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant thereto, taken as a
whole, did not and does not contain
any material misstatement of fact and, taken as a whole, did not and does not omit to state
any material fact necessary to make the statements therein, in the light of the circumstances under
which they were or are made, not materially misleading in their presentation of Holdings and its
Subsidiaries taken as a whole as of the date such information is dated or certified;
provided that to the extent any such information, report, financial statement, exhibit or
schedule was based upon or constitutes a forecast or projection, each Loan Party represents only
that it was prepared in good faith and based on assumptions believed by the applicable Loan Parties
to be reasonable.



SECTION 3.15 Labor Matters. As of the Closing Date, there are no strikes, lockouts or labor
slowdowns against any Company pending or, to the knowledge of any Company, threatened. The hours
worked by and payments made to employees of any Company have not been in violation of the Fair
Labor Standards Act of 1938, as amended, or any other applicable federal, state, provincial, local
or foreign law dealing with such matters in any manner which could reasonably be expected to result
in a Material Adverse Effect. All payments due from any Company, or for which any claim may be
made against any Company, on account of wages and employee health and welfare insurance and other
benefits, have been paid or accrued as a liability on the books of such Company except where the
failure to do so could not reasonably be expected to result in a Material Adverse Effect. The
consummation of the Hindalco Acquisition did not and will not, and consummation of the Transactions
will not, give rise to any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which any Company is bound, except as could not
reasonably be expected to result in a Material Adverse Effect.



SECTION 3.16 Solvency. At the time of and immediately after the consummation of the Transactions
to occur on the Closing Date, and at the time of and immediately following the making of the
initial Credit Extension under any Incremental Term Loan Commitments and after giving effect to the
application of the proceeds of each Loan and the operation of the Contribution, Intercompany,
Contracting and Offset Agreement, (a) the fair value of the assets of each Loan Party (individually
and on a consolidated basis with its Subsidiaries) will exceed its debts and liabilities,
subordinated, contingent, prospective or otherwise; (b) the present fair saleable value of the
property of each Loan Party (individually and on a consolidated basis with its Subsidiaries) will
be greater than the amount that will be required to pay the probable liability of its debts and
other liabilities, subordinated, contingent, prospective or otherwise, as such debts and other
liabilities become absolute and matured; (c) each Loan Party (individually and on a consolidated
basis with its Subsidiaries) will be able to pay its debts and liabilities, subordinated,
contingent, prospective or otherwise, as such debts and liabilities become absolute and matured;
(d) each Loan Party (individually and on a consolidated basis with its Subsidiaries) will not have
unreasonably small capital with which to conduct its business in which it is engaged as such
business is now conducted and is proposed to be conducted following the Closing Date; and (e) each
Loan Party is not “insolvent” as such term is defined under any bankruptcy, insolvency or similar
laws of any jurisdiction in which any Loan Party is organized or incorporated (as applicable), or
otherwise unable to pay its debts as they fall due.




	 	 	 
	 
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SECTION 3.17 Employee Benefit Plans. Each Company and its ERISA Affiliates is in compliance in all
material respects with the applicable provisions of ERISA and the Code and the regulations and
published interpretations thereunder except for such non-compliance that in the aggregate would not
have a Material Adverse Effect. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events, could reasonably be expected to result
in a Material Adverse Effect or the imposition of a Lien on any of the property of any Company.
The present value of all accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts, exceed the fair market
value of the property of all such underfunded Plans in an amount which could reasonably be expected
to have a Material Adverse Effect. Using actuarial assumptions and computation methods consistent
with subpart I of subtitle E of Title IV of ERISA, the aggregate liabilities of each Company or its
ERISA Affiliates to all Multiemployer Plans in the event of a complete withdrawal therefrom, as of
the close of the most recent fiscal year of each such Multiemployer Plan, could not reasonably be
expected to result in a Material Adverse Effect.




          To the extent applicable, each Foreign Plan has been maintained in compliance with its terms
and with the requirements of any and all applicable Requirements of Law and has been maintained,
where required, in good standing with applicable Governmental Authority and Taxing Authority,
except for such non-compliance that in the aggregate would not have a Material Adverse Effect. No
Company has incurred any obligation in connection with the termination of or withdrawal from any
Foreign Plan, except to the extent of liabilities which could not reasonably be expected to have a
Material Adverse Effect. The present value of the accrued benefit liabilities (whether or not
vested) under each Foreign Plan which is funded, determined as of the end of the most recently
ended fiscal year of the respective Company on the basis of actuarial assumptions, each of which is
reasonable, did not exceed the current value of the property of such Foreign Plan, and for each
Foreign Plan which is not funded, the obligations of such Foreign Plan are properly accrued in the
financial statements of Canadian Borrower and its Subsidiaries, in each case in an amount that
could not reasonably be expected to have a Material Adverse Effect.




          Except as specified on Schedule 3.17, (i) no Company is or has at any time been an
employer (for the purposes of Sections 38 to 51 of the Pensions Act 2004) of an occupational
pension scheme which is not a money purchase scheme (both terms as defined in the Pensions Schemes
Act 1993), and (ii) no Company is or has at any time been “connected” with or an “associate” of (as
those terms are used in Sections 39 and 43 of the Pensions Act 2004) such an employer.



SECTION 3.18 Environmental Matters.




     (a) Except as, individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect:



               (i) The Companies and their businesses, operations and Real Property are in compliance with,
and the Companies have no liability under, any applicable Environmental Law;



	 	 	 
	 
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               (ii) The Companies have obtained all Environmental Permits required for the conduct of their
businesses and operations, and the ownership, operation and use of their property, under
Environmental Law, all such Environmental Permits are valid and in good standing;



               (iii) There has been no Release or threatened Release of Hazardous Material on, at, under or
from any Real Property or facility presently or formerly owned, leased or operated by the Companies
or their predecessors in interest that could reasonably be expected to result in liability of the
Companies under any applicable Environmental Law;



               (iv) There is no Environmental Claim pending or, to the knowledge of the Companies, threatened
against the Companies, or relating to the Real Property currently or formerly owned, leased or
operated by the Companies or their predecessors in interest or relating to the operations of the
Companies, and, to the best knowledge of the Loan Parties after due inquiry, there are no actions,
activities, circumstances, conditions, events or incidents that could reasonably be expected to
form the basis of such an Environmental Claim;



               (v) No Lien has been recorded or, to the knowledge of any Company, threatened under any
Environmental Law with respect to any Real Property or other assets of the Companies;



               (vi) The execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby will not require any notification, registration, filing,
reporting, disclosure, investigation, remediation or cleanup pursuant to any Governmental Real
Property Disclosure Requirements or any other applicable Environmental Law; and



               (vii) No person with an indemnity or contribution obligation to the Companies relating to
compliance with or liability under Environmental Law is in default with respect to such obligation.



     (b) As of the Closing Date:



               (i) Except as could not reasonably be expected to have a Material Adverse Effect, no Company
is obligated to perform any action or otherwise incur any expense under Environmental Law pursuant
to any order, decree, judgment or agreement by which it is bound or has assumed by contract,
agreement or operation of law, and no Company is conducting or financing any Response pursuant to
any Environmental Law with respect to any Real Property or any other location; and



               (ii) No Real Property or facility owned, operated or leased by the Companies and, to the
knowledge of the Companies, no Real Property or facility formerly owned, operated or leased by the
Companies or any of their predecessors in interest is (i) listed or proposed for listing on the
National Priorities List promulgated pursuant to CERCLA or (ii) listed on the Comprehensive
Environmental Response, Compensation and Liability Information System
promulgated pursuant to CERCLA or (iii) included on any similar publicly available list
maintained by any Governmental Authority including any such list relating to petroleum.



	 	 	 
	 
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SECTION 3.19 Insurance. Schedule 3.19 sets forth a true and correct description of all
insurance policies maintained by each Company as of the Closing Date. All insurance maintained by
the Companies and required by Section 5.04 is in full force and effect, and all premiums
thereon have been duly paid. As of the Closing Date, no Company has received notice of violation
or cancellation thereof, the Mortgaged Property, and the use, occupancy and operation thereof,
comply in all material respects with all Insurance Requirements, and there exists no material
default under any Insurance Requirement. Each Company has insurance in such amounts and covering
such risks and liabilities as are customary for companies of a similar size engaged in similar
businesses in similar locations.



SECTION 3.20 Security Documents.




     (a) U.S. Security Agreement. The U.S. Security Agreement is effective to create in
favor of the Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable
Liens on, and security interests in, the Security Agreement Collateral referred to therein and,
when (i) financing statements and other filings in appropriate form are filed in the offices
specified on Schedule 7 to the relevant Perfection Certificate as in effect on the Closing
Date and (ii) upon the taking of possession or control by the Collateral Agent of the Security
Agreement Collateral with respect to which a security interest may be perfected only by possession
or control (which possession or control shall be given to the Collateral Agent to the extent
possession or control by the Collateral Agent is required by each Security Agreement), the Liens
created by the Security Agreement shall constitute valid, perfected First Priority Liens on, and
security interests in, all right, title and interest of the grantors thereunder in the Security
Agreement Collateral (other than such Security Agreement Collateral in which a security interest
cannot be perfected under the UCC as in effect at the relevant time in the relevant jurisdiction),
in each case subject to no Liens other than Permitted Liens.



     (b) Canadian Security Agreement. Each of the Canadian Security Agreements is
effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, legal,
valid and enforceable Liens on, and security interests in, the Security Agreement Collateral
referred to therein and, when PPSA financing statements and other filings in appropriate form are
filed in the offices specified on Schedule 7 to the relevant Perfection Certificate as in
effect on the Closing Date, the Liens created by such Canadian Security Agreement shall constitute
valid, perfected First Priority Liens on, and security interests in, all right, title and interest
of the grantors thereunder in the Security Agreement Collateral referred to therein (other than
such Security Agreement Collateral in which a security interest cannot be perfected under the PPSA
as in effect at the relevant time in the relevant jurisdiction), in each case subject to no Liens
other than Permitted Liens.



     (c) U.K. Security Agreement. The U.K. Security Agreement is effective to create in
favor of the Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable
Liens on, and security interests in, the Security Agreement Collateral referred to therein and,
upon the registration specified on Schedule 7 to the relevant Perfection Certificate as in
effect on the Closing Date, the Liens created by the U.K. Security Agreement shall constitute
valid, perfected First Priority Liens on, and security interests in, all right, title and interest
of the grantors thereunder in the Security Agreement Collateral referred to therein (other than
such Security Agreement Collateral in which a security interest cannot be perfected under
applicable



	 	 	 
	 
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law as in effect at the relevant time in the relevant jurisdiction), in each case
subject to no Liens other than Permitted Liens.




     (d) Swiss Security Agreement. The Swiss Security Agreement is effective to create in
favor of the Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable
Liens on, and security interests in, the Security Agreement Collateral referred to therein and,
upon the registrations, recordings and other actions specified on Schedule 7 to the
relevant Perfection Certificate as in effect on the Closing Date, the Liens created by the Swiss
Security Agreement shall constitute valid, perfected First Priority Liens on, and security
interests in, all right, title and interest of the grantors thereunder in the Security Agreement
Collateral referred to therein (other than such Security Agreement Collateral in which a security
interest cannot be perfected under applicable law as in effect at the relevant time in the relevant
jurisdiction), in each case subject to no Liens other than Permitted Liens.



     (e) German Security Agreement. The German Security Agreement is effective to create
in favor of the Collateral Agent for the benefit of the Secured Parties, or in the case of
accessory security, in favor of the Secured Parties, legal, valid and enforceable Liens on, and
security interests in, the Security Agreement Collateral referred to therein and, upon the
registrations, recordings and other actions specified on Schedule 7 to the relevant
Perfection Certificate as in effect on the Closing Date, the Liens created by the German Security
Agreement shall constitute valid, perfected First Priority Liens on, and security interests in, all
right, title and interest of the grantors thereunder in the Security Agreement Collateral referred
to therein (other than such Security Agreement Collateral in which a security interest cannot be
perfected under applicable law as in effect at the relevant time in the relevant jurisdiction), in
each case subject to no Liens other than Permitted Liens.



     (f) Irish Security Agreement. The Irish Security Agreement is effective to create in
favor of the Collateral Agent for the benefit of and as trustee for the Secured Parties, legal,
valid and enforceable Liens on, and security interests in, the Security Agreement Collateral
referred to therein and, upon the registrations, recordings and other actions specified on
Schedule 7 to the relevant Perfection Certificate as in effect on the Closing Date, the
Liens created by the Irish Security Agreement shall constitute valid, perfected First Priority
Liens on, and security interests in, all right, title and interest of the grantors thereunder in
the Security Agreement Collateral referred to therein (other than such Security Agreement
Collateral in which a security interest cannot be perfected under applicable law as in effect at
the relevant time in the relevant jurisdiction), in each case subject to no Liens other than
Permitted Liens.



     (g) Brazilian Security Agreement. Each Brazilian Security Agreement is effective to
create in favor of the Collateral Agent for the benefit of the Secured Parties, legal, valid and
enforceable Liens on, and security interests in, the Security Agreement Collateral referred to
therein and, upon the registrations, recordings and other actions specified on Schedule 7
to the relevant Perfection Certificate as in effect on the Closing Date, the Liens created by each
of the Brazilian Security Agreement shall constitute valid, perfected First Priority Liens on, and
security interests in, all right, title and interest of the grantors thereunder in the Security
Agreement Collateral referred to therein (other than such Security Agreement Collateral in which a
security interest cannot be perfected under applicable law as in effect at the relevant time in the
relevant jurisdiction), in each case subject to no Liens other than Permitted Liens.



	 	 	 
	 
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     (h) Intellectual Property Filings. When the (i) financing statements and other
filings in appropriate form referred to on Schedule 7 to the relevant Perfection
Certificate have been made, and (ii) U.S. Security Agreement or a short form thereof is filed in
the United States Patent and Trademark Office and the United States Copyright Office, the Liens
created by such Security Agreement shall constitute valid, perfected First Priority Liens on, and
security interests in, all right, title and interest of the grantors thereunder in Patents and
Trademarks (each as defined in such Security Agreement) that are registered or applied for by any
Loan Party with the United States Patent and Trademark Office or Copyrights (as defined in such
Security Agreement) registered or applied for by any Loan Party with the United States Copyright
Office, as the case may be, in each case subject to no Liens other than Permitted Liens.



     (i) Mortgages. Each Mortgage (other than a Mortgage granted by a U.K. Guarantor) is
effective to create, in favor of the Collateral Agent, for its benefit and the benefit of the
Secured Parties, legal, valid, perfected and enforceable First Priority Liens on, and security
interests in, all of the Loan Parties’ right, title and interest in and to the Mortgaged Properties
thereunder and the proceeds thereof, subject only to Permitted Liens, and when such Mortgages are
filed in the offices specified on Schedule 8(a) to the applicable Perfection Certificates
dated the Closing Date (or, in the case of any Mortgage executed and delivered after the date
thereof in accordance with the provisions of Sections 5.11 and 5.12, when such
Mortgage is filed in the offices specified in the local counsel opinion delivered with respect
thereto in accordance with the provisions of Sections 5.11 and 5.12), the Mortgages
shall constitute First Priority fully perfected Liens on, and security interests in, all right,
title and interest of the Loan Parties in the Mortgaged Properties and the proceeds thereof, in
each case prior and superior in right to any other person, other than Permitted Liens.



     The Mortgages granted by each applicable U.K. Guarantor under the relevant U.K. Security
Agreement are effective to create in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, legal, valid and enforceable Liens on all of each such Loan Party’s right, title
and interest in and to the Mortgaged Property thereunder and the proceeds thereof, and when the
Mortgages are filed with the Land Registry, the Mortgages shall constitute fully perfected First
Priority Liens on, and security interest in, all right, title and interest of the U.K. Borrower and
each applicable U.K. Guarantor in such Mortgaged Property and the proceeds thereof, in each case
prior and superior in right to any other Person, other than with respect to the rights of Persons
pursuant to Permitted Liens.



     (j) Valid Liens. Each Security Document delivered pursuant to Sections 5.11
and 5.12 will, upon execution and delivery thereof, be effective to create in favor of the
Collateral Agent, for the benefit of the Secured Parties, legal, valid and enforceable Liens on,
and security interests in, all of the Loan Parties’ right, title and interest in and to the Collateral
thereunder, and (i) when all appropriate filings, registrations or recordings and other actions set
forth in the relevant Perfection Certificate are made in the appropriate offices as may be required
under applicable law and (ii) upon the taking of possession or control by the Collateral Agent of
such Collateral with respect to which a security interest may be perfected only by possession or
control (which possession or control shall be given to the Collateral Agent to the extent required
by any Security Document), such Security Document will constitute First Priority fully perfected
Liens on, and security interests in, all right, title and interest of the Loan Parties in such
Collateral, in each case subject to no Liens other than the applicable Permitted Liens.



	 	 	 
	 
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     (k) Receivables Purchase Agreement. The Receivables Purchase Agreement is in full
force and effect. Each representation and warranty under the Receivables Purchase Agreement of
each Loan Party party thereto is true and correct on and as of the date made thereunder. No
“Termination Event” (as defined therein) has occurred under the Receivables Purchase Agreement.


SECTION 3.21 Acquisition Documents; Material Indebtedness Documents; Representations and Warranties in
Acquisition Agreement. Schedule 3.21 lists, as of the Closing Date, (i) the
Acquisition Agreement and each material agreement, certificate, instrument, letter or other
document delivered pursuant to the Acquisition Agreement or otherwise entered into, executed or
delivered by any Loan Party or Acquiror in connection with the Hindalco Acquisition (each, an
“Acquisition Document”), (ii) each material Senior Note Document, (iii) each material Revolving
Credit Loan Document, (iv) each material agreement, certificate, instrument, letter or other
document delivered pursuant to the Subordinated Debt Loan, and (v) each material agreement,
certificate, instrument, letter or other document evidencing any other Material Indebtedness, and
the Lenders have been furnished true and complete copies of each of the foregoing. All
representations and warranties of each Company set forth in the Acquisition Agreement were true and
correct in all material respects as of the time such representations and warranties were made and
no default has occurred under the Acquisition Agreement.



SECTION 3.22 Anti-Terrorism Law. No Loan Party and, to the knowledge of the Loan Parties, none of
its Affiliates is in violation of any Requirement of Law relating to terrorism or money laundering
(“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing, effective
September 24, 2001 (the “Executive Order”), and the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.




          No Loan Party and to the knowledge of the Loan Parties, no Affiliate or broker or other agent
of any Loan Party acting or benefiting in any capacity in connection with the Loans is any of the
following:




               (i) a person that is listed in the annex to, or is otherwise subject to the provisions of, the
Executive Order;



               (ii) a person owned or controlled by, or acting for or on behalf of, any person that is listed
in the annex to, or is otherwise subject to the provisions of, the Executive Order;



               (iii) a person with which any Lender is prohibited from dealing or otherwise engaging in any
transaction by any Anti-Terrorism Law;



               (iv) a person that commits, threatens or conspires to commit or supports “terrorism”
as
defined in the Executive Order; or



               (v) a person that is named as a “specially designated national and blocked person” on
the most
current list published by the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) at
its official website or any replacement website or other replacement official publication of such
list.



	 	 	 
	 
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          No Loan Party and, to the knowledge of the Loan Parties, no broker or other agent of any Loan
Party acting in any capacity in connection with the Loans (x) conducts any business or engages in
making or receiving any contribution of funds, goods or services to or for the benefit of any
person described in clauses (i) through (v) above, (y) deals in, or otherwise engages in any
transaction relating to, any property or interests in property blocked pursuant to the Executive
Order, or (z) engages in or conspires to engage in any transaction that evades or avoids, or has
the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in
any Anti-Terrorism Law.



SECTION 3.23 [INTENTIONALLY OMITTED].



SECTION 3.24 Location of Material Inventory and Equipment. Schedule 3.24 sets forth as of
the Closing Date all locations where the aggregate value of Inventory and Equipment (other than
mobile Equipment or Inventory in transit) owned by the Loan Parties exceeds $1 million.



SECTION 3.25 [INTENTIONALLY OMITTED].



SECTION 3.26 Senior Notes; Material Indebtedness. The Obligations constitute “Senior Debt” or
“Designated Senior Indebtedness” (or any other defined term having a similar purpose) within the
meaning of the Senior Note Documents (and any Permitted Refinancings thereof permitted under
Section 6.01 other than refinancings with Incremental Term Loans). The Commitments and the
Loans and other extensions of credit under the Loan Documents constitute “Credit Facilities” (or
any other defined term having a similar purpose) or liabilities payable under the documentation
related to “Credit Facilities” (or any other defined term having a similar purpose), in each case,
within the meaning of the Senior Note Documents (and any Permitted Refinancings thereof permitted
under Section 6.01 other than refinancings with Incremental Term Loans). The consummation
of each of (i) the Hindalco
Acquisition, (ii) the Transactions, (iii) each incurrence of Indebtedness hereunder and (iv)
the granting of the Liens provided for under the Security Documents to secure the Secured
Obligations is permitted under, and, in each case, does not require any consent or approval under,
the terms of (A) the Senior Note Documents (and any Permitted Refinancings thereof), the Revolving
Credit Loan Documents (and any Permitted Revolving Credit Facility Refinancings thereof) or any
other Material Indebtedness or (B) any other material agreement or instrument binding upon any
Company or any of its property except, in the case of this clause (B), as could not reasonably be
expected to result in a Material Adverse Effect.



SECTION 3.27 Centre of Main Interests and Establishments. For the purposes of The Council of the
European Union Regulation No. 1346/2000 on Insolvency Proceedings (the “Regulation”), (i) the
centre of main interest (as that term is used in Article 3(1) of the Regulation) of each U.K.
Guarantor is situated in England and Wales, (ii) the centre of main interest of each Irish
Guarantor is situated in Ireland, and in each case each has no “establishment” (as that term is
used in Article 2(h) of the Regulation) in any other jurisdiction and (iii) the centre of main
interest of each Swiss Guarantor is situated in Switzerland, and in each case each has no
“establishment” (as that term is used in Article 2(h) of the Regulation) in any other jurisdiction,
and (iv) the centre of main interest of German Seller is situated in Germany.




	 	 	 
	 
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SECTION 3.28 Holding and Dormant Companies. Except as may arise under the Loan Documents, the
Revolving Credit Loan Documents or (in the case of Novelis Europe Holdings Limited) the Senior
Notes, neither Holdings nor Novelis Europe Holdings Limited trades or has any liabilities or
commitments (actual or contingent, present or future) other than liabilities attributable or
incidental to acting as a holding company of shares in the Equity Interests of its Subsidiaries.



SECTION 3.29 Hindalco Acquisition. The Hindalco Acquisition was consummated on the Acquisition
Closing Date in all material respects in accordance with the terms and conditions of the
Acquisition Agreement, without the waiver or amendment of any such terms or conditions not approved
by the Administrative Agent and the Arrangers other than any waiver or amendment thereof that was
not materially adverse to the interests of the Lenders.



SECTION 3.30 Excluded Collateral Subsidiaries. The Excluded Collateral Subsidiaries as of the
Closing Date are listed on Schedule 1.01(c).



SECTION 3.31 Immaterial Subsidiaries. The Immaterial Subsidiaries as of the Closing Date are
listed on Schedule 1.01(d).




ARTICLE IV.




CONDITIONS TO CREDIT EXTENSIONS



SECTION 4.01 Conditions to Initial Credit Extension. The obligation of each Lender to fund the
initial Credit Extension requested to be made by it shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this Section 4.01.




     (a) Loan Documents. The Administrative Agent shall have received executed
counterparts of each of the following, properly executed by a Responsible Officer of each
applicable signing Loan Party, each in form and substance reasonably satisfactory to the
Administrative Agent and its legal counsel:



          (i) this Agreement,




          (ii) each Foreign Guaranty;




          (iii) the Intercreditor Agreement;




          (iv) the Contribution, Intercompany, Contracting and Offset Agreement;




          (v) the Receivables Purchase Agreement;




          (vi) a Note executed by each applicable Borrower in favor of each Lender that has requested a
Note prior to the Closing Date;




          (vii) the U.S. Security Agreement, each Canadian Security Agreement, each U.K. Security
Agreement, each Swiss Security Agreement, each German Security Agreement,




	 	 	 
	 
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each Irish Security Agreement, each Brazilian Security Agreement and each other Security Document requested by the
Administrative Agent prior to the Closing Date; and




          (viii) the Perfection Certificates.




     (b) Corporate Documents. The Administrative Agent shall have received:



          (i) a certificate of the secretary, assistant secretary or managing director (where
applicable) of each Loan Party dated the Closing Date, certifying (A) that attached thereto is a
true and complete copy of each Organizational Document (or its equivalent including the
constitutional documents) of such Loan Party certified (to the extent customary in the applicable
state) as of a recent date by the Secretary of State (or equivalent Governmental Authority) of the
jurisdiction of its organization, (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors and/or shareholders, as applicable, of such Loan
Party authorizing the execution, delivery and performance of the Loan Documents to which such
person is a party and, in the case of Borrowers, the borrowings hereunder, 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, (C) as to the incumbency and specimen
signature of each officer executing any Loan Document or any other document delivered in
connection herewith on behalf of such Loan Party (together with a certificate of another officer as
to the incumbency and specimen signature of the secretary, assistant secretary or managing director
executing the certificate in this clause (i), and other customary evidence of incumbency) and (D)
that the borrowing, guarantee, or granting of Liens with respect to the Loans or any of the other
Secured Obligations would not cause any borrowing, guarantee, security or similar limit binding on
any Loan Party to be exceeded;




          (ii) a certificate as to the good standing (where applicable, or such other customary
functionally equivalent certificates or abstracts) of each Loan Party (in so-called “long-form” if
available) as of a recent date, from such Secretary of State (or other applicable Governmental
Authority);




          (iii) evidence that the records of the applicable Loan Parties at the United Kingdom Companies
House and each other relevant registrar of companies (or equivalent Governmental Authority) in the
respective jurisdictions of organization of the Loan Parties are accurate, complete and up to date
and that the latest relevant accounts have been duly filed, where applicable;




          (iv) if relevant, evidence that each Irish Guarantor has done all that is necessary to follow
the procedures set out in Sub-Sections (2) and (11) of section 60 of the Companies Act 1963 of
Ireland in order to enable it to enter into the Loan Documents;




          (v) a copy of the constitutional documents of any Person incorporated in Ireland whose shares
are subject to security under any Security Document, together with any resolutions of the
shareholders of such Person adopting such changes to the constitutional documents of that Person to
remove any restriction on any transfer of shares or partnership interests (or equivalent) in such
Person pursuant to any enforcement of any such Security Document;




	 	 	 
	 
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          (vi) evidence that each of the Loan Parties are members of the same group of companies
consisting of a holding company and its subsidiaries for the purposes of Section 155 of the
Companies Act 1963 of Ireland and Section 35 of the Companies Act 1990 of Ireland; and




          (vii) such other documents as the Lenders or the Administrative Agent may reasonably request.




     (c) Officers’ Certificate. The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Responsible Officer of Canadian Borrower,
certifying (i) compliance with the conditions precedent set forth in this Section 4.01 and
Section 4.02(b) and (c), (ii) as to the absence of any Acquisition Material Adverse
Effect from September 30, 2006, through the Acquisition Closing Date, (iii) that the
representations and warranties of each Company set forth in the Acquisition Agreement shall have
been true and correct (without giving effect to any materiality qualifiers set forth therein) as of
the Acquisition Closing Date as if made on and as of such date (except (a) to the extent such
representations and warranties speak solely as of an earlier date, in which event such
representations and warranties shall be true and correct to such extent as of such earlier date,
(b) other than in the case of the representations and
warranties specifically referred to in clause (c) below, to the extent that facts or matters
as to which such representations and warranties are not so true and correct as of such dates,
individually or in the aggregate, have not had and would not have a Acquisition Material Adverse
Effect, and (c) in the case of the representations and warranties set forth in Section 3.03 of the
Acquisition Agreement such representations and warranties shall have been true and correct in all
material respects), (iv) that each of the representations and warranties made by any Loan Party set
forth in ARTICLE III hereof or in any other Loan Document were true and correct in all
material respects on and as of the Closing Date, except to the extent such representations and
warranties expressly related to an earlier date, in which case such representation and warranty
shall have been true and correct in all material respects as of such earlier date.



