EX-4.12 INDENTURE






Exhibit 4.12




 

 






NOVELIS INC.




111/2% SENIOR NOTES DUE 2015




 





INDENTURE




Dated as of August 11, 2009




 






THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Trustee




 

 






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	 
	Section 1.01. Definitions
	 	 	1	 
	 
	Section 1.02. Other Definitions
	 	 	26	 
	 
	Section 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	27	 
	 
	Section 1.04. Rules of Construction
	 	 	27	 
	 
	ARTICLE 2. THE NOTES
	 	 	28	 
	 
	Section 2.01. Form and Dating
	 	 	28	 
	 
	Section 2.02. Execution and Authentication
	 	 	29	 
	 
	Section 2.03. Registrar and Paying Agent
	 	 	29	 
	 
	Section 2.04. Paying Agent to Hold Money in Trust
	 	 	30	 
	 
	Section 2.05. Holder Lists
	 	 	30	 
	 
	Section 2.06. Transfer and Exchange
	 	 	30	 
	 
	Section 2.07. Replacement Notes
	 	 	40	 
	 
	Section 2.08. Outstanding Notes
	 	 	41	 
	 
	Section 2.09. Treasury Notes
	 	 	41	 
	 
	Section 2.10. Temporary Notes
	 	 	41	 
	 
	Section 2.11. Cancellation
	 	 	42	 
	 
	Section 2.12. Payment of Interest; Defaulted Interest
	 	 	42	 
	 
	Section 2.13. Additional Interest
	 	 	42	 
	 
	Section 2.14. CUSIP or ISIN Numbers
	 	 	42	 
	 
	Section 2.15. Issuance of Additional Notes
	 	 	42	 
	 
	Section 2.16. Record Date
	 	 	43	 
	 
	Section 2.17. Pro Rata Payments
	 	 	43	 
	 
	ARTICLE 3. REDEMPTION AND PREPAYMENT
	 	 	43	 
	 
	Section 3.01. Notices to Trustee
	 	 	43	 
	 
	Section 3.02. Selection of Notes to Be Redeemed
	 	 	43	 
	 
	Section 3.03. Notice of Redemption
	 	 	44	 
	 
	Section 3.04. Effect of Notice of Redemption
	 	 	44	 
	 
	Section 3.05. Deposit of Redemption Price
	 	 	44	 
	 
	Section 3.06. Notes Redeemed in Part
	 	 	45	 
	 
	Section 3.07. Optional Redemption
	 	 	45	 
	 
	Section 3.08. Sinking Fund
	 	 	46	 
	 
	Section 3.09. Offer To Purchase Procedures
	 	 	46	 
	 
	ARTICLE 4. COVENANTS
	 	 	48	 






i









 






	 	 	 	 	 
	 	 	Page
	Section 4.01. Payment of Notes
	 	 	48	 
	 
	Section 4.02. Maintenance of Office or Agency
	 	 	49	 
	 
	Section 4.03. Reports
	 	 	49	 
	 
	Section 4.04. Compliance Certificate
	 	 	49	 
	 
	Section 4.05. Taxes
	 	 	50	 
	 
	Section 4.06. Stay, Extension and Usury Laws
	 	 	50	 
	 
	Section 4.07. Corporate Existence
	 	 	50	 
	 
	Section 4.08. Payments for Consent
	 	 	50	 
	 
	Section 4.09. Limitation on Debt
	 	 	50	 
	 
	Section 4.10. Limitation on Restricted Payments
	 	 	52	 
	 
	Section 4.11. Limitation on Liens
	 	 	54	 
	 
	Section 4.12. Limitation on Asset Sales
	 	 	54	 
	 
	Section 4.13. Limitation on Restrictions on Distributions from Restricted Subsidiaries
	 	 	56	 
	 
	Section 4.14. Limitation on Transactions with Affiliates
	 	 	58	 
	 
	Section 4.15. Limitation on Sale and Leaseback Transactions
	 	 	59	 
	 
	Section 4.16. Designation of Restricted and Unrestricted Subsidiaries
	 	 	60	 
	 
	Section 4.17. Change of Control Offer
	 	 	61	 
	 
	Section 4.18. Future Subsidiary Guarantors
	 	 	61	 
	 
	Section 4.19. Additional Amounts
	 	 	61	 
	 
	Section 4.20. Covenant Termination and Suspension
	 	 	63	 
	 
	ARTICLE 5. SUCCESSORS
	 	 	63	 
	 
	Section 5.01. Merger, Consolidation and Sale of Property
	 	 	63	 
	 
	Section 5.02. Successor Corporation Substituted
	 	 	65	 
	 
	ARTICLE 6. DEFAULTS AND REMEDIES
	 	 	66	 
	 
	Section 6.01. Events of Default
	 	 	66	 
	 
	Section 6.02. Acceleration
	 	 	67	 
	 
	Section 6.03. Other Remedies
	 	 	68	 
	 
	Section 6.04. Waiver of Defaults
	 	 	68	 
	 
	Section 6.05. Control by Majority
	 	 	69	 
	 
	Section 6.06. Limitation on Suits
	 	 	69	 
	 
	Section 6.07. Rights of Holders to Receive Payment
	 	 	69	 
	 
	Section 6.08. Collection Suit by Trustee
	 	 	69	 
	 
	Section 6.09. Trustee May File Proofs of Claim
	 	 	69	 
	 
	Section 6.10. Priorities
	 	 	70	 
	 
	Section 6.11. Undertaking for Costs
	 	 	70	 
	 
	ARTICLE 7. TRUSTEE
	 	 	70	 
	 
	Section 7.01. Duties of Trustee
	 	 	70	 






ii









 






	 	 	 	 	 
	 	 	Page
	Section 7.02. Rights of Trustee
	 	 	71	 
	 
	Section 7.03. Individual Rights of Trustee
	 	 	72	 
	 
	Section 7.04. Trustee’s Disclaimer
	 	 	72	 
	 
	Section 7.05. Notice of Defaults
	 	 	72	 
	 
	Section 7.06. Reports by Trustee to Holders
	 	 	72	 
	 
	Section 7.07. Compensation and Indemnity
	 	 	73	 
	 
	Section 7.08. Replacement of Trustee
	 	 	73	 
	 
	Section 7.09. Successor Trustee by Merger, etc.
	 	 	74	 
	 
	Section 7.10. Eligibility; Disqualification
	 	 	74	 
	 
	Section 7.11. Preferential Collection of Claims Against Company
	 	 	75	 
	 
	ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 	 	75	 
	 
	Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	75	 
	 
	Section 8.02. Legal Defeasance and Discharge
	 	 	75	 
	 
	Section 8.03. Covenant Defeasance
	 	 	75	 
	 
	Section 8.04. Conditions to Legal or Covenant Defeasance
	 	 	76	 
	 
	Section 8.05. Deposited Cash and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions
	 	 	77	 
	 
	Section 8.06. Repayment to Company
	 	 	77	 
	 
	Section 8.07. Reinstatement
	 	 	78	 
	 
	ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER
	 	 	78	 
	 
	Section 9.01. Without Consent of Holders of Notes
	 	 	78	 
	 
	Section 9.02. With Consent of Holders of Notes
	 	 	79	 
	 
	Section 9.03. Compliance with Trust Indenture Act
	 	 	80	 
	 
	Section 9.04. Revocation and Effect of Consents
	 	 	80	 
	 
	Section 9.05. Notation on or Exchange of Notes
	 	 	80	 
	 
	Section 9.06. Trustee to Sign Amendments, etc.
	 	 	80	 
	 
	ARTICLE 10. GUARANTEES
	 	 	81	 
	 
	Section 10.01. Guarantee
	 	 	81	 
	 
	Section 10.02. Limitation on Subsidiary Guarantor Liability
	 	 	82	 
	 
	Section 10.03. Execution and Delivery of Subsidiary Guaranty
	 	 	83	 
	 
	Section 10.04. Subsidiary Guarantors May Consolidate, etc., on Certain Terms
	 	 	83	 
	 
	Section 10.05. Releases Following Merger, Consolidation or Sale of Assets, Etc.
	 	 	84	 
	 
	ARTICLE 11. SATISFACTION AND DISCHARGE
	 	 	84	 
	 
	Section 11.01. Satisfaction and Discharge
	 	 	84	 
	 
	Section 11.02. Deposited Cash and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions
	 	 	85	 
	 
	Section 11.03. Repayment to Company
	 	 	85	 
	 
	ARTICLE 12. MISCELLANEOUS
	 	 	85	 






iii









 






	 	 	 	 	 
	 	 	Page
	Section 12.01. Trust Indenture Act Controls
	 	 	85	 
	 
	Section 12.02. Notices
	 	 	86	 
	 
	Section 12.03. Communication by Holders of Notes with Other Holders of Notes
	 	 	87	 
	 
	Section 12.04. Certificate and Opinion as to Conditions Precedent
	 	 	87	 
	 
	Section 12.05. Statements Required in Certificate or Opinion
	 	 	87	 
	 
	Section 12.06. Rules by Trustee and Agents
	 	 	87	 
	 
	Section 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	87	 
	 
	Section 12.08. Governing Law
	 	 	88	 
	 
	Section 12.09. No Adverse Interpretation of Other Agreements
	 	 	88	 
	 
	Section 12.10. Successors
	 	 	88	 
	 
	Section 12.11. Severability
	 	 	88	 
	 
	Section 12.12. Consent to Jurisdiction and Service of Process
	 	 	88	 
	 
	Section 12.13. Foreign Currency Equivalents
	 	 	88	 
	 
	Section 12.14. Conversion of Currency
	 	 	89	 
	 
	Section 12.15. Documents in English
	 	 	89	 
	 
	Section 12.16. Counterpart Originals
	 	 	90	 
	 
	Section 12.17. Table of Contents, Headings, etc.
	 	 	90	 
	 
	Section 12.18. Qualification of this Indenture
	 	 	90	 






iv









 






CROSS-REFERENCE TABLE




	 	 	 
	     TIA Section	 	Indenture
	      Reference	 	Section
	310(a)(1) 
	 	7.10
	(a)(2) 
	 	7.10
	(a)(3) 
	 	N.A.
	(a)(4) 
	 	N.A.
	(a)(5) 
	 	7.10
	(b)
	 	7.08, 7.10
	(c)
	 	N.A.
	311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N.A.
	312(a)
	 	2.05
	(b)
	 	12.03
	(c)
	 	12.03
	313(a) 
	 	7.06
	(b)(1) 
	 	N.A.
	(b)(2) 
	 	7.06, 7.07
	(c)
	 	7.06, 12.02
	(d)
	 	7.06
	314(a)
	 	4.03, 4.04, 12.02
	(b)
	 	N.A.
	(c)(1) 
	 	12.04
	(c)(2) 
	 	12.04
	(c)(3) 
	 	N.A.
	(d)
	 	N.A.
	(e)
	 	12.05
	315(a)
	 	7.01
	(b)
	 	7.05, 12.02
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.11
	316(a) (last sentence) 
	 	2.09
	(a)(1)(A) 
	 	6.05
	(a)(1)(B) 
	 	6.04
	(a)(2) 
	 	N.A.
	(b)
	 	6.07
	317(a)(1) 
	 	6.08
	(a)(2) 
	 	6.09
	(b)
	 	2.04
	318(a)
	 	12.01






N.A. means Not Applicable.



Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this
Indenture.




v









 





          This INDENTURE, dated as of August 11, 2009, is by and among Novelis Inc., a corporation
organized under the laws of Canada, each Subsidiary Guarantor listed on the signature pages hereto
and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”).




          The Company, each Subsidiary Guarantor and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the Company’s unsecured senior
notes issued from time to time under this Indenture (the “Notes”).