     (d) Financings and Other Transactions, etc.



          (i) (A) The Hindalco Acquisition shall have been consummated in all material respects in
accordance with the terms of the Acquisition Agreement, without the waiver or amendment of any such
terms not approved by the Administrative Agent and the Arrangers other than any waiver or amendment
thereof that is not materially adverse to the interests of the Lenders and (B) the Transactions
shall have been consummated or shall be consummated simultaneously on the Closing Date, in each
case in all material respects in accordance with the terms hereof and the terms of the Transaction
Documents, without the waiver or amendment of any such terms not approved by the Administrative
Agent and the Arrangers other than any waiver or amendment thereof that is not materially adverse
to the interests of the Lenders..




          (ii) The Loan Parties that are borrowers under the Revolving Credit Agreement shall have
contemporaneously received an aggregate amount equal to the Dollar Equivalent of approximately $550
million in gross proceeds from borrowings under the Revolving Credit Agreement.




	 	 	 
	 
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          (iii) The Refinancing shall be consummated contemporaneously with the transactions
contemplated hereby in full to the satisfaction of the Lenders with all Liens in favor of the
existing lenders being unconditionally released; the Administrative Agent shall have received a
“pay-off” letter in form and substance reasonably satisfactory to the Administrative Agent with
respect to all debt being refinanced in the Refinancing; and the Administrative Agent shall have
received from any person holding any Lien securing any such debt, such UCC termination statements,
mortgage releases, releases of assignments of leases and rents, releases of security interests in
Intellectual Property and other instruments, in each case in proper form for recording, as the
Administrative Agent shall have reasonably requested to release and terminate of record the Liens
securing such debt.




     (e) Financial Statements; Pro Forma Balance Sheet; Projections. The Administrative
Agent shall have received the financial statements described in Section 3.04(a) and the pro
forma capitalization table described in Section 3.04(c), together with forecasts of the
financial performance of the Companies.



     (f) Indebtedness and Minority Interests. After giving effect to the Transactions and
the other transactions contemplated hereby, no Company shall have outstanding any
Indebtedness or preferred stock other than (i) the Loans hereunder, (ii) the Revolving Credit
Loans and other extensions of credit under the Revolving Credit Agreement, (iii) the Senior Notes,
(iv) the Subordinated Debt Loan, (v) the Indebtedness listed on Schedule 6.01(b), (vi)
Indebtedness owed to, and preferred stock held by, any Borrower or any Guarantor to the extent
permitted hereunder and (vii) other Indebtedness permitted under Section 6.01.



     (g) Opinions of Counsel. The Administrative Agent shall have received, on behalf of
itself, the other Agents, the Arrangers, the Lenders, (i) a favorable written opinion of Torys LLP,
special counsel for the Loan Parties, (ii) a favorable written opinion of each local and foreign
counsel of the Loan Parties listed on Schedule 4.01(g), in each case (A) dated the Closing
Date, (B) addressed to the Agents and the Lenders and (C) covering the matters set forth in
Exhibit N and such other matters relating to the Loan Documents and the Transactions as the
Administrative Agent shall reasonably request, and (iii) a copy of each legal opinion (if any)
delivered in connection with the Hindalco Acquisition.



     (h) Solvency Certificate. The Administrative Agent shall have received a solvency
certificate in the form of Exhibit O (or in such other form as is satisfactory to the
Administrative Agent to reflect applicable legal requirements), dated the Closing Date and signed
by a senior Financial Officer of each Loan Party or of Canadian Borrower.



     (i) Requirements of Law. The Administrative Agent shall be satisfied that Holdings,
its Subsidiaries and the Transactions shall be in full compliance with all material Requirements of
Law, including Regulations T, U and X of the Board, and shall have received satisfactory evidence
of such compliance reasonably requested by them.



     (j) Consents. All approvals of Governmental Authorities and third parties (i)
required to be obtained under the Hindalco Acquisition Agreement or (ii) necessary to consummate
the Transactions shall been obtained and shall be in full force and effect.



	 	 	 
	 
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     (k) Litigation. There shall be no governmental or judicial action, actual or
threatened, that has or would have, singly or in the aggregate, a reasonable likelihood of
restraining, preventing or imposing burdensome conditions on the Transactions or the Hindalco
Acquisition.



     (l) Sources and Uses. The sources and uses of the Loans shall be as set forth in
Schedule 4.01(l).



     (m) Fees. The Arrangers and Administrative Agent shall have received all Fees and
other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced,
reimbursement or payment of all reasonable out-of-pocket expenses (including the reasonable legal
fees and expenses of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to the Agents, and
the reasonable fees and expenses of any local counsel, foreign counsel, appraisers, consultants and
other advisors) required to be reimbursed or paid by any Loan Party hereunder or under any other
Loan Document.



     (n) Personal Property Requirements. The Collateral Agent shall have received:



          (i) subject to the terms of the Intercreditor Agreement, all certificates, agreements or
instruments, if any, representing or evidencing the Securities Collateral accompanied by
instruments of transfer and stock powers undated and endorsed in blank;




          (ii) subject to the terms of the Intercreditor Agreement, the Intercompany Note executed by
and among Canadian Borrower and each of its Subsidiaries, accompanied by instruments of transfer
undated and endorsed in blank;




          (iii) subject to the terms of the Intercreditor Agreement, all other certificates, agreements
(including Control Agreements) or instruments necessary to perfect the Collateral Agent’s security
interest in all “Chattel Paper”, “Instruments”, “Deposit Accounts” and “Investment Property” (as
each such term is defined in the U.S. Security Agreement) of each Loan Party to the extent required
hereby or under the relevant Security Documents;




          (iv) UCC financing statements in appropriate form for filing under the UCC, filings with the
United States Patent and Trademark Office and United States Copyright Office PPSA filings, and such
other documents under applicable Requirements of Law in each jurisdiction as may be necessary or
appropriate or, in the opinion of the Collateral Agent, desirable to perfect the Liens created, or
purported to be created, by the Security Documents;




          (v) certified copies of UCC, United States Patent and Trademark Office and United States
Copyright Office, PPSA, tax and judgment lien searches, bankruptcy and pending lawsuit searches or
equivalent reports or searches (in jurisdictions where such searches are available), each of a
recent date listing all outstanding financing statements, lien notices or comparable documents that
name any Loan Party as debtor and that are filed in those state and county (or other applicable)
jurisdictions in which any property of any Loan Party (other than Inventory in transit) is located
and the state and county (or other applicable) jurisdictions in which any Loan Party is organized
or maintains its principal place of business and such other searches that the Collateral Agent
deems necessary or appropriate, none of which are effective to




	 	 	 
	 
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encumber the Collateral covered or intended to be covered by the Security Documents (other than Permitted Liens);




          (vi) evidence acceptable to the Collateral Agent of payment or arrangements for payment by the
Loan Parties of all applicable recording taxes, fees, charges, costs and expenses required for the
recording of the Security Documents;




          (vii) evidence that all Liens (other than Permitted Liens) affecting the assets of the Loan
Parties have been or will be discharged on or before the Closing Date (or, in the case of financing
statement filings or similar notice of lien filings that do not evidence security interests (other
than security interests that are discharged on or before the Closing Date), that arrangements with
respect to the release or termination thereof satisfactory to the Administrative Agent have been
made);




          (viii) copies of all notices required to be sent and other documents required to be executed
under the Security Documents;




          (ix) all share certificates, duly executed and stamped stock transfer forms and other
documents of title required to be provided under the Security Documents; and




          (x) evidence that the records of each U.K. Guarantor at the United Kingdom Companies House are
accurate, complete and up to date and that the latest relevant accounts have been duly filed.




     (o) Real Property Requirements. The Collateral Agent shall have received:



          (i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Agent, for the
benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that holds any
direct interest in such Mortgaged Property, and otherwise in form for recording in the recording
office of each applicable political subdivision where each such Mortgaged Property is situated,
together with such certificates, affidavits, questionnaires or returns as shall be required in
connection with the recording or filing thereof to create a lien under applicable Requirements of
Law, and such financing statements and any other instruments necessary to grant a mortgage lien
under the laws of any applicable jurisdiction, all of which shall be in form and substance
reasonably satisfactory to Collateral Agent;




          (ii) with respect to each Mortgaged Property, such consents, approvals, amendments,
supplements, estoppels, tenant subordination agreements or other instruments as necessary to
consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in
order for the owner or holder of the fee or leasehold interest constituting such Mortgaged Property
to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;




          (iii) with respect to each Mortgage of property located in the United States, Canada or, to
the extent reasonably requested by the Collateral Agent, any other jurisdictions, (a) a policy of
title insurance (or marked up title insurance commitment having the effect of a policy of title
insurance) insuring the Lien of such Mortgage as a valid, perfected mortgage Lien on the Mortgaged
Property and fixtures described therein having the priority specified in the




	 	 	 
	 
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Intercreditor Agreement in the amount equal to not less than 115% of the fair market value of such Mortgaged
Property and fixtures, which fair market value is set forth on Schedule 4.01(o)(iii), which
policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title
Company, (B) to the extent necessary, include such reinsurance arrangements (with provisions for
direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain
a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure
against losses regardless of location or allocated value of the insured property up to a stated
maximum coverage amount), (D) have been supplemented by such endorsements (or where such
endorsements are not available, opinions of special counsel, architects or other professionals
reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral
Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning,
contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable
rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit,
and so-called comprehensive coverage over covenants and restrictions), and (E) contain no
exceptions to title other than exceptions acceptable to the Collateral Agent, it being acknowledged
that Permitted Liens of the type described in Section 6.02(a), 6.02(b),
6.02(d), 6.02(f) (clause (x) only), 6.02(g), and 6.02(k) shall be
acceptable or (b) in respect of Mortgaged Property situated outside the United States, a title
opinion of Canadian Borrower’s local counsel in form and substance satisfactory to the Collateral
Agent;




          (iv) with respect to each applicable Mortgaged Property, such affidavits, certificates,
information (including financial data) and instruments of indemnification (including a so-called
“gap” indemnification) as shall be required to induce the Title Company to issue the Title
Policy/ies and endorsements contemplated above;




          (v) evidence reasonably acceptable to the Collateral Agent of payment by the applicable
Borrowers of all Title Policy premiums, search and examination charges, escrow charges and related
charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of
the Mortgages and issuance of the Title Policies referred to above;




          (vi) with respect to each Real Property or Mortgaged Property, copies of all Leases in which
any Loan Party or any Subsidiary holds the lessor’s interest or other agreements relating to
possessory interests, if any, in each case providing for annual rental payments in excess of
$250,000. To the extent any of the foregoing affect any Mortgaged Property, such agreement shall
be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either
expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement,
and shall otherwise be acceptable to the Collateral Agent;




          (vii) with respect to each Mortgaged Property, each Company shall have made all notifications,
registrations and filings, to the extent required by, and in accordance with, all Governmental Real
Property Disclosure Requirements applicable to such Mortgaged Property;




          (viii) to the extent requested by the Collateral Agent, Surveys with respect to the Mortgaged
Properties;




          (ix) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with
respect to each Mortgaged Property situated in the United States;




	 	 	 
	 
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          (x) (a) title deeds to each real and leasehold property situated in England and Wales secured
in favor of the Collateral Agent; or (b) a letter (satisfactory to the Collateral Agent) from
solicitors holding those title deeds undertaking to hold them to the order of the Collateral Agent;
or (c) if any document is at the Land Registry, a certified copy of that document and a letter from
the U.K. Guarantors’ solicitors directing the registry to issue the document to the Collateral
Agent or its solicitors; and




          (xi) in relation to property situated in England and Wales, if applicable, satisfactory
priority searches at the Land Registry and Land Charges Searches, giving not less that 25 Business
Days’ priority notice beyond the date of the debenture and evidence that no Lien is registered
against the relevant property (other than Permitted Liens or any Liens that will be released on the
date of first drawdown, such searches to be addressed to or capable of being relied upon by the
Secured Parties).




     (p) Insurance. The Administrative Agent shall have received a copy of, or a
certificate as to coverage under, the property and liability insurance policies required by
Section 5.04 and the applicable provisions of the Security Documents, each of which shall
be endorsed or otherwise amended to include a “standard” lender’s loss payable or mortgagee
endorsement (as applicable) and shall name the Collateral Agent, on behalf of the Secured Parties,
as additional insured, in form and substance satisfactory to the Administrative Agent.



     (q) USA Patriot Act. The Lenders shall have received, sufficiently in advance of the
Closing Date, all documentation and other information that may be required by the Lenders in order
to enable compliance with applicable “know your customer” and anti-money laundering rules and
regulations, including the United States PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) including, without limitation, the information described in Section
11.13.



     (r) Cash Management. The Collateral Agent and the Administrative Agent shall have
reviewed and approved the Companies’ cash management system and shall have received executed
blocked account agreements (or, with respect to countries other than the United States and Canada,
other customary arrangements) from all of the financial institutions where the Loan Parties
maintain bank accounts or securities accounts (except as may otherwise be agreed by the Collateral
Agent) in form and substance satisfactory to Administrative Agent and Collateral Agent.



     (s) Process Agent. The Collateral Agent and the Administrative Agent shall have
received evidence of the acceptance by the Process Agent of its appointment as such by the Loan
Parties.



     (t) Outstanding Indebtedness. The Collateral Agent and the Administrative Agent shall
have received evidence that the amount of funded indebtedness and unfunded commitments under that
certain Credit Agreement, dated as of January 7, 2005, among Novelis Inc., Novelis Corporation,
Novelis Deutschland GmbH, Novelis UK Ltd, Novelis AG, the lenders and issuers party thereto, and
Citicorp North America, Inc., as administrative agent and collateral agent (as amended, restated,
supplemented or otherwise modified), shall not exceed $1,500 million.



	 	 	 
	 
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SECTION 4.02 Conditions to Credit Extensions. The obligation of each Lender to make the initial
Credit Extension and the obligation of any Lenders to make the initial Credit Extension under any
Incremental Term Loan Commitments shall be subject to, and to the satisfaction of, each of the
conditions precedent set forth below.




     (a) Notice. The Administrative Agent shall have received a Borrowing Request as
required by Section 2.03 (or such notice shall have been deemed given in accordance with
Section 2.03).



     (b) No Default. No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds therefrom (subject to Section 4.02(c) and
Section 4.03 in the case of the initial Credit Extension).



     (c) Representations and Warranties. Each of the representations and warranties made
by any Loan Party set forth in ARTICLE III hereof or in any other Loan Document (other than
Hedging Agreements) shall be true and correct in all material respects on and as of the date of
such Credit Extension with the same effect as though made on and as of such date, except to the
extent such representations and warranties expressly relate to an earlier date, in which case such
representation and warranty shall have been true and correct in all material respects as of such
earlier date; provided that in the case of the initial Credit Extension hereunder only, the
representations contained in Sections 3.04 (Financial Statements; Projections),
3.05 (Properties), 3.06 (Intellectual Property), 3.07 (Equity Interests and
Subsidiaries), 3.08 (Litigation; Compliance with Laws) (other than clause (i) thereunder),
3.09 (Agreements), 3.13 (Taxes), 3.14 (No Material Misstatements),
3.15 (Labor Matters), 3.17 (Employee Benefit Plans), 3.18 (Environmental
Matters), 3.19 (Insurance), 3.21 (Acquisition Documents; Material Indebtedness
Documents; Representations and Warranties in Acquisition Agreement), 3.24 (Location of
Material Inventory and Equipment), 3.26 (Senior Notes; Material Indebtedness) (solely with
regard to the first sentence thereof), 3.27 (Centre of Main Interests and Establishments)
and 3.28 (Holding and Dormant Companies) shall only be conditions to the obligation of each
Lender to fund the initial Credit Extension requested to be made by it on the date of the initial
Credit Extensions hereunder to the extent that, as a result of the breach of such representation,
Acquiror (x) had or would have had the right to terminate its obligations under the Acquisition
Agreement on the Acquisition Closing Date (or to not consummate the Hindalco Acquisition on the
Acquisition Closing Date) and (y) Acquiror or any of its affiliates, representatives or advisors
had, as of the Acquisition Closing Date, knowledge of such right to terminate or right to not
consummate the Acquisition.



     (d) No Legal Bar. With respect to each Lender, no order, judgment or decree of any
Governmental Authority shall purport to restrain such Lender from making any Loans to be made by
it. No injunction or other restraining order shall have been issued, shall be pending or noticed
with respect to any action, suit or proceeding seeking to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the transactions
contemplated by this Agreement or the making of Loans hereunder.



     Each of the delivery of a Borrowing Request and the acceptance by any Borrower of the proceeds
of such Credit Extension shall constitute a representation and warranty by each Borrower and each
other Loan Party that on the date of such Credit Extension (both immediately



	 	 	 
	 
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before and after giving effect to such Credit Extension and the application of the proceeds thereof) the conditions
contained in Section 4.02(b) through (d) have been satisfied (which representation
and warranty shall be deemed limited to the knowledge of the Loan Parties in the case of the first
sentence of Section 4.02(d)). Borrowers shall provide such information as the Administrative Agent
may reasonably request to confirm that the conditions in Section 4.02(b) through
(d) have been satisfied.



SECTION 4.03 Certain Collateral Matters. To the extent any Collateral (other than the pledge and
perfection of the Lien of the Collateral Agent in the Equity Interests of Subsidiaries held by the
Loan Parties (to the extent required hereunder) and other assets pursuant to which a lien may be
perfected by the filing of a financing statement under the UCC, the PPSA and other similar filings
in other applicable jurisdictions) is not provided on the Closing Date after use by Holdings and
its Subsidiaries of commercially reasonable efforts to do so, the delivery of such Collateral shall
not constitute a condition precedent to the Closing Date, but shall be required to be delivered
after the Closing Date pursuant to arrangements and timing to be mutually agreed by the Borrowers
and the Administrative Agent.




ARTICLE V.




AFFIRMATIVE COVENANTS




     Each Loan Party warrants, covenants and agrees with each Lender that so long as this Agreement
shall remain in effect and until the Commitments have been terminated and the principal of and
interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document
shall have been paid in full, unless the Required Lenders shall otherwise consent in writing, each
Loan Party will, and will cause each of its Subsidiaries to:


SECTION 5.01 Financial Statements, Reports, etc. Furnish to the Administrative Agent (and the
Administrative Agent shall make available to the Lenders, on the Platform or otherwise, in
accordance with its customary procedures):




     (a) Annual Reports. As soon as available and in any event within the earlier of (i)
ninety (90) days and (ii) such shorter period as may be required by the Securities and Exchange
Commission, after the end of each fiscal year, beginning with the first fiscal year ending after
the Closing Date, (i) the consolidated balance sheet of Canadian Borrower as of the end of such
fiscal year and related consolidated statements of income, cash flows and stockholders’ equity for
such fiscal year, in comparative form with such financial statements as of the end of, and for, the
preceding fiscal year, and notes thereto, all prepared in accordance with Regulation S-X and
accompanied by an opinion of independent public accountants of recognized national standing
reasonably satisfactory to the Administrative Agent (which opinion shall not be qualified as to
scope or contain any going concern qualification, paragraph of emphasis or explanatory statement),
stating that such financial statements fairly present, in all material respects, the consolidated
financial condition, results of operations and cash flows of Canadian Borrower as of the dates and
for the periods specified in accordance with GAAP, (ii) a narrative report and management’s
discussion and analysis, in a form reasonably satisfactory to the Administrative Agent, of the
financial condition and results of operations of Canadian Borrower for such fiscal year, as
compared to amounts for the previous fiscal year (it being understood that the



	 	 	 
	 
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information required by clauses (i) and (ii) of this Section 5.01(a) may be furnished in the form of a Form 10-K
(so long as the financial statements, narrative report and management’s discussion therein comply
with the requirements set forth above)) and (iii) consolidating balance sheets, statements of
income and cash flows of Canadian Borrower and its Subsidiaries separating out the results by
region;




     (b) Quarterly Reports. As soon as available and in any event within the earlier of
(i) forty-five (45) days and (ii) such shorter period as may be required by the Securities and
Exchange Commission, after the end of each of the first three fiscal quarters of each fiscal year,
beginning with the fiscal quarter ending June 30, 2007, (i) the consolidated balance sheet of
Canadian Borrower as of the end of such fiscal quarter and related consolidated statements of
income and cash flows for such fiscal quarter and for the then elapsed portion of the fiscal year,
in comparative form with the consolidated statements of income and cash flows for the comparable
periods in the previous fiscal year, and notes thereto, all prepared in accordance with Regulation
S-X under the Securities Act and accompanied by a certificate of a Financial Officer stating that
such financial statements fairly present, in all material respects, the consolidated
financial condition, results of operations and cash flows of Canadian Borrower as of the date
and for the periods specified in accordance with GAAP consistently applied, and on a basis
consistent with audited financial statements referred to in clause (a) of this Section, except as
otherwise disclosed therein and subject to the absence of footnote disclosures and to normal
year-end audit adjustments, (ii) a narrative report and management’s discussion and analysis, in a
form reasonably satisfactory to the Administrative Agent, of the financial condition and results of
operations for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to
the comparable periods in the previous fiscal year (it being understood that the information
required by clauses (i) and (ii) of this Section 5.01(b) may be furnished in the form of a
Form 10-Q (so long as the financial statements, management report and management’s discussion
therein comply with the requirements set forth above)) and (iii) consolidating balance sheets,
statements of income and cash flows of Canadian Borrower and its Subsidiaries separating out the
results by region;



     (c) [INTENTIONALLY OMITTED];



     (d) Financial Officer’s Certificate. (i) Concurrently with any delivery of financial
statements under Section 5.01(a) or (b), beginning with the fiscal quarter ending
June 30, 2007, a Compliance Certificate (A) certifying that no Default has occurred or, if such a
Default has occurred, specifying the nature and extent thereof and any corrective action taken or
proposed to be taken with respect thereto, (B) concurrently with any delivery of financial
statements under Section 5.01(a) above (commencing with the financial statements for the
first complete fiscal year of Canadian Borrower beginning after the Closing Date), setting forth
Canadian Borrower’s calculation of Excess Cash Flow and (C) showing a reconciliation of
Consolidated EBITDA to the net income set forth on the statement of income, such reconciliation to
be on a quarterly basis; and (ii) concurrently with any delivery of financial statements under
Section 5.01(a) above, to the extent permitted under applicable accounting guidelines, a
report of the accounting firm opining on or certifying such financial statements stating that in
the course of its regular audit of the financial statements of Canadian Borrower and its
Subsidiaries, such accounting firm obtained no knowledge that any Default has occurred, or if any
Default has occurred, specifying the nature and extent thereof;



	 	 	 
	 
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     (e) Officer’s Certificate Regarding Organizational Chart and Perfection of Collateral.
Concurrently with any delivery of financial statements under Section 5.01(a), a
certificate of a Responsible Officer of Canadian Borrower attaching an accurate organizational
chart (or confirming that there has been no change in organizational structure) and otherwise
setting forth the information required pursuant to the Perfection Certificate Supplement or
confirming that there has been no change in such information since the date of the Perfection
Certificate or latest Perfection Certificate Supplement;



     (f) Public Reports. Promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by any Loan Party with the
Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, with any national U.S. or non-U.S. securities regulatory authority or
securities exchange or with the National Association of Securities Dealers, Inc., or distributed to
holders of its publicly held Indebtedness or securities pursuant to the terms of the documentation
governing such Indebtedness or securities (or any trustee, agent or other
representative therefor), as the case may be; provided that documents required to be
delivered pursuant to this clause (f) may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date (i) on which Canadian Borrower posts such documents, or
provides a link thereto on Canadian Borrower’s website (or other location specified by Canadian
Borrower) on the Internet; or (ii) on which such documents are posted on Canadian Borrower’s behalf
on the Platform; provided that: (i) upon written request by the Administrative Agent,
Canadian Borrower shall deliver paper copies of such documents to the Administrative Agent for
further distribution to each Lender until a written request to cease delivering paper copies is
given by the Administrative Agent and (ii) Canadian Borrower shall notify (which may be by
facsimile or electronic mail) the Administrative Agent of the posting of any such documents and
provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of
such documents; provided, further, that notwithstanding anything contained herein,
in every instance Canadian Borrower shall be required to provide paper copies of the certificates
required by clauses (d) and (e) of this Section 5.01 to the Administrative Agent;



     (g) Management Letters. Promptly after the receipt thereof by any Company, a copy of
any “management letter”, exception report or other similar letter or report received by any such
person from its certified public accountants and the management’s responses thereto;



     (h) Projections. Within sixty (60) days of the end of each fiscal year, a copy of the
annual projections for Canadian Borrower (including balance sheets, statements of income and
sources and uses of cash, for (i) each quarter of such fiscal year prepared in detail and (ii) each
fiscal year thereafter, through and including the fiscal year in which the Final Maturity Date
occurs, prepared in summary form, in each case, of Canadian Borrower on a consolidated basis, with
appropriate presentation and discussion of the principal assumptions upon which such forecasts are
based, accompanied by the statement of a Financial Officer of Canadian Borrower to the effect that
such assumptions are believed to be reasonable;



     (i) Labor Relations. Promptly after becoming aware of the same, written notice of (a)
any labor dispute to which any Loan Party or any of its Subsidiaries is or is expected to become a
party, including any strikes, lockouts or other labor disputes relating to any of such person’s
plants and other facilities, which could reasonably be expected to result in a Material



	 	 	 
	 
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Adverse Effect, (b) any Worker Adjustment and Retraining Notification Act or related liability incurred
with respect to the closing of any plant or other facility of any such person and (c) any material
liability under Requirements of Law similar to the Worker Adjustment and Retraining Notification
Act or otherwise arising out of plant closings;




     (j) Asset Sales. At least ten (10) days prior to an Asset Sale, the Net Cash Proceeds
of which (or the Dollar Equivalent thereof) are anticipated to exceed $20 million written notice
(a) describing such Asset Sale or the nature and material terms and conditions of such transaction
and (b) stating the estimated Net Cash Proceeds anticipated to be received by any Loan Party or any
of its Subsidiaries; and



     (l) Other Information. Promptly, from time to time, such other information regarding
the operations, properties, business affairs and condition (financial or otherwise) of any Company,
or compliance with the terms of any Loan Document, or matters regarding the
Collateral (beyond the requirements contained in Section 9.03) as the Administrative
Agent or any Lender may reasonably request.


SECTION 5.02 Litigation and Other Notices. Furnish to the Administrative Agent written notice of
the following promptly (and, in any event, within three (3) Business Days after acquiring knowledge
thereof):




     (a) any Default, specifying the nature and extent thereof and the corrective action (if any)
taken or proposed to be taken with respect thereto;



     (b) the filing or commencement of, or any written notice of intention of any person to file or
commence, any action, suit, litigation or proceeding, whether at law or in equity by or before any
Governmental Authority, (i) against any Borrower or other Company that in the reasonable judgment
of the Borrowers could reasonably be expected to result in a Material Adverse Effect if adversely
determined or (ii) with respect to any Loan Document;



     (c) any development that has resulted in, or could reasonably be expected to result in, a
Material Adverse Effect;



     (d) the occurrence of a Casualty Event involving a Dollar Equivalent amount in excess of $20
million; and



     (e) (i) the incurrence of any Lien (other than Permitted Liens) on the Collateral, or claim
asserted against any of the Collateral or (ii) the occurrence of any other event which could
reasonably be expected to affect the value of the Collateral, in each case which could reasonably
be expected to be material with regard to (x) the Revolving Credit Priority Collateral, taken as a
whole, or (y) the Term Loan Priority Collateral, taken as a whole.


SECTION 5.03 Existence; Businesses and Properties.




     (a) Do or cause to be done all things reasonably necessary to preserve, renew and keep in full
force and effect its legal existence, rights and franchises necessary or desirable in the normal
conduct of its business, except (i) other than with respect to a Borrower’s existence, to



	 	 	 
	 
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the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect or
(ii) pursuant to a transaction permitted by Section 6.05 or Section 6.06.