ARTICLE 1.




DEFINITIONS AND INCORPORATION BY REFERENCE




Section 1.01. Definitions.




          For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:




          “144A Global Note” means one or more Global Notes in the form of Exhibit A hereto bearing the
Global Note Legend and the Private Placement Legend and deposited with and registered in the name
of the Depositary or its nominee issued in an aggregate denominational amount equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.




          “Additional Assets” means:





     (a) any Property (other than cash, Cash Equivalents and securities) to be owned by the
Company or any Restricted Subsidiary and used in a Related Business; or




     (b) Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the
acquisition of such Capital Stock by the Company or another Restricted Subsidiary from any
Person other than the Company or an Affiliate of the Company; provided, however, that, in
the case of clause (b), such Restricted Subsidiary is primarily engaged in a Related
Business.



          “Additional Interest” has the meaning set forth in the Registration Rights Agreement relating
to amounts to be paid in the event the Company fails to satisfy certain conditions set forth
therein. For all purposes of this Indenture, the term “interest” shall include Additional
Interest, if any, with respect to the Notes.




          “Additional Notes” means any Notes (other than Initial Notes and Notes issued under Sections
2.06, 2.07, 2.10, 3.06 and 3.09) issued under this Indenture in accordance with Sections 2.02 and
2.15, as part of the same series as the Initial Notes or as an additional series.




          “Affiliate” of any specified Person means:





          (a) any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person; or




          (b) any other Person who is a director or officer of:




               (1) such specified Person;




               (2) any Subsidiary of such specified Person; or




               (3) any Person described in clause (a) above.



          For the purposes of this definition, “control,” when used with respect to any Person, means
the power to direct the management and policies of such Person, directly or indirectly, whether
through the ownership




1









 







of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing. For purposes of Sections 4.12 and 4.14 and the
definition of “Additional Assets” only, “Affiliate” shall also mean any beneficial owner of shares
representing 10% or more of the total voting power of the Voting Stock (on a fully diluted basis)
of the Company and any Person who would be an Affiliate of any such beneficial owner pursuant to
the first sentence hereof.




          “Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.




          “Alternative Currency” means any lawful currency other than U.S. dollars that is freely
transferable into U.S. dollars.




          “Applicable Procedures” means, with respect to any transfer, redemption or exchange of or for
beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and
Clearstream that apply to such transfer, redemption or exchange.




          “Approved Member States” means Belgium, France, Germany, Italy, Luxembourg, The Netherlands,
Spain, Sweden and the United Kingdom.




          “Asset Sale” means any sale, lease, transfer, issuance or other disposition (or series of
related sales, leases, transfers, issuances or dispositions) by the Company or any Restricted
Subsidiary, including any disposition by means of a merger, consolidation or similar transaction
(each referred to for the purposes of this definition as a “disposition”), of the following:





          (a) any shares of Capital Stock of a Restricted Subsidiary (other than directors’
qualifying shares); or




          (b) any other Property of the Company or any Restricted Subsidiary outside of the
ordinary course of business of the Company or such Restricted Subsidiary;




          other than, in the case of clause (a) or (b) above:




          (1) any disposition by a Restricted Subsidiary to the Company or by the Company
or a Restricted Subsidiary to a Wholly Owned Restricted Subsidiary,




          (2) any disposition that constitutes a Permitted Investment or Restricted
Payment permitted by Section 4.10;




          (3) any disposition effected in compliance with the first or second paragraph
of Section 5.01;




          (4) any sale of accounts receivable and related assets (including contract
rights) of the type specified in the definition of “Qualified Securitization
Transaction” to or by a Securitization Entity for the fair market value thereof;




          (5) any sale of assets pursuant to a Sale and Leaseback Transaction, provided
that neither the Company nor any Restricted Subsidiary shall, nor shall they permit
any of their respective Subsidiaries to, become or remain liable as lessee or
guarantor or other surety with respect to any operating lease, unless the aggregate
amount of all rents paid or accrued under all such operating leases does not exceed
$25.0 million in any fiscal year;




          (6) any sale or disposition of cash or Cash Equivalents;




          (7) the granting of Liens not prohibited by this Indenture; and



2









 






          (8) any disposition in a single transaction or a series of related transactions
of assets for aggregate consideration of less than $10.0 million.



          “Attributable Debt” in respect of a Sale and Leaseback Transaction means, at any date of
determination,





          (a) if such Sale and Leaseback Transaction is a Capital Lease Obligation, the amount of
Debt represented thereby according to the definition of “Capital Lease Obligations;” and




          (b) in all other instances, the greater of:




          (1) the Fair Market Value of the Property subject to such Sale and Leaseback
Transaction; and




          (2) the present value (discounted at the interest rate borne by the Senior
Notes, compounded annually) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in such Sale and Leaseback
Transaction (including any period for which such lease has been extended).



          “Average Life” means, as of any date of determination, with respect to any Debt or Preferred
Stock, the quotient obtained by dividing:





          (a) the sum of the product of the numbers of years (rounded to the nearest one-twelfth
of one year) from the date of determination to the dates of each successive scheduled
principal payment of such Debt or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by




          (b) the sum of all such payments.



          “Bankruptcy Law” means Title 11, U.S. Code or any other U.S. federal or state law relating to
bankruptcy, insolvency, winding up, liquidation, receivership, reorganization or relief of debtors,
or the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or
any other Canadian federal or provincial law relating to, or the law of any other jurisdiction
relating to, bankruptcy, insolvency, winding up, liquidation, receivership, reorganization or
relief of debtors.




          “Board of Directors” means the board of directors of the Company.




          “Board Resolution” of a Person means a copy of a resolution certified by the secretary or an
assistant secretary (or individual performing comparable duties) of the applicable Person to have
been duly adopted by the board of directors of such Person and to be in full force and effect on
the date of such certification.




          “Business Day” means any day other than a Legal Holiday.




          “Canadian Restricted Subsidiary” means any Restricted Subsidiary that is organized under the
laws of Canada or any province thereof.




          “Capital Lease Obligations” means any obligation under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP; and the amount of Debt
represented by such obligation shall be the capitalized amount of such obligations determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the last payment of rent
or any other amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty. For purposes of Section 4.11, a Capital
Lease Obligation shall be deemed secured by a Lien on the Property being leased.




          “Capital Stock” means, with respect to any Person, any shares or other equivalents (however
designated) of any class of corporate stock or partnership interests or any other participations,
rights, warrants,




3









 







options or other interests in the nature of an equity interest in such Person, including
Preferred Stock, but excluding any debt security convertible or exchangeable into such equity
interest.




          “Capital Stock Equivalents” means all securities convertible into or exchangeable for Capital
Stock and all warrants, options or other rights to purchase or subscribe for any Capital Stock,
whether or not presently convertible, exchangeable or exercisable.




          “Capital Stock Sale Proceeds” means the aggregate cash proceeds received by the Company from
the issuance or sale (other than to a Subsidiary of the Company or an employee stock ownership plan
or trust established by the Company or any such Subsidiary for the benefit of their employees) by
the Company of its Capital Stock (other than Disqualified Stock) after February 3, 2005, net of
attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or
commissions and brokerage, consultant and other fees and expenses actually incurred in connection
with such issuance or sale and net of Taxes paid or payable as a result thereof.




          “Cash Equivalents” means any of the following:





          (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 maturing within 365 days of the date of acquisition thereof;




          (b) time deposit accounts, certificates of deposit, eurocurrency time deposits,
overnight bank deposits, money market deposits and bankers’ acceptances maturing
within 365 days of the date of acquisition thereof and issued by a bank or trust
company organized under the laws of Canada or any province thereof, the United
States, any state thereof, the District of Columbia, any non-U.S. bank, or its
branches or agencies (fully protected against currency fluctuations) that, at the
time of acquisition, is rated at least “A-1” by S&P or “P-1” by Moody’s (or such
similar equivalent rating by at least one “nationally recognized statistical rating
organization” (as defined in Rule 436 under the Securities Act)) or the “R-1”
category by the Dominion Bond Rating Service Limited and has capital, surplus and
undivided profits aggregating in excess of $500 million;




          (c) 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) and (b)
above, (ii) has net assets that exceed $500 million and (iii) is rated at least
“A-1” by S&P or “P-1” by Moody’s;




          (d) repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (a) entered into with:




          (1) a bank meeting the qualifications described in clause (b) above, or




          (2) any primary government securities dealer reporting to the Market Reports
Division of the Federal Reserve Bank of New York;




          (e) commercial paper issued by a corporation (other than an Affiliate of the
Company) with a rating at the time as of which any Investment therein is made of
“P-1” (or higher) according to Moody’s or “A-1” (or higher) according to S&P (or
such similar equivalent rating by at least one “nationally recognized statistical
rating organization” (as defined in Rule 436 under the Securities Act)) or in the
“R-1” category by the Dominion Bond Rating Service Limited; and




          (f) direct obligations (or certificates representing an ownership interest in
such obligations) of any state of the United States or the District of Columbia or
any political subdivision or instrumentality thereof (including any agency or
instrumentality thereof) or any province of Canada (including any agency or
instrumentality thereof) for the payment of which the



4









 







full faith and credit of such state or province is pledged and maturing within
365 days of the date of acquisition thereof, provided that the long-term debt of
such state, province or political subdivision is rated, in the case of a state of
the United States, one of the two highest ratings from Moody’s or S&P (or such
similar equivalent rating by at least one “nationally recognized statistical rating
organization” (as defined in Rule 436 under the Securities Act)), or in the “R-1”
category by the Dominion Bond Rating Service Limited;




provided, however, 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 (e) of this definition to the extent that such obligations have a credit rating
equal to the sovereign rating of such jurisdiction.



          “Change of Control” means the occurrence of any of the following events:




          (a) any “person” or “group” (as such terms are used in Section 13(d) and 14(d) of the Exchange
Act or any successor of the foregoing), including any group acting for the purpose of acquiring,
holding, voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act, other than a Permitted Holder, becomes the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act, except that a person will be deemed to have “beneficial ownership” of
all shares that any such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of 50% or more of the total
voting power of the Voting Stock of the Company (for purposes of this clause (a), such person or
group shall be deemed to beneficially own any Voting Stock of a corporation held by any other
corporation (the “parent corporation”) so long as such person or group beneficially owns, directly
or indirectly, in the aggregate at least a majority of the total voting power of the Voting Stock
of such parent corporation); or




          (b) the sale, transfer, assignment, lease, conveyance or other disposition, directly or
indirectly, of all or substantially all the Property of the Company and the Restricted
Subsidiaries, considered as a whole (other than a disposition of such Property as an entirety or
virtually as an entirety to a Wholly Owned Restricted Subsidiary), shall have occurred, or the
Company merges, consolidates or amalgamates with or into any other Person or any other Person
merges, consolidates or amalgamates with or into the Company, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Company is reclassified into or exchanged
for cash, securities or other Property, other than any such transaction where:





     (1) the outstanding Voting Stock of the Company is reclassified into or exchanged for
other Voting Stock of the Company or for Voting Stock of the Surviving Person; and




     (2) the holders of the Voting Stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than a majority of the Voting Stock of the
Company or the Surviving Person immediately after such transaction; or



          (c) during any period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors (together with any new directors whose election or
appointment by such Board or whose nomination for election by the shareholders of the Company was
approved by a vote of not less than three-fourths of the directors then still in office who 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 at least a majority of the Board of
Directors then in office; or




          (d) the shareholders of the Company shall have approved any plan of liquidation or dissolution
of the Company.




          “Clearstream” means Clearstream Banking S.A. and any successor thereto.




          “Code” means the U.S. Internal Revenue Code of 1986, as amended.