     (b) Do or cause to be done all things necessary to obtain, maintain, preserve, renew, extend
and keep in full force and effect the rights, licenses, permits, privileges, franchises, approvals,
authorizations, patents, copyrights, trademarks, service marks and trade names used, useful, or
necessary to the conduct of its business, except where the failure to do so could not reasonably be
expected to result in a Material Adverse Effect; do or cause to be done all things necessary to
preserve its business and the goodwill and business of the customers, advertisers, suppliers and
others having business relations with each Loan Party or any of its Subsidiaries, except where the
failure to do so could not reasonably be expected to result in a Material Adverse Effect; comply
with all applicable Requirements of Law (including any and all zoning,
building, Environmental Law, ordinance, code or approval or any building permits or any
restrictions of record or agreements affecting the Real Property), contractual obligations, and
decrees and orders of any Governmental Authority, whether now in effect or hereafter enacted,
except where the failure to comply, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect; and at all times maintain, preserve and protect
all of its property and keep such property in good repair, working order and condition (other than
wear and tear occurring in the ordinary course of business) and from time to time make, or cause to
be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be properly conducted
at all times, except in each case where the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.


SECTION 5.04 Insurance.




     (a) Generally. Keep its insurable property adequately insured at all times by
financially sound and reputable insurers; maintain such other insurance, to such extent and against
such risks as is customary with companies in the same or similar businesses operating in the same
or similar locations, including insurance with respect to Mortgaged Properties and other properties
material to the business of the Companies against such casualties and contingencies and of such
types and in such amounts with such deductibles as is customary in the case of similar businesses
operating in the same or similar locations, including (i) physical hazard insurance on an “all
risk” basis (subject to usual and customary exclusions), (ii) commercial general liability against
claims for bodily injury, death or property damage covering any and all insurable claims, (iii)
explosion insurance in respect of any boilers, machinery or similar apparatus constituting
Collateral, (iv) business interruption insurance and flood insurance, and (v) worker’s compensation
insurance and such other insurance as may be required by any Requirement of Law; provided
that with respect to physical hazard insurance, neither the Collateral Agent nor the applicable
Company shall agree to the adjustment of any claim thereunder with respect to Term Loan Priority
Collateral involving an amount in excess of $30 million thereunder without the consent of the other
(such consent not to be unreasonably withheld or delayed); provided, further, that
no consent of any Company shall be required during an Event of Default.



     (b) Requirements of Insurance. All such property and liability insurance maintained
by the Loan Parties shall (i) provide that no cancellation, material reduction in amount or



	 	 	 
	 
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material change in coverage thereof shall be effective until at least thirty (30) days after
receipt by the Collateral Agent of written notice thereof, (ii) name the Collateral Agent as
mortgagee or loss payee, as applicable (in the case of property insurance) or additional insured on
behalf of the Secured Parties (in the case of liability insurance), as applicable, and (iii) if
reasonably requested by the Collateral Agent, include a breach of warranty clause.




     (c) Flood Insurance. Except to the extent already obtained in accordance with clause
(iv) of Section 5.04(a), with respect to each Mortgaged Property, obtain flood insurance in
such total amount as the Administrative Agent may from time to time require, if at any time the
area in which any improvements located on any Mortgaged Property is designated a “flood hazard
area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or
any successor agency), and such insurance is required to be obtained pursuant to the requirements
of the National Flood Insurance Act of 1968, as amended from time to time, or the Flood Disaster
Protection Act of 1973, as amended from time to time.



     (d) Broker’s Report. As soon as practicable and in any event within ninety (90) days
after the end of each fiscal year, deliver to the Administrative Agent and the Collateral Agent (i)
a report of a reputable insurance broker with respect to the insurance maintained pursuant to
clauses (i)-(iv) of Section 5.04(a) in form and substance satisfactory to the
Administrative Agent and the Collateral Agent (together with such additional reports as the
Administrative Agent or the Collateral Agent may reasonably request), and (ii) such broker’s
statement that all premiums then due and payable with respect to the coverage maintained pursuant
to clauses (i)-(iv) of Section 5.04(a) have been paid and confirming, with respect to any
property, physical hazard or liability insurance maintained by a Loan Party, that the Collateral
Agent has been named as loss payee or additional insured, as applicable.



     (e) Mortgaged Properties. Each Loan Party shall comply in all material respects with
all Insurance Requirements in respect of each Mortgaged Property; provided,
however, that each Loan Party may, at its own expense and after written notice to the
Administrative Agent, (i) contest the applicability or enforceability of any such Insurance
Requirements by appropriate legal proceedings, the prosecution of which does not constitute a basis
for cancellation or revocation of any insurance coverage required under this Section 5.04
or (ii) cause the Insurance Policy containing any such Insurance Requirement to be replaced by a
new policy complying with the provisions of this Section 5.04.


SECTION 5.05 Payment of Taxes.




     (a) Payment of Taxes. Pay and discharge promptly when due all Taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or in respect of its
property, before the same shall become delinquent or in default, as well as all lawful claims for
labor, services, materials and supplies or otherwise that, if unpaid, might give rise to a Lien
other than a Permitted Lien upon such properties or any part thereof; provided that such
payment and discharge shall not be required with respect to any such Tax, assessment, charge, levy
or claim so long as (x)(i) the validity or amount thereof shall be contested in good faith by
appropriate proceedings timely instituted and diligently conducted and the applicable Company shall
have set aside on its books adequate reserves or other appropriate provisions with respect thereto
in accordance with GAAP (or other applicable accounting rules), and (ii) such contest



	 	 	 
	 
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operates to suspend collection of the contested obligation, Tax, assessment or charge and
enforcement of a Lien other than a Permitted Lien, and (y) the failure to pay could not reasonably
be expected to result in a Material Adverse Effect.




     (b) Filing of Returns. Timely file all material Tax Returns required to be filed by
it.



SECTION 5.06 Employee Benefits.




     (a) Comply with the applicable provisions of ERISA and the Code and any Requirements of Law
applicable to any Foreign Plan or Compensation Plan, except where any non-compliance could not
reasonably be expected to result in a Material Adverse Effect.



     (b) Furnish to the Administrative Agent (x) as soon as possible after, and in any event within
five (5) Business Days after any Responsible Officer of any Company or any ERISA Affiliates of any
Company knows that, any ERISA Event has occurred, a statement of a Financial Officer of
Administrative Borrower setting forth details as to such ERISA Event and the action, if any, that
the Companies propose to take with respect thereto, and (y) upon request by the Administrative
Agent, copies of such other documents or governmental reports or filings relating to any Plan (or
Foreign Plan, or other employee benefit plan sponsored or contributed to by any Company) as the
Administrative Agent shall reasonably request.



     (c) (i) Ensure that the Novelis U.K. Pension Plan is funded in accordance with the agreed
schedule of contributions dated May 16, 2007 and that no action or omission is taken by any Company
in relation to such a pension scheme which has or is reasonably likely to have a Material Adverse
Effect; (ii) except for any existing defined benefit pension schemes as specified on Schedule
3.17 ensure that no Company is or has been at any time an employer (for the purposes of
Sections 38 to 51 of the Pensions Act 2004) of an occupational pension scheme which is not a money
purchase scheme (both terms as defined in the Pension Schemes Act 1993) or “connected” with or an
“associate” of (as those terms are defined in Sections 39 or 43 of the Pensions Act 2004) such an
employer; (iii) deliver to the Administrative Agent upon request as those reports are prepared in
order to comply with the then current statutory or auditing requirements (as applicable either to
the trustees of any relevant schemes), actuarial reports in relation to all pension schemes
mentioned in clause (i) above; (iv) promptly notify the Administrative Agent of any material change
in the agreed rate of contributions to any pension schemes mentioned in clause (i) above; (v)
promptly notify the Administrative Agent of any investigation or proposed investigation by the
Pensions Regulator which may lead to the issue of a Financial Support Direction or a Contribution
Notice to any member of the Group; and (vi) promptly notify the Administrative Agent if it receives
a Financial Support Direction or a Contribution Notice from the Pensions Regulator.



     (d) Ensure that all Foreign Plans (except the Novelis U.K. Pension Plan) and Compensation
Plans that are required to be funded are funded and contributed to in accordance with their terms
to the extent of all Requirements of Law.


SECTION 5.07 Maintaining Records; Access to Properties and Inspections; Annual
Meetings. Keep proper books of record and account in which full, true and correct entries in
conformity in all material respects with GAAP (or other applicable accounting









	 	 	 
	 

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standards) and all Requirements of Law of all financial transactions and the assets and
business of each Company and its Subsidiaries are made of all dealings and transactions in relation
to its business and activities, including, without limitation, proper records of intercompany
transactions) with full, true and correct entries reflecting all payments received and paid
(including, without limitation, funds received by or for the account of any Loan Party from deposit
accounts of the other Companies). Each Company will permit any representatives designated by the
Administrative Agent (who may be accompanied by any Agent or Lender) to visit and inspect the
financial records and the property of such Company (at reasonable intervals, during normal business
hours and within five Business Days after written notification of the same to Administrative
Borrower, except that, during the continuance of an Event of Default, none of such restrictions
shall be applicable) and to make extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent (who may be accompanied by any Agent or
Lender) to discuss the affairs, finances, accounts and condition of any Company with the officers
and employees thereof and advisors therefor (including independent accountants).



SECTION
5.08 Use of Proceeds. Use the proceeds of the Loans only for the purposes set
forth in Section 3.12.




SECTION 5.09 Compliance with Environmental Laws; Environmental
Reports.




     (a) Comply, and cause all lessees and other persons occupying Real Property owned, operated or
leased by any Company to comply, in all material respects with all Environmental Laws and
Environmental Permits applicable to its operations and Real Property; obtain and renew all material
Environmental Permits applicable to its operations and Real Property; and conduct all Responses
required by, and in accordance with, Environmental Laws, in each case, to the extent that the
failure to do so could reasonably be expected to have a Material Adverse Effect; provided
that no Company shall be required to undertake any Response to the extent that its obligation to do
so is being contested in good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances in accordance with GAAP or other applicable
accounting standards.



     (b) If a Default caused by reason of a breach of Section 3.18 or Section
5.09(a) shall have occurred and be continuing for more than twenty (20) Business Days without
the Companies commencing activities reasonably likely to cure such Default in accordance with
Environmental Laws, at the written request of the Administrative Agent or the Required Lenders
through the Administrative Agent, provide to the Lenders as soon as practicable after such request,
at the expense of Borrowers, an environmental assessment report regarding the matters which are the
subject of such Default, including, where appropriate, soil and/or groundwater sampling, prepared
by an environmental consulting firm and, in form and substance, reasonably acceptable to the
Administrative Agent and indicating the presence or absence of Hazardous Materials and the
estimated cost of any compliance or Response to address them.


SECTION
5.10 Interest Rate Protection. From and after the thirtieth (30th)
day after the Closing Date and for a minimum of four years thereafter maintain fixed rate
Indebtedness, or Hedging Agreements with terms and conditions acceptable to the Administrative
Agent, that





	 	 	 
	 

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together result in at least 45% of the aggregate principal amount of Holdings’s
Consolidated Indebtedness being effectively subject to a fixed or maximum interest rate.



SECTION
5.11 Additional Collateral; Additional Guarantors.




     (a) Subject to the terms of the Intercreditor Agreement and this Section 5.11, with
respect to any property acquired after the Closing Date by any Loan Party that is intended to be
subject to the Lien created by any of the Security Documents but is not so subject, promptly (and
in any event within thirty (30) days after the acquisition thereof) (i) execute and deliver to the
Administrative Agent and the Collateral Agent such amendments or supplements to the relevant
Security Documents or such other documents as the Administrative Agent or the Collateral Agent
shall deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the
benefit of the other Secured Parties, a First Priority Lien on such property subject to no Liens
other than Permitted Liens, and (ii) take all actions necessary to cause such Lien to be duly
perfected to the extent required by such Security Document in accordance with all applicable
Requirements of Law, including the filing of financing statements (or other applicable filings) in
such jurisdictions as may be reasonably requested by the Administrative Agent. Borrowers shall
otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as
the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity,
perfection and priority of the Lien of the Security Documents against such after-acquired
properties.



     (b) With respect to any person that becomes a Subsidiary after the Closing Date (other than
an Excluded Collateral Subsidiary), or any Subsidiary that was an Excluded Collateral Subsidiary
but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded
Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of
Section 5.11(d), promptly (and in any event within thirty (30) days after such person
becomes a Subsidiary or ceases to be an Excluded Collateral Subsidiary or is required to become a
Loan Party by operation of the provisions of Section 5.11(d)) (i) pledge and deliver to the
Collateral Agent the certificates, if any, representing all of the Equity Interests of such
Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate
instruments of transfer executed and delivered in blank by a duly authorized officer of the
holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any
Loan Party together with instruments of transfer executed and delivered in blank by a duly
authorized officer of such Loan Party and (ii) cause any such Subsidiary that is a Wholly Owned
Subsidiary, in each case to the extent not prohibited by applicable Requirements of Law, (A) to
execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and
joinder agreements to the applicable Security Documents (in each case, substantially in the form
annexed thereto or in such other form as may be reasonably satisfactory to the Administrative
Agent) or, in the case of a Foreign Subsidiary, execute such other Security Documents (or joinder
agreements) to the extent possible under and compatible with the laws of such Foreign Subsidiary’s
jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to
take all actions necessary or advisable in the opinion of the Administrative Agent or the
Collateral Agent to cause the Liens created by the applicable Security Documents to be duly
perfected to the extent required by such agreement in accordance with all applicable Requirements
of Law, including the filing of financing statements (or other applicable filings) in such
jurisdictions as may be reasonably requested by the Administrative






	 	 	 
	 

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Agent or the Collateral Agent. Notwithstanding the foregoing, (1) clause (i) of this paragraph (b) shall not apply to the Equity
Interests of (x) any Company listed on Schedule 5.11(b) to the extent any applicable
Requirement of Law continues to prohibit the pledging of its Equity Interests to secure the Secured
Obligations and (y) any Joint Venture Subsidiary, to the extent the terms of any applicable joint
venture, stockholders’, partnership, limited liability company or similar agreement prohibits or
conditions the pledging of its Equity Interests to secure the Secured Obligations and (2) clause
(ii) of this paragraph (b) shall not apply to any Company listed on Schedule 5.11(b) to the
extent any applicable Requirement of Law prohibits it from becoming a Loan Party.




     (c) Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral
Agent, within sixty (60) days of the acquisition thereof, a security interest in and Mortgage on
(i) each Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the
Closing Date and that, together with any improvements thereon, individually has a fair market value
the Dollar Equivalent of which is at least $5 million, and (ii) unless the Collateral Agent
otherwise consents, and subject to obtaining any consent required from the applicable landlord and
any applicable mortgagee (each of which the Loan Parties agree to use commercially reasonable
efforts to obtain), each leased Real Property of such Loan Party which lease individually has a
fair market value the Dollar Equivalent of which is at least $5 million, in each case, as
additional security for the Secured Obligations (unless the subject property is already mortgaged
to a third party to the extent permitted by Section 6.02). Subject to the terms of the
Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably
satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall
constitute valid, perfected and enforceable First Priority Liens subject only to Permitted Liens.
Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto
shall be duly recorded or filed in such manner and in such places as are required by law to
establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent
required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in
connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and
execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the
Collateral Agent shall reasonably require to confirm the validity,
perfection and priority of the Lien of any existing Mortgage or new Mortgage against such
after-acquired Real Property (including a Title Policy (or title opinion satisfactory to the
Collateral Agent), a Survey (if applicable in the respective jurisdiction), and a local counsel
opinion (in form and substance reasonably satisfactory to the Administrative Agent and the
Collateral Agent) in respect of such Mortgage). For purposes of this Section 5.11(c) Real
Property owned by a Company that becomes a Loan Party following the Closing Date in accordance with
the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of
acquisition of such Real Property and (y) the date such Company becomes a Loan Party.



     (d) If, at any time and from time to time after the Closing Date, Subsidiaries that are not
Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than
1% of the consolidated total assets of Canadian Borrower and its Subsidiaries as of the end of the
most recently ended fiscal quarter or more than 1% of Consolidated EBITDA of Canadian Borrower and
its Subsidiaries as of the end of the most recently ended fiscal quarter, then the Loan Parties
shall, not later than 45 days after the date by which financial statements for such fiscal quarter
are required to be delivered pursuant to this Agreement, cause one or more of






	 	 	 
	 

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such Subsidiaries to become Loan Parties (notwithstanding that such Subsidiaries are, individually, Excluded Collateral
Subsidiaries) such that the foregoing condition ceases to be true.



SECTION
5.12 Security Interests; Further Assurances. Subject to the terms of the
Intercreditor Agreement, promptly, upon the reasonable request of the Administrative Agent or the
Collateral Agent, at Borrowers’ expense, execute, acknowledge and deliver, or cause the execution,
acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered,
filed or recorded, in an appropriate governmental office, any document or instrument supplemental
to or confirmatory of the Security Documents or otherwise deemed by the Administrative Agent or the
Collateral Agent reasonably necessary or desirable for the continued validity, perfection and
priority of the Liens on the Collateral covered thereby subject to no other Liens except Permitted
Liens, or use commercially reasonable efforts to obtain any consents or waivers as may be
reasonably required in connection therewith. Deliver or cause to be delivered (using commercially
reasonable efforts with respect to delivery of items from Persons who are not in the control of any
Loan Party) to the Administrative Agent and the Collateral Agent from time to time such other
documentation, consents, authorizations, approvals and orders in form and substance reasonably
satisfactory to the Administrative Agent and the Collateral Agent as the Administrative Agent and
the Collateral Agent shall reasonably deem necessary to perfect or maintain the Liens on the
Collateral pursuant to the Security Documents. Upon the exercise by the Administrative Agent, the
Collateral Agent or any Lender of any power, right, privilege or remedy pursuant to any Loan
Document that requires any consent, approval, registration, qualification or authorization of any
Governmental Authority, execute and deliver all applications, certifications, instruments and other
documents and papers that the Administrative Agent, the Collateral Agent or such Lender may
reasonably require in connection therewith. If the Administrative Agent, the Collateral Agent or
the Required Lenders determine that they are required by a Requirement of Law to have appraisals
prepared in respect of the Real Property of any Loan Party constituting Collateral, Borrowers shall
provide to the Administrative Agent appraisals that satisfy the applicable requirements of the Real
Estate Appraisal Reform Amendments of FIRREA (or other
applicable requirements) and are otherwise in form satisfactory to the Administrative Agent
and the Collateral Agent.



SECTION
5.13 Information Regarding Collateral. Not effect any change (i) in any Loan
Party’s legal name or in any trade name used to identify it in the conduct of its business or in
the ownership of its properties, (ii) in the location of any Loan Party’s chief executive office,
its principal place of business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which any material Term Loan Priority
Collateral owned by it is located (including the establishment of any such new office or facility)
other than changes in location to a property identified on Schedule 3.24, another property
location previously identified on a Perfection Certificate Supplement or otherwise by notice to the
Collateral Agent, as to which the steps required by clause (B) below have been completed or to a
Mortgaged Property or a leased property subject to a Landlord Access Agreement, (iii) in any Loan
Party’s identity or organizational structure, (iv) in any Loan Party’s Federal Taxpayer
Identification Number or organizational identification number, if any, or (v) in any Loan Party’s
jurisdiction of organization (in each case, including by merging with or into any other entity,
reorganizing, dissolving, liquidating, reorganizing or organizing in any other jurisdiction), until
(A) it shall have given the Collateral Agent and the Administrative Agent not less than ten (10)






	 	 	 
	 

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Business Days’ prior written notice (in the form of an Officers’ Certificate), or such lesser
notice period agreed to by the Collateral Agent, of its intention so to do, clearly describing such
change and providing such other information in connection therewith as the Collateral Agent or the
Administrative Agent may reasonably request and (B) it shall have taken all action reasonably
satisfactory to the Collateral Agent to maintain the perfection and priority of the security
interest of the Collateral Agent for the benefit of the Secured Parties in the Collateral, if
applicable. Each Loan Party agrees to promptly provide the Collateral Agent with certified
Organizational Documents reflecting any of the changes described in the preceding sentence. For
the purposes of the Regulation, (i) no U.K. Guarantor shall change its centre of main interest (as
that term is used in Article 3(1) of the Regulation) from England and Wales, (ii) nor shall any
Irish Guarantor change its centre of main interest from Ireland, nor shall any Irish Guarantor have
an “establishment” (as that term is used in Article 2(h) of the Regulation) in any other
jurisdiction, (iii) nor shall nor shall any Swiss Guarantor change its centre of main interest from
Switzerland, nor shall any Swiss Guarantor have an “establishment” in any other jurisdiction, (iv)
nor shall German Seller change its centre of main interest from Germany.



SECTION
5.14 Affirmative Covenants with Respect to Leases. With respect to each Lease
to which a Loan Party is party as landlord or lessor, the respective Loan Party shall perform all
the obligations imposed upon the landlord under such Lease and enforce all of the tenant’s
obligations thereunder, except where the failure to so perform or enforce could not reasonably be
expected to result in a Property Material Adverse Effect.



SECTION
5.15 Secured Obligations. Timely pay and perform all of its Secured
Obligations.



SECTION
5.16 Post-Closing Covenants. Execute and deliver the documents and complete
the tasks and take the other actions set forth on Schedule 5.16, in each case within the
time limits specified on such Schedule.




ARTICLE
VI.




NEGATIVE
COVENANTS




     Each Loan Party warrants, covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and until the Commitments have been terminated and the principal
of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan
Document have been paid in full, unless the Required Lenders (and such other Lenders whose consent
may be required under Section 11.02) shall otherwise consent in writing, no Loan Party
will, nor will they cause or permit any Subsidiaries to:


SECTION
6.01 Indebtedness. Incur, create, assume or permit to exist, directly or
indirectly, any Indebtedness, except




     (a) Indebtedness incurred under this Agreement and the other Loan Documents;



     (b) (i) Indebtedness outstanding on the Closing Date and listed on Schedule 6.01(b),
and Permitted Refinancings thereof, (ii) Indebtedness of Loan Parties under the Revolving Credit
Loan Documents and Permitted Revolving Credit Facility Refinancings thereof in an





	 	 	 
	 

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aggregate principal amount at any time outstanding not to exceed the Maximum Revolving Credit Facility
Amount, (iii) Indebtedness of Loan Parties and other persons referenced on Schedule
6.01(b) under the Senior Note Documents and Indebtedness under Permitted Refinancings thereof,
and (iv) the Subordinated Debt Loan and Permitted Refinancings thereof;




     (c) Indebtedness of any Company under Hedging Agreements (including Contingent Obligations
with respect thereto); provided that if such Hedging Obligations relate to interest rates,
(i) such Hedging Agreements relate to payment obligations on Indebtedness otherwise permitted to
be incurred by the Loan Documents and (ii) the notional principal amount of such Hedging
Agreements at the time incurred does not exceed the principal amount of the Indebtedness to which
such Hedging Agreements relate;



     (d) Indebtedness permitted by Section 6.04(i);



     (e) Indebtedness of any Securitization Subsidiary under any Securitization Facility (i) that
is without recourse to any Company (other than such Securitization Subsidiary) or any of their
respective assets (other than pursuant to representations, warranties, covenants and indemnities
customary for such transactions), (ii) the payment of principal and interest in respect of which
is not guaranteed by any Company, (iii) in respect of which the governing documentation is in form
and substance reasonably satisfactory to the Administrative Agent, and (iv) that is on customary
terms and conditions; provided that the aggregate outstanding principal amount of the Indebtedness of all Securitization Subsidiaries under all
Securitization Facilities at any time outstanding shall not exceed $300 million less the
aggregate amount of Indebtedness then outstanding under Section 6.01(m) less the
aggregate book value at the time of determination of the then outstanding Accounts subject to a
Permitted Factoring Facility at such time;



     (f) Indebtedness in respect of Purchase Money Obligations and Capital Lease Obligations, and
Permitted Refinancings thereof (other than refinancings funded with intercompany advances), in an
aggregate amount not to exceed $200 million at any time outstanding;



     (g) Sale and Leaseback Transactions permitted under Section 6.03;



     (h) Indebtedness in respect of bid, performance or surety bonds, workers’ compensation
claims, self-insurance obligations, financing of insurance premiums, and bankers acceptances
issued for the account of any Company, in each case, incurred in the ordinary course of business
(including guarantees or obligations of any Company with respect to letters of credit supporting
such bid, performance or surety bonds, workers’ compensation claims, self-insurance obligations
and bankers acceptances) (in each case other than Indebtedness for borrowed money);



     (i) Contingent Obligations (i) of any Loan Party in respect of Indebtedness otherwise
permitted to be incurred by such Loan Party and relating to Indebtedness of a Loan Party under
Section 6.01(f), (g), (h), (j), (l), (n) and
(r), (ii) of any Loan Party in respect of Indebtedness of Subsidiaries in an aggregate
amount not exceeding $75 million at any one time






	 	 	 
	 

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outstanding less all amounts paid with
regard to Contingent Obligations permitted pursuant to Section 6.04(a), and (iii) of any
Company that is not a Loan Party in respect of Indebtedness otherwise permitted to be incurred by
such Company under this Section 6.01;




     (j) Indebtedness arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn
against insufficient funds in the ordinary course of business; provided that such
Indebtedness is extinguished within five (5) Business Days of incurrence;



     (k) Indebtedness arising in connection with endorsement of instruments for deposit in the
ordinary course of business;



     (l) Unsecured Indebtedness not otherwise permitted under this Section 6.01 in an
aggregate principal amount not to exceed $200 million at any time outstanding; provided
that not more than an aggregate amount of $100 million of such Indebtedness at any time
outstanding shall have a maturity or provide for scheduled amortization of principal prior to the
180th day following the Final Maturity Date;



     (m) Indebtedness consisting of working capital facilities, lines of credit or cash management
arrangements for Excluded Subsidiaries and Contingent Obligations of Excluded Subsidiaries in
respect thereof; provided that (i) the aggregate principal amount of such Indebtedness
incurred by NKL after the Closing Date shall not exceed $100 million at any time outstanding and
(ii) the aggregate principal amount of such Indebtedness incurred by all other
Excluded Subsidiaries after the Closing Date shall not exceed an aggregate of $100 million at
any time outstanding;



     (n) Indebtedness in respect of indemnification obligations or obligations in respect of
purchase price adjustments or similar obligations incurred or assumed by the Loan Parties and
their Subsidiaries in connection with an Asset Sale or sale of Equity Interests otherwise
permitted under this Agreement;



     (o) unsecured guaranties in the ordinary course of business of any person of the obligations
of suppliers, customers or licensees;



     (p) Indebtedness of NKL arising under letters of credit issued in the ordinary course of
business;



     (q) (i) Indebtedness of any person existing at the time such person is acquired in connection
with a Permitted Acquisition or any other Investment permitted under Section 6.04;
provided that such Indebtedness is not incurred in connection with or in contemplation of
such Permitted Acquisition or other Investment and is not secured by Accounts or Inventory of any
Company organized in a Principal Jurisdiction or the proceeds thereof, and at the time of such
Permitted Acquisition or other Investment, no Event of Default shall have occurred and be
continuing, and (ii) Permitted Refinancings of such Indebtedness, in an aggregate amount, for all
such Indebtedness permitted under this clause (q), not to exceed $50 million at any time
outstanding;





	 	 	 
	 

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     (r) Indebtedness in respect of treasury, depositary and cash management services or automated
clearinghouse transfer of funds (including the European Cash Pooling Arrangements and other pooled
account arrangements and netting arrangements) in the ordinary course of business, in each case,
arising under the terms of customary agreements with any bank at which such Subsidiary maintains
an overdraft, pooled account or other similar facility or arrangement; and



     (s) Permitted Holdings Indebtedness.