          “Commission” means the Securities and Exchange Commission.




5









 








          “Commodity Price Protection Agreement” means, in respect of a Person, any forward contract,
commodity swap agreement, commodity option agreement or other similar agreement or arrangement
designed to protect such Person against fluctuations in commodity prices.




          “Company” means Novelis Inc. and any successor thereto.




          “Comparable Treasury Issue” means the United States treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the Notes
that would be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.




          “Comparable Treasury Price” means, with respect to any redemption date:





     (a) the average of the bid and ask prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) on the third business day preceding
such redemption date, as set forth in the most recently published statistical release
designated “H.15(519)” (or any successor release) published by the Board of Governors of the
Federal Reserve System and which establishes yields on actively traded United States
treasury securities adjusted to constant maturity under the caption “Treasury Constant
Maturities;” or




     (b) if such release (or any successor release) is not published or does not contain
such prices on such business day, the average of the Reference Treasury Dealer Quotations
for such redemption date.



          “Consolidated Current Liabilities” means, as of any date of determination, the aggregate
amount of liabilities of the Company and its consolidated Restricted Subsidiaries which may
properly be classified as current liabilities (including taxes accrued as estimated), after
eliminating:





          (a) all intercompany items between the Company and any Restricted Subsidiary or between
Restricted Subsidiaries; and




          (b) all current maturities of long-term Debt.



          “Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of:





          (a) the aggregate amount of EBITDA for the most recent four consecutive fiscal quarters
ending at least 45 days prior to such determination date to




          (b) Consolidated Interest Expense for such four fiscal quarters;




          provided, however, that:




               (1) if




          (A) since the beginning of such period the Company or any Restricted
Subsidiary has Incurred any Debt that remains outstanding or Repaid any
Debt; or




          (B) the transaction giving rise to the need to calculate the
Consolidated Interest Coverage Ratio is an Incurrence or Repayment of Debt,



          Consolidated Interest Expense for such period shall be calculated after giving effect on a pro
forma basis to such Incurrence or Repayment as if such Debt was Incurred or Repaid on the first day
of such period, provided that, in the event of any such Repayment of Debt, EBITDA for such period
shall be calculated as if the Company or such Restricted Subsidiary had not earned any interest
income actually earned during such period in respect of the funds used to Repay such Debt, and




6









 









               (2) if




          (A) since the beginning of such period the Company or any Restricted
Subsidiary shall have made any Asset Sale or an Investment (by merger or
otherwise) in any Restricted Subsidiary (or any Person which becomes a
Restricted Subsidiary) or an acquisition of Property which constitutes all
or substantially all of an operating unit of a business;




          (B) the transaction giving rise to the need to calculate the
Consolidated Interest Coverage Ratio is such an Asset Sale, Investment or
acquisition; or




          (C) since the beginning of such period any Person (that subsequently
became a Restricted Subsidiary or was merged with or into the Company or any
Restricted Subsidiary since the beginning of such period) shall have made
such an Asset Sale, Investment or acquisition,




then EBITDA for such period shall be calculated after giving pro forma effect to such Asset
Sale, Investment or acquisition as if such Asset Sale, Investment or acquisition had
occurred on the first day of such period.



          If any Debt bears a floating rate of interest and is being given pro forma effect, the
interest expense on such Debt shall be calculated as if the base interest rate in effect for such
floating rate of interest on the date of determination had been the applicable base interest rate
for the entire period (taking into account any Interest Rate Agreement applicable to such Debt if
such Interest Rate Agreement has a remaining term in excess of 12 months). In the event the
Capital Stock of any Restricted Subsidiary is sold during the period, the Company shall be deemed,
for purposes of clause (1) above, to have Repaid during such period the Debt of such Restricted
Subsidiary to the extent the Company and its continuing Restricted Subsidiaries are no longer
liable for such Debt after such sale.




          “Consolidated Interest Expense” means, for any period, the total interest expense of the
Company and its consolidated Restricted Subsidiaries, plus, to the extent not included in such
total interest expense, and to the extent Incurred by the Company or its Restricted Subsidiaries,





          (a) interest expense attributable to leases constituting part of a Sale and Leaseback
Transaction and to Capital Lease Obligations;




          (b) amortization of debt discount and debt issuance cost, including commitment fees,




          (c) capitalized interest;




          (d) non-cash interest expense;




          (e) commissions, discounts and other fees and charges owed with respect to letters of
credit and banker’s acceptance financing;




          (f) net costs associated with Hedging Obligations (including amortization of fees);




          (g) Disqualified Stock Dividends;




          (h) Preferred Stock Dividends;




          (i) interest Incurred in connection with Investments in discontinued operations;




          (j) interest accruing on any Debt of any other Person to the extent such Debt is
Guaranteed by the Company or any Restricted Subsidiary; and



7









 






          (k) the cash contributions to any employee stock ownership plan or similar trust to the
extent such contributions are used by such plan or trust to pay interest or fees to any
Person (other than the Company) in connection with Debt Incurred by such plan or trust.



          “Consolidated Net Income” means, for any period, the net income (loss) of the Company and its
consolidated Restricted Subsidiaries; provided, however, that there shall not be included in such
Consolidated Net Income:





          (a) any net income (loss) of any Person (other than the Company) if such Person is not
a Restricted Subsidiary, except that:




          (1) subject to the exclusion contained in clause (c) below, equity of the
Company and its consolidated Restricted Subsidiaries in the net income of any such
Person for such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash distributed by such Person during such period to the
Company or a Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution to a Restricted Subsidiary, to the
limitations contained in clause (b) below); and




          (2) the equity of the Company and its consolidated Restricted Subsidiaries in a
net loss of any such Person other than an Unrestricted Subsidiary for such period
shall be included in determining such Consolidated Net Income;




          (b) any net income (loss) of any Restricted Subsidiary if such Restricted Subsidiary is
subject to restrictions, directly or indirectly, on the payment of dividends or the making
of distributions, directly or indirectly, to the Company, except that:



          (1) subject to the exclusion contained in clause (c) below, the equity of the
Company and its consolidated Restricted Subsidiaries in the net income of any such
Restricted Subsidiary for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash distributed by such Restricted Subsidiary
during such period to the Company or another Restricted Subsidiary as a dividend or
other distribution (subject, in the case of a dividend or other distribution to
another Restricted Subsidiary, to the limitation contained in this clause); and




          (2) the equity of the Company and its consolidated Restricted Subsidiaries in a
net loss of any such Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income;





          (c) any gain or loss realized upon the sale or other disposition of any Property of the
Company or any of its consolidated Subsidiaries (including pursuant to any Sale and
Leaseback Transaction) that is not sold or otherwise disposed of in the ordinary course of
business (provided that sales or other dispositions of assets in connection with any
Qualified Securitization Transaction shall be deemed to be in the ordinary course);




          (d) any extraordinary gain or loss;




          (e) the cumulative effect of a change in accounting principles; and




          (f) any non-cash compensation expense realized for grants of performance shares, stock
options or other rights to officers, directors and employees of the Company or any
Restricted Subsidiary, provided that such shares, options or other rights can be redeemed at
the option of the holder only for Capital Stock of the Company (other than Disqualified
Stock).



          Notwithstanding the foregoing, for purposes of Section 4.10 only, there shall be excluded from
Consolidated Net Income any dividends, repayments of loans or advances or other transfers of
Property from




8









 







Unrestricted Subsidiaries to the Company or a Restricted Subsidiary to the extent such
dividends, repayments or transfers increase the amount of Restricted Payments permitted under such
covenant pursuant to clause (c)(4) thereof.




          “Consolidated Net Tangible Assets” means, as of any date of determination, the sum of the
amounts that would appear on a consolidated balance sheet of the Company and its consolidated
Restricted Subsidiaries as the total assets (less accumulated depreciation and amortization,
allowances for doubtful receivables, other applicable reserves and other properly deductible items)
of the Company and its Restricted Subsidiaries, after giving effect to purchase accounting and
after deducting therefrom Consolidated Current Liabilities and, to the extent otherwise included,
the amounts of (without duplication):





          (a) the excess of cost over fair market value of assets or businesses acquired;




          (b) any revaluation or other write-up in book value of assets subsequent to December
31, 2004 as a result of a change in the method of valuation in accordance with GAAP;




          (c) unamortized debt discount and expenses and other unamortized deferred charges,
goodwill, patents, trademarks, service marks, trade names, copyrights, licenses,
organization or developmental expenses and other intangible items;




          (d) minority interests in consolidated Subsidiaries held by Persons other than the
Company or any Restricted Subsidiary;




          (e) treasury stock;




          (f) cash or securities set aside and held in a sinking or other analogous fund
established for the purpose of redemption or other retirement of Capital Stock to the extent
such obligation is not reflected in Consolidated Current Liabilities; and




          (g) Investments in and assets of Unrestricted Subsidiaries.



          “Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in
Section 12.02, or such other address as to which the Trustee may give notice to the Company.




          “Credit Facilities” means, with respect to the Company or any Restricted Subsidiary, one or
more debt or commercial paper facilities with banks or other institutional lenders (including the
Senior Secured Credit Facilities) or indentures, in each case, providing for revolving credit
loans, term loans, receivables or inventory financing (including through the sale of receivables or
inventory to such lenders or to special purpose, bankruptcy remote entities formed to borrow from
such lenders against such receivables or inventory) or trade letters of credit, in each case
together with any Refinancings thereof.




          “Currency Exchange Protection Agreement” means, in respect of a Person, any foreign exchange
contract, currency swap agreement, currency option or other similar agreement or arrangement
designed to protect such Person against fluctuations in currency exchange rates.




          “Custodian” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.03(c) as Custodian with respect to the Notes, and any and
all successors thereto appointed as custodian hereunder and having become such pursuant to the
applicable provisions of this Indenture.




          “Debt” means, with respect to any Person on any date of determination (without duplication):





          (a) the principal of and premium (if any) in respect of:




          (1) debt of such Person for money borrowed; and



9









 






          (2) debt evidenced by notes, debentures, bonds or other similar instruments for
the payment of which such Person is responsible or liable;




          (b) all Capital Lease Obligations of such Person and all Attributable Debt in respect
of Sale and Leaseback Transactions entered into by such Person;




          (c) all obligations of such Person representing the deferred purchase price of
Property, all conditional sale obligations of such Person and all obligations of such Person
under any title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business);




          (d) all obligations of such Person for the reimbursement of any obligor on any letter
of credit, banker’s acceptance or similar credit transaction (other than obligations with
respect to letters of credit securing obligations (other than obligations described in (a)
through (c) above) entered into in the ordinary course of business of such Person to the
extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such
drawing is reimbursed no later than the third business day following receipt by such Person
of a demand for reimbursement following payment on the letter of credit);




          (e) the amount of all obligations of such Person with respect to the Repayment of any
Disqualified Stock or, with respect to any Subsidiary of such Person, any Preferred Stock
(but excluding, in each case, any accrued dividends);




          (f) all obligations of the type referred to in clauses (a) through (e) above of other
Persons and all dividends of other Persons for the payment of which, in either case, such
Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise,
including by means of any Guarantee;




          (g) all obligations of the type referred to in clauses (a) through (f) above of other
Persons secured by any Lien on any Property of such Person (whether or not such obligation
is assumed by such Person), the amount of such obligation being deemed to be the lesser of
the Fair Market Value of such Property and the amount of the obligation so secured; and




          (h) to the extent not otherwise included in this definition, Hedging Obligations of
such Person.



          The amount of Debt of any Person at any date shall be the outstanding balance, or the accreted
value of such Debt in the case of Debt issued with original issue discount, at such date of all
unconditional obligations as described above and the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations at such date. The amount
of Debt represented by a Hedging Obligation shall be equal to:





          (1) zero if such Hedging Obligation has been Incurred pursuant to clause (f),
(g) or (h) of the second paragraph of Section 4.09; or




          (2) the notional amount of such Hedging Obligation if not Incurred pursuant to
such clauses.



          “Default” means any event which is, or after notice or passage of time or both would be, an
Event of Default.




          “Definitive Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.06, in substantially the form of Exhibit A hereto except that
such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of
Interests in the Global Note” attached thereto.




          “Depositary” means, with respect to any Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.03(b) as the Depositary with respect to such Notes, and any
and all




10









 







successors thereto appointed as depositary hereunder and having become such pursuant to the
applicable provisions of this Indenture.




          “Disqualified Stock” means any Capital Stock of the Company or any of its Restricted
Subsidiaries that by its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable, in either case at the option of the holder thereof) or otherwise:





          (a) matures or is mandatorily redeemable pursuant to a sinking fund obligation or
otherwise;




          (b) is or may become redeemable or repurchaseable at the option of the holder thereof,
in whole or in part; or




          (c) is convertible or exchangeable at the option of the holder thereof for Debt or
Disqualified Stock,


on or prior to, in the case of clause (a), (b) or (c), the first anniversary of the Stated Maturity
of the Notes.




          “Disqualified Stock Dividends” means all dividends with respect to Disqualified Stock of the
Company held by Persons other than a Wholly Owned Restricted Subsidiary. The amount of any such
dividend shall be equal to the quotient of such dividend divided by the difference between one and
the maximum statutory federal income tax rate (expressed as a decimal number between 1 and 0) then
applicable to the Company.




          “Distribution Compliance Period” means the 40-day distribution compliance period set forth in
Rule 903(b)(2)(ii) of Regulation S.




          “Dollar Equivalent” of any amount means, at the time of determination thereof, (a) if such
amount is expressed in U.S. dollars, such amount, (b) if such amount is expressed in an Alternative
Currency, the equivalent of such amount in U.S. dollars determined by using the rate of exchange
quoted by Credit Suisse Securities (USA) LLC in New York, New York at 11:00 a.m. (New York time)
on the date of determination (or, if such date is not a Business Day, the last Business Day prior
thereto) to prime banks in New York for the spot purchase in the New York currency exchange market
of such amount of U.S. dollars with such Alternative Currency and (c) if such amount is denominated
in any other currency, the equivalent of such amount in U.S. dollars as determined by the Trustee
using any method of determination it deems appropriate.




          “EBITDA” means, for any period, an amount equal to, for the Company and its consolidated
Restricted Subsidiaries:





          (a) the sum of Consolidated Net Income for such period, plus




          (1) any provision for taxes based on income or profits;




          (2) Consolidated Interest Expense;




          (3) loss from extraordinary items;




          (4) depreciation, depletion and amortization expenses;




          (5) all other non-cash expenses, charges and losses that are not payable in
cash in any subsequent period; and




          (6) non-recurring cash restructuring expenses, charges and losses, minus



          (b) the sum of, in each case to the extent included in the calculation of such
Consolidated Net Income for such period, but without duplication, (i) any credit for income
tax, (ii) interest income, (iii)


11









 







gains from extraordinary items, (iv) any aggregate net gain (but not any aggregate net
loss) from the sale, exchange or other disposition of capital assets and (v) any other
non-cash gains or other items which have been added in determining Consolidated Net Income,
including any reversal of a change referred to in clause (5) above by reason of a decrease
in the value of any Capital Stock or Capital Stock Equivalent.




          Notwithstanding the foregoing clause (a), the provision for taxes and the depreciation,
amortization and non-cash items of a Restricted Subsidiary shall be added to Consolidated Net
Income to compute EBITDA only to the extent (and in the same proportion) that the net income of
such Restricted Subsidiary was included in calculating Consolidated Net Income and only if a
corresponding amount would be permitted at the date of determination to be dividended to the
Company by such Restricted Subsidiary without prior approval (that has not been obtained), pursuant
to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes,
rules and governmental regulations applicable to such Restricted Subsidiary or its shareholders.




          “Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear systems, and any
successor thereto.




          “Event of Default” has the meaning set forth under Section 6.01.




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




          “Exchange Notes” means the notes issued in exchange for the Initial Notes or any Additional
Notes issued pursuant to the Registration Rights Agreement or any similar registration rights
agreement with respect to any Additional Notes.




          “Exchange Offer” has the meaning set forth in the Registration Rights Agreement relating to an
exchange of Notes registered under the Securities Act for Notes not so registered.




          “Exchange Offer Registration Statement” has the meaning set forth in the Registration Rights
Agreement.




          “Existing Indenture” means the Indenture relating to the Senior Notes, dated as of February 3,
2005, between the Company, the guarantors party thereto and The Bank of New York Mellon Trust
Company, N.A., as trustee, as amended from time to time.




          “Fair Market Value” means, with respect to any Property, the price that could be negotiated in
an arm’s-length free market transaction, for cash, between a willing seller and a willing buyer,
neither of whom is under undue pressure or compulsion to complete the transaction. Fair Market
Value shall be determined, except as otherwise provided,





          (a) if such Property has a Fair Market Value equal to or less than $50.0 million, by
any Officer of the Company; or




          (b) if such Property has a Fair Market Value in excess of $50.0 million, by at least a
majority of the Board of Directors and evidenced by a Board Resolution, dated within 45 days
of the relevant transaction, delivered to the Trustee.



          “GAAP” means United States generally accepted accounting principles as in effect on February
3, 2005, including those set forth in:





     (a) the opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants;




     (b) the statements and pronouncements of the Financial Accounting Standards Board;



12









 






     (c) such other statements by such other entity as approved by a significant segment of
the accounting profession; and




     (d) the rules and regulations of the Commission governing the inclusion of financial
statements (including pro forma financial statements) in periodic reports required to be
filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in
staff accounting bulletins and similar written statements from the accounting staff of the
Commission.



          “Global Note” or “Global Notes” means the global Notes in the form of Exhibit A hereto issued
in accordance with Article 2.




          “Global Note Legend” means the legend set forth in Section 2.06(g)(ii), which is required to
be placed on all Global Notes issued under this Indenture.




          “Governmental Authority” means any nation, sovereign or government, any state or other
political subdivision thereof and any entity or authority exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government, including any
central bank.




          “Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Debt of any other Person and any obligation, direct or indirect,
contingent or otherwise, of such Person:





     (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt of such other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay
or to maintain financial statement conditions or otherwise); or




     (b) entered into for the purpose of assuring in any other manner the obligee against
loss in respect thereof (in whole or in part);



     provided, however, that the term “Guarantee” shall not include:





     (1) endorsements for collection or deposit in the ordinary course of
business; or




     (2) a contractual commitment by one Person to invest in another Person
for so long as such Investment is reasonably expected to constitute a
Permitted Investment under clause (a), (b) or (c) of the definition of
“Permitted Investment.”



          The term “Guarantee” used as a verb has a corresponding meaning. The term “Guarantor” shall
mean any Person Guaranteeing any obligation.




          “Hedging Obligation” of any Person means any obligation of such Person pursuant to any
Interest Rate Agreement, Currency Exchange Protection Agreement, Commodity Price Protection
Agreement or any other similar agreement or arrangement.




          “Holder” means a Person in whose name a Note is registered in the Security Register.




          “IAI Global Note” means one or more Global Notes in the form of Exhibit A hereto bearing the
Global Note Legend and the Private Placement Legend and deposited with and registered in the name
of the Depositary or its nominee issued in an aggregate denominational amount equal to the
outstanding principal amount of the Notes issued or sold to Institutional Accredited Investors or
other Persons entitled to hold beneficial interests in an IAI Global Note, if any.




13









 








          “Incur” means, with respect to any Debt or other obligation of any Person, to create, issue,
incur (by merger, conversion, exchange or otherwise), extend, assume, Guarantee or become liable in
respect of such Debt or other obligation or the recording, as required pursuant to GAAP or
otherwise, of any such Debt or obligation on the balance sheet of such Person (and “Incurrence” and
“Incurred” shall have meanings correlative to the foregoing); provided, however, that a change in
GAAP that results in an obligation of such Person that exists at such time, and is not theretofore
classified as Debt, becoming Debt shall not be deemed an Incurrence of such Debt; provided further,
however, that any Debt or other obligations of a Person existing at the time such Person becomes a
Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Subsidiary at the time it becomes a Subsidiary; and provided further, however,
that solely for purposes of determining compliance with Section 4.09, amortization of debt discount
shall not be deemed to be the Incurrence of Debt, provided that in the case of Debt sold at a
discount, the amount of such Debt Incurred shall at all times be the aggregate principal amount at
Stated Maturity.




          “Indenture” means this instrument, as originally executed or as it may from time to time be
supplemented or amended in accordance with Article 9.




          “Independent Financial Advisor” means an investment banking firm of national standing or any
third party appraiser of national standing, provided that such firm or appraiser is not an
Affiliate of the Company.




          “Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the
Trustee after consultation with the Company.




          “Indirect Participant” means a Person who holds a beneficial interest in a Global Note through
a Participant.




          “Initial Notes” means $185.0 million aggregate principal amount of Notes issued under this
Indenture on the date hereof.




          “Institutional Accredited Investor” means an institution that is an “accredited investor” as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.




          “Interest Payment Dates” shall have the meaning set forth in paragraph 1 of each Note.




          “Interest Rate Agreement” means, for any Person, any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar agreement designed to protect
against fluctuations in interest rates.




          “Investment” by any Person means any direct or indirect loan (other than advances to customers
in the ordinary course of business that are recorded as accounts receivable on the balance sheet of
such Person), advance or other extension of credit or capital contribution (by means of transfers
of cash or other Property to others or payments for Property or services for the account or use of
others, or otherwise) to, or Incurrence of a Guarantee of any obligation of, or purchase or
acquisition of Capital Stock, bonds, notes, debentures or other securities or evidence of Debt
issued by, any other Person. For purposes of Sections 4.10 and 4.16 and the definition of
“Restricted Payment,” the term “Investment” shall include the portion (proportionate to the
Company’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of any
Subsidiary of the Company at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Company shall be deemed to continue to have a permanent “Investment” in an
Unrestricted Subsidiary of an amount (if positive) equal to:





          (a) the Company’s “Investment” in such Subsidiary at the time of such redesignation,
less




          (b) the portion (proportionate to the Company’s equity interest in such Subsidiary) of
the Fair Market Value of the net assets of such Subsidiary at the time of such
redesignation.



14









 





          In determining the amount of any Investment made by transfer of any Property other than cash,
such Property shall be valued at its Fair Market Value at the time of such Investment.




          “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by S&P.




          “Investment Grade Status” shall be deemed to have been reached on the date that the Notes have
an Investment Grade Rating from both Rating Agencies.




          “Issue Date” means the date on which the Notes are initially issued pursuant to this
Indenture.




          “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City
of New York, the City of Atlanta, the city in which the Corporate Trust Office of the Trustee is
located or any other place of payment on the Notes are authorized by law, regulation or executive
order to remain closed.




          “Letter of Transmittal” means the letter of transmittal, or its electronic equivalent in
accordance with the Applicable Procedures, to be prepared by the Company and sent to all Holders
for use by such Holders in connection with an Exchange Offer.




          “Lien” means, with respect to any Property of any Person, any mortgage or deed of trust,
pledge, hypothecation, assignment, deposit arrangement, security interest, lien, charge, easement
(other than any easement not materially impairing usefulness or marketability), encumbrance,
preference, priority or other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such Property (including any Capital Lease Obligation, conditional
sale or other title retention agreement having substantially the same economic effect as any of the
foregoing or any Sale and Leaseback Transaction).