SECTION
6.02 Liens. Create, incur, assume or permit to exist, directly or indirectly,
any Lien on any property now owned or hereafter acquired by it or on any income or revenues or
rights in respect of any thereof, except the following (collectively,
the “Permitted Liens”):




     (a) (i) inchoate Liens for taxes, assessments or governmental charges or levies not yet due
and payable or delinquent and (ii) Liens for taxes, assessments or governmental charges or levies,
which are due and payable and are being contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves have been provided on the books of the
appropriate Company in accordance with GAAP;



     (b) Liens in respect of property of any Company imposed by Requirements of Law, which were
incurred in the ordinary course of business and do not secure Indebtedness for borrowed money,
such as carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s,
suppliers’, repairmen’s and mechanics’ Liens and other similar Liens arising in the ordinary
course of business, and (i) which do not in the aggregate materially detract from the value of the
property of the Companies, taken as a whole, and do not materially impair the use thereof in the
operation of the business of the Companies, taken as a whole, and (ii) which, if they secure
obligations that are then due and unpaid for more than 30 days, are being contested in good faith
by appropriate proceedings diligently conducted and for which adequate reserves have been provided
on the books of the appropriate Company in accordance with GAAP;



     (c) any Lien in existence on the Closing Date and set forth on Schedule 6.02(c) that
does not attach to the Accounts and Inventory of any Borrower and any Lien granted as a
replacement, renewal or substitute therefor; provided that any such replacement, renewal
or substitute Lien (i) does not secure an aggregate amount of Indebtedness, if any, greater than
that secured on the Closing Date (including undrawn commitments thereunder in effect on the
Closing Date, accrued and unpaid interest thereon and fees and premiums payable in connection with
a Permitted Refinancing of the Indebtedness secured by such Lien) and (ii) does not encumber any
property other than the property subject thereto on the Closing Date
(any such Lien, an “Existing
Lien”);



     (d) easements, rights-of-way, restrictions (including zoning restrictions), reservations
(including pursuant to any original grant of any Real Property from the applicable Governmental
Authority), covenants, licenses, encroachments, protrusions and other similar charges or
encumbrances, and minor title deficiencies or irregularities on or with respect to any Real
Property, in each case whether now or hereafter in existence, not (i) securing Indebtedness for
borrowed money or (ii) individually or in the aggregate materially interfering with the ordinary
conduct of the business of the Companies at such Real Property;





	 	 	 
	 

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     (e) Liens arising out of judgments, attachments or awards not resulting in an Event of
Default that are being contested in good faith by appropriate proceedings diligently conducted and
for which adequate reserves have been provided on the books of the appropriate Company in
accordance with GAAP;



     (f) Liens (other than any Lien imposed by ERISA) (x) imposed by Requirements of Law or
deposits made in connection therewith in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social security legislation, (y)
incurred in the ordinary course of business to secure the performance of tenders, statutory
obligations (other than excise taxes), surety, stay, customs and appeal bonds, statutory bonds,
bids, leases, government contracts, trade contracts, performance and return of money bonds and
other similar obligations (exclusive of obligations for the payment of borrowed money) or (z)
arising by virtue of deposits made in the ordinary course of business to secure liability for
premiums to insurance carriers; provided that (i) with respect to clauses (x), (y) and (z)
of this paragraph (f), such Liens are for amounts not yet due and payable or delinquent or, to the
extent such amounts are so due and payable, such amounts are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves have been established
on the books of the appropriate Company in accordance with GAAP, and (ii) to the extent such Liens
are not imposed by Requirements of Law, such Liens shall in no event encumber any property other
than cash and Cash Equivalents and, with respect to clause (y), property relating to the
performance of obligations secured by such bonds or instruments;



     (g) Leases, subleases or licenses of the properties of any Company granted to other persons
which do not, individually or in the aggregate, interfere in any material respect with the
ordinary conduct of the business of any Company;



     (h) Liens arising out of conditional sale, hire purchase, title retention, consignment or
similar arrangements for the sale of goods entered into by any Company in the ordinary course of
business;



     (i) Liens securing Indebtedness incurred pursuant to Section 6.01(f) or Section
6.01(g); provided that any such Liens attach only to the property being financed
pursuant to such Indebtedness and any proceeds of such property and do not encumber any other
property of any Company;



     (j) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to
cash and Cash Equivalents on deposit in one or more accounts maintained by any Company, in each
case granted in the ordinary course of business in favor of the bank or banks with which such
accounts are maintained, securing amounts owing to such bank with respect to treasury, depositary
and cash management services or automated clearinghouse transfer of funds (including pooled
account arrangements and netting arrangements); provided that, unless such Liens are
non-consensual and arise by operation of law, in no case shall any such Liens secure (either
directly or indirectly) the repayment of any other Indebtedness;



     (k) Liens granted (i) pursuant to the Loan Documents to secure the Secured Obligations or
(ii) pursuant to the Revolving Credit Security Documents to secure the “Secured





	 	 	 
	 

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Obligations” (as defined in the Revolving Credit Agreement) and any Permitted Revolving Credit Facility
Refinancings thereof;




     (l) licenses of Intellectual Property granted by any Company in the ordinary course of
business and not interfering in any material respect with the ordinary conduct of business of the
Companies;



     (m) the filing of UCC or PPSA financing statements (or the equivalent in other jurisdictions)
solely as a precautionary measure in connection with operating leases or consignment of goods;



     (n) Liens on property of Excluded Subsidiaries securing Indebtedness of Excluded Subsidiaries
permitted by Section 6.01(m) and (p);



     (o) Liens securing the refinancing of any Indebtedness secured by any Lien permitted by
clauses (c), (i) or (r) of this Section 6.02 or this clause (o) without any change in the
assets subject to such Lien and to the extent such refinanced Indebtedness is permitted by
Section 6.01;



     (p) to the extent constituting a Lien, the existence of the “equal and ratable” clause in the
Senior Note Documents (and any Permitted Refinancings thereof) (but not any security interests
granted pursuant thereto);



     (q) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods in the ordinary course of
business;



     (r) Liens on assets acquired in a Permitted Acquisition or on property of a person existing
at the time such person is acquired or merged with or into or amalgamated or consolidated with any
Company to the extent permitted hereunder or such assets are acquired (and not created in
anticipation or contemplation thereof); provided that (i) such Liens do not extend to
property not subject to such Liens at the time of acquisition (other than improvements thereon and
proceeds thereof) and are no more favorable to the lienholders than such existing Lien and (ii)
the aggregate principal amount of Indebtedness secured by such Liens does not exceed $50 million
at any time outstanding;



     (s) any encumbrance or restriction (including put and call agreements) solely in respect of
the Equity Interests of any Joint Venture or Joint Venture Subsidiary that is not a Loan Party,
contained in such Joint Venture’s or Joint Venture Subsidiary’s Organizational Documents or the
joint venture agreement or stockholders agreement in respect of such Joint Venture or Joint
Venture Subsidiary;



     (t) Liens granted in connection with Indebtedness permitted under Section 6.01(e)
that are limited in each case to the Securitization Assets transferred or assigned pursuant to the
related Securitization Facility;



     (u) Liens (which, if the same apply to any Collateral, are junior to the Liens on the
Collateral securing the Secured Obligations) not otherwise permitted by clauses (a) through (t)







	 	 	 
	 

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of this Section 6.02 securing liabilities not in excess of $25 million in the aggregate at
any time outstanding;




     (v) To the extent constituting Liens, rights under purchase and sale agreements with respect
to Equity Interests permitted to be sold in Asset Sales permitted under Section 6.06;



     (w) Liens securing obligations owing to the Loan Parties so long as such obligations and
Liens, where owing by or on assets of Loan Parties, are subordinated to the Secured Obligations
and to the Secured Parties’ Liens on the Collateral in a manner satisfactory to the Administrative
Agent; and



     (x) Liens created, arising or securing obligations under the Receivables Purchase Agreement.


provided, however, that notwithstanding any of the foregoing, no consensual Liens
(other than Liens permitted under clause (s) and (v) above, in the case of Securities Collateral)
shall be permitted to exist, directly or indirectly, on any Securities Collateral, other than Liens
granted pursuant to the Security Documents or the Revolving Credit Security Documents.



SECTION
6.03 Sale and Leaseback Transactions. Enter into any arrangement, directly or
indirectly, with any person whereby it shall sell or transfer any property, real or personal, used
or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property which it
intends to use for substantially the same purpose or purposes as the property being sold or
transferred (a “Sale and Leaseback Transaction”) unless (i) the sale of such property is permitted
by Section 6.06, (ii) any Liens arising in connection with its use of such property are
permitted by Section 6.02 and (iii) after giving effect to such Sale and Leaseback
Transaction, (A) in the case of NKL, the aggregate fair market value of all properties covered by
Sale and Leaseback Transactions entered into by NKL would not exceed $200 million and (B) in the
case of Holdings or any other Subsidiary of Holdings, the aggregate fair market value of all
properties covered by Sale and Leaseback Transactions entered into by all such persons would not
exceed $100 million.



SECTION
6.04 Investments, Loan and Advances. Directly or indirectly, lend money or
credit (by way of guarantee or otherwise) or make advances to any person, or purchase or acquire
any stock, bonds, notes, debentures or other obligations or securities of, or any other ownership
interest in, or make any capital contribution to, any other person, or purchase or otherwise
acquire (in one transaction or a series of transactions) all or substantially all of the property
and assets or business of any other person or assets constituting a business unit, line of business
or division of any other person, or purchase or own a futures contract or otherwise become liable
for the purchase or sale of currency or other commodities at a future date in the nature of a
futures contract (all of the foregoing, collectively, “Investments”; it being understood that the
amount of any Investment shall be the amount actually invested, without adjustment for subsequent
increases or decreases in the value of such Investment and when determining the amount of an
Investment that remains outstanding, the last paragraph of this Section 6.04 shall apply),
except that the following shall be permitted:






	 	 	 
	 

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     (a) Investments consisting of unsecured guaranties of, or other unsecured Contingent
Obligations with respect to, operating payments not constituting Indebtedness for borrowed money
incurred by Subsidiaries that are not Loan Parties, in the ordinary course of business, that, to
the extent paid, shall not exceed an aggregate amount equal to $75 million less the amount
of Contingent Obligations by Loan Parties in respect of Companies that are not Loan Parties
permitted pursuant to Section 6.01(i)(ii);



     (b) Investments outstanding on the Closing Date and identified on Schedule 6.04(b);



     (c) the Companies may (i) acquire and hold accounts receivable owing to any of them if
created or acquired in the ordinary course of business or in connection with a Permitted
Acquisition, (ii) invest in, acquire and hold cash and Cash Equivalents, (iii) endorse negotiable
instruments held for collection in the ordinary course of business or (iv) make lease, utility and
other similar deposits in the ordinary course of business;



     (d) Investments in Securitization Subsidiaries in connection with Securitization Facilities
permitted by Section 6.01(e);



     (e) the Loan Parties and their Subsidiaries may make loans and advances (including payroll,
travel and entertainment related advances) in the ordinary course of business to their respective
employees (other than any loans or advances to any director or executive officer (or
equivalent thereof) that would be in violation of Section 402 of the Sarbanes-Oxley Act) so
long as the aggregate principal amount thereof at any time outstanding (determined without regard
to any write-downs or write-offs of such loans and advances) shall not exceed (when aggregated
with loans and advances outstanding pursuant to clause (h) below) $15 million;



     (f) any Company may enter into Hedging Agreements to the extent permitted by Section
6.01(c);



     (g) Investments made by any Company as a result of consideration received in connection with
an Asset Sale made in compliance with Section 6.06;



     (h) loans and advances to directors, employees and officers of the Loan Parties and their
Subsidiaries for bona fide business purposes, in aggregate amount not to exceed (when aggregated
with loans and advances outstanding pursuant to clause (e) above) $15 million at any time
outstanding; provided that no loans in violation of Section 402 of the Sarbanes-Oxley Act
shall be permitted hereunder;



     (i) Investments (i) by any Company in any other Company outstanding on the Closing Date and
Investments made on or about the Closing Date in connection with the Receivables Purchase
Agreement, (ii) by any Company in any Unrestricted Grantor, (iii) by any Restricted Grantor in any
other Restricted Grantor, (iv) by an Unrestricted Grantor in any Restricted Grantor up to an
aggregate amount made after the Closing Date of $50 million in the aggregate at any one time
outstanding and (v) by any Company that is not a Loan Party in any other Company; provided
that any such Investment in the form of a loan or advance to any Loan Party shall be subordinated
to the Secured Obligations on terms reasonably satisfactory to the Administrative Agent and, in
the case of a loan or advance by a Loan Party, evidenced by






	 	 	 
	 

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an Intercompany Note and pledged by such Loan Party as Collateral pursuant to the Security Documents;




     (j) Investments in securities or other obligations received upon foreclosure or pursuant to
any plan of reorganization or liquidation or similar arrangement upon the bankruptcy or insolvency
of trade creditors or customers or in connection with the settlement of delinquent accounts in the
ordinary course of business, and Investments received in good faith in settlement of disputes or
litigation;



     (k) Investments in Joint Ventures in which the Loan Parties hold at least 50% of the
outstanding Equity Interests or Joint Venture Subsidiaries made with the Net Cash Proceeds of
Asset Sales made in accordance with Section 6.06(k);



     (l) Investments in Norf GmbH for purposes of making Capital Expenditures in an aggregate
amount not to exceed $10 million during any Fiscal Year;



     (m) Permitted Acquisitions; provided that the Lien on and security interest in such
Investment granted or to be granted in favor of the Collateral Agent under the Security Documents
shall be maintained or created in accordance with the provisions of Section 5.11 or
Section 5.12, as applicable;



     (n) [INTENTIONALLY OMITTED];



     (o) Mergers, amalgamations and consolidations in compliance with Section 6.05;
provided that the Lien on and security interest in such Investment granted or to be
granted in favor of the Collateral Agent under the Security Documents shall be maintained or
created in accordance with the provisions of Section 5.11 or Section 5.12, as
applicable;



     (p) Investments in respect of European Cash Pooling Arrangements, subject to the limitations
set forth in Section 6.07;



     (q) Investments consisting of guarantees of Indebtedness referred to in clauses (i) (to the
extent such guarantee is in effect on the Closing Date or permitted as part of a Permitted
Refinancing), (ii) and (iii) of Section 6.01(b) and Contingent Obligations permitted by
Section 6.01(i); and



     (r) other Investments in an aggregate amount not to exceed $200 million at any time
outstanding; provided that any such Investment in the form of a loan or advance to any
Loan Party shall be subordinated to the Secured Obligations on terms reasonably satisfactory to
the Administrative Agent and, in the case of a loan or advance by a Loan Party, evidenced by an
Intercompany Note and pledged by such Loan Party as Collateral pursuant to the Security Documents.



An Investment shall be deemed to be outstanding to the extent not returned in the same form as the
original Investment to any Company. The outstanding amount of an Investment shall, in the case of
a Contingent Obligation that has been terminated, be reduced to the extent no payment is or was
made with respect to such Contingent Obligation upon or prior to the termination of such Contingent
Obligation; and the outstanding amount of other Investments shall be reduced by the







	 	 	 
	 

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amount of cash
or Cash Equivalents received with respect to such Investment upon the sale or disposition thereof,
or constituting a return of capital with respect thereto or, repayment of the principal amount
thereof, in the case of a loan or advance.



SECTION
6.05 Mergers, Amalgamations and Consolidations. Wind up, liquidate or
dissolve its affairs or enter into any transaction of merger, amalgamation or consolidation (or
agree to do any of the foregoing at any future time), except that the following shall be permitted:




     (a) Asset Sales in compliance with Section 6.06;



     (b) Permitted Acquisitions in compliance with Section 6.04;



     (c) (i) any Company may merge, amalgamate or consolidate with or into any Unrestricted
Grantor (provided that (A) in the case of any merger, amalgamation or consolidation
involving a Borrower, a Borrower is the surviving or resulting person, and in any other case, an
Unrestricted Grantor is the surviving or resulting person, (B) no Borrower shall merge, amalgamate
or consolidate with or into any other Borrower, (C) in the case of any merger, amalgamation or
consolidation involving Canadian Borrower, the surviving or resulting Borrower is organized under
the laws of Canada or the United States (or any state thereof or the District of Columbia) and (D)
in the case of any merger or consolidation involving the U.S. Borrower, the surviving Borrower is
organized under the laws of the United States (or any state thereof or the District of Columbia)), (ii) any Restricted Grantor may
merge, amalgamate or consolidate with or into any other Restricted Grantor organized under the
laws of the same country (or any jurisdiction within such same country) (provided that a
Subsidiary Guarantor is the surviving or resulting person), and (iii) any Company that is not a
Loan Party may merge, amalgamate or consolidate with or into any Restricted Grantor
(provided that a Subsidiary Guarantor is the surviving or resulting person);
provided that, in the case of each of the foregoing clauses (i) through (iii), (1) the
surviving or resulting person is a Wholly Owned Subsidiary of Holdings, (2) the Lien on and
security interest in such property granted or to be granted in favor of the Collateral Agent under
the Security Documents shall be maintained in full force and effect and perfected and enforceable
(to at least the same extent as in effect immediately prior to such transfer) or created in
accordance with the provisions of Section 5.11 or Section 5.12, as applicable and
(3) no Default is then continuing or would result therefrom; provided that in the case of
any amalgamation or consolidation involving a Loan Party, at the request of the Administrative
Agent, such Loan Party and each other Loan Party shall confirm its respective Secured Obligations
and Liens under the Loan Documents in a manner reasonably satisfactory to the Administrative
Agent;



     (d) any Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into
any other Subsidiary that is not a Loan Party;



     (e) Holdings and Canadian Borrower may consummate the Permitted Holdings Amalgamation;



     (f) any Subsidiary (other than any Borrower) may dissolve, liquidate or wind up its affairs
at any time; provided that such dissolution, liquidation or winding up, as applicable,
could not reasonably be expected to have a Material Adverse Effect; and






	 	 	 
	 

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     (g) any Unrestricted Grantor (other than a Borrower) may dissolve, liquidate or wind-up its
affairs (collectively, “Wind-Up”), so long as all of its assets are distributed or otherwise
transferred to an Unrestricted Grantor organized under the laws of the same jurisdiction as the
Unrestricted Grantor Winding-Up its affairs and any Restricted Grantor may Wind-Up so long as all
of its assets are distributed or otherwise transferred to a Restricted Grantor or an Unrestricted
Grantor organized under the laws of the same jurisdiction as the Restricted Grantor Winding-Up its
affairs; provided that (1) the Lien on and security interest in such property granted or
to be granted in favor of the Collateral Agent under the Security Documents shall be maintained in
full force and effect and perfected and enforceable (to at least the same extent as in effect
immediately prior to such transfer) or created in accordance with the provisions of Section
5.11 or Section 5.12, as applicable and (2) no Default is then continuing or would
result therefrom.



     To the extent the Required Lenders or such other number of Lenders whose consent is required
under Section 11.02, as applicable, waive the provisions of this Section 6.05 with
respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section
6.05, and so long as the Lien of the Revolving Credit Funding Agent or the Revolving Credit
Collateral Agent (or any other Revolving Credit Agents) pursuant to the Revolving Credit Loan
Documents in such Collateral is also released, such Collateral (unless sold to a Loan Party) shall
be sold free and clear of the Liens created by the Security Documents, and so long as Borrowers
shall have provided the Agents with such certifications or documents as any Agent shall
reasonably request in order to demonstrate compliance with this Section 6.05, and the
Agents shall take all actions as Administrative Borrower reasonably requests in order to effect the
foregoing.


SECTION 6.06 Asset Sales. Effect any Asset Sale, or agree to effect any Asset Sale,
except that the following shall be permitted:




     (a) disposition of used, worn out, obsolete or surplus property by any Company in the
ordinary course of business and the abandonment or other disposition of Intellectual Property that
is, in the reasonable judgment of Borrowers, no longer economically practicable to maintain or
useful in the conduct of the business of the Companies taken as a whole;



     (b) so long as no Default is then continuing or would result therefrom, any other Asset Sale
(other than the Equity Interests of any Wholly Owned Subsidiary unless all of the Equity Interests
of such Subsidiary then owned by any of the Companies are sold to the purchaser thereof in a sale
permitted by this clause (b)) for fair market value, with at least 80% of the consideration
received for all such Asset Sales payable in cash upon such sale; provided,
however, that with respect to any such Asset Sale pursuant to this clause (b), the
aggregate consideration received during any fiscal year for all such Asset Sales shall not exceed
$150 million;



     (c) leases, subleases or licenses of the properties of any Company in the ordinary course of
business and which do not, individually or in the aggregate, interfere in any material respect
with the ordinary conduct of the business of any Company;



 




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     (d) mergers and consolidations, and liquidations and dissolutions in compliance with
Section 6.05;



     (e) sales, transfers and other dispositions of Accounts for the fair market value thereof in
connection with a Permitted Factoring Facility so long as at any time of determination the
aggregate book value of the then outstanding Accounts subject to a Permitted Factoring Facility
does not exceed an amount equal to $300 million less the amount of Indebtedness under all
outstanding Securitization Facilities at such time less the amount of Indebtedness
outstanding under Section 6.01(m) at such time;



     (f) the sale or disposition of cash and Cash Equivalents in connection with a transaction
otherwise permitted under the terms of this Agreement;



     (g) assignments and licenses of intellectual property of any Loan Party and its Subsidiaries
in the ordinary course of business and which do not, individually or in the aggregate, interfere
in any material respect with the ordinary conduct of the business of any Company;



     (h) Asset Sales (other than the Equity Interests of any Subsidiary unless all of the Equity
Interests of such Subsidiary then owned by any of the Companies are sold to the purchaser thereof in a sale permitted by this clause (h)) (i) by and among Unrestricted
Grantors (other than Holdings), (ii) by and among Restricted Grantors organized under the laws of
the same country (or jurisdictions within such same country), (iii) by Restricted Grantors to
Unrestricted Grantors so long as the consideration paid by Unrestricted Grantors in each such
Asset Sale does not exceed fair market value for such Asset Sale, (iv) by Unrestricted Grantors to
Restricted Grantors of property for fair market value, and for aggregate consideration, not in
excess of $25 million for all such Asset Sales following the Closing Date, (v) by Companies that
are not Loan Parties to Loan Parties so long as the consideration paid by Loan Parties in each
such Asset Sale does not exceed (1) the fair market value for such Asset Sale and (2) $25 million
for all such Asset Sales following the Closing Date; and (vi) by and among Companies that are not
Loan Parties; provided that (A) in the case of any transfer from one Loan Party to another
Loan Party, any security interests granted to the Collateral Agent for the benefit of any Secured
Parties pursuant to the relevant Security Documents in the assets so transferred shall (1) remain
in full force and effect and perfected and enforceable (to at least the same extent as in effect
immediately prior to such transfer) or (2) be replaced by security interests granted to the
relevant Collateral Agent for the benefit of the relevant Secured Parties pursuant to the relevant
Security Documents, which new security interests shall be in full force and effect and perfected
and enforceable (to at least the same extent as in effect immediately prior to such transfer) and
(B) no Default is then continuing or would result therefrom;



     (i) the Companies may consummate Asset Swaps (other than Asset Swaps constituting all or
substantially all of the asset of a Company), so long as (x) each such sale is in an arm’s-length
transaction and the applicable Company receives at least fair market value consideration (as
determined in good faith by such Company), (y) the Collateral Agent shall have a First Priority
perfected Lien on the assets acquired pursuant to such Asset Swap at least to the same extent as
the assets sold pursuant to such Asset Swap (immediately prior to giving effect thereto) and (z)
the aggregate fair market value of all assets sold pursuant to this clause



 




122









 







(i) shall not exceed
$25 million in the aggregate since the Closing Date; provided that so long as the assets
acquired by any Company pursuant to the respective Asset Swap are located in the same country as
the assets sold by such Company, such $25 million aggregate cap will not apply to such Asset Swap;




     (j) sales, transfers and other dispositions of Receivables and Related Security to a
Securitization Subsidiary for the fair market value thereof and all sales, transfers or other
dispositions of Securitization Assets by a Securitization Subsidiary under, and pursuant to, a
related Securitization Facility permitted under Section 6.01(e);



     (k) so long as no Default is then continuing or would result therefrom, the arm’s-length sale
or disposition for cash of Equity Interests in a Joint Venture Subsidiary for fair market value or
the issuance of Equity Interests in a Joint Venture Subsidiary; provided, however,
that the aggregate fair market value of all such Equity Interests sold or otherwise disposed of
pursuant to this clause (k) following the Closing Date shall not exceed $300 million; and



     (l) issuances of Equity Interests permitted under Section 6.13(b)(i), (ii),
(iii), (iv) and (vi).



     To the extent the Required Lenders or such other number of Lenders whose consent is required
under Section 11.02, as applicable, waive the provisions of this Section 6.06 with
respect to the sale of any Collateral or any Collateral is sold as permitted by this Section
6.06, and so long as the Lien of the Revolving Credit Funding Agent or the Revolving Credit
Collateral Agent (or any other Revolving Credit Agents) pursuant to the Revolving Credit Loan
Documents in such Collateral is also released, such Collateral (unless sold to a Loan Party) shall
be sold free and clear of the Liens created by the Security Documents, and so long as the Loan
Parties shall have provided the Agents such certificates or documents as any Agent shall reasonably
request in order to demonstrate compliance with this Section 6.06, the Agents shall take
all actions as Administrative Borrower reasonably requests in order to effect the foregoing.


SECTION 6.07 European Cash Pooling Arrangements. Amend, vary or waive any term of the
European Cash Pooling Arrangements without express written consent of the Administrative Agent, or
enter into any new pooled account or netting agreement with any Affiliate without express written
consent of the Administrative Agent. Permit the aggregate amount owed pursuant to the European
Cash Pooling Arrangements by all Companies who are not Loan Parties minus the aggregate
amount on deposit pursuant to the European Cash Pooling Arrangements from such Persons to exceed
$30 million.



SECTION 6.08 Dividends. Authorize, declare or pay, directly or indirectly, any
Dividends with respect to any Company, except that the following shall be permitted:




     (a) (i) Dividends by any Company to any Loan Party that is a Wholly Owned Subsidiary of
Holdings, (ii) Dividends by Holdings payable solely in Qualified Capital Stock and (iii) Dividends
by Holdings payable with the proceeds of Permitted Holdings Indebtedness;



 




123









 








     (b) (i) Dividends by any Company that is not a Loan Party to any other Company that is not a
Loan Party but is a Wholly Owned Subsidiary of Holdings and (ii) cash Dividends by any Company
that is not a Loan Party to the holders of its Equity Interests on a pro rata basis;



     (c) (A) to the extent actually used by Holdings to pay such franchise taxes, costs and
expenses, payments by Borrowers to or on behalf of Holdings in an amount sufficient to pay
franchise taxes and other fees solely required to maintain the legal existence of Holdings and (B)
payments by Borrowers to or on behalf of Holdings in an amount sufficient to pay out-of-pocket
legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary
course of business of Holdings, in the case of clauses (A) and (B) in an aggregate amount not to
exceed $5 million in any fiscal year;



     (d) Beginning with the fiscal year of Canadian Borrower commencing in 2009, Canadian Borrower
may pay cash Dividends to Holdings the proceeds of which may be utilized by Holdings to pay cash
Dividends to the holders of its Equity Interests (or to repay Subordinated Debt Loans) in an
amount declared and paid in any fiscal year of Canadian Borrower not to exceed 50% of Consolidated
Net Income for the previous fiscal year of Canadian Borrower (beginning with the first complete fiscal year commencing after the Closing
Date) (such amount for any such fiscal year, determined after giving effect to clause (ii) below,
the “CNI Basket”) less the aggregate amount of any repayments or redemptions of
Indebtedness under the Senior Note Documents (or any Permitted Refinancings of any of such
Indebtedness) made out of the CNI Basket for such fiscal year pursuant to clause (z) of
Section 6.11(a); provided that (i) the Dividends described in this clause (d)
shall not be permitted if a Default is continuing at the date of declaration or payment thereof or
would result therefrom and (ii) Consolidated Net Income shall be calculated for purposes of this
clause (d) and for purposes of Section 6.11 without giving effect to non-cash after-tax
gains and losses resulting from the mark-to-market of any Hedging Agreement in accordance with the
Statement of Financial Accounting Standards No. 133 or non-cash after-tax gains or losses relating
to any balance sheet translation in accordance with the Statement of Financial Accounting
Standards No. 52 and, in either case, assuming an applicable tax rate equal to 35%; and



     (e) to the extent constituting a Dividend, payments permitted by Section 6.09(d) that
do not relate to Equity Interests.


SECTION 6.09 Transactions with Affiliates. Enter into, directly or indirectly, any
transaction or series of related transactions, whether or not in the ordinary course of business,
with or for the benefit of any Affiliate of any Company (other than between or among Loan Parties),
other than on terms and conditions at least as favorable to such Company as would reasonably be
obtained by such Company at that time in a comparable arm’s-length transaction with a person other
than an Affiliate, except that the following shall be permitted:




     (a) Dividends permitted by Section 6.08;



     (b) Investments permitted by Section 6.04(d), (e), (h), (i)
or (l);



 




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     (c) mergers, amalgamations and consolidations permitted by Section 6.05(c),
(d), (e), (f) or (g), Asset Sales permitted by Section
6.06(h) and issuances of Equity Interests by Holdings or among Loan Parties, in each case, to
the extent permitted by Section 6.13(b);



     (d) reasonable and customary director, officer and employee compensation (including bonuses)
and other benefits (including retirement, health, stock option and other benefit plans) and
indemnification arrangements, in each case approved by the Board of Directors of Canadian
Borrower;



     (e) transactions with customers, clients, suppliers, joint venture partners or purchasers or
sellers of goods and services, in each case in the ordinary course of business and otherwise not
prohibited by the Loan Documents;



     (f) the existence of, and the performance by any Company of its obligations under the terms
of, any limited liability company, limited partnership or other Organizational Document or
securityholders agreement (including any registration rights agreement or purchase agreement
related thereto) to which it is a party on the Closing Date and which has been disclosed in
writing to the Administrative Agent as in effect on the Closing Date, and
similar agreements that it may enter into thereafter, to the extent not more adverse to the
interests of the Lenders in any material respect, when taken as a whole, than any of such
documents and agreements as in effect on the Closing Date;



     (g) the Transactions as contemplated by the Transaction Documents;



     (h) Securitization Facilities permitted under Section 6.01(e) and transactions in
connection therewith on a basis no less favorable to the applicable Company as would be obtained
in a comparable arm’s length transaction with a person not an Affiliate thereof;



     (i) cash management netting and pooled account arrangements permitted under Section
6.01(r);



     (j) transactions between or among any Companies that are not Loan Parties;



     (k) transactions between Loan Parties and Companies that are not Loan Parties that are at
least as favorable to each such Loan Party as would reasonably be obtained by such Loan Party in a
comparable arm’s-length transaction with a person other than an Affiliate; and



     (l) transactions contemplated by the Receivables Purchase Agreement;


provided that notwithstanding any of the foregoing or any other provision of this
Agreement, all intercompany loans, advances or other extensions of credit made to or by Companies
organized in Switzerland shall be on fair market terms.




SECTION 6.10 [INTENTIONALLY OMITTED].



SECTION 6.11 Prepayments of Other Indebtedness; Modifications of Organizational Documents
and Other Documents, etc. Directly or indirectly:





	 	 	 
	 

	 	 






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     (a) (i) make any voluntary or optional payment of principal on or prepayment on or redemption
or acquisition for value of, or complete any mandatory prepayment, redemption or purchase offer in
respect of, or otherwise voluntarily or optionally defease or segregate funds with respect to, any
Indebtedness under the Senior Note Documents or any Subordinated Indebtedness (including the
Subordinated Debt Loan and any Additional Subordinated Debt Loan but excluding any Subordinated
Indebtedness wholly among Loan Parties) or any Permitted Refinancings of any of such Indebtedness,
except (v) the Subordinated Debt Loan may be repaid with the proceeds of Permitted Holdings
Indebtedness, (w) Indebtedness under the Senior Note Documents may be repaid or redeemed with the
proceeds of Incremental Term Loans, (x) with the proceeds of a Permitted Refinancing of such
Indebtedness, (y) redemptions of the Senior Notes required under the terms of Senior Note
Documents pursuant to Section 4.17 of the Senior Note Agreement (as in effect on the Closing Date)
as a result of the Hindalco Acquisition and (z) beginning in 2009, and so long as no Default is
continuing or would result therefrom, repayments or redemptions of Indebtedness under the Senior
Notes Documents (or any Permitted Refinancings (other than a refinancing with Incremental Term
Loans) of any of such Indebtedness) in an aggregate amount not to exceed the CNI Basket for the
previous fiscal year of Canadian Borrower (beginning with the first complete fiscal year
commencing after the Closing Date) less the aggregate amount of any cash Dividends paid
out of the CNI Basket for such fiscal year pursuant to Section 6.08(d), (ii) make any
payment on or with respect to any Subordinated Indebtedness wholly among Loan Parties in violation
of the Subordination provisions thereof or (iii) make any payment (whether, voluntary, mandatory,
scheduled or otherwise) on or with respect to any Subordinated Indebtedness (including payments of
principal and interest thereon, but excluding the discharge or release by Novelis AG (as
consideration for the purchase of receivables under the Receivables Purchase Agreement) of loans
or advances made by Novelis AG to German Seller) if an Event of Default is continuing or would
result therefrom;



     (b) [INTENTIONALLY OMITTED];



     (c) amend or modify, or permit the amendment or modification of, any provision of any
document governing any Material Indebtedness (other than Indebtedness under the Loan Documents or
Revolving Credit Loan Documents (or any Permitted Revolving Credit Facility Refinancings thereof)
and Indebtedness of NKL permitted under Section 6.01(m) or listed on Schedule
6.01) in any manner that, taken as a whole, is adverse in any material respect to the
interests of the Lenders;



     (d) amend or modify, or permit the amendment or modification of, any provision of any
document governing any Indebtedness under the Revolving Credit Loan Documents (or any Permitted
Revolving Credit Facility Refinancings thereof) if such amendment or modification would (i) cause
the aggregate principal amount (or accreted value, if applicable) of all such Indebtedness, after
giving effect to such amendment or modification, to at any time exceed the Maximum Revolving
Credit Facility Amount, (ii) cause the “Applicable Margin” or similar component of the interest
rate or yield provisions applicable to such Indebtedness, after giving effect to such amendment or
modification, to be increased from the highest “Applicable Margin” set forth in the Revolving
Credit Loan Documents as of the Closing Date by more than 3% per annum (excluding increases
resulting from the accrual of interest at the default rate specified in the Revolving Credit
Agreement), (iii) cause such Indebtedness to have a final



 




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maturity date earlier than the final
maturity date of such Indebtedness immediately prior to such amendment or modification or (iv)
result in the persons that are (or are required to be) obligors under such Indebtedness to be
different from the persons that are (or are required to be) obligors under such Indebtedness being
so amended or modified (unless such persons required to be obligors under such Indebtedness are or
are required to be or become obligors under the Loan Documents); and provided that prior
to the effectiveness of such amendment or modification, a Responsible Officer of Administrative
Borrower shall have delivered an Officers’ Certificate to the Administrative Agent (together with
a reasonably detailed description of the material terms and conditions of such amendment or
modification or drafts of the documentation relating thereto) certifying that Administrative
Borrower has determined in good faith that such terms and conditions satisfy the foregoing
requirements;




     (e) terminate, amend or modify any of its Organizational Documents (including (x) by the
filing or modification of any certificate of designation and (y) any election to treat any
Pledged Securities (as defined in the Security Agreement) as a “security” under Section 8-103
of the UCC other than concurrently with the delivery of certificates representing such Pledged
Securities to the Collateral Agent) or any agreement to which it is a party with respect to its
Equity Interests (including any stockholders’ agreement), or enter into any new agreement with
respect to its Equity Interests, other than any such amendments or modifications or such new
agreements which are not adverse in any material respect to the interests of the Lenders;



     (f) amend or modify, or grant any consents, waivers or approvals with respect to, or permit
the amendment or modification of, or granting of any consents, waivers or approvals with respect
to, the Receivables Purchase Agreement, without the consent of the Administrative Agent; or



     (g) amend or modify, or permit the amendment or modification of, any provision of any
document governing any Subordinated Debt Loan or Additional Subordinated Debt Loan in any manner
except as consented to by the Administrative Agent in connection with the Permitted Holdings
Amalgamation and except in a manner that is not adverse in any respect to the Lenders and
consented to by the Administrative Agent or in connection with increasing the Subordinated Debt
Loan pursuant to an Additional Subordinated Debt Loan.


SECTION 6.12 Limitation on Certain Restrictions on Subsidiaries. Directly or
indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Subsidiary of Canadian Borrower to (a) pay dividends or make any
other distributions on its capital stock or any other interest or participation in its profits
owned by Canadian Borrower or any Subsidiary of Canadian Borrower, or pay any Indebtedness owed to
Canadian Borrower or a Subsidiary of Canadian Borrower, (b) make loans or advances to Canadian
Borrower or any Subsidiary of Canadian Borrower or (c) transfer any of its properties to Canadian
Borrower or any Subsidiary of Canadian Borrower, except for such encumbrances or restrictions
existing under or by reason of (i) applicable Requirements of Law; (ii) this Agreement and the
other Loan Documents; (iii) the Senior Note Documents and the Revolving Credit Loan Documents or
other Material Indebtedness; provided that in the case of such other Material Indebtedness,
such encumbrances and restrictions are, taken as a whole, no more restrictive than such
encumbrances and restrictions in the Loan Documents in existence on the Closing Date; (iv)
customary provisions restricting subletting or assignment of any lease




 




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governing a leasehold interest of a Company; (v) customary provisions restricting assignment of any agreement entered
into by a Subsidiary of Canadian Borrower; (vi) any holder of a Lien permitted by Section
6.02 restricting the transfer of the property subject thereto; (vii) customary restrictions and
conditions contained in any agreement relating to the sale of any property permitted under
Section 6.06 pending the consummation of such sale; (viii) any agreement in effect at the
time such Subsidiary of Canadian Borrower becomes a Subsidiary of Canadian Borrower, so long as
such agreement was not entered into in connection with or in contemplation of such person becoming
a Subsidiary of Canadian Borrower; (ix) without affecting the Loan Parties’ obligations under
Section 5.11, customary provisions in partnership agreements, shareholders’ agreements,
joint venture agreements, limited liability company organizational governance documents and other
Organizational Documents, entered into in the ordinary course of business (or in connection with
the formation of such partnership, joint venture, limited liability company or similar person) that
(A) restrict the transfer of Equity Interests in such partnership, joint venture, limited
liability company or similar person or (B) the case of any Joint Venture or Joint Venture
Subsidiary that is not a Loan Party, provide for other restrictions of the type described in
clauses (a), (b) and (c) above, solely with respect to the Equity Interests in, or property held
in, such joint venture, and customary provisions in asset sale and stock sale agreements and other
similar agreements permitted hereunder that provide for restrictions of the type described in
clauses (a), (b) and (c) above, solely with respect to the assets or persons subject to such sale
agreements; (x) restrictions on cash or other deposits or net worth imposed by suppliers or
landlords under contracts entered into in the ordinary course of business; (xi) any instrument
governing Indebtedness assumed in connection with any Permitted Acquisition, which encumbrance or
restriction is not applicable to any person, or the properties or assets of any person, other than
the person or the properties or assets of the person so acquired; or (xii) any encumbrances or
restrictions imposed by any amendments or refinancings that are otherwise not prohibited by the
Loan Documents of the contracts, instruments or obligations referred to in clauses (iii), (viii) or
(xi) above; provided that such amendments or refinancings are no more materially
restrictive with respect to such encumbrances and restrictions than those prior to such amendment
or refinancing.




SECTION 6.13 Limitation on Issuance of Capital Stock.




     (a) Except as permitted by clause (b)(vi) below, issue any Equity Interest that is not
Qualified Capital Stock.



     (b) Issue any Equity Interest (including by way of sales of treasury stock) or any options or
warrants to purchase, or securities convertible into, any Equity Interest, except (i) for stock
splits, stock dividends and additional issuances of Equity Interests which do not decrease the
percentage ownership of any of the Loan Parties in any class of the Equity Interests of such
issuing Company or issuances of Equity Interests in Joint Venture Subsidiaries in connection with
the creation thereof; (ii) Subsidiaries of Canadian Borrower formed after the Closing Date in
accordance with Section 6.14 may issue Equity Interests to Canadian Borrower or the
Subsidiary of Canadian Borrower which is to own such Equity Interests; (iii) Canadian Borrower may
issue common stock that is Qualified Capital Stock to Holdings; (iv) Holdings may issue Equity
Interests that are Qualified Capital Stock; (v) any Company that is not a direct or indirect
Wholly Owned Subsidiary of Holdings may issue Qualified Capital Stock to the extent such issuance
would be a permitted Asset Sale under




	 	 	 
	 

	 	 







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Section 6.06; and (vi) Joint Venture Subsidiaries
may issue Preferred Stock or Disqualified Capital Stock. All Equity Interests issued in
accordance with this Section 6.13(b) shall, to the extent required by Section 5.11
or any Security Document or if such Equity Interests are issued by any Loan Party (other than
Holdings), be delivered to the Collateral Agent for pledge pursuant to the applicable Security
Agreement.



SECTION 6.14 Limitation on Creation of Subsidiaries. Establish, create or acquire any
additional Subsidiaries without the prior written consent of the Required Lenders; provided
that, without such consent, Loan Parties may (i)
establish or create one or more Wholly Owned Subsidiaries of Holdings or (ii) establish,
create or acquire one or more Subsidiaries in connection with an Investment made pursuant to
Section 6.04(d), (k), (m), (o) or (p), so long as, in each
case, Section 5.11(b) shall be complied with.




SECTION 6.15 Business.




     (a) Each of Holdings, Novelis Europe Holdings Limited and Eurofoil shall not engage in any
business or activity other than (i) holding shares in the Equity Interests of its Subsidiaries,
(ii) holding intercompany loans made to Canadian Borrower, (iii) other activities attributable to
or ancillary to its role as a holding company for its Subsidiaries and (iv) compliance with its
obligations under the Loan Documents, the Term Loan Documents (and any Permitted Term Loan
Facility Refinancings thereof), and the Senior Note Documents (and any Permitted Refinancings
thereof).



     (b) With respect to Borrower and the Subsidiaries, engage (directly or indirectly) in any
business other than those businesses in which Borrower and its Subsidiaries are engaged on the
Closing Date as described in the Confidential Information Memorandum (or, in the good faith
judgment of the Board of Directors, which are substantially related thereto or are reasonable
extensions thereof).



     (c) Permit any Securitization Subsidiary to engage in any business or activity other than
performing its obligations under the related Securitization Facility.


SECTION 6.16 Limitation on Accounting Changes. Make or permit any change in
accounting policies or reporting practices or tax reporting treatment, except changes that are
permitted by GAAP or any Requirement of Law and disclosed to the Administrative Agent.



SECTION 6.17 Fiscal Year. Change its fiscal year-end to a date other than March 31.



SECTION 6.18 Lease Obligations. Create, incur, assume or suffer to exist any
obligations as lessee for the rental or hire of real or personal property of any kind under leases
or agreements to lease (other than Capital Lease Obligations permitted under Section
6.01(f)) having an original term of one year or more that would cause the aggregate amount of
rent paid or reserved in respect of all such obligations to exceed $25 million payable in any
fiscal year of Canadian Borrower.



SECTION 6.19 No Further Negative Pledge. Enter into or suffer to exist any consensual
agreement, instrument, deed or lease which prohibits or limits the ability of any Loan Party to
create, incur, assume or suffer to exist any Lien upon any of their respective properties





	 	 	 
	 

	 	 







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or revenues, whether now owned or hereafter acquired to secure the Secured Obligations, or which requires the grant of any security for an
obligation if security is granted to secure the Secured Obligations, except the following: (1)
this Agreement and the other Loan Documents; (2) covenants in documents creating Liens permitted by
Section 6.02 prohibiting further Liens on the properties encumbered thereby; (3) the Senior
Note Documents and the Revolving Credit Loan Documents; and (4) any prohibition or limitation that
(a) exists pursuant to applicable Requirements of Law, (b) consists of customary restrictions and
conditions contained in any agreement relating to the sale of any property permitted under
Section 6.06 pending the consummation of such sale, (c) restricts subletting or assignment
of any lease governing a leasehold interest of a Loan Party or a Subsidiary, (d) is permitted under
Section 6.02(s), (e) exists in any agreement or other instrument of a person acquired in an
Investment permitted hereunder in existence at the time of such Investment (but not created in
connection therewith or in contemplation thereof), which prohibition or limitation is not
applicable to any person, or the properties or assets of any person, other than the person, or the
property or assets of the person so acquired, (f) is contained in any joint venture, shareholders
agreement, limited liability operating agreement or other Organizational Document governing a Joint
Venture or Joint Venture Subsidiary which limits the ability of an owner of an interest in a Joint
Venture or Joint Venture Subsidiary from encumbering its ownership interest therein or (g) is
imposed by any amendments or refinancings that are otherwise permitted by the Loan Documents of the
contracts, instruments or obligations referred to in clause (3) or (4)(e); provided that
such amendments and refinancings are no more materially restrictive with respect to such
prohibitions and limitations than those prior to such amendment or refinancing.




SECTION 6.20 Anti-Terrorism Law; Anti-Money Laundering.




     (a) Directly or indirectly, (i) knowingly conduct any business or engage in making or
receiving any contribution of funds, goods or services to or for the benefit of any person
described in Section 3.22, (ii) knowingly deal in, or otherwise engage in any transaction
relating to, any property or interests in property blocked pursuant to the Executive Order or any
other Anti-Terrorism Law, or (iii) knowingly engage in or conspire to engage in any transaction
that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of
the prohibitions set forth in any Anti-Terrorism Law (and the Loan Parties shall deliver to the
Lenders any certification or other evidence requested from time to time by any Lender in its
reasonable discretion, confirming the Loan Parties’ compliance with this Section 6.20).



     (b) Cause or permit any of the funds of such Loan Party that are used to repay the Loans to
be derived from any unlawful activity with the result that the making of the Loans would be in
violation of any Requirement of Law.



     SECTION 6.21 Embargoed Persons. Cause or permit (a) any of the funds or properties of
the Loan Parties that are used to repay the Loans to constitute property of, or be beneficially
owned directly or indirectly by, any person subject to sanctions or trade restrictions under United
States law (“Embargoed Person” or “Embargoed Persons”) that is identified on (1) the “List of
Specially Designated Nationals and Blocked Persons” maintained by OFAC and/or on any other similar list maintained by OFAC
pursuant to any authorizing statute including, but not limited to, the International Emergency
Economic Powers Act, 50 U.S.C.




	 	 	 
	 

	 	 







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§§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et
seq., and any Executive Order or Requirement of Law promulgated thereunder, with the result that
the investment in the Loan Parties (whether directly or indirectly) is prohibited by a Requirement
of Law, or the Loans made by the Lenders would be in violation of a Requirement of Law, or (2) the
Executive Order, any related enabling legislation or any other similar Executive Orders or (b) any
Embargoed Person to have any direct or indirect interest, of any nature whatsoever in the Loan
Parties, with the result that the investment in the Loan Parties (whether directly or indirectly)
is prohibited by a Requirement of Law or the Loans are in violation of a Requirement of Law.



SECTION 6.22 Tax Shelter Reporting. Treat the Loans as being a “reportable
transaction” within the meaning of Treasury Regulation Section 1.6011-4. In the event Borrowers
(or any of them) determine to take any action inconsistent with such intention, they will promptly
notify the Administrative Agent thereof. This covenant shall survive the payment and termination
of any Loans under this Agreement.




ARTICLE VII.




GUARANTEE



SECTION 7.01 The Guarantee. The Guarantors hereby jointly and severally guarantee, as
a primary obligor and not as a surety to each Secured Party and their respective successors and
permitted assigns, the prompt payment in full when due (whether at stated maturity, by required
prepayment, declaration, demand, by acceleration or otherwise) of the principal of and interest
(including any interest, fees, costs or charges that would accrue but for the provisions of the
Title 11 of the United States Code after any bankruptcy or insolvency petition under Title 11 of
the United States Code) on the Loans made by the Lenders to, and the Notes held by each Lender of,
each Borrower, and all other Secured Obligations from time to time owing to the Secured Parties by
any Loan Party under any Loan Document (including any Hedging Agreement entered into with a
counterparty that is a Secured Party), and the performance of all obligations under any of the
foregoing, in each case strictly in accordance with the terms thereof (such obligations being
herein collectively called the “Guaranteed Obligations”). In addition to the guarantee contained
herein, each Guarantor that is a Foreign Subsidiary, as well as Holdings, shall execute a Guarantee
governed by the applicable law of such Person’s jurisdiction of organization (each such Guarantee,
a “Foreign Guarantee”) and to the extent that the provisions of this Article VII shall duplicate or
conflict with the provisions thereof, the terms of the Foreign Guarantees shall govern the
obligations of such Guarantors. The Guarantors hereby jointly and severally agree that if
Borrower(s) or other Guarantor(s) shall fail to pay in full when due (whether at stated maturity,
by acceleration or otherwise) any of the Guaranteed Obligations, the Guarantors will promptly pay
the same in cash, without any demand or notice whatsoever as if it was the principal obligor, and
that in the case of any extension of time of payment or renewal of any of the Guaranteed
Obligations, the same will be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or renewal. Without
prejudice to the generality of Section 7.01 and Section 7.02, each Guarantor
expressly confirms that it intends that this guarantee shall extend from time to time to any
(however fundamental and of whatsoever nature and whether or not more onerous) variation, increase,
extension or addition of or to any of the Loan Documents and/or any facility or amount made
available under any of the Loan Documents for the purposes




 




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of or in connection with any of the
following: acquisitions of any nature; increasing working capital; enabling investor distributors
to be made; carrying out restructurings; refinancing existing facilities; refinancing any other
indebtedness; making facilities available to new borrowers; any other variation or extension of the
purposes for which any such facility or amount might be made available from time to time; and any
fees, costs and/or expenses associated with any of the foregoing.



SECTION 7.02 Obligations Unconditional. The obligations of the Guarantors under
Section 7.01 shall constitute a guaranty of payment and to the fullest extent permitted by
applicable Requirements of Law, are absolute, irrevocable and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed
Obligations of Borrowers or any other Loan Party under this Agreement, the Notes, if any, or any
other agreement or instrument referred to herein or therein, or any substitution, release or
exchange of any other guarantee of or security for any of the Guaranteed Obligations, and,
irrespective of any other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or Guarantor (except for payment in full). Without
limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of
the following shall not alter or impair the liability of the Guarantors hereunder which shall
remain absolute, irrevocable and unconditional under any and all circumstances as described above:




          (i) at any time or from time to time, without notice to the Guarantors, the time for any
performance of or compliance with any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;




          (ii) any of the acts mentioned in any of the provisions of this Agreement or the Notes, if
any, or any other agreement or instrument referred to herein or therein shall be done or omitted;




          (iii) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the
Guaranteed Obligations shall be amended in any respect, or any right under the Loan Documents or
any other agreement or instrument referred to herein or therein shall be amended or waived in any
respect or any other guarantee of any of the Guaranteed Obligations or any security therefor shall
be released or exchanged in whole or in part or otherwise dealt with;




          (iv) any Lien or security interest granted to, or in favor of, any Lender or Agent as security
for any of the Guaranteed Obligations shall fail to be perfected; or




          (v) the release of any other Guarantor pursuant to Section 7.09.




     The Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and
all notices whatsoever, and any requirement that any Secured Party exhaust any right, power or
remedy or proceed against any Borrower or any other Loan Party under this Agreement or the Notes,
if any, or any other agreement or instrument referred to herein or therein, or against any other
person under any other guarantee of, or security for, any of the Guaranteed Obligations. The
Guarantors waive any and all notice of the creation, renewal, extension, waiver, termination or
accrual of any of the Guaranteed Obligations and notice of or proof of reliance by any Secured
Party upon this Guarantee or acceptance of this Guarantee, and the



 




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Guaranteed Obligations, and any
of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon
this Guarantee, and all dealings between Borrowers and the Secured Parties shall likewise be
conclusively presumed to have been had or consummated in reliance upon this Guarantee. This
Guarantee shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of
payment without regard to any right of offset with respect to the Guaranteed Obligations at any
time or from time to time held by Secured Parties, and the obligations and liabilities of the
Guarantors hereunder shall not be conditioned or contingent upon the pursuit by the Secured Parties
or any other person at any time of any right or remedy against any Borrower or any other Loan
Party, or against any other person which may be or become liable in respect of all or any part of
the Guaranteed Obligations or against any collateral security or guarantee therefor or right of
offset with respect thereto. This Guarantee shall remain in full force and effect and be binding
in accordance with and to the extent of its terms upon the Guarantors and the successors and
assigns thereof, and shall inure to the benefit of the Lenders, and their respective successors and
assigns, notwithstanding that from time to time during the term of this Agreement there may be no
Guaranteed Obligations outstanding.



SECTION 7.03 Reinstatement. The obligations of the Guarantors under this ARTICLE
VII shall be automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Borrower or other Loan Party in respect of the Guaranteed Obligations is
rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether
as a result of any proceedings in bankruptcy or reorganization or otherwise. The Guarantors
jointly and severally agree that they will indemnify each Secured Party on demand for all
reasonable costs and expenses (including reasonable fees of counsel) incurred by such Secured Party
in connection with such rescission or restoration, including any such costs and expenses incurred
in defending against any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law, other than any costs
or expenses resulting from the bad faith or willful misconduct of such Secured Party.



SECTION 7.04 Subrogation; Subordination. Each Guarantor hereby agrees that until the
indefeasible and irrevocable payment and satisfaction in full in cash of all Guaranteed Obligations
and the expiration and termination of the Commitments of the Lenders under this Agreement it shall
waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason
of any performance by it of its guarantee in Section 7.01, whether by subrogation or
otherwise, against any Borrower or any other Guarantor of any of the Guaranteed Obligations or any
security for any of the Guaranteed Obligations. Any Indebtedness of any Loan Party permitted
pursuant to Section 6.01(d) shall be subordinated to such Loan Party’s Secured Obligations a manner reasonably satisfactory to the
Administrative Agent.



SECTION 7.05 Remedies. The Guarantors jointly and severally agree that, as between
the Guarantors and the Lenders, the obligations of Borrowers under this Agreement and the Notes, if
any, may be declared to be forthwith due and payable as provided in Section 8.01 (and shall
be deemed to have become automatically due and payable in the circumstances provided in Section
8.01) for purposes of Section 7.01, notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming automatically due and
payable) as against Borrowers and that, in the event of such declaration (or such obligations being
deemed to have become automatically due and payable), such obligations




 




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(whether or not due and payable by Borrowers) shall forthwith become due and payable by the Guarantors for purposes of
Section 7.01.



SECTION 7.06 Instrument for the Payment of Money. Each Guarantor hereby acknowledges
that the guarantee in this ARTICLE VII constitutes an instrument for the payment of money,
and consents and agrees that any Lender or Agent, at its sole option, in the event of a dispute by
such Guarantor in the payment of any moneys due hereunder, shall have the right to bring a
motion-action under New York CPLR Section 3213.



SECTION 7.07 Continuing Guarantee. The guarantee in this ARTICLE VII is a
continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising.



SECTION 7.08 General Limitation on Guarantee Obligations. In any action or proceeding
involving any state corporate limited partnership or limited liability company law, or any
applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting
the rights of creditors generally, if the obligations of any Guarantor under Section 7.01
would otherwise be held or determined to be void, voidable, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of its liability under
Section 7.01, then, notwithstanding any other provision to the contrary, the amount of such
liability shall, without any further action by such Guarantor, any Loan Party or any other person,
be automatically limited and reduced to the highest amount (after giving effect to the rights of
contribution established in the Contribution, Intercompany, Contracting and Offset Agreement) that
are valid and enforceable and not subordinated to the claims of other creditors as determined in
such action or proceeding.



SECTION 7.09 Release of Guarantors. If, in compliance with the terms and provisions
of the Loan Documents, Equity Interests of any Guarantor are sold or transferred such that it
ceases to be a Subsidiary (a “Transferred Guarantor”) to a person or persons, none of which is a
Loan Party or a Subsidiary, such Transferred Guarantor shall, upon the consummation of such sale or transfer,
be released from its obligations under this Agreement (including under Section 11.03
hereof) and its obligations to pledge and grant any Collateral owned by it pursuant to any Security
Document and the pledge of such Equity Interests so transferred to the Collateral Agent pursuant to
the Security Agreements shall be released, and the Collateral Agent shall take such actions as are
necessary to effect each release described in this Section 7.09 in accordance with the
relevant provisions of the Security Documents; provided that such Guarantor is also
released from its obligations under the Revolving Credit Loan Documents and other guaranteed
Material Indebtedness on the same terms.