          “Maturity Date” means February 15, 2015.




          “Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business
thereof.




          “Net Available Cash” from any Asset Sale means cash payments received therefrom (including any
cash payments received by way of deferred payment of principal pursuant to a note or installment
receivable or otherwise, but only as and when received, but excluding any other consideration
received in the form of assumption by the acquiring Person of Debt or other obligations relating to
the Property that is the subject of such Asset Sale or received in any other non-cash form), in
each case net of:





          (a) all legal, title and recording tax expenses, commissions and other fees and
expenses incurred, and all Federal, state, provincial, foreign and local taxes required to
be accrued as a liability under GAAP, as a consequence of such Asset Sale;




          (b) all payments made on or in respect of any Debt that is secured by any Property
subject to such Asset Sale, in accordance with the terms of any Lien upon such Property, or
which must by its terms, or in order to obtain a necessary consent to such Asset Sale, or by
applicable law, be repaid out of the proceeds from such Asset Sale;




          (c) all distributions and other payments required to be made to minority interest
Holders in Subsidiaries or joint ventures as a result of such Asset Sale; and




          (d) the deduction of appropriate amounts provided by the seller as a reserve, in
accordance with GAAP, against any liabilities associated with the Property disposed of in
such Asset Sale and retained by the Company or any Restricted Subsidiary after such Asset
Sale.



          “Notes” has the meaning ascribed to it in the preamble hereto, and includes the Initial Notes
and the Exchange Notes.




15









 








          “Obligations” means all obligations for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under the documentation
governing any Debt.




          “Officer” means the Chief Executive Officer, the President, the Chief Financial Officer or any
other executive officer of the Company.




          “Officers’ Certificate” means a certificate, in form and substance reasonably satisfactory to
the Trustee, signed by two Officers of the Company, at least one of whom shall be the principal
executive officer or principal financial officer of the Company, and delivered to the Trustee.




          “Opinion of Counsel” means a written opinion, from legal counsel who is reasonably acceptable
to the Trustee. The counsel may be an employee of or counsel to the Company or the Trustee.




          “Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively, and, with respect to
DTC, shall include Euroclear and Clearstream.




          “Permitted Holder” means Hindalco Industries Ltd. and any Affiliate and Related Person
thereof. Any person or group whose acquisition of beneficial ownership constitutes a Change of
Control in respect of which a Change of Control Offer is made in accordance with the requirements
of the Indenture (or would result in a Change of Control Offer in the absence of the waiver of such
requirement by holders in accordance with the Indenture) will thereafter, together with any of its
Affiliates and Related Persons, constitute additional Permitted Holders.




          “Permitted Investment” means any Investment by the Company or a Restricted Subsidiary in:





          (a) the Company or any Restricted Subsidiary;




          (b) any Person that will, upon the making of such Investment, become a Restricted
Subsidiary;




          (c) any Person if as a result of such Investment such Person is merged or consolidated
with or into, or transfers or conveys all or substantially all its Property to, the Company
or a Restricted Subsidiary;




          (d) Cash Equivalents;




          (e) receivables owing to the Company or a Restricted Subsidiary, if created or acquired
in the ordinary course of business and payable or dischargeable in accordance with customary
trade terms; provided, however, that such trade terms may include such concessionary trade
terms as the Company or such Restricted Subsidiary deems reasonable under the circumstances;




          (f) payroll, travel and similar advances to cover matters that are expected at the time
of such advances ultimately to be treated as expenses for accounting purposes and that are
made in the ordinary course of business;




          (g) loans and advances to employees made in the ordinary course of business consistent
with past practices of the Company or such Restricted Subsidiary, as the case may be,
provided that such loans and advances do not exceed $15.0 million in the aggregate at any
one time outstanding;




          (h) stock, obligations or other securities received in settlement of debts created in
the ordinary course of business and owing to the Company or a Restricted Subsidiary or in
satisfaction of judgments;



16









 






          (i) any Person to the extent such Investment represents the non-cash portion of the
consideration received in connection with (A) an Asset Sale consummated in compliance with
Section 4.12, or (B) any disposition of Property not constituting an Asset Sale;




          (j) any Persons made for Fair Market Value that do not exceed 5% of Consolidated Net
Tangible Assets in the aggregate outstanding at any one time;




          (k) a Securitization Entity or any Investment by a Securitization Entity in any other
Person in connection with a Qualified Securitization Transaction provided that any
Investment in a Securitization Entity is in the form of a Purchase Money Note, contribution
of additional receivables and related assets or any equity interests; and




          (l) other Investments made for Fair Market Value that do not exceed $20.0 million in
the aggregate outstanding at any one time.



          “Permitted Liens” means:





          (a) Liens to secure Debt permitted to be Incurred under clause (b) of the second
paragraph of Section 4.09 and other Obligations related thereto;




          (b) Liens to secure Debt permitted to be Incurred under clause (c) of the second
paragraph of Section 4.09 and other Obligations related thereto; provided that any such Lien
may not extend to any Property of the Company or any Restricted Subsidiary, other than the
Property acquired, constructed or leased with the proceeds of such Debt and any improvements
or accessions to such Property;




          (c) Liens for taxes, assessments or governmental charges or levies on the Property of
the Company or any Restricted Subsidiary if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith and by
appropriate proceedings timely instituted and diligently pursued, provided that any reserve
or other appropriate provision that shall be required in accordance with GAAP shall have
been established with respect thereto;




          (d) Deposit account banks’ rights of set-off, Liens of landlords arising by statute,
Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens and other
similar Liens, on the Property of the Company or any Restricted Subsidiary arising in the
ordinary course of business and securing payment of obligations that are not more than 60
days past due or are being contested in good faith and by appropriate proceedings;




          (e) Liens on the Property of the Company or any Restricted Subsidiary Incurred in the
ordinary course of business to secure performance of obligations with respect to statutory
or regulatory requirements, performance or return-of-money bonds, surety bonds or other
obligations of a like nature and Incurred in a manner consistent with industry practice, in
each case which are not Incurred in connection with the borrowing of money, the obtaining of
advances or credit or the payment of the deferred purchase price of Property and which do
not in the aggregate impair in any material respect the use of Property in the operation of
the business of the Company and the Restricted Subsidiaries taken as a whole;




          (f) Liens on Property at the time the Company or any Restricted Subsidiary acquired
such Property, including any acquisition by means of a merger or consolidation with or into
the Company or any Restricted Subsidiary; provided, however, that any such Lien may not
extend to any other Property of the Company or any Restricted Subsidiary; provided further,
however, that such Liens shall not have been Incurred in anticipation of or in connection
with the transaction or series of transactions pursuant to which such Property was acquired
by the Company or any Restricted Subsidiary;




          (g) Liens on the Property of a Person at the time such Person becomes a Restricted
Subsidiary; provided, however, that any such Lien may not extend to any other Property of
the Company or any other Restricted Subsidiary that is not a direct Subsidiary of such
Person; provided further, however,



17









 







that any such Lien was not Incurred in anticipation of or in connection with the
transaction or series of transactions pursuant to which such Person became a Restricted
Subsidiary;




          (h) pledges or deposits by the Company or any Restricted Subsidiary under workers’
compensation laws, unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or
leases to which the Company or any Restricted Subsidiary is party, or deposits to secure
public or statutory obligations of the Company, or deposits for the payment of rent, in each
case Incurred in the ordinary course of business;




          (i) utility easements, building restrictions and such other encumbrances or charges
against real Property as are of a nature generally existing with respect to properties of a
similar character;




          (j) Liens existing on the Issue Date not otherwise described in clauses (a) through (i)
above, other than Liens created after February 3, 2005 that were permitted liens pursuant to
clause (t) of the definition of “Permitted Liens” set forth in the Existing Indenture;




          (k) Liens not otherwise described in clauses (a) through (j) above on the Property of
any Restricted Subsidiary that is not a Subsidiary Guarantor to secure any Debt permitted to
be Incurred by such Restricted Subsidiary pursuant to Section 4.09;




          (l) Liens on the Property of the Company or any Restricted Subsidiary to secure any
Refinancing, in whole or in part, of any Debt secured by Liens referred to in clause (b),
(f), (g), or (j) above; provided, however, that any such Lien shall be limited to all or
part of the same Property that secured the original Lien (together with improvements and
accessions to such Property), and the aggregate principal amount of Debt that is secured by
such Lien shall not be increased to an amount greater than the sum of:




          (1) the outstanding principal amount, or, if greater, the committed amount, of
the Debt secured by Liens described under clause (b), (f), (g) or (j) above, as the
case may be, at the time the original Lien became a Permitted Lien under this
Indenture, and




          (2) an amount necessary to pay any fees and expenses, including premiums and
defeasance costs, incurred by the Company or such Restricted Subsidiary in
connection with such Refinancing;




          (m) Liens on accounts receivable and related assets (including contract rights) of the
type specified in the definition of “Qualified Securitization Transaction” transferred to a
Securitization Entity in a Qualified Securitization Transaction;




          (n) encumbrances arising by reason of zoning restrictions, easements, licenses,
reservations, covenants, rights-of-way, utility easements, building restrictions and other
similar encumbrances on the use of real property not materially detracting from the value of
such real property or not materially interfering with the ordinary conduct of the business
conducted and proposed to be conducted at such real property;




          (o) encumbrances arising under leases or subleases of real property that do not, in the
aggregate, materially detract from the value of such real property or interfere with the
ordinary conduct of the business conducted and proposed to be conducted at such real
property;




          (p) financing statements with respect to a lessor’s rights in and to personal property
leased to such Person in the ordinary course of such Person’s business other than through a
Capital Lease;




          (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;



18









 






          (r) licenses of patents, trademarks and other intellectual property rights granted in
the ordinary course of business and not interfering in any respect with the ordinary conduct
of such Person’s business;




          (s) Liens arising out of conditional sale, retention, consignment or similar
arrangement, incurred in the ordinary course of business, for the sale of goods; and




          (t) Liens not otherwise permitted by clauses (a) through (s) above encumbering Property
having an aggregate Fair Market Value not in excess of 5% of Consolidated Net Tangible
Assets, as determined based on the consolidated balance sheet of the Company as of the end
of the most recent fiscal quarter for which financial statements have been filed or
furnished.



          “Permitted Refinancing Debt” means any Debt that Refinances any other Debt, including any
successive Refinancings, so long as:





          (a) such Debt is in an aggregate principal amount (or if Incurred with original issue
discount, an aggregate issue price) not in excess of the sum of:




          (1) the aggregate principal amount (or if Incurred with original issue
discount, the aggregate accreted value) then outstanding of the Debt being
Refinanced; and




          (2) an amount necessary to pay any fees and expenses, including premiums and
defeasance costs, related to such Refinancing;




          (b) the Average Life of such Debt is equal to or greater than the Average Life of the
Debt being Refinanced;




          (c) the Stated Maturity of such Debt is no earlier than the Stated Maturity of the Debt
being Refinanced; and




          (d) the new Debt shall not be senior in right of payment to the Debt that is being
Refinanced;




          provided, however, that Permitted Refinancing Debt shall not include:




          (x) Debt of a Subsidiary that is not a Subsidiary Guarantor that Refinances Debt of the
Company or a Subsidiary Guarantor; or




          (y) Debt of the Company or a Restricted Subsidiary that Refinances Debt of an
Unrestricted Subsidiary.



          “Person” means any individual, corporation, company (including any limited liability company),
association, partnership, joint venture, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.




          “Predecessor Note” of any particular Note means every previous Note evidencing all or a
portion of the same Debt as that evidenced by such particular Note; and any Note authenticated and
delivered under Section 2.07 in lieu of a lost, destroyed or stolen Note shall be deemed to
evidence the same Debt as the lost, destroyed or stolen Note.