SECTION 7.10 Certain Tax Matters. Notwithstanding the provisions of Section
2.15 if a Loan Party makes a payment hereunder that is subject to withholding tax in excess of
the withholding that would have been imposed on payments made by the Borrower with respect to whose
obligation it is making a payment, the Loan Parties shall increase the amount of such payment such
that, after deduction and payment of all such withholding taxes, the payee receives an amount equal
to the amount it would have received if no such withholding had been imposed; provided that
the Agent or Lender provides, as reasonably requested by the relevant Loan Party and as required
under Sections 2.15(e) or 2.15(g), as the case may be, such forms, certificates




 




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and documentation that it is legally entitled to furnish and would be required to reduce or eliminate
withholding and, with respect to non-U.S. withholding taxes, would not, in the Administrative
Agent’s or the relevant Lender’s reasonable judgment, subject it to any material unreimbursed costs
or otherwise be disadvantageous to it in any material respect.




SECTION 7.11 German Guarantor.




     (a) Subject to Section 7.11(b) through Section 7.11(e) below, the Secured
Parties shall not enforce the guarantee obligations of a German Guarantor existing in the form of a
German limited liability company or limited partnership with a limited liability company as partner
(GmbH or GmbH & Co. KG) under this Article VII to the extent (i) such German Guarantor
guarantees obligations of one of its shareholders or of an affiliated company (verbundenes
Unternehmen) of a shareholder within the meaning of Section 15 of the German Stock Corporation Act
(Aktiengesetz) (other than a Subsidiary of that German Guarantor or the German Guarantor itself),
and (ii) the enforcement of such guarantee for shareholder obligations would reduce, in violation
of Section 30 of the German Limited Liability Companies Act (GmbHG), the net assets (assets
minus liabilities minus provisions and liability reserves (Reinvermögen), in each
case as calculated in accordance with generally accepted accounting principles in Germany
(Grundsätze ordnungsmäßiger Buchführung) as consistently applied by such German Guarantor in
preparing its unconsolidated balance sheets (Jahresabschluss gem. § 42 GmbH — Act, §§ 242, 264
HGB) of the German Guarantor (or in the case of a GmbH & Co. KG, its general partner) to an amount
that is insufficient to maintain its (or in the case of a GmbH & Co. KG, its general partner’s)
registered share capital (Stammkapital) (or would increase an existing shortage in its net assets
below its registered share capital); provided that for the purpose of determining the
relevant registered share capital and the net assets, as the case may be:



          (i) The amount of any increase of registered share capital (Stammkapital) of such German
Guarantor (or its general partner in the form of a GmbH) implemented after the date of this
Agreement that is effected without the prior written consent of the Administrative Agent shall be
deducted from the registered share capital of the German Guarantor (or its general partner in the
form of a GmbH);




          (ii) any loans provided to the German Guarantor by a direct or indirect shareholder or an
affiliate thereof (other than a Subsidiary of such German Guarantor) shall be disregarded and not
accounted for as a liability to the extent that such loans are subordinated or are considered
subordinated under Section 32a GmbHG;




          (iii) shareholder loans, other loans and contractual obligations and liabilities incurred by
the German Guarantor in violation of the provisions of any of the Loan Documents shall be
disregarded and not accounted for as liabilities;




          (iv) any assets that are shown in the balance sheet with a book value that, in the opinion of
the Administrative Agent, is significantly lower than their market value and that are not necessary
for the business of the German Guarantor (nicht betriebsnotwendig) shall be accounted for with
their market value; and





	 	 	 
	 

	 	 






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          (v) the assets of the German Guarantor will be assessed at liquidation values
(Liquidationswerte) if, at the time the managing directors prepare the balance sheet in accordance
with paragraph (b) below and absent the demand a positive going concern prognosis (positive
Fortbestehensprognose) cannot be established.




     (b) The limitations set out in Section 7.11(a) only apply:



          (i) if and to the extent that the managing directors of the German Guarantor (or in the case
of a GmbH Co. KG, its general partner) have confirmed in writing to the Administrative Agent within
ten (10) Business Days of a demand for payment under this Article VII the amount of the
obligations under this Article VII which cannot be paid without causing the net assets of
such German Guarantor (or in the case of a GmbH Co. KG, its general partner) to fall below its
registered share capital, or increase an existing shortage in net assets below its registered share
capital (taking into account the adjustments set out above) and such confirmation is supported by a
current balance sheet and other evidence satisfactory to the Administrative Agent and neither the
Administrative Agent nor any Lender raises any objections against that confirmation within five
Business Days after its receipt; or




          (ii) if, within twenty Business Days after an objection under clause (ii) has been raised by
the Administrative Agent or a Lender, the Administrative Agent receives a written audit report
(“Auditor’s Determination”) prepared at the expense of the relevant German Guarantor by a firm of
auditors of international standing and reputation that is appointed by the German Guarantor and
reasonably acceptable to the Administrative Agent, to the extent such report identifies the amount
by which the net assets of that German Guarantor (or in the case of a GmbH & Co. KG, its general
partner in the form of a GmbH) are necessary to maintain its registered share capital as at the
date of the demand under this Article VII (taking into account the adjustments set out
above). The Auditor’s Determination shall be prepared in accordance
with generally accepted accounting principles applicable in Germany (Grundsätze
ordnungsgemäßer Buchführung) as consistently applied by the German Guarantor in the preparation of
its most recent annual balance sheet. The Auditor’s Determination shall be binding for all Parties
except for manifest error.




     (c) In any event, the Credit Parties shall be entitled to enforce the guarantee up to those
amounts that are undisputed between them and the relevant German Guarantor or determined in
accordance with Section 7.11(a) and Section 7.11(b). In respect of the exceeding
amounts, the Credit Parties shall be entitled to further pursue their claims (if any) and the
German Guarantor shall be entitled to provide that the excess amounts are necessary to maintain its
registered share capital (calculated as at the date of demand under this Article VII and
taking into account the adjustments set out above). The Secured Parties are entitled to pursue
those parts of the guarantee obligations of the German Guarantor that are not enforced by operation
of Section 7.11(a) above at any subsequent point in time. This Section 7.11 shall
apply again as of the time such additional demands are made.



     (d) Section 7.11(a) shall not apply as to the amount of Loans borrowed under this
Agreement and passed on (whether by way of shareholder loan or equity contribution) to the
respective German Guarantor or any of its Subsidiaries as long as the respective shareholder loan
is outstanding or the respective equity contribution has not been dissolved or otherwise repaid.



 




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     (e) Should it become legally permissible for managing directors of a German Guarantor to enter
into guarantees in support of obligations of their shareholders without limitations, the
limitations set forth in Section 7.11(a) shall no longer apply. Should any such guarantees
become subject to legal restrictions that are less stringent than the limitations set forth in
Section 7.11(a) above, such less stringent limitations shall apply. Otherwise, Section
7.11(a) shall remain unaffected by changes in applicable law.


SECTION 7.12 Swiss Guarantors. If and to the extent that (i) the obligations under
this ARTICLE VII of any Swiss Guarantor are for the exclusive benefit of any of such Swiss
Guarantor’s Affiliates (other than such Swiss Guarantor’s direct or indirect Subsidiaries) and (ii)
complying with the obligations under this ARTICLE VII would constitute a repayment of
capital (restitution des apports) or the payment of a (constructive) dividend (distribution de
dividende), the following shall apply:




     (a) The aggregate obligations under this ARTICLE VII of any Swiss Guarantor shall be
limited to the maximum amount of such Swiss Guarantor’s profits and reserves available for
distribution, in each case in accordance with, without limitation, articles 671 para.1 to 3 and 675
para.2 of the Swiss Code of Obligations (the “Available Amount”) at the time any Swiss Guarantor
makes a payment under this ARTICLE VII (provided such limitation is still a legal
requirement under Swiss law at that time).



     (b) Immediately after having been requested to make a payment under this ARTICLE VII
(the “Guarantee Payment”), each Swiss Guarantor shall (i) provide the Administrative Agent, within
thirty (30) Business Days from being requested to make the Guarantee Payment, with (1) an interim
audited balance sheet prepared by the statutory auditors of the applicable
Swiss Guarantor, (2) the determination of the Available Amount based on such interim audited
balance sheet as computed by the statutory auditors, and (3) a confirmation from the statutory
auditors that the Available Amount is the maximum amount which can be paid by the Swiss Guarantor
under this ARTICLE VII without breaching the provisions of Swiss corporate law, which are
aimed at protecting the share capital and legal reserves, and (ii) upon receipt of the confirmation
referred to in the preceding sentence under (3) and after having taken all actions required
pursuant to paragraph (d) below, make such Guarantee Payment in full (less, if required, any Swiss
Withholding Tax).



     (c) If so required under Swiss law (including double tax treaties to which Switzerland is a
party) at the time it is required to make a payment under this ARTICLE VII or the Security
Documents, the applicable Swiss Guarantor (1) may deduct the Swiss Withholding Tax at the rate of
35% (or such other rate as may be in force at such time) from any payment under this ARTICLE
VII or the Security Documents, (2) may pay the Swiss Withholding Tax to the Swiss Federal Tax
Administration, and (3) shall notify and provide evidence to the Administrative Agent that the
Swiss Withholding Tax has been paid to the Swiss Federal Tax Administration. To the extent the
Guarantee Payment due is less than the Available Amount, the applicable Swiss Guarantor shall be
required to make a gross-up, indemnify or otherwise hold harmless the Secured Parties for the
deduction of the Swiss Withholding Tax, it being understood that at no time shall the Guarantee
Payment (including any gross-up or indemnification payment pursuant to this paragraph (c) and
including any Swiss Withholding Tax levied thereon) exceed the Available Amount. The applicable
Swiss Guarantor shall use its best efforts to ensure that any



 




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person which is, as a result of a
payment under this ARTICLE VII, entitled to a full or partial refund of the Swiss
Withholding Tax, shall as soon as possible after the deduction of the Swiss Withholding Tax (i)
request a refund of the Swiss Withholding Tax under any applicable law (including double tax
treaties) and (ii) pay to the Administrative Agent for distribution to the applicable Secured
Parties upon receipt any amount so refunded. The Obligations will only be considered as discharged
to the extent of the effective payment received by the Secured Parties under this ARTICLE
VII. This subsection (c) is without prejudice to the gross-up or indemnification obligations of
any Guarantor other that the Swiss Guarantors.




     (d) The Swiss Guarantors shall use reasonable efforts to take and cause to be taken all and
any other action, including the passing of any shareholders’ resolutions to approve any Guarantee
Payment under this ARTICLE VII or the Security Documents, which may be required as a matter
of Swiss mandatory law or standard business practice as existing at the time it is required to make
a Guarantee Payment under this ARTICLE VII or the Security Documents in order to allow for
a prompt payment of the Guarantee Payment or Available Amount, as applicable.


SECTION 7.13 Irish Guarantor. This Guarantee does not apply to any liability to the
extent that it would result in this Guarantee constituting unlawful financial assistance within the
meaning of, in respect of any Irish Guarantor, Section 60 of the Companies Act 1963 of Ireland.



SECTION 7.14 Brazilian Guarantor. The Brazilian Guarantor waives and shall not exercise any and all rights and privileges
granted to guarantors which might otherwise be deemed applicable, including but not limited to the
rights and privileges referred to in Articles 827, 834, 835, 836, 837, 838 and 839 of the Brazilian
Civil Code and the provisions of Article 595 of the Brazilian Civil Procedure Code.




ARTICLE VIII.




EVENTS OF DEFAULT



SECTION 8.01 Events of Default. Upon the occurrence and during the continuance of the
following events (“Events of Default”):




     (a) default shall be made in the payment of any principal of any Loan when and as the same
shall become due and payable, whether at the due date thereof (including a Term Loan Repayment
Date) or at a date fixed for prepayment (whether voluntary or mandatory) thereof or by acceleration
thereof or otherwise, or a prepayment offer required under Section 2.10 shall not be made
in accordance with the terms thereof or a default shall be made in the payment of any amounts
required to be paid upon consummation of a prepayment offer required under Section 2.10;



     (b) default shall be made in the payment of any interest on any Loan or any Fee or any other
amount (other than an amount referred to in paragraph (a) above) due under any Loan Document, when
and as the same shall become due and payable, and such default shall continue unremedied for a
period of three (3) Business Days;



 




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     (c) any representation or warranty made or deemed made in or in connection with any Loan
Document or the borrowings hereunder, or which is contained in any certificate furnished by or on
behalf of a Loan Party pursuant to this Agreement or any other Loan Document, shall prove to have
been false or misleading in any material respect when so made or deemed made;



     (d) default shall be made in the due observance or performance by any Company of any covenant,
condition or agreement contained in Section 5.02(a), Section 5.03(a), Section
5.04(a), Section 5.04(b), Section 5.08 or ARTICLE VI);



     (e) (i) default shall be made in the due observance or performance by any Company of any
covenant, condition or agreement contained in Section 5.02 (other than Section
5.02(a)), and such default shall continue unremedied or shall not be waived for a period of
five (5) days after written notice thereof from the Administrative Agent or any Lender to
Administrative Borrower, or (ii) default shall be made in the due observance or performance by any
Company of any covenant, condition or agreement contained in any Loan Document (other than those
specified in paragraphs (a), (b), (d) or (e)(i) immediately above) and such default shall continue
unremedied or shall not be waived for a period of thirty (30) days after written notice thereof
from the Administrative Agent or any Lender to Administrative Borrower;



     (f) any Company shall (i) fail to pay any principal or interest, regardless of amount, due in
respect of any Indebtedness (other than the Obligations), when and as the same shall become due and
payable beyond any applicable grace period, or (ii) fail to observe or perform any other term,
covenant, condition or agreement contained in any agreement or instrument evidencing or governing
any such Indebtedness if the effect of any failure referred to in this clause (ii) is to cause, or
to permit (in the case of the Senior Notes only, with or without the lapse of time, but after any
notice period required thereunder has commenced) the holder or holders of such Indebtedness or a
trustee or other representative on its or their behalf to cause, such Indebtedness to become due
prior to its stated maturity or become subject to a mandatory offer purchase by the obligor;
provided that, other than in the case of the Revolving Credit Loans, it shall not
constitute an Event of Default pursuant to this paragraph (f) unless the aggregate Dollar
Equivalent amount of all such Indebtedness referred to in clauses (i) and (ii) exceeds $50 million
at any one time (provided that, in the case of Hedging Obligations, the amount counted for
this purpose shall be the net amount payable by all Companies if such Hedging Obligations were
terminated at such time);



     (g) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in
a court of competent jurisdiction seeking (i) relief in respect of any Loan Party or Material
Subsidiary, or of a substantial part of the property of any Loan Party or Material Subsidiary,
under Title 11 of the U.S. Code, as now constituted or hereafter amended, or any other federal,
state or foreign bankruptcy, insolvency, receivership or similar law; (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator, examiner or similar official for any Loan
Party or Material Subsidiary or for a substantial part of the property of any Loan Party or
Material Subsidiary; or (iii) the winding-up, liquidation or examination of any Loan Party or
Material Subsidiary; and such proceeding or petition shall continue undismissed for sixty (60) days
or an order or decree approving or ordering any of the foregoing shall be entered;




	 	 	 
	 

	 	 







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     (h) any Loan Party or Material Subsidiary shall (i) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or
similar law; (ii) consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in clause (g) above; (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator,
examiner or similar official for any Loan Party or Material Subsidiary or for a substantial part of
the property of any Loan Party or Material Subsidiary; (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding; (v) make a general assignment
for the benefit of creditors; (vi) become unable, admit in writing its insolvency or inability or
fail generally to pay its debts as they become due; (vii) take any action for the purpose of
effecting any of the foregoing; (viii) wind up or liquidate (except in accordance with Section
6.05) or put into examination, (ix) take any step with a view to a moratorium or a composition
or similar arrangement with any creditors of any Loan Party or Material Subsidiary, or a moratorium
is declared or instituted in respect of the indebtedness of any Loan Party or Material Subsidiary;



     (i) one or more judgments, orders or decrees for the payment of money in an aggregate Dollar
Equivalent amount in excess of $25 million, to the extent not covered by
insurance or supported by a letter of credit or appeal bonds posted in cash, shall be rendered
against any Company or any combination thereof and the same shall remain undischarged, unvacated or
unbonded for a period of thirty (30) consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon
properties of any Company to enforce any such judgment;



     (j) one or more ERISA Events or noncompliance with respect to Foreign Plans or Compensation
Plans shall have occurred that, when taken together with all other such ERISA Events and
noncompliance with respect to Foreign Plans or Compensation Plans that have occurred, could
reasonably be expected to result in liability of any Company and its ERISA Affiliates that could
reasonably be expected to result in a Material Adverse Effect;



     (k) any security interest and Lien purported to be created by any Security Document shall
cease to be in full force and effect, or shall cease to give the Collateral Agent, for the benefit
of the Secured Parties, a valid, perfected First Priority security interest in and Lien on all of
the Collateral thereunder (except as otherwise expressly provided in such Security Document) in
favor of the Collateral Agent, or shall be asserted by any Borrower or any other Loan Party not to
be a valid, perfected, First Priority (except as otherwise expressly provided in this Agreement,
the Intercreditor Agreement or such Security Document) security interest in or Lien on the
Collateral covered thereby;



     (l) any Loan Document or any material provisions thereof shall at any time and for any reason
be declared by a court of competent jurisdiction to be null and void, or a proceeding shall be
commenced by any Loan Party or by any Governmental Authority, seeking to establish the invalidity
or unenforceability thereof (exclusive of questions of interpretation of any provision thereof), or
any Loan Party shall repudiate or deny any portion of its liability or obligation for the
Obligations;




	 	 	 
	 

	 	 







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     (m) there shall have occurred a Change in Control;



     (n) the Intercreditor Agreement or any material provision thereof shall cease to be in full
force or effect other than (i) as expressly permitted hereunder or thereunder, (ii) by a consensual
termination or modification thereof agreed to by the Agents party thereto and the Revolving Credit
Agents party thereto, or (iii) as a result of satisfaction in full of the obligations under the
Revolving Credit Loan Documents; or



     (o) any Company shall be prohibited or otherwise restrained from conducting the business
theretofore conducted by it in any manner that has or could reasonably be expected to result in a
Material Adverse Effect by virtue of any determination, ruling, decision, decree or order of any
court or Governmental Authority of competent jurisdiction;


then, and in every such event (other than an event with respect to any Loan Party described in
paragraph (g) or (h) above), and at any time thereafter during the continuance of such event or an
acceleration of all obligations under the Revolving Credit Agreement, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to Administrative Borrower, take either
or both of the following actions, at the same or different times: (i) terminate forthwith the
Commitments and (ii) declare the Loans then outstanding to be forthwith due and payable in
whole or in part, whereupon the principal of the Loans so declared to be due and payable, together
with accrued interest thereon and any unpaid accrued Fees and all other Obligations of the Loan
Parties accrued hereunder and under any other Loan Document, shall become forthwith due and
payable, without presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by each of the Loan Parties, anything contained herein or in any other Loan
Document to the contrary notwithstanding; and in any event, with respect to any Loan Party
described in paragraph (g) or (h) above, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon and any unpaid
accrued Fees and all other Obligations of the Loan Parties accrued hereunder and under any other
Loan Document, shall automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by each of the Loan Parties,
anything contained herein or in any other Loan Document to the contrary notwithstanding.



SECTION
8.02 Rescission. If at any time after termination of the Commitments or
acceleration of the maturity of the Loans, the Loan Parties shall pay all arrears of interest and
all payments on account of principal of the Loans owing by them that shall have become due
otherwise than by acceleration (with interest on principal and, to the extent permitted by law, on
overdue interest, at the rates specified herein) and all Defaults (other than non-payment of
principal of and accrued interest on the Loans due and payable solely by virtue of acceleration)
shall be remedied or waived pursuant Section 11.02, then upon the written consent of the
Required Lenders and written notice to Administrative Borrower, the termination of the Commitments
or the acceleration and their consequences may be rescinded and annulled; but such action shall not
affect any subsequent Default or impair any right or remedy consequent thereon. The provisions of
the preceding sentence are intended merely to bind the Lenders to a decision that may be made at
the election of the Required Lenders, and such provisions are not intended to benefit any Loan
Party and do not give any Loan Party the right to require the




 




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Lenders to rescind or annul any
acceleration hereunder, even if the conditions set forth herein are met.



SECTION
8.03 Application of Proceeds. Subject to the terms of the Intercreditor
Agreement, the proceeds received by any of the Agents in respect of any sale of, collection from or
other realization upon all or any part of the Collateral, whether pursuant to the exercise by the
Collateral Agent of its remedies or otherwise (including any payments received with respect to
adequate protection payments or other distributions relating to the Obligations during the pendency
of any reorganization or insolvency proceeding) after an Event of Default has occurred and is
continuing or after the acceleration of the Obligations, shall be applied, in full or in part,
together with any other sums then held by the Agents or any Receiver pursuant to this Agreement,
promptly by the Agents or any Receiver as follows:




     (a) First, to the payment of all reasonable costs and expenses, fees, commissions and taxes of
such sale, collection or other realization including compensation to the Agents or any Receiver and
their agents and counsel, and all expenses, liabilities and advances made or incurred by the Agents
or any Receiver in connection therewith and all amounts for which the
Agents or any Receiver are entitled to indemnification pursuant to the provisions of any Loan
Document, together with interest on each such amount at the highest rate then in effect under this
Agreement from and after the date such amount is due, owing or unpaid until paid in full;



     (b) Second, to the payment of all other reasonable costs and expenses of such sale, collection
or other realization including any compensation payable to the other Secured Parties and their
agents and counsel and all costs, liabilities and advances made or incurred by the other Secured
Parties in connection therewith, together with interest on each such amount at the highest rate
then in effect under this Agreement from and after the date such amount is due, owing or unpaid
until paid in full;



     (c) Third, without duplication of amounts applied pursuant to clauses (a) and (b) above, to
the indefeasible payment in full in cash, pro rata, of interest and other amounts constituting
Obligations which are then due and owing (other than principal) and any fees, premiums and
scheduled periodic payments due under Hedging Agreements constituting Secured Obligations and any
interest accrued thereon, in each case equally and ratably in accordance with the respective
amounts thereof then due and owing;



     (d) Fourth,
to the indefeasible payment in full in cash, pro rata, of the principal amount of
the Obligations and any premium thereon and any breakage, termination or other payments under
Hedging Agreements constituting Secured Obligations and any interest accrued thereon and any
remaining Secured Obligations; and



     (e) Fifth, the balance, if any, to the person lawfully entitled thereto (including the
applicable Loan Party or its successors or assigns) or as a court of competent jurisdiction may
direct.



     In the event that any such proceeds are insufficient to pay in full the items described in
clauses (a) through (d) of this Section 8.03, the Loan Parties shall remain liable, jointly
and severally, for any deficiency. Notwithstanding any other provision of this Agreement, after



 




142









 







application pursuant to clauses (a) and (b) of this Section 8.03, any remaining proceeds of
any of the 525 Collateral Accounts shall be applied to the indefeasible payment in full in cash,
pro rata of the principal amount of any outstanding Canadian Term Loans which were not prepaid with
amounts in such accounts as a result of Section 2.10(h)(vi) and any accrued and unpaid
interest thereon, and thereafter, any remaining proceeds of the 525 Collateral Accounts shall be
applied in the priority set forth in clauses (c) through (e) of this Section 8.03.




ARTICLE IX.




[INTENTIONALLY OMITTED]




ARTICLE X.




THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT



SECTION 10.01 Appointment and Authority. Each of the Lenders hereby irrevocably appoints UBS AG, Stamford Branch, to act on its
behalf as the Administrative Agent and the Collateral Agent hereunder and under the other Loan
Documents and authorizes such Agents to take such actions on its behalf and to exercise such powers
as are delegated to such Agents by the terms hereof or thereof, together with such actions and
powers as are reasonably incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent, the Collateral Agent, the other Agents and the Lenders, and
neither Borrowers nor any other Loan Party shall have rights as a third party beneficiary of any of
such provisions.



SECTION 10.02 Rights as a Lender. Each person serving as an Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender and may exercise
the same as though it were not an Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include each person serving as an
Agent hereunder in its individual capacity. Such person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with any Borrower or other Loan Party, or any Subsidiary
or other Affiliate thereof, as if such person were not an Agent hereunder and without any duty to
account therefor to the Lenders.



SECTION 10.03 Exculpatory Provisions.




     (a) No Agent shall have any duties or obligations except those expressly set forth herein and
in the other Loan Documents. Without limiting the generality of the foregoing, no Agent:



          (i) shall be subject to any fiduciary or other implied duties, regardless of whether a Default
has occurred and is continuing;




          (ii) shall have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that such Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be expressly provided for herein or in
the other Loan Documents); provided that such Agent shall not be




 




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required to take any action that, in its judgment or the judgment of its counsel, may expose such Agent to liability or
that is contrary to any Loan Document or applicable Requirements of Law; and




          (iii) shall, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
any Borrower or other Loan Party or any of its Affiliates that is communicated to or obtained by
the person serving as such Agent or any of its Affiliates in any capacity.




     (b) No Agent shall be liable for any action taken or not taken by it (x) with the consent or
at the request of the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary, or as such Agent shall believe in good faith shall be necessary,
under the circumstances as provided in Section 11.02) or (y) in the absence of its own
gross negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default
unless and until notice describing such Default is given to such Agent by Administrative Borrower
or a Lender.



     (c) No Agent shall be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder
or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in ARTICLE IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to such Agent. Without limiting the
generality of the foregoing, the use of the term “agent” in this Agreement with reference to the
Administrative Agent or the Collateral Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any applicable law. Instead,
such term us used merely as a matter of market custom and is intended to create or reflect only an
administrative relationship between independent contracting parties.


SECTION 10.04 Reliance by Agent. Each Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet
website posting or other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper person. Each Agent also may rely upon any statement made
to it orally or by telephone and believed by it to have been made by the proper person, and shall
not incur any liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a
Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender
unless the Administrative Agent shall have received notice to the contrary from such Lender prior
to the making of such Loan. Each Agent may consult with legal counsel (who may be counsel for any
Borrower or other Loan Party), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.




 




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SECTION 10.05 Delegation of Duties. Each Agent may perform any and all of its duties
and exercise its rights and powers hereunder or under any other Loan Document by or through, or
delegate any and all such rights and powers to, any one or more sub-agents appointed by such Agent,
including a sub-agent which is a non-U.S. affiliate of such Agent. Each Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and powers by or through
their respective Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit facilities provided for herein as
well as activities as Agent.



SECTION 10.06 Resignation of Agent. Each Agent may at any time give notice of its
resignation to the Lenders and Administrative Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with Administrative
Borrower, to appoint a successor, which (i) shall be a bank with an office in the United States, or
an Affiliate of any such bank with an office in the United States and (ii) for the Administrative
Agent, shall be a commercial bank or other financial institution having assets in excess of $1,000
million. If no such successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within thirty (30) days after the retiring Agent gives notice of its
resignation, then the retiring Agent may on behalf of the Lenders, appoint a successor Agent
meeting the qualifications set forth above provided that if the Agent shall notify Administrative
Borrower and the Lenders that no qualifying person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice and (1) the retiring
Agent shall be discharged from its duties and obligations hereunder and under the other Loan
Documents (except that in the case of any collateral security held by the Collateral Agent on
behalf of the Lenders under any of the Loan Documents, the retiring Collateral Agent shall continue
to hold such collateral security as nominee until such time as a successor Collateral Agent is
appointed) and (2) all payments, communications and determinations provided to be made by, to or
through an Agent shall instead be made by or to each Lender directly, until such time as the
Required Lenders appoint a successor Agent as provided for above in this paragraph. Upon the
acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring (or retired)
Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Borrowers to a successor Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After
the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of
this ARTICLE X and Section 11.03 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Agent was acting as Agent.



SECTION 10.07 Non-Reliance on Agent and Other Lenders. Each Lender acknowledges that
it has, independently and without reliance upon any Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender further represents and warrants that it has reviewed the
Confidential Information Memorandum and each other document made available to it on the Platform in
connection with this Agreement and has




 




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acknowledged and accepted the terms and conditions applicable to the recipients thereof. Each Lender also acknowledges that it will, independently
and without reliance upon any Agent or any other Lender and based on such documents and information
as it shall from time to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.



SECTION 10.08 No Other Duties, etc. Notwithstanding anything to the contrary
contained herein, none of the Joint Bookmanagers, Joint Lead Arrangers, Syndication Agent, or
Documentation Agent listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,
as applicable, as the Administrative Agent, as the Collateral Agent or as a Lender hereunder.



SECTION 10.09 Indemnification. The Lenders severally agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by the Borrowers or the Guarantors and without
limiting the obligation of the Borrowers or the Guarantors to do so), ratably according to their
respective outstanding Loans and Commitments in effect on the date on which indemnification is
sought under this Section 10.09 (or, if indemnification is sought after the date upon which
all Commitments shall have terminated and the Loans shall have been paid in full, ratably in
accordance with such outstanding Loans and Commitments as in effect immediately prior to such
date), from and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time
(whether before or after the payment of the Loans) be imposed on, incurred by or asserted against
such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or
in connection with any of the foregoing; provided, that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from such Agent’s gross negligence
or willful misconduct. The agreements in this Section 10.09 shall survive the payment of
the Loans and all other amounts payable hereunder.




SECTION 10.10 [INTENTIONALLY OMITTED].



SECTION 10.11 Concerning the Collateral and the Related Loan Documents. Each Lender
authorizes and directs Agents to enter into this Agreement and the other Loan Documents, including
the Intercreditor Agreement. Each Lender agrees that any action taken by Agents or Required
Lenders in accordance with the terms of this Agreement or the other Loan Documents, including the
Intercreditor Agreement, and the exercise by Agents or Required Lenders of their respective powers
set forth therein or herein, together with such other powers that are reasonably incidental
thereto, shall be binding upon all of the Lenders.



SECTION 10.12 Release. Each Lender and each Issuer hereby releases each Agent acting on its behalf pursuant to the
terms of this Agreement or any other Loan Document from the restrictions of Section 181 of the
German Civil Code (Bürgerliches Gesetzbuch) (restriction on self-dealing).



 




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SECTION 10.13 Acknowledgment of Security Trust Deed. Each Lender acknowledges the
terms of the Security Trust Deed and, in particular, the terms, basis and limitation on which the
Collateral Agent holds the “Transaction Security” (as defined therein) and specifically agrees and
accepts (i) such terms, basis and limitation; (ii) that the Collateral Agent shall, as trustee,
have only those duties, obligations and responsibilities expressly specified in the Security Trust
Deed; (iii) the limitation and exclusion of the Collateral Agent’s liability as set out therein;
and (iv) all other provisions of the Security Trust Deed as if it were a party thereto.



ARTICLE XI.




MISCELLANEOUS




SECTION 11.01 Notices.




     (a) Generally. Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopier as follows:


(i) if to any Loan Party, to Administrative Borrower at:



Novelis Inc.

3399 Peachtree Road NE, Suite 1500

Atlanta, GA 30326

Attention: Orville Lunking, Treasurer

Telecopier No.: 404-814-4200

Email: orville.lunking@novelis.com



with a copy to:



Novelis Inc.

3399 Peachtree Road NE, Suite 1500

Atlanta, GA 30326

Attention: Leslie J. Parrette, Jr.

Telecopier No.: 404-814-4272

Email: les.parrette@novelis.com




(ii) if to a Lender, to it at its address (or telecopier number) set forth in its
Administrative Questionnaire; and




 






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(iii) if to the Administrative Agent or the Collateral Agent, to it at:



UBS AG, Stamford Branch

677 Washington Boulevard

Stamford, Connecticut 06901

Attention: Christopher Gomes

Telecopier No.: (203) 719-3180

Email: Christopher.Gomes@UBS.com



with a copy to:



Skadden, Arps, Slate, Meagher & Flom LLP

300 South Grand Avenue

Los Angeles, CA 90071

Attention: David C. Reamer

Telecopier No.: (213) 687-5600

Phone No.: (213) 687-5000



Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next Business Day for the recipient).
Notices delivered through electronic communications to the extent provided in paragraph (b) below,
shall be effective as provided in said paragraph (b).




     (b) Electronic Communications. Notices and other communications to the Lenders
hereunder may (subject to Section 11.01(d)) be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to procedures approved
by the Administrative Agent; provided that the foregoing shall not apply to notices to any
Lender pursuant to ARTICLE II if such Lender, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent, the Collateral Agent or Administrative Borrower may, in
its discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it (including as set forth in Section
11.01(d)); provided that approval of such procedures may be limited to particular
notices or communications.



     Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement); provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



 




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     (c) Change of Address, Etc. Any party hereto may change its address or telecopier
number for notices and other communications hereunder by notice to the other parties hereto.



     (d) Posting. Each Loan Party hereby agrees that it will provide to the
Administrative Agent all information, documents and other materials that it is obligated to furnish
to the Administrative Agent pursuant to this Agreement and any other Loan Document, including all
notices, requests, financial statements, financial and other reports, certificates and other
information materials, but excluding any such communication that (i) relates to a request for a
new, or a conversion of an existing, Borrowing or other extension of credit (including any election
of an interest rate or interest period relating thereto), (ii) relates to the payment of any
principal or other amount due under this Agreement prior to the scheduled date therefor, (iii)
provides notice of any Default under this Agreement or (iv) is required to be delivered to satisfy
any condition precedent to the effectiveness of this Agreement and/or any borrowing or other
extension of credit hereunder (all such non-excluded communications, collectively, the
“Communications”), by transmitting the Communications in an electronic/soft medium in a format
reasonably acceptable to the Administrative Agent at Christopher.Gomes@UBS.com or at such other
e-mail address(es) provided to Administrative Borrower from time to time or in such other form,
including hard copy delivery thereof, as the Administrative Agent shall reasonably require.
Nothing in this Section 11.01(d) shall prejudice the right of the Agents, any Lender or any
Loan Party to give any notice or other communication pursuant to this Agreement or any other Loan
Document in any other manner specified in this Agreement or any other Loan Document.



     To the extent consented to by the Administrative Agent from time to time, Administrative Agent
agrees that receipt of the Communications by the Administrative Agent at its e-mail address(es) set
forth above shall constitute effective delivery of the Communications to the Administrative Agent
for purposes of the Loan Documents; provided that the Administrative Borrower shall also
deliver to the Administrative Agent an executed original of each Compliance Certificate and an
executed copy (which may be by pdf or similar electronic transmission) of each notice or request of
the type described in clauses (i) through (iv) of paragraph (d) above required to be delivered
hereunder.



     Each Loan Party further agrees that Administrative Agent may make the Communications available
to the Lenders by posting the Communications on Intralinks or a substantially similar electronic
transmission system (the “Platform”). The Platform is provided “as is” and “as available.” The
Agents do not warrant the accuracy or completeness of the Communications, or the adequacy of the
Platform and expressly disclaim liability for errors or omissions in the communications. No
warranty of any kind, express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third party rights or
freedom from viruses or other code defects, is made by any Agent in connection with the
Communications or the Platform. In no event shall the Administrative Agent or any of its Related
Parties have any liability to the Loan Parties, any Lender or any other person for damages of any
kind, including direct or indirect, special, incidental or consequential damages, losses or
expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the
Administrative Agent’s transmission of communications through the Internet, except to the extent
the liability of such person is found in a final non-



 




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appealable judgment by a court of competent jurisdiction to have resulted from such person’s
gross negligence or willful misconduct.




SECTION 11.02 Waivers; Amendment.




     (a) Generally. No failure or delay by any Agent or any Lender in exercising any right
or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of each Agent and the Lenders
hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of any Loan Document or
consent to any departure by any Loan Party therefrom shall in any event be effective unless the
same shall be permitted by this Section 11.02, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether any Agent or any Lender may have had notice or knowledge of such
Default at the time. No notice or demand on any Loan Party in any case shall entitle any Loan
Party to any other or further notice or demand in similar or other circumstances.



     (b) Required Consents. Subject to the terms of the Intercreditor Agreement and to
Section 11.02(c) and (d), neither this Agreement nor any other Loan Document nor
any provision hereof or thereof may be waived, amended, supplemented or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing entered into by the
Borrowers and the Required Lenders (or by the Administrative Agent with the written consent of the
Required Lenders) or, in the case of any other Loan Document, pursuant to an agreement or
agreements in writing entered into by the Administrative Agent (or, in the case of any applicable
Security Document, the Collateral Agent) and the Loan Party or Loan Parties that are party thereto,
in each case with the written consent of the Required Lenders; provided that no such
agreement shall be effective if the effect thereof would:



          (i) increase the Commitment of any Lender without the written consent of such Lender (it being
understood that no amendment, modification, termination, waiver or consent with respect to any
condition precedent, covenant or Default shall constitute an increase in the Commitment of any
Lender);




          (ii) reduce the principal amount of any Loan or reduce the rate of interest thereon (other
than interest pursuant to Section 2.06(c)), or reduce any Fees payable hereunder, or change
the form or currency of payment of any Obligation, without the written consent of each Lender
directly affected thereby;




          (iii) (A) change the scheduled final maturity of any Loan, or any scheduled date of payment of
or the installment otherwise due on the principal amount of any Loan under Section 2.09,
(B) postpone the date for payment of any interest or fees payable hereunder, (C) change the amount
of, waive or excuse any such payment (other than waiver of any increase in
the interest rate pursuant to Section 2.06(c)), or (D) postpone the scheduled date of
expiration of any Commitment without the written consent of each Lender directly affected thereby;




 




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          (iv) increase the maximum duration of Interest Periods hereunder, without the written consent
of each Lender directly affected thereby;




          (v) permit the assignment or delegation by any Borrower of any of its rights or obligations
under any Loan Document, without the written consent of each Lender;




          (vi) except pursuant to the Intercreditor Agreement, release Holdings or all or substantially
all of the Subsidiary Guarantors from their Guarantees (except as expressly provided in this
Agreement or as otherwise expressly provided by any such Guarantee), or limit their liability in
respect of such Guarantees, without the written consent of each Lender;




          (vii) except pursuant to the Intercreditor Agreement or the express terms hereof, release all
or a substantial portion of the Collateral from the Liens of the Security Documents or alter the
relative priorities of a material portion of the Secured Obligations entitled to the Liens of the
Security Documents, in each case without the written consent of each Lender (it being understood
that additional Loans or Classes of Loans consented to by the Required Lenders and additional Loans
pursuant to Section 2.23 may be equally and ratably secured by the Collateral with the then
existing Secured Obligations under the Security Documents);




          (viii) change Section 2.14(b), (c) or (d) in a manner that would alter
the pro rata sharing of payments or setoffs required thereby or any other provision in a manner
that would alter the pro rata allocation among the Lenders of Loan disbursements, including the
requirements of Section 2.02(a), without the written consent of each Lender directly
affected thereby (it being understood that additional Loans or Classes of Loans consented to by the
Required Lenders and additional Loans pursuant to Section 2.23 may be equally and ratably
secured by the Collateral with the then existing Secured Obligations under the Security Documents
and may share payments and setoffs ratably with other Loans);




          (ix) change any provision of this Section 11.02(b), (c), or (d),
without the written consent of each Lender directly affected thereby (except for additional
restrictions on amendments or waivers for the benefit of Lenders of additional Loans or Classes of
Loans consented to by the Required Lenders and additional Loans pursuant to Section 2.23);




          (x) change the percentage set forth in the definition of “Required Lenders” or any other
provision of any Loan Document (including this Section) specifying the number or percentage of
Lenders (or Lenders of any Class) required to waive, amend or modify any rights thereunder or make
any determination or grant any consent thereunder, without the written consent of each Lender (or
each Lender of such Class, as the case may be), other than to increase such percentage or number or
to give any additional Lender or group of Lenders such right to waive, amend or modify or make any
such determination or grant any such consent;




          (xi) change the application of payments as among or between Classes under Section
2.10(h), (i) or (j) or Section 8.03 without the written consent of the
Required Class Lenders of each Class that is being allocated a lesser prepayment as a result
thereof (it being understood that the Required Lenders may waive, in whole or in part, any
prepayment so long as the application, as between Classes, of any portion of such prepayment that is still required
to be made is not changed and, if additional Loans or Classes of Loans under this Agreement




 




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consented to by the Required Lenders or additional Loans pursuant to Section 2.23 are made,
such new Loans may be included on a pro rata basis in the various payments required pursuant to
Section 2.10(h), (i) and (j) and Section 8.03); or




          (xii) change or waive any provision of ARTICLE X as the same applies to any Agent, or
any other provision hereof as the same applies to the rights or obligations of any Agent, in each
case without the written consent of such Agent;



provided, further, that





     (1) any waiver, amendment or modification prior to the completion of the primary
syndication of the Commitments and Loans (as determined by the Arrangers) may not be
effected without the written consent of the Arrangers; and




     (2) any waiver, amendment or modification of the Intercreditor Agreement (and any
related definitions) may be effected by an agreement or agreements in writing entered into
among the Collateral Agent, the Administrative Agent, the Revolving Credit Collateral Agent,
the Revolving Credit Funding Agent and the Revolving Credit Canadian Administrative Agent
(in each case, with the consent of the Required Lenders but without the consent of any Loan
Party, so long as such amendment, waiver or modification does not impose any additional
duties or obligations on the Loan Parties or alter or impair any right of any Loan Party
under the Loan Documents).



     (c) Collateral. Without the consent of any other person, the applicable Loan Party or
Parties and the Administrative Agent and/or Collateral Agent may (in its or their respective sole
discretion, or shall, to the extent required by any Loan Document) enter into any amendment or
waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting,
perfection, protection, expansion or enhancement of any security interest in any Collateral or
additional property to become Collateral for the benefit of the Secured Parties, or as required by
local law to give effect to, or protect any security interest for the benefit of the Secured
Parties, in any property or so that the security interests therein comply with applicable
Requirements of Law.



     (d) Dissenting Lenders. If, in connection with any proposed change, waiver, discharge
or termination of the provisions of this Agreement as contemplated by Section 11.02(b), the
consent of the Required Lenders is obtained but the consent of one or more of such other Lenders
whose consent is required is not obtained, then the Borrowers shall have the right, upon notice by
Administrative Borrower to such Lender and the Administrative Agent, to replace all, but not less
than all, of such non-consenting Lender or Lenders (so long as all non-consenting Lenders are so
replaced) with one or more persons pursuant to Section 2.16 so long as at the time of such
replacement each such new Lender consents to the proposed change, waiver, discharge or termination.
Each Lender agrees that, if the Borrowers elect to replace such Lender in accordance with this
Section, it shall promptly execute and deliver to the Administrative Agent an Assignment and
Assumption to evidence such sale and purchase and shall deliver to the Administrative Agent any
Note (if Notes have been issued in respect of such Lender’s Loans)
subject to such Assignment and Assumption; provided that the failure of any such
non-consenting Lender to execute an Assignment and Assumption shall not render such sale and



 




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purchase (and the corresponding assignment) invalid and such assignment shall be recorded in the
Register.




     (e) Holdings Amalgamation and Increased Commitments. Notwithstanding the foregoing,
the Administrative Agent and the Borrowers (without the consent of any Lenders) may amend or amend
and restate this Agreement and the other Loan Documents if necessary or advisable in connection
with or to effectuate (i) the Permitted Holdings Amalgamation and (ii) any additional Loans
contemplated by Section 2.23.


SECTION 11.03 Expenses; Indemnity; Damage Waiver.




     (a) Costs and Expenses. Administrative Borrower shall pay or cause the applicable
Loan Party to pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent,
the Collateral Agent, the Arrangers, and their respective Affiliates (including the reasonable
fees, charges and disbursements of counsel for the Administrative Agent, and/or the Collateral
Agent, expenses incurred in connection with due diligence, inventory appraisal and collateral audit
and reporting fees, travel, courier, reproduction, printing and delivery expenses, and the
obtaining and maintaining of CUSIP numbers for the Loans) in connection with the syndication of the
credit facilities provided for herein, the preparation, negotiation, execution, delivery and
administration of this Agreement and the other Loan Documents, or in connection with any amendment,
amendment and restatement, modification or waiver of the provisions hereof or thereof (whether or
not the transactions contemplated hereby or thereby shall be consummated), including in connection
with post-closing searches to confirm that security filings and recordations have been properly
made, (ii) all out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent,
any Lender or any Receiver (including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Collateral Agent, any Lender or any Receiver), in connection with the
enforcement or protection of its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section 11.03, (B) in enforcing, preserving and
protecting, or attempting to enforce, preserve or protect its interests in the Collateral or (C) in
connection with the Loans issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans and (iv) all documentary
and similar taxes and charges in respect of the Loan Documents.



     (b) Indemnification by Borrower. Each Loan Party shall indemnify the Administrative
Agent (and any sub-agent thereof), the Collateral Agent (and any sub-agent thereof), each Lender
and Receiver, and each Related Party of any of the foregoing persons (each such person being called
an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all reasonable
out-of-pocket losses, claims, damages, liabilities and related expenses (including the reasonable
fees, charges and disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by any Borrower or any other Loan Party
arising out of, in connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document, or any amendment,
amendment and restatement, modification or waiver of the provisions hereof or thereof, or any
agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of
their respective obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) any Loan or the use or proposed use of the proceeds



 




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therefrom,
(iii) 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 (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by any Borrower or any
other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by any Borrower or any
other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if such Borrower or such Loan Party has obtained a
final and nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction. WITHOUT LIMITATION OF THE FOREGOING, IT IS THE INTENTION OF THE LOAN PARTIES, AND
THE LOAN PARTIES AGREE, THAT THE FOREGOING INDEMNITIES SHALL APPLY TO EACH INDEMNITEE WITH RESPECT
TO LOSSES, CLAIMS, DAMAGES, PENALTIES, LIABILITIES AND RELATED EXPENSES (INCLUDING, WITHOUT
LIMITATION, ALL EXPENSES OF LITIGATION OR PREPARATION THEREFOR), WHICH IN WHOLE OR IN PART ARE
CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OF SUCH (AND/OR ANY OTHER) INDEMNITEE.




     (c) Reimbursement by Lenders. To the extent that any Loan Party for any reason fails
to indefeasibly pay any amount required under paragraph (a) or (b) of this Section 11.03 to
be paid by it to the Administrative Agent (or any sub-agent thereof), the Collateral Agent or any
Receiver or any Related Party of any of the foregoing, each Lender severally agrees to pay to the
Administrative Agent (or any such sub-agent), the Collateral Agent (or any sub-agent thereof), such
Receiver or such Related Party, as the case may be, such Lender’s pro rata share (determined as of
the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent), the Collateral Agent (or any sub-agent thereof) or
the Receiver, in each case, in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent), the Collateral Agent (or any
sub-agent thereof) or the Receiver in connection with such capacity. The obligations of the
Lenders under this paragraph (c) are subject to the provisions of Section 2.14. For
purposes hereof, a Lender’s “pro rata share” shall be determined based upon its share of the sum of
the total outstanding Term Loans and unused Commitments of all Lenders at the time.



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable Requirements of Law, no Loan Party shall assert, and each Loan Party hereby waives, any
claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in connection with,
or as a result of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the
proceeds thereof. No Indemnitee referred to in paragraph (b) above shall be liable for any damages
arising from the use by unintended recipients of any information or other materials



 




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distributed by
it through telecommunications, electronic or other information transmission systems in connection
with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.




     (e) Payments. All amounts due under this Section shall be payable not later than
three (3) Business Days after demand therefore accompanied by reasonable particulars of amounts
due.


SECTION 11.04 Successors and Assigns.




     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that no Loan Party may (except as a result of a transaction
expressly permitted by Section 6.05(c) or 6.05(e)) assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of the Administrative
Agent, the Collateral Agent and each Lender and no Lender may assign or otherwise transfer any of
its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of paragraph (b) of this Section 11.04, (ii) by way of participation in
accordance with the provisions of paragraph (d) of this Section 11.04 or (iii) by way of
pledge or assignment of a security interest subject to the restrictions of paragraph (f) of this
Section (and any other attempted assignment or transfer by any Borrower or any Lender shall be null
and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
person (other than the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in paragraph (d) of this Section and, to the extent expressly
contemplated hereby, the other Indemnitees) any legal or equitable right, remedy or claim under or
by reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that



          (i) except in the case of any assignment made in connection with the primary syndication of
the Commitment and Loans by the Arrangers up to three (3) months after the Closing Date or an
assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the
time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in
effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with respect to such assignment
is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date) shall be an integral multiple of $1 million (provided that in the case of a simultaneous assignment by any
assigning Lender of U.S. Term Loans and Canadian Term Loans held by such Lender, the principal
outstanding balance of such Loans subject to such assignment shall be aggregated for purposes of
determining such minimum assignment amount), unless each of the Administrative Agent and, so long
as no Event of Default has occurred and is continuing, Administrative Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed);




 




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          (ii) each partial assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the
Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning all
or a portion of its rights and obligations among separate Classes on a non-pro rata basis; and




          (iii) the parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with (except in the case of any such assignments by the
Arrangers or their Affiliates) a processing and recordation fee of $3,500 (provided that only one
such fee shall be imposed in the case of simultaneous assignments by related Approved Funds or
Affiliates of the assigning Lender), and the Eligible Assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c)
of this Section 11.04, from and after the effective date specified in each Assignment and
Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but
shall continue to be entitled to the benefits of Section 2.12, Section 2.13,
Section 2.15, Section 2.16, Section 7.10 and Section 11.03 with
respect to facts and circumstances occurring prior to the effective date of such assignment. No
assignment shall be or shall be deemed to be a discharge, recission, extinguishment, novation or
substitution of any Loan and any Loan assigned in accordance with this Section 11.04 shall
continue to be the same obligation and not a new obligation. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (d) of this Section 11.04. In the
event of a transfer by novation of all or part of its rights and obligations under this Agreement
by a Lender, such Lender expressly reserves the rights, powers, privileges and actions that it
enjoys under any Security Documents governed by French law in favor of its Eligible Assignee, in
accordance with the provisions of article 1278 et seq. of the French Code civil.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrowers, shall, at all times at one of its offices in Stamford, Connecticut, while any Loans
are outstanding, maintain a copy of each Assignment and Assumption delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the Commitments of, and
principal amounts of the Loans owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall be conclusive, and the
Borrowers, the Administrative Agent and the Lenders shall treat each person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection
by the Borrowers, the Collateral Agent and any Lender (with respect to its own interest only), at
any reasonable time and from time to time upon reasonable prior notice. The requirements of this
Section 11.04(c) are intended to result in any and all Loans being in “registered form” for



 




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purposes of Section 871, Section 881 and any other applicable provision of the Code, and shall be
interpreted and applied in a manner consistent therewith.




     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
any Borrower or the Administrative Agent sell participations to any person (other than a natural
person or any Borrower, any of any Borrower’s or any other Company’s Affiliates or Subsidiaries)
(each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) each Loan Party, the Administrative Agent and the Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents; provided
that such agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in clause (i), (ii) or (iii)
of the first proviso to Section 11.02(b) that affects such Participant. Subject to
paragraph (e) of this Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Section 2.12, Section 2.13, Section 2.15, Section 2.16
and Section 7.10 (subject to the requirements of those Sections) to the same extent as if
it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 11.08 as though it were a Lender, provided such Participant agrees to be subject
to such sections (as applicable) as though it were a Lender.



     (e) Limitations on Participant Rights. A Participant shall not be entitled to receive
any greater payment under Section 2.12, Section 2.13, Section 2.15,
Section 2.16 and Section 7.10 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with Administrative Borrower’s prior written consent.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
In the case of any Lender that is a fund that invests in bank loans, such Lender may, without the
consent of any Loan Party or the Administrative Agent, collaterally assign or pledge all or
any portion of its rights under this Agreement, including the Loans and Notes or any other
instrument evidencing its rights as a Lender under this Agreement, to any holder of, trustee for,
or any other representative of holders of, obligations owed or securities issued, by such fund, as
security for such obligations or securities.



 




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     (g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable Requirement of Law, including the Federal Electronic Signatures in Global and National
Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state
laws based on the Uniform Electronic Transactions Act.


SECTION 11.05 Survival of Agreement. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement or any other Loan Document
shall be considered to have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans, regardless of any
investigation made by any such other party or on its behalf and notwithstanding that the Agents or
any Lender may have had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force and effect as long
as the principal of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid or any Commitments have not expired or terminated.
The provisions of Section 2.12, Section 2.14, Section 2.15, Section
2.16 and ARTICLE X shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any provision hereof.



SECTION 11.06 Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto in different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement and the other Loan Documents and any separate letter agreements with
respect to fees payable to any Agent or the Arrangers (and any provisions of any other letter
agreements among Canadian Borrower, the Arrangers ABN AMRO, and UBS Loan Finance LLC that are
explicitly stated to survive the execution and delivery of this Agreement) (which surviving
obligations are hereby assumed by the Borrowers), constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.




SECTION 11.07 Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the







 




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extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.



SECTION 11.08 Right of Setoff. Subject to the Intercreditor Agreement, if an Event of
Default shall have occurred and be continuing, each Lender and each of their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent permitted by
applicable Requirements of Law, to set off and apply any and all deposits (general or special, time
or demand, provisional or final, in whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or
the account of any Borrower or any other Loan Party against any and all of the obligations of such
Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan
Document to such Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement or any other Loan Document and although such obligations of such Borrower or
such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender
different from the branch or office holding such deposit or obligated on such indebtedness. The
rights of each Lender and their respective Affiliates under this Section are in addition to other
rights and remedies (including other rights of setoff) that such Lender or its respective
Affiliates may have. Each Lender agrees to notify Administrative Borrower and the Administrative
Agent promptly after any such setoff and application; provided that the failure to give
such notice shall not affect the validity of such setoff and application.



SECTION 11.09 Governing Law; Jurisdiction; Consent to Service of Process.




     (a) Governing Law. This Agreement shall be construed in accordance with and governed
by 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.



     (b) Submission to Jurisdiction. Each Loan Party hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and
determined in such New York State court or, to the fullest extent permitted by applicable law, in
such Federal court. Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement or any other Loan Document shall
affect any right that any Agent or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any other Loan Document against any Loan Party or its properties in
the courts of any jurisdiction.



     (c) Waiver of Venue. Each Loan Party hereby irrevocably and unconditionally waives,
to the fullest extent permitted by applicable Requirements of Law, any objection which it may now
or hereafter have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any other Loan Document in any court referred to in Section



 




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11.09(b). Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by applicable Requirements of Law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.




     (d) Service of Process. Each party hereto irrevocably consents to service of process
in any action or proceeding arising out of or relating to any Loan Document, in the manner provided
for notices (other than telecopier, e-mail or other electronic transmission) in Section
11.01. Each Loan Party hereby irrevocably designates, appoints and empowers CSC Corporation,
1133 Ave of the Americas, Suite 3100, New York, New York, 10036 (telephone no: 212-299-5600)
(telecopy no: 212-299-5656) (electronic mail address: jbudhu@cscinfo.com) (the “Process Agent”), in
the case of any suit, action or proceeding brought in the United States of America as its designee,
appointee and agent to receive, accept and acknowledge for and on its behalf, and in respect of its
property, service of any and all legal process, summons, notices and documents that may be served
in any action or proceeding arising out of or in connection with this Agreement or any Loan
Document. Nothing in this Agreement or any other Loan Document will affect the right of any party
hereto to serve process in any other manner permitted by applicable Requirements of Law.



SECTION 11.10 Waiver of Jury Trial. Each Loan Party hereby 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 Agreement, any other
Loan Document or the transactions contemplated hereby (whether based on contract, tort or any other
theory). Each party hereto (a) certifies that no representative, agent or attorney of any other
party has represented, expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver and (b) acknowledges that it and the other parties
hereto have been induced to enter into this Agreement by, among other things, the mutual waivers
and certifications in this Section.



SECTION 11.11 Headings. Article and Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.



SECTION 11.12 Treatment of Certain Information; Confidentiality. Each Agent and each
Lender agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, advisors and other representatives (it being
understood that the persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable Requirements of Law or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under
any other Loan Document or any action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section 11.12, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights
or obligations under this Agreement, (ii) any actual or




 




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prospective counterparty (or its advisors)
to any swap or derivative transaction relating to any Loan Party and its obligations or (iii) any
rating agency for the purpose of obtaining a credit rating applicable to any Lender, (g) with the
consent of Administrative Borrower or the applicable Loan Party or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates
on a nonconfidential basis from a source other than the Loan Parties. For purposes of this
Section, “Information” means all information received from a Loan Party or any of its Subsidiaries
relating to the Loan Parties or any of their Subsidiaries or any of their respective businesses,
other than any such information that is available to any Agent or any Lender on a nonconfidential
basis prior to disclosure by any Loan Party or any of their Subsidiaries. Any person required to
maintain the confidentiality of Information as provided in this Section shall be considered to have
complied with its obligation to do so if such person has exercised the same degree of care to
maintain the confidentiality of such Information as such person would accord to its own
confidential information.