          “Preferred Stock” means any Capital Stock of a Person, however designated, which entitles the
holder thereof to a preference with respect to the payment of dividends, or as to the distribution
of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares
of any other class of Capital Stock issued by such Person.




19









 








          “Preferred Stock Dividends” means all dividends with respect to Preferred Stock of Restricted
Subsidiaries held by Persons other than the Company or a Wholly Owned Restricted Subsidiary. The
amount of any such dividend shall be equal to the quotient of such dividend divided by the
difference between one and the maximum statutory federal income rate (expressed as a decimal number
between 1 and 0) then applicable to the issuer of such Preferred Stock.




          “Principal Property” means any manufacturing plant or facility owned by the Company and/or one
or more Restricted Subsidiaries having a gross book value in excess of 1.5% of the Consolidated Net
Tangible Assets of the Company and its Restricted Subsidiaries.




          “Private Placement Legend” means the legend set forth in Section 2.06(g)(i) to be placed on
all Notes issued under this Indenture except as otherwise permitted by the provisions of this
Indenture.




          “pro forma” means, with respect to any calculation made or required to be made pursuant to the
terms hereof, a calculation performed in accordance with Article 11 of Regulation S-X promulgated
under the Securities Act, as interpreted in good faith by the Board of Directors after consultation
with the independent certified public accountants of the Company, or otherwise a calculation made
in good faith by the Board of Directors after consultation with the independent certified public
accountants of the Company, as the case may be.




          “Property” means, with respect to any Person, any interest of such Person in any kind of
property or asset, whether real, personal or mixed, or tangible or intangible, including Capital
Stock in, and other securities of, any other Person. For purposes of any calculation required
pursuant to this Indenture, the value of any Property shall be its Fair Market Value.




          “Public Equity Offering” means an underwritten public offering of common stock of the Company
pursuant to an effective registration statement under the Securities Act.




          “Purchase Money Debt” means Debt:





          (a) consisting of the deferred purchase price of Property, conditional sale
obligations, obligations under any title retention agreement, other purchase money
obligations and obligations in respect of industrial revenue bonds, in each case where the
maturity of such Debt does not exceed the anticipated useful life of the Property being
financed; and




          (b) Incurred to finance the acquisition, construction or lease by the Company or a
Restricted Subsidiary of such Property, including additions and improvements thereto;




provided, however, that such Debt is Incurred within 180 days after the acquisition,
construction or lease of such Property by the Company or such Restricted Subsidiary.



          “Purchase Money Note” means a promissory note evidencing a line of credit, or evidencing other
Debt owed to the Company or any Restricted Subsidiary in connection with a Qualified Securitization
Transaction, which note shall be repaid from cash available to the maker of such note, other than
amounts required to be established as reserves, amounts paid to investors in respect of interest,
principal and other amounts owing to such investors and amounts paid in connection with the
purchase of newly generated accounts receivable.




          “QIB” means a “qualified institutional buyer” as defined in Rule 144A.




          “Qualified Securitization Transaction” means any transaction or series of transactions that
may be entered into by the Company or any Restricted Subsidiary pursuant to which the Company or
any Restricted Subsidiary may sell, convey or otherwise transfer pursuant to customary terms to (a)
a Securitization Entity (in the case of a transfer by the Company or any Restricted Subsidiary) and
(b) any other Person (in the case of transfer by a Securitization Entity), or may grant a security
interest in any accounts receivable (whether now existing or arising or acquired in the future) of
the Company or any Restricted Subsidiary, and any assets related thereto including all collateral
securing such accounts receivable, all contracts and contract rights and all guarantees or other
obligations




20









 







in respect of such accounts receivable, proceeds of such accounts receivable and other assets
(including contract rights) which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization transactions involving
accounts receivable.




          “Rating Agencies” means Moody’s and S&P.




          “Reference Treasury Dealer” means Credit Suisse Securities (USA) LLC, Morgan Stanley & Co.
Incorporated, RBS Securities Inc. and their successors and any other primary U.S. Government
securities dealer or dealers in New York City (a “Primary Treasury Dealer”) selected by the
Company; provided, however, that if any of the foregoing cease to be a Primary Treasury Dealer, the
Company shall substitute therefor another Primary Treasury Dealer.




          “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Trustee, of the bid and ask prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the third
business day preceding such redemption date.




          “Refinance” means, in respect of any Debt, to refinance, extend, renew, refund or Repay, or to
issue other Debt, in exchange or replacement for, such Debt. “Refinanced” and “Refinancing” shall
have correlative meanings.




          “Registration Rights Agreement” means the Registration Rights Agreement dated as of the Issue
Date, between the Company and the Subsidiary Guarantors, or any similar agreement with respect any
Additional Notes.




          “Regular Record Date” for the interest payable on any Interest Payment Date means the
applicable date specified as a “Record Date” on the face of the Note.




          “Regulation S” means Regulation S promulgated under the Securities Act as Regulation S.




          “Regulation S Global Note” means one or more Regulation S Global Notes in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with and
registered in the name of the Depositary or its nominee that will be issued in an aggregate
denominational amount equal to the outstanding principal amount of the Notes sold in reliance on
Regulation S.




          “Related Business” means any business that is related, ancillary or complementary to the
businesses of the Company and the Restricted Subsidiaries on the Issue Date.




          “Related Person” with respect to any Permitted Holder means:




          (a) any controlling stockholder or a majority (or more) owned Subsidiary of such Permitted
Holder or, in the case of an individual, any spouse or immediate family member of such Permitted
Holder, any trust created for the benefit of such individual or such individual’s estate, executor,
administrator, committee or beneficiaries; or




          (b) any trust, corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding a majority (or more) controlling interest of which
consist of such Permitted Holder and/or such other Persons referred to in the immediately preceding
clause (a).




          “Repay” means, in respect of any Debt, to repay, prepay, repurchase, redeem, legally defease
or otherwise retire such Debt. “Repayment” and “Repaid” shall have correlative meanings. For
purposes of Section 4.12 and the definition of “Consolidated Interest Coverage Ratio,” Debt shall
be considered to have been Repaid only to the extent the related loan commitment, if any, shall
have been permanently reduced in connection therewith.




21









 








          “Responsible Officer”, when used with respect to the Trustee, means any officer within the
Corporate Trust Department of the Trustee (or any successor group of the Trustee) with direct
responsibility for the administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is referred because of his
or her knowledge of and familiarity with the particular subject.




          “Restricted Definitive Note” means one or more Definitive Notes bearing the Private Placement
Legend.




          “Restricted Global Notes” means 144A Global Notes, IAI Global Notes and Regulation S Global
Notes.




          “Restricted Payment” means:





          (a) any dividend or distribution (whether made in cash, securities or other Property)
declared or paid on or with respect to any shares of Capital Stock of the Company or any
Restricted Subsidiary (including any payment in connection with any merger or consolidation
with or into the Company or any Restricted Subsidiary), except for (i) any dividend or
distribution that is made solely to the Company or a Restricted Subsidiary (and, if such
Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary, to the other shareholders
of such Restricted Subsidiary on a pro rata basis or on a basis that results in the receipt
by the Company or a Restricted Subsidiary of dividends or distributions of greater value
than it would receive on a pro rata basis), or (ii) any dividend or distribution payable
solely in shares of Capital Stock (other than Disqualified Stock) of the Company;




          (b) the purchase, repurchase, redemption, acquisition or retirement for value of any
Capital Stock of the Company or any Restricted Subsidiary (other than from the Company or a
Restricted Subsidiary) or any securities exchangeable for or convertible into any such
Capital Stock, including the exercise of any option to exchange any Capital Stock (other
than for or into Capital Stock of the Company that is not Disqualified Stock);




          (c) the purchase, repurchase, redemption, acquisition or retirement for value, prior to
the date for any scheduled maturity, sinking fund or amortization or other installment
payment, of any Subordinated Obligation (other than the purchase, repurchase or other
acquisition of any Subordinated Obligation purchased in anticipation of satisfying a
scheduled maturity, sinking fund or amortization or other installment obligation, in each
case due within one year of the date of acquisition); or




          (d) any Investment (other than Permitted Investments) in any Person.



          “Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted
Subsidiary.




          “Rule 144” means Rule 144 promulgated under the Securities Act.




          “Rule 903” means Rule 903 promulgated under the Securities Act.




          “Rule 904” means Rule 904 promulgated under the Securities Act.




          “S&P” means Standard & Poor’s Ratings Group, Inc., a division of The McGraw-Hill Companies, or
any successor to the rating agency business thereof.




          “Sale and Leaseback Transaction” means any direct or indirect arrangement relating to Property
now owned or hereafter acquired whereby the Company or a Restricted Subsidiary transfers such
Property to another Person and the Company or a Restricted Subsidiary leases it from such Person.




          “Securities Act” means the Securities Act of 1933, as amended.




22









 








          “Securitization Entity” means any wholly owned Subsidiary of the Company or any Restricted
Subsidiary (or another Person in which the Company or any Restricted Subsidiary make an Investment
and to which the Company or any Restricted Subsidiary transfers accounts receivable and related
assets) (a) which engages in no activities other than in connection with the financing of accounts
receivable or related assets, (b) which is designated by the Board of Directors (as provided below)
as a Securitization Entity, (c) no portion of the Debt or any other Obligations (contingent or
otherwise) of which (i) is guaranteed by the Company or any Restricted Subsidiary (excluding
guarantees of Obligations (other than the principal of, and interest on, Debt) pursuant to Standard
Securitization Undertakings and guarantees by the Securitization Entity), (ii) is recourse to or
obligates the Company or any Restricted Subsidiary (other than the Securitization Entity) in any
way other than pursuant to Standard Securitization Undertakings or (iii) subjects any property or
asset of the Company or any Restricted Subsidiary (other than the Securitization Entity), directly
or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to
Standard Securitization Undertakings and other than any interest in the accounts receivable and
related assets being financed (whether in the form of any equity interest in such assets or
subordinated indebtedness payable primarily from such financed assets) retained or acquired by the
Company or any Restricted Subsidiary, (d) with which none of the Company nor any Restricted
Subsidiary has any material contract, agreement, arrangement or understanding other than those
customary for a Qualified Securitization Transaction and, in any event, on terms no less favorable
to the Company or such Restricted Subsidiary than those that might be obtained at the time from
Persons that are not Affiliates of the Company or such Restricted Subsidiary, and (e) to which none
of the Company nor any Restricted Subsidiary has any obligation to maintain or preserve such
entity’s financial condition or cause such entity to achieve certain levels of operating results.
Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the resolution of the Board of Directors giving effect to such
designation and an Officers’ Certificate certifying that such designation complied with the
foregoing conditions.




          “Senior Debt” of the Company means:





     (a) all obligations consisting of the principal, premium, if any, and accrued and
unpaid interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company to the extent post-filing interest
is allowed in such proceeding) in respect of:




     (1) Debt of the Company for borrowed money; and




     (2) Debt of the Company evidenced by notes, debentures, bonds or other
similar instruments permitted under this Indenture for the payment of which
the Company is responsible or liable;




     (b) all Capital Lease Obligations of the Company and all Attributable Debt in respect
of Sale and Leaseback Transactions entered into by the Company;




     (c) all obligations of the Company;




     (1) for the reimbursement of any obligor on any letter of credit,
banker’s acceptance or similar credit transaction;




     (2) under Hedging Obligations; or




     (3) issued or assumed as the deferred purchase price of Property and
all conditional sale obligations of the Company and all obligations under
any title retention agreement permitted under this Indenture; and




     (d) all obligations of other Persons of the type referred to in clauses (a), (b) and
(c) for the payment of which the Company is responsible or liable as guarantor;



     provided, however, that Senior Debt shall not include:



23









 






     (A) Debt of the Company that is by its terms subordinate in right of payment to
the Notes including any Subordinated Debt;




     (B) any Debt Incurred in violation of the provisions of this Indenture;




     (C) accounts payable or any other obligations of the Company to trade creditors
created or assumed by the Company in the ordinary course of business in connection
with the obtaining of materials or services (including Guarantees thereof or
instruments evidencing such liabilities);




     (D) any liability for Federal, state, local or other taxes owed or owing by the
Company;




     (E) any obligation of the Company to any Subsidiary; or




     (F) any obligations with respect to any Capital Stock of the Company.