SECTION 11.13 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies the Borrowers and the other Loan Parties that pursuant to the requirements of the
USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is
required to obtain, verify and record information that identifies the Borrowers and the other Loan
Parties, which information includes the name, address and tax identification number of the
Borrowers and the other Loan Parties and other information regarding the Borrowers and the other
Loan Parties that will allow such Lender or the Administrative Agent, as applicable, to identify
the Borrowers and the other Loan Parties in accordance with the Act. This notice is given in
accordance with the requirements of the Act and is effective as to the Lenders and the
Administrative Agent.



SECTION 11.14 Interest Rate Limitation. Notwithstanding anything to the contrary
contained herein, if at any time the interest rate applicable to any Loan, together with all fees,
charges and other amounts which are treated as interest on such Loan under applicable Requirements
of Law (collectively, the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”)
which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan
in accordance with applicable Requirements of Law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Interbank Rate to the date of repayment, shall have been received by
such Lender.



SECTION
11.15 Lender Addendum. Each Lender to become a party to this Agreement on the
date hereof shall do so by delivering to the Administrative Agent a Lender Addendum duly executed
by such Lender, Administrative Borrower and the Administrative Agent.




 




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SECTION 11.16 Obligations Absolute. To the fullest extent permitted by applicable
Requirements of Law, all obligations of the Loan Parties hereunder shall be absolute and
unconditional irrespective of:




     (a) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or the like of any Loan Party;



     (b) any lack of validity or enforceability of any Loan Document or any other agreement or
instrument relating thereto against any Loan Party;



     (c) any change in the time, manner or place of payment of, or in any other term of, all or any
of the Obligations, or any other amendment or waiver of or any consent to any departure from any
Loan Document or any other agreement or instrument relating thereto;



     (d) any exchange, release or non-perfection of any other Collateral, or any release or
amendment or waiver of or consent to any departure from any guarantee, for all or any of the
Obligations;



     (e) any exercise or non-exercise, or any waiver of any right, remedy, power or privilege under
or in respect hereof or any Loan Document; or



     (f) any other circumstances which might otherwise constitute a defense available to, or a
discharge of, the Loan Parties.


SECTION 11.17 Intercreditor Agreement. Notwithstanding anything to the contrary contained herein, each Lender acknowledges that
the Lien and security interest granted to the Collateral Agent pursuant to the Security Documents
and the exercise of any right or remedy by such Collateral Agent thereunder are subject to the
provisions of the Intercreditor Agreement. In the event of any conflict between the terms of the
Intercreditor Agreement and the Security Documents, the terms of the Intercreditor Agreement shall
govern and control.



SECTION 11.18 Judgment Currency.



(a) Each Loan Party’s obligations hereunder and under the other Loan Documents to make
payments in Dollars (the “Obligation Currency”) shall not be discharged or satisfied by any tender
or recovery pursuant to any judgment expressed in or converted into any currency other than the
Obligation Currency, except to the extent that such tender or recovery results in the effective
receipt by the Administrative Agent or the respective Lender of the full amount of the Obligation
Currency expressed to be payable to the Administrative Agent or such Lender under this Agreement or
the other Loan Documents. If, for the purpose of obtaining or enforcing judgment against any Loan
Party in any court or in any jurisdiction, it becomes necessary to convert into or from any
currency other than the Obligation Currency (such other currency being hereinafter referred to as
the “Judgment Currency”) an amount due in the Obligation Currency, the conversion shall be made at
the spot selling rate at which the Administrative Agent (or if the Administrative Agent does not
quote a rate of exchange on such currency, by a known dealer in such currency designated by the
Administrative Agent) offers to sell such Judgment Currency for the Obligation Currency in the
London foreign exchange market at approximately 11:00 a.m. London time on such date for delivery
two (2) Business Days later (such date of determination of




 




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such spot selling rate, being
hereinafter referred to as the “Judgment Currency Conversion Date”).




     (b) If there is a change in the rate of exchange prevailing between the Judgment Currency
Conversion Date and the date of actual payment of the amount due, each Borrower covenants and
agrees to pay, or cause to be paid, such additional amounts, if any (but in any event not a lesser
amount) as may be necessary to ensure that the amount paid in the Judgment Currency, when converted
at the rate of exchange prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of Judgment Currency stipulated
in the judgment or judicial award at the rate of exchange prevailing on the Judgment Currency
Conversion Date.



     (c) For purposes of determining any rate of exchange for this Section 11.18, such
amounts shall include any premium and costs payable in connection with the purchase of the
Obligation Currency.


SECTION 11.19 [INTENTIONALLY OMITTED].



SECTION 11.20 [INTENTIONALLY OMITTED].



SECTION 11.21 Abstract Acknowledgment of Indebtedness and Joint Creditorship.




     (a) Notwithstanding any other provision of this Agreement, each Loan Party hereby irrevocably
and unconditionally agrees and covenants with the Collateral Agent by way of an abstract
acknowledgment of indebtedness (abstraktes Schuldversprechen) that it owes to the Collateral Agent
as creditor in its own right and not as a representative of the other Secured Parties, sums equal
to, and in the currency of, each amount payable by such Loan Party to each of the Secured Parties
under each of the Loan Documents relating to any Secured Obligations, as and when that amount falls
due for payment under the relevant Secured Debt Agreement or would have fallen due but for any
discharge resulting from failure of another Secured Party to take appropriate steps, in insolvency
proceedings affecting such Loan Party, to preserve its entitlement to be paid that amount.



     (b) Each Loan Party undertakes to pay to the Collateral Agent upon first written demand the
amount payable by such Loan Party to each of the Secured Parties under each of the Secured Debt
Agreements as such amount has become due and payable.



     (c) The Collateral Agent has the independent right to demand and receive full or partial
payment of the amounts payable by each Loan Party under this Section 11.21, irrespective of
any discharge of such Loan Party’s obligation to pay those amounts to the other Secured Parties
resulting from failure by them to take appropriate steps, in insolvency proceedings affecting such
Loan Party, to preserve their entitlement to be paid those amounts.



     (d) Any amount due and payable by a Loan Party to the Collateral Agent under this Section
11.21 shall be decreased to the extent that the other Secured Parties have received (and are
able to retain) payment in full of the corresponding amount under the other provisions of the
Secured Debt Agreements and any amount due and payable by a Loan Party to the other Secured



 




163









 







Parties under those provisions shall be decreased to the extent that the Collateral Agent has received (and
is able to retain) payment in full of the corresponding amount under this Section 11.21;
provided that no Loan Party may consider its obligations towards a Secured Party to be so
discharged by virtue of any set-off, counterclaim or similar defense that it may invoke vis-à-vis
the Collateral Agent.




     (e) The rights of the Secured Parties (other than the Collateral Agent) to receive payment of
amounts payable by each Loan Party under the Secured Debt Agreements are several and are separate
and independent from, and without prejudice to, the rights of the Collateral Agent to receive
payment under this Section 11.21.



     (f) In addition, but without prejudice to the foregoing, the Collateral Agent shall be the
joint creditor (together with the relevant Secured Parties) of all obligations of each Loan Party
towards each of the Secured Parties under the Secured Debt Agreements.


SECTION 11.22 Special Appointment of Collateral Agent for German Security.




     (a) (i) Each Lender that is or will become party to this Agreement hereby appoints the
Collateral Agent as trustee (Treuhaender) and administrator for the purpose of holding on trust
(Treuhand), administering, enforcing and releasing the German Security (as defined below) for the
Secured Parties, (ii) the Collateral Agent accepts its appointment as a trustee and administrator
of the German Security on the terms and subject to the conditions set out in this Agreement and
(iii) the Lenders, the Collateral Agent and all other parties to this Agreement agree that, in
relation to the German Security, no Lender shall exercise any independent power to enforce any
German Security or take any other action in relation to the enforcement of the German Security, or
make or receive any declarations in relation thereto.



     (b) To the extent possible, the Collateral Agent shall hold and administer any German Security
which is security assigned, transferred or pledged under German law to it as a trustee for the
benefit of the Secured Parties, where “German Security” means the assets which are the subject of a
security document which is governed by German law.



     (c) Each Lender hereby authorizes and instructs the Collateral Agent (with the right of sub
delegation) to enter into any documents evidencing German Security and to make and accept all
declarations and take all actions as it considers necessary or useful in connection with any German
Security on behalf of the Secured Parties. The Collateral Agent shall further be entitled to
rescind, release, amend and/or execute new and different documents securing the German Security.



     (d) The Lenders and the Collateral Agent agree that all rights and claims constituted by the
abstract acknowledgment of indebtedness pursuant to this Section 11.22 and all proceeds
held by the Collateral Agent pursuant to or in connection with such abstract acknowledgment of
indebtedness are held by the Collateral Agent with effect from the date of such abstract
acknowledgment of indebtedness in trust for the Secured Parties and will be administered in
accordance with the Loan Documents. The Secured Parties and the Collateral Agent agree further
that the respective Loan Party’s obligations under such abstract acknowledgment of indebtedness
shall not increase the total amount of the Secured Obligations (as defined in the



 




164









 







respective agreement governing German Security) and shall not result in any additional liability of any of the
Loan Parties or otherwise prejudice the rights of any of the Loan Parties. Accordingly, payment of
the obligations under such abstract acknowledgment of indebtedness shall, to the same extent,
discharge the corresponding Secured Obligations and vice versa.



SECTION 11.23 Special Appointment of Administrative Agent in Relation to South Korea.




     (a) Notwithstanding any other provision of this Agreement, each Loan Party hereby irrevocably
and unconditionally undertakes to pay to the Administrative Agent, as creditor in its own right and
not as representative of the other Secured Parties, sums equal to and in the currency of each
amount payable by such Loan Party to each of the Secured Parties under each of the Loan Documents
as and when that amount falls due for payment under the relevant Loan Document or would have fallen
due but for any discharge resulting from failure of another Secured Party to take appropriate
steps, in insolvency proceedings affecting that Loan Party, to preserve its entitlement to be paid
that amount.



     (b) The Administrative Agent shall have its own independent right to demand payment of the
amounts payable by each Loan Party under this Section 11.23, irrespective of any discharge
of such Loan Party’s obligation to pay those amounts to the Secured Parties resulting from failure
by them to take appropriate steps, in insolvency proceedings affecting that Loan Party, to preserve
their entitlement to be paid those amounts.



     (c) Any amount due and payable by a Loan Party to the Administrative Agent under this
Section 11.23 shall be decreased to the extent that the other Secured Parties have received
(and are able to retain) payment in full of the corresponding amount under the other provisions of
the Loan Documents and any amount due and payable by a Loan Party to the other Secured Parties
under those provisions shall be decreased to the extent that the Administrative Agent has received
(and is able to retain) payment in full of the corresponding amount under this Section
11.23.



     (d) Subject to paragraph (c) above, the rights of the Secured Parties (in each case, other
than the Administrative Agent) to receive payment of amounts payable by each Loan Party under the
Loan Documents are several and are separate and independent from, and without prejudice to, the
rights of the Administrative Agent to receive payment under this Section 11.23.


SECTION 11.24 Designation of Collateral Agent under Civil Code of Quebec. Each of the
parties hereto (including each Lender, acting for itself and on behalf of each of its Affiliates
which are or become Secured Parties from time to time) confirms the appointment and designation of
the Collateral Agent (or any successor thereto) as the person holding the power of attorney (fondé
de pouvoir) within the meaning of Article 2692 of the Civil Code of Québec for the purposes of the
hypothecary security to be granted by the Loan Parties or any one of them under the laws of the
Province of Québec and, in such capacity, the Collateral Agent shall hold the hypothecs granted
under the laws of the Province of Québec as such fondé de pouvoir in the exercise of the rights
conferred thereunder. The execution by the Collateral Agent in its capacity as fondé de pouvoir
prior to the date hereof of any document creating or evidencing any such hypothecs is hereby
ratified and confirmed. Notwithstanding the provisions of Section 32 of the




 




165









 







Act respecting the special powers of legal persons (Québec), the Collateral Agent may acquire and be the holder of any
of the bonds secured by any such hypothec. Each future Secured Party, whether a Lender or any other holder of any Secured Obligation, shall be
deemed to have ratified and confirmed (for itself and on behalf of each of its Affiliates that are
or become Secured Parties from time to time) the appointment of the Collateral Agent as fondé de
pouvoir.



SECTION 11.25 Maximum Liability. Subject to Section 7.08 and Sections
7.11 through 7.14, it is the desire and intent of (i) each Loan Party and the Lenders,
that, in each case, the liability of such Loan Party shall be enforced against such Loan Party to
the fullest extent permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought after giving effect to the rights of contribution established in the
Contribution, Intercompany, Contracting and Offset Agreement that are valid and enforceable and not
subordinated to the claims of other creditors as determined in such action or proceeding. If,
however, and to the extent that, the obligations of any Loan Party under any Loan Document shall be
adjudicated to be invalid or unenforceable for any reason (including, without limitation, because
of any applicable state, provincial or federal law relating to fraudulent conveyances or
transfers), then the amount of such Loan Party’s obligations (in the case of any invalidity or
unenforceability with respect such Loan Party’s obligations) under the Loan Documents shall be
deemed to be reduced and such Loan Party shall pay the maximum amount of the Secured Obligations
which would be permissible under applicable law; provided that any guarantees of any such
obligations that are subject to deemed reduction pursuant to this Section 11.25 shall, to
the fullest extent permitted by applicable Requirements of Law, be absolute and unconditional in
respect of the full amount of such obligations without giving effect to any such deemed reduction.




[Signature Pages Follow]





	 	 	 
	 
	 	166






 












 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	NOVELIS INC., as Canadian Borrower

 	 
	 	By:  	/s/ Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Vice
President and Treasurer	 
	 
	 
	 	NOVELIS CORPORATION, as U.S. Borrower

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 
	 	NOVELIS PAE CORPORATION, as U.S. Guarantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 
	 	NOVELIS FINANCES USA LLC, as U.S. Guarantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 
	 	NOVELIS SOUTH AMERICA HOLDINGS LLC, as U.S. Guarantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Vice
President and Treasurer	 
	 
	 



 



S-1









 






	 	 	 	 	 



	 	 	 	 	 
	 	ALUMINUM UPSTREAM HOLDINGS LLC, as U.S. Guarantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Vice
President and Treasurer	 
	 
	 



 



S-2









 






	 	 	 	 	 



	 	 	 	 	 
	 	NOVELIS UK LTD, as U.K. Guarantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 
	 	NOVELIS AG, as Swiss Guarantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 
	 	NOVELIS CAST HOUSE TECHNOLOGY LTD.,
 as Canadian Guarantor
 	 
	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 
	 	4260848 CANADA INC., as Canadian Guarantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 
	 	4260856 CANADA INC., as Canadian Guarantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 



 



S-3









 






	 	 	 	 	 



	 	 	 	 	 
	 	NOVELIS NO. 1 LIMITED PARTNERSHIP, as
Canadian Guarantor,

 	 
	 	By: 4260848 CANADA INC.	 
	 	Its:  General Partner 
	 	 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 
	 	NOVELIS EUROPE HOLDINGS LIMITED, as U.K. Guarantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 
	 	NOVELIS SWITZERLAND SA, as Swiss Guarantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 
	 	NOVELIS TECHNOLOGY AG, as Swiss Guarantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 



 



S-4









 






	 	 	 	 	 



	 	 	 	 	 
	 	AV ALUMINUM INC., as Guarantor

 	 
	 	By:  	/s/
Orville Lunking	 
	 	 	Name:  	Orville Lunking	 
	 	 	Title:  	Authorized
Signatory	 
	 
	 





	 	 	 
	 

	 	S-5





















 






	 	 	 	 	 



	 	 	 	 	 
	 	NOVELIS DEUTSCHLAND GMBH, as German Guarantor

 	 
	 	By:  	/s/
Gottfried Weindl	 
	 	 	Name:  	Gottfried
Weindl	 
	 	 	Title:  	Managing
Director	 
	 
	 





	 	 	 
	 
	 	S-6






 










 






	 	 	 	 	 



	 	 	 	 	 
	 	NOVELIS DO BRASIL LTDA., as Brazilian Guarantor

 	 
	 	By:  	/s/
Tadeu
Nardocci	 
	 	 	Name:  	Antonio
Tadeu Coelho Nardocci	 
	 	 	Title:  	Presidente	 
	 
	 
	 	 

 	 
	 	By:  	/s/
Alexandre Almeida	 
	 	 	Name:  	Alexandre
M. Almeida	 
	 	 	Title:  	Diretor
Financeiro	 




	 	 	 
	 
	 	S-7






 










 






	 	 	 	 	 



	 	 	 	 	 
	 	Present when the Common Seal of


NOVELIS ALUMINIUM HOLDING COMPANY,


As Irish Guarantor,


was hereunto affixed in the presence of:


 	 
	 	Name:  	/s/
Andreas Thiele	 
	 	Title:  	Duly
appointed attorney	 
	 
	 
	 	Name:  	/s/
Eva Paus-Werdermann	 
	 	Title:  	Assistant
to Legal Counsel	 




	 	 	 
	 
	 	S-8






 









 






	 	 	 	 	 



	 	 	 	 	 
	 	UBS AG, STAMFORD BRANCH, as
 Administrative Agent and as Collateral Agent

 	 
	 	By:  	/s/
Mary
E. Evans	 
	 	 	Name:  	Mary
E. Evans	 
	 	 	Title:  	Associate
Director	 
	 
	 
	 	 	 
	 	By:  	/s/
David Julie	 
	 	 	Name:  	David
B. Julie	 
	 	 	Title:  	Associate
Director	 
	 
	 
	 	UBS SECURITIES LLC, as Joint Lead Arranger
 and Joint Bookmanager

 	 
	 	By:  	/s/
Mary
E. Evans	 
	 	 	Name:  	Mary E.
Evans	 
	 	 	Title:  	Associate
Director	 
	 
	 
	 	 	 
	 	By:  	/s/
David Julie	 
	 	 	Name:  	David
B. Julie	 
	 	 	Title:  	Associate
Director	 
	 
	 




	 	 	 
	 
	 	S-9






 










 






	 	 	 	 	 



	 	 	 	 	 
	 	UBS SECURITIES LLC, as Syndication Agent

 	 
	 	By:  	/s/ Mary
E. Evans	 
	 	 	Name:  	Mary
E. Evans	 
	 	 	Title:  	Associate
Director	 
	 
	 
	 	 	 
	 	By:  	/s/ Irja
R. Otsa	 
	 	 	Name:  	Irja
R. Otsa	 
	 	 	Title:  	Associate
Director	 
	 
	 




	 	 	 
	 
	 	S-10






 










 






	 	 	 	 	 



	 	 	 	 	 
	 	ABN AMRO INCORPORATED, as Joint Lead
 Arranger and
Joint Bookmanager

 	 
	 	By:  	/s/ David
Wood	 
	 	 	Name:  	David
Wood	 
	 	 	Title:  	Managing
Director	 
	 
	 




	 	 	 
	 
	 	S-11






 










 






	 	 	 	 	 



	 	 	 	 	 
	 	ABN AMRO INCORPORATED, as
 Documentation Agent

 	 
	 	By:  	/s/ David
Wood	 
	 	 	Name:  	David
Wood	 
	 	 	Title:  	Managing
Director	 
	 
	 




	 	 	 
	 
	 	S-12






 










 






	 	 	 	 	 



Annex I




Applicable Margin




	 	 	 	 	 
	Eurocurrency U.S. Term Loans and	 	ABR U.S. Term Loans and ABR Canadian
	Eurocurrency Canadian Term Loans	 	Term Loans
	 
	 	 	 	 
	2.00%
	 	 	1.00	%





 



 









 






Annex II




Amortization Table




	 	 	 	 	 
	 	 	 	 	Canadian Term Loan
	Date	 	U.S. Term Loan Amount	 	Amount
	 	 	 	 	 
	September 30, 2007	 	$1,650,000	 	$750,000
	 	 	 	 	 
	December 31, 2007	 	$1,650,000	 	$750,000
	 	 	 	 	 
	March 31, 2008	 	$1,650,000	 	$750,000
	 	 	 	 	 
	June 30, 2008	 	$1,650,000	 	$750,000
	 	 	 	 	 
	September 30, 2008	 	$1,650,000	 	$750,000
	 	 	 	 	 
	December 31, 2008	 	$1,650,000	 	$750,000
	 	 	 	 	 
	March 31, 2009	 	$1,650,000	 	$750,000
	 	 	 	 	 
	June 30, 2009	 	$1,650,000	 	$750,000
	 	 	 	 	 
	September 30, 2009	 	$1,650,000	 	$750,000
	 	 	 	 	 
	December 31, 2009	 	$1,650,000	 	$750,000
	 	 	 	 	 
	March 31, 2010	 	$1,650,000	 	$750,000
	 	 	 	 	 
	June 30, 2010	 	$1,650,000	 	$750,000
	 	 	 	 	 
	September 30, 2010	 	$1,650,000	 	$750,000
	 	 	 	 	 
	December 31, 2010	 	$1,650,000	 	$750,000
	 	 	 	 	 
	March 31, 2011	 	$1,650,000	 	$750,000
	 	 	 	 	 
	June 30, 2011	 	$1,650,000	 	$750,000
	 	 	 	 	 
	September 30, 2011	 	$1,650,000	 	$750,000
	 	 	 	 	 
	December 31, 2011	 	$1,650,000	 	$750,000
	 	 	 	 	 
	March 31, 2012	 	$1,650,000	 	$750,000





 



 









 






	 	 	 	 	 
	 	 	 	 	Canadian Term Loan
	Date	 	U.S. Term Loan Amount	 	Amount
	 	 	 	 	 
	June 30, 2012	 	$1,650,000	 	$750,000
	 	 	 	 	 
	September 30, 2012	 	$1,650,000	 	$750,000
	 	 	 	 	 
	December 31, 2012	 	$1,650,000	 	$750,000
	 	 	 	 	 
	March 31, 2013	 	$1,650,000	 	$750,000
	 	 	 	 	 
	June 30, 2013	 	$1,650,000	 	$750,000
	 	 	 	 	 
	September 30, 2013	 	$1,650,000	 	$750,000
	 	 	 	 	 
	December 31, 2013	 	$1,650,000	 	$750,000
	 	 	 	 	 
	March 31, 2014	 	$1,650,000	 	$750,000
	 	 	 	 	 
	June 30, 2014	 	$1,650,000	 	$750,000
	 	 	 	 	 
	Final Maturity Date	 	Remaining outstanding principal	 	Remaining outstanding principal






 



 









 






Annex III




Mandatory Cost Formula




     1. The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost
of compliance with (a) the requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or any of its functions) or
(b) the requirements of the European Central Bank.



     2. On the first day of each Interest Period (or as soon as possible thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional Cost Rate”) for
each Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be
calculated by the Administrative Agent as a weighted average of the Lenders’ Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender in the relevant Loan) and
will be expressed as a percentage rate per annum.



     3. The Additional Cost Rate for any Lender lending from a Facility Office in a Participating
Member State will be the percentage notified by that Lender to the Administrative Agent. This
percentage will be certified by that Lender in its notice to the Administrative Agent to be its
reasonable determination of the cost (expressed as a percentage of that Lender’s participation in
all Loans made from that Facility Office) of complying with the minimum reserve requirements of the
European Central Bank in respect of loans made from that Facility Office.



     4. The Additional Cost Rate for any Lender lending from a Facility Office in the United
Kingdom will be calculated by the Administrative Agent as follows:



     (a) in relation to a Loan in GBP:




	 	 	 	 	 
	 
	 	AB + C(B - D) + E x 0.01	 	per cent. per annum
	 

	 	100 - (A + C)	 
	 

	 	 	 	 






     (b) in relation to a Loan in any currency other than GBP:



	 	 	 	 	 	 	 
	 

	 	 	E x 0.01	 	 	per cent. per annum
	 

	 	 	300	 
	 

	 	 	 	 	 	 






     Where:



     A is the percentage of Eligible Liabilities (assuming these to be in excess of any stated
minimum) which that Lender is from time to time required to maintain as an interest free cash ratio
deposit with the Bank of England to comply with cash ratio requirements.



     B is the percentage rate of interest (excluding the Applicable Margin and the Mandatory Cost
and, if the Loan is an Unpaid Sum, the additional rate of interest specified in Section
2.06(c)) payable for the relevant Interest Period on the Loan.


 



 









 





     C is the percentage (if any) of Eligible Liabilities which that Lender is required from time
to time to maintain as interest bearing Special Deposits with the Bank of England.



     D is the percentage rate per annum payable by the Bank of England to the Administrative Agent
(or such other bank as may be designated by the Administrative Agent in consultation with Borrower)
on interest bearing Special Deposits.



     E is designed to compensate Lenders for amounts payable under the Fees Rules and is calculated
by the Administrative Agent as being the average of the most recent rates of charge supplied by the
Reference Banks to the Administrative Agent pursuant to paragraph 7 below and expressed in GBP per
£1 million.



     5. For the purposes of this Schedule:



     (a) “Eligible Liabilities” and “Special Deposits” have the meanings given to them from time to
time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of
England;



     (b) “Facility Office” means the office or offices notified by a Lender to the Administrative
Agent in writing on or before the date it becomes a Lender (or, following that date, by not less
than five Business Days’ written notice) as the office or offices through which it will perform its
obligations under this Agreement;



     (c) “Fees Rules” means the rules on periodic fees contained in the FSA Supervision Manual or
such other law or regulation as may be in force from time to time in respect of the payment of fees
for the acceptance of deposits;



     (d) “Fee Tariffs” means the fee tariffs specified in the Fees Rules under the activity group
A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees
Rules but taking into account any applicable discount rate);



     (e) “Reference Banks” means, in relation to each of the LIBOR Rate and Mandatory Cost, the
principal office in Stamford, Connecticut of UBS AG, Stamford Branch, or such other bank or banks
as may be designated by the Administrative Agent in consultation with Borrower;



     (f) “Tariff Base” has the meaning given to it in, and will be calculated in accordance with,
the Fees Rules; and



     (g) “Unpaid Sum” means any sum due and payable but unpaid by any Loan Party under the Loan
Documents.



     6. In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A negative
result obtained by subtracting D from B shall be taken as zero. The resulting figures shall be
rounded to four decimal places.



     7. If requested by the Administrative Agent, each Reference Bank shall, as soon as practicable
after publication by the Financial Services Authority, supply to the Administrative



 



 









 







Agent, the rate of charge payable by that Reference Bank to the Financial Services Authority
pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services
Authority (calculated for this purpose by that Reference Bank as being the average of the Fee
Tariffs applicable to that Reference Bank for that financial year) and expressed in GBP per £1
million of the Tariff Base of that Reference Bank.



     8. Each Lender shall supply any information required by the Administrative Agent for the
purpose of calculating its Additional Cost Rate. In particular, but without limitation, each
Lender shall supply the following information on or prior to the date on which it becomes a Lender:



     (a) the jurisdiction of its Facility Office; and



     (b) any other information that the Administrative Agent may reasonably require for such
purpose.



     Each Lender shall promptly notify the Administrative Agent of any change to the information
provided by it pursuant to this paragraph.



     9. The percentages of each Lender for the purpose of A and C above and the rates of charge of
each Reference Bank for the purpose of E above shall be determined by the Administrative Agent
based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption that, unless a Lender notifies the Administrative Agent to the contrary, each Lender’s
obligations in relation to cash ratio deposits and Special Deposits are the same as those of a
typical bank from its jurisdiction of incorporation with a Facility Office in the same jurisdiction
as its Facility Office.



     10. The Administrative Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any Lender and shall be entitled
to assume that the information provided by any Lender or Reference Bank pursuant to paragraphs 3, 7
and 8 above is true and correct in all respects.



     11. The Administrative Agent shall distribute the additional amounts received as a result of
the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based on
the information provided by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8
above.



     12. Any determination by the Administrative Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall, in
the absence of manifest error, be conclusive and binding on all parties to this Agreement.



     13. The Administrative Agent may from time to time, after consultation with Borrower and the
Lenders, determine and notify to all parties to this Agreement any amendments which are required to
be made to this Annex III in order to comply with any change in law, regulation or any
requirements from time to time imposed by the Bank of England, the Financial Services Authority or
the European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall, in the absence of
manifest error, be conclusive and binding on all parties to this Agreement.