To the extent that any payment of Senior Debt (whether by or on behalf of the Company as proceeds
of security or enforcement or any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to a trustee, receiver or other similar party under
any bankruptcy, insolvency, receivership or similar law, then if such payment is recovered by, or
paid over to, such trustee, receiver or other similar party, the Senior Debt or part thereof
originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such
payment had not occurred.




          “Senior Debt” of any Subsidiary Guarantor has a correlative meaning to Senior Debt of the
Company.




          “Senior Notes” means the Company’s 7.25% Senior Notes due 2015.




          “Senior Secured Credit Facilities” means (a) the asset-based lending facility dated as of July
6, 2007 by and among the Company, ABN AMRO Bank N.V. as administrative agent, and the several banks
and other financial institutions or entities from time to time parties thereto, including any
notes, collateral documents, and documentation and guarantees and any appendices, exhibits or
schedules to any of the preceding, and (b) the term loan facility dated as of July 6, 2007 by and
among the Company, UBS AG, Stamford Branch, as administrative agent and as collateral agent, and
the several banks and other financial institutions or entities from time to time parties thereto,
including any notes, collateral documents, letters of credit and documentation and guarantees and
any appendices, exhibits or schedules to any of the preceding, as such agreements may be in effect
from time to time, in each case, as any or all of such agreements (or any other agreement that
Refinances any or all of such agreements) may be amended, restated, modified or supplemented from
time to time, or renewed, refunded, refinanced, restructured, replaced, repaid or extended from
time to time, whether with the original agents and lenders or other agents and lenders or
otherwise, and whether provided under the original credit agreement or one or more other credit
agreements, indentures or otherwise.




          “Shelf Registration Statement” means the registration statement relating to the registration
of the Notes under Rule 415 of the Securities Act, as provided for in the Registration Rights
Agreement.




          “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” of the
Company within the meaning of Rule 1-02 under Regulation S-X pursuant to the Exchange Act.




          “Standard Securitization Undertakings” means representations, warranties, covenants and
indemnities entered into by the Company or any Restricted Subsidiary that are reasonably customary
in an accounts receivable securitization transaction so long as none of the same constitute Debt, a
Guarantee or otherwise require the provision of credit support.




24









 








          “Stated Maturity” means, with respect to any security, the date specified in such security as
the fixed date on which the payment of principal of such security is due and payable, including
pursuant to any mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has occurred).




          “Subordinated Debt” means any Debt of the Company or any Subsidiary Guarantor (whether
outstanding on the Issue Date or thereafter Incurred) that is subordinate or junior in right of
payment to the Notes or the applicable Subsidiary Guaranty pursuant to a written agreement to that
effect.




          “Subsidiary” means, in respect of any Person, any corporation, company (including any limited
liability company), association, partnership, joint venture or other business entity of which an
aggregate of 50% or more of the total voting power of the Voting Stock is at the time owned or
controlled, directly or indirectly, by:




          (a) such Person;




          (b) such Person and one or more Subsidiaries of such Person; or




          (c) one or more Subsidiaries of such Person.




          “Subsidiary Guarantor” means (a) each Canadian Restricted Subsidiary and U.S. Restricted
Subsidiary; (b) Novelis do Brasil Ltda, Novelis UK Ltd., Novelis Europe Holdings Limited, Novelis
Aluminium Holding Company, Novelis Deutschland GmbH, Novelis Switzerland SA, Novelis Technology AG,
Novelis AG, Novelis PAE S.A.S., Novelis Luxembourg S.A., Novelis Madeira, Unipessoal, Lda and
Novelis Services Limited; and (c) any other Person that becomes a Subsidiary Guarantor pursuant to
Section 4.18 or who otherwise executes and delivers a supplemental indenture to the Trustee
providing for a Subsidiary Guaranty.




          “Subsidiary Guaranty” means the guarantee of the Notes by each of the Subsidiary Guarantors
pursuant to Article 10 and in the form of the Notation of Guarantee attached as Exhibit E.




          “Surviving Person” means the surviving Person formed by a merger, consolidation or
amalgamation and, for purposes of Section 5.01, a Person to whom all or substantially all of the
Property of the Company or a Subsidiary Guarantor is sold, transferred, assigned, leased, conveyed
or otherwise disposed.




          “Taxes” means any present or future tax, duty, levy, interest, assessment or other
governmental charge imposed or levied by or on behalf of any government or any political
subdivision or territory or possession of any government or any authority or agency therein or
thereof having power to tax.




          “Taxing Jurisdiction” means (i) with respect to any payment made under the Notes, any
jurisdiction (or any political subdivision thereof or therein) in which the Company, or any of its
successors, are organized or resident for tax purposes or conduct of business, or from or through
which payment is made and (ii) with respect to any payment made by a Subsidiary Guarantor, any
jurisdiction (or any political subdivision thereof or therein) in which such Subsidiary Guarantor
is organized or resident for tax purposes or conduct of business, or from or through which payment
is made.




          “TIA” means the Trust Indenture Act of 1939, as amended, and the rules and regulations
thereunder.




          “Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the
yield to maturity of the Comparable Treasury Issue, compounded semi-annually, assuming a price for
such Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.




25









 








          “Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean such successor Trustee.




          “Unrestricted Definitive Notes” means one or more Definitive Notes that do not and are not
required to bear the Private Placement Legend.




          “Unrestricted Global Notes” means one or more Global Notes that do not and are not required to
bear the Private Placement Legend and are deposited with and registered in the name of the
Depositary or its nominee.




          “Unrestricted Subsidiary” means:





     (a) any Subsidiary of the Company that is designated after the Issue Date as an
Unrestricted Subsidiary as permitted or required pursuant to Section 4.16 and is not
thereafter redesignated as a Restricted Subsidiary as permitted pursuant thereto; and




     (b) any Subsidiary of an Unrestricted Subsidiary.



          “U.S. Government Obligations” means direct obligations (or certificates representing an
ownership interest in such obligations) of the United States (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of the United States is
pledged and which are not callable or redeemable at the issuer’s option.




          “U.S. Restricted Subsidiary” means any Restricted Subsidiary that is organized under the laws
of the United States of America or any State thereof or the District of Columbia.




          “Voting Stock” of any Person means all classes of Capital Stock or other interests (including
partnership interests) of such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.




          “Wholly Owned Restricted Subsidiary” means, at any time, a Restricted Subsidiary all the
Voting Stock of which (other than directors’ qualifying shares) is at such time owned, directly or
indirectly, by the Company and its other Wholly Owned Subsidiaries.




Section 1.02. Other Definitions.




	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Acceleration Notice” 
	 	 	6.02	 
	“Affiliate Transaction” 
	 	 	4.14	 
	“Additional Amounts” 
	 	 	4.19	 
	“Authentication Order” 
	 	 	2.02	(d)
	“Base Currency” 
	 	 	12.14	 
	“Benefited Party” 
	 	 	10.01	 
	“Brazilian Guarantor” 
	 	 	10.01	 
	“Change of Control Amount” 
	 	 	4.17	 
	“Change of Control Offer” 
	 	 	4.17	 
	“Change of Control Payment” 
	 	 	4.17	 
	“Covenant Defeasance” 
	 	 	8.03	 
	“cross acceleration provisions” 
	 	 	6.01	(e)
	“DTC” 
	 	 	2.03	(b)
	“Engagement Letter” 
	 	 	7.04	 
	“Event of Default” 
	 	 	6.01	 
	“Excluded Holder” 
	 	 	4.19	 






26









 






	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Judgment Currency” 
	 	 	12.14	 
	“judgment default provisions” 
	 	 	6.01	(f)
	“Legal Defeasance” 
	 	 	8.02	 
	“losses” 
	 	 	7.07	 
	“Offer Amount” 
	 	 	3.09	 
	“Offer Period” 
	 	 	3.09	 
	“Offer to Purchase” 
	 	 	3.09	 
	“Paying Agent” 
	 	 	2.03	 
	“Prepayment Offer” 
	 	 	4.12	 
	“Purchase Date” 
	 	 	3.09	 
	“Purchase Price” 
	 	 	3.09	 
	“Registrar” 
	 	 	2.03	 
	“security default provisions” 
	 	 	6.01	(j)
	“Security Register” 
	 	 	2.03	 
	“Suspension Period” 
	 	 	4.20	(b)






Section 1.03. Incorporation by Reference of Trust Indenture Act.



          (a) Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.




          (b) The following TIA terms are formulated in this Indenture as follows:




          “indenture securities” under the TIA means the Notes and the Subsidiary Guaranties;




          “indenture security holder” under the TIA means a Holder of a Note;




          “indenture to be qualified” under the TIA means this Indenture;




          “indenture trustee” or “institutional trustee” under the TIA means the Trustee; and




          “obligor” under the TIA means the Company and any successor obligor upon the Notes.




          (c) All other terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rule under the TIA and not otherwise defined
herein have the meanings so assigned to them either in the TIA or by another statute or Commission
rule, as applicable.




Section 1.04. Rules of Construction.




          (a) Unless the context otherwise requires:





          (i) a term has the meaning assigned to it;




          (ii) an accounting term not otherwise defined herein has the meaning assigned to it in
accordance with GAAP;




          (iii) “or” is not exclusive, unless the context otherwise provides;




          (iv) words in the singular include the plural, and in the plural include the singular;




          (v) all references in this instrument to “Articles,” “Sections” and other subdivisions
are to the designated Articles, Sections and subdivisions of this instrument as originally
executed;




          (vi) the words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision.



27









 






          (vii) “including” means “including without limitation;”




          (viii) provisions apply to successive events and transactions; and




          (ix) references to sections of or rules under the Securities Act, the Exchange Act or
the TIA shall be deemed to include substitute, replacement or successor sections or rules
adopted by the Commission from time to time thereunder.



ARTICLE 2.




THE NOTES.




Section 2.01. Form and Dating.




          (a) General. The Notes and the Trustee’s certificate of authentication shall be substantially
in the form included in Exhibit A hereto, which is hereby incorporated in and expressly made part
of this Indenture. The Notes may have notations, legends or endorsements required by law, trading
market or depository rule or usage in addition to those set forth on Exhibit A. Each Note shall be
dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral
multiples of $1,000 in excess thereof. The terms and provisions contained in the Notes shall
constitute a part of this Indenture and the Company, the Subsidiary Guarantors and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby. To the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be controlling.




          (b) Form of Notes. The Notes shall be issued initially in global form and shall be
substantially in the form of Exhibit A attached hereto (including the Global Note Legend thereon
and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in
definitive form shall be substantially in the form of Exhibit A attached hereto (but without the
Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note”
attached thereto). Each Global Note shall represent such aggregate principal amount of the
outstanding Notes as shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions and transfers of
interests therein. Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made
by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06.




          (c) Book-Entry Provisions. This Section 2.01(c) shall apply only to Global Notes deposited
with the Trustee as custodian for the Depositary. Participants and Indirect Participants shall
have no rights under this Indenture or any Global Note with respect to any Global Note held on
their behalf by the Depositary or by the Trustee as custodian for the Depositary, and the
Depositary shall be treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Participants or Indirect Participants,
the Applicable Procedures or the operation of customary practices of the Depositary governing the
exercise of the rights of a holder of a beneficial interest in any Global Note.




          (d) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating
Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the
“General Terms and Conditions of Clearstream” and “Customer Handbook” of Clearstream shall be
applicable to transfers of beneficial interests in Global Notes that are held by Participants
through Euroclear or Clearstream.




          (e) Certificated Securities. The Company shall exchange Global Notes for Definitive Notes if:
(i) at any time the Depositary notifies the Company that it is unwilling or unable to continue to
act as Depositary



28









 






for the Global Notes or if at any time the Depositary shall no longer be eligible to act as
such because it ceases to be a clearing agency registered under the Exchange Act, and, in either
case, the Company shall not have appointed a successor Depositary within 120 days after the Company
receives such notice or becomes aware of such ineligibility, or (ii) upon written request of a
Holder or the Trustee if a Default or Event of Default shall have occurred and be continuing.




          Upon the occurrence of any of the events set forth in clauses (e)(i) or (e)(ii) of this
Section 2.01, the Company shall execute, and, upon receipt of an Authentication Order in accordance
with Section 2.02, the Trustee shall authenticate and deliver, Definitive Notes, in authorized
denominations, in an aggregate principal amount equal to the principal amount of the Global Notes
in exchange for such Global Notes.




          Upon the exchange of a Global Note for Definitive Notes, such Global Note shall be cancelled
by the Trustee or an agent of the Company or the Trustee. Definitive Notes issued in exchange for
a Global Note pursuant to this Section 2.01 shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its Participants or its
Applicable Procedures, shall instruct the Trustee or an agent of the Company or the Trustee in
writing. The Trustee or such agent shall deliver such Definitive Notes to or as directed by the
Persons in whose names such Definitive Notes are so registered or to the Depositary.




Section 2.02. Execution and Authentication.




          (a) One Officer shall execute the Notes on behalf of the Company by manual or facsimile
signature.




          (b) If an Officer whose signature is on a Note no longer holds that office at the time a Note
is authenticated by the Trustee, the Note shall nevertheless be valid.




          (c) A Note shall not be valid until authenticated by the manual signature of the Trustee. The
signature of the Trustee shall be conclusive evidence that the Note has been authenticated under
this Indenture.




          (d) The Trustee shall, upon a written order of the Company signed by an Officer (an
“Authentication Order”), authenticate Notes for issuance.




          (e) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Notes. Unless otherwise provided in such appointment, an authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent shall have the same rights
as the Trustee to deal with Holders, the Company or an Affiliate of the Company.




Section 2.03. Registrar and Paying Agent.




          (a) The Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be
presented for payment (“Paying Agent”). The Registrar shall keep a register (the “Security
Register”) of the Notes and of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this Indenture. If the
Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall
act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.




          (b) The Company initially appoints The Depository Trust Company (“DTC”) to act as Depositary
with respect to the Global Notes.




          (c) The Company initially appoints the Trustee to act as Registrar and Paying Agent and to act
as Custodian with respect to the Global Notes, and the Trustee hereby agrees so to initially act.




29









 








Section 2.04. Paying Agent to Hold Money in Trust.




          The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and shall
notify the Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all funds held by it relating to
the Notes to the Trustee. The Company at any time may require a Paying Agent to pay all funds held
by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary) shall have no further liability for such funds. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all funds held by it as Paying Agent. Upon any Event of Default under
Sections 6.01(g) and (h) relating to the Company, the Trustee shall serve as Paying Agent for the
Notes.




Section 2.05. Holder Lists.




          The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
§312(a). If the Trustee is not the Registrar, the Company shall furnish or cause to be furnished
to the Trustee at least seven Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing, a list in such form and as of such date or such
shorter time as the Trustee may allow, as the Trustee may reasonably require of the names and
addresses of the Holders and the Company shall otherwise comply with TIA §312(a).




Section 2.06. Transfer and Exchange.




          (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. Upon the occurrence of any of the
events set forth in Section 2.01(e), Definitive Notes shall be issued in denominations of $2,000
and integral multiples of $1,000 in excess thereof and in such names as the Depositary shall
instruct the Trustee in writing. Global Notes also may be exchanged or replaced, in whole or in
part, as provided in Sections 2.07 and 2.10. Except as provided above, every Note authenticated
and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to
this Section 2.06 or Section 2.07 or 2.10, shall be authenticated and delivered in the form of, and
shall be, a Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.06(a), and beneficial interests in a Global Note may not be transferred
and exchanged other than as provided in Section 2.06(b), (c), (f) or (j).




          (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in Global Notes also shall require compliance with either clause (b)(i) or (b)(ii) of
this Section 2.06, as applicable, as well as one or more of the other following clauses, as
applicable:





          (i) Transfer of Beneficial Interests in the Same Global Note. Beneficial
interests in any Restricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Restricted Global Note in
accordance with the transfer restrictions set forth in the Private Placement Legend and any
Applicable Procedures. Beneficial interests in any Unrestricted Global Note may be
transferred to Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. Except as may be required by any Applicable Procedures or set
forth in the Private Placement Legend, no written orders or instructions shall be required
to be delivered to the Registrar to effect the transfers described in this Section
2.06(b)(i).




          (ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes.
In connection with all transfers and exchanges of beneficial interests that are not subject
to Section 2.06(b)(i), the transferor of such beneficial interest must deliver to the
Registrar either (A)(1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures



30









 







directing the Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase or (B)(1) a
written order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged
and (2) instructions given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (B)(1) above. Upon consummation of an Exchange Offer by
the Company in accordance with Section 2.06(f), the requirements of this Section 2.06(b)(ii)
shall be deemed to have been satisfied upon receipt by the Registrar of the instructions
contained in the Letter of Transmittal delivered by the Holder of such beneficial interests
in the Restricted Global Notes. Upon satisfaction of all of the requirements for transfer
or exchange of beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section 2.06(h).




          (iii) Transfer of Beneficial Interests in a Restricted Global Note to Another
Restricted Global Note. A holder of a beneficial interest in a Restricted Global Note
may transfer such beneficial interest to a Person who takes delivery thereof in the form of
a beneficial interest in another Restricted Global Note if the transfer complies with the
requirements of Section 2.06(b)(ii) and the Registrar receives the following:




     (A) if the transferee will take delivery in the form of a beneficial interest
in the 144A Global Note, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1) thereof or, if
permitted by the Applicable Procedures, item (3) thereof;




     (B) if the transferee will take delivery in the form of a beneficial interest
in the Regulation S Global Note, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in item (2) thereof; and




     (C) if the transferee is required by the Applicable Procedures to take delivery
in the form of a beneficial interest in the IAI Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by item (3) thereof,
if applicable.




          (iv) Transfer or Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A holder of a beneficial interest
in a Restricted Global Note may exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note or may transfer such beneficial interest to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note
only if the exchange or transfer complies with the requirements of Section 2.06(b)(ii) and:




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with a Registration Rights Agreement and the holder of the beneficial
interest, in the case of an exchange, or the transferee, in the case of a transfer,
makes any and all certifications required in the applicable Letter of Transmittal
(or is deemed to have made such certifications if delivery is made through the
Applicable Procedures) as may be required by such Registration Rights Agreement;




     (B) such transfer is effected pursuant to a Shelf Registration Statement in
accordance with a Registration Rights Agreement;




     (C) such transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or



31









 






     (D) the Registrar receives the following:




     (1) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item (1)(a) thereof; or




     (2) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;




and, in each such case set forth in this clause (D), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer complies
with the Securities Act and that the restrictions on transfer contained herein and
in the first two paragraphs of the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act; or




     (E) such transfer is effected pursuant to an automatic exchange in accordance
with Section 2.06(j) of this Indenture.




     If any such transfer is effected pursuant to clause (b)(iv)(B), (b)(iv)(D) or
(b)(iv)(E) of this Section 2.06 at a time when an Unrestricted Global Note has not
yet been issued, the Company shall execute and, upon receipt of an Authentication
Order in accordance with Section 2.02, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the aggregate
principal amount of beneficial interests transferred pursuant to clause (b)(iv)(B),
(b)(iv)(D) or (b)(iv)(E) of this Section 2.06.




          (v) Transfer or Exchange of Beneficial Interests in an Unrestricted Global Note for
Beneficial Interests in a Restricted Global Note Prohibited. Beneficial interests in an
Unrestricted Global Note may not be exchanged for, or transferred to Persons who take
delivery thereof in the form of, beneficial interests in a Restricted Global Note.



          (c) Transfer and Exchange of Beneficial Interests in Global Notes for Definitive Notes.





          (i) Transfer or Exchange of Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note
or to transfer such beneficial interest to a Person who takes delivery thereof in the form
of a Restricted Definitive Note, then, upon receipt by the Registrar of the following
documentation:




     (A) if the holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;




     (B) if such beneficial interest is being transferred to a QIB in accordance
with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (1) thereof;




     (C) if such beneficial interest is being transferred to a “Non-U.S. Person” in
an offshore transaction (as defined in Section 902(k) of Regulation S) in accordance
with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;



32









 






     (D) if such beneficial interest is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;




     (E) if such beneficial interest is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in clauses (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)(d) thereof,
if applicable; or




     (F) if such beneficial interest is being transferred to the Company or any of
its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof,




the Trustee shall reduce or cause to be reduced in a corresponding amount pursuant to
Section 2.06(h), the aggregate principal amount of the applicable Restricted Global Note,
and the Company shall execute and, upon receipt of an Authentication Order in accordance
with Section 2.02, the Trustee shall authenticate and deliver a Restricted Definitive Note
in the appropriate principal amount to the Person designated by the holder of such
beneficial interest in the instructions delivered to the Registrar by the Depositary and the
applicable Participant or Indirect Participant on behalf of such holder. Any Restricted
Definitive Note issued in exchange for beneficial interests in a Restricted Global Note
pursuant to this Section 2.06(c)(i) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial interest shall
designate in such instructions. The Trustee shall deliver such Restricted Definitive Notes
to the Persons in whose names such Notes are so registered. Any Restricted Definitive Note
issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.




          (ii) Transfer or Exchange of Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted Definitive Note or may
transfer such beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only if:




     (A) such exchange or transfer is effected pursuant to an Exchange Offer in
accordance with a Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a transfer,
makes any and all certifications in the applicable Letter of Transmittal (or is
deemed to have made such certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights Agreement;




     (B) such transfer is effected pursuant to a Shelf Registration Statement in
accordance with a Registration Rights Agreement;




     (C) such transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or




     (D) the Registrar receives the following:




     (1) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b) thereof; or



33









 






     (2) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;




and, in each such case set forth in this clause (D), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer complies
with the Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.



          Upon satisfaction of any of the conditions of any of the clauses of this Section 2.06(c)(ii),
the Company shall execute and, upon receipt of an Authentication Order in accordance with Section
2.02, the Trustee shall authenticate and deliver an Unrestricted Definitive Note in the appropriate
principal amount to the Person designated by the holder of such beneficial interest in instructions
delivered to the Registrar by the Depositary and the applicable Participant or Indirect Participant
on behalf of such holder, and the Trustee shall reduce or cause to be reduced in a corresponding
amount pursuant to Section 2.06(h), the aggregate principal amount of the applicable Restricted
Global Note.





          (iii) Transfer or Exchange of Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note, then, upon satisfaction of the
applicable conditions set forth in Section 2.06(b)(ii), the Trustee shall reduce or cause to
be reduced in a corresponding amount pursuant to Section 2.06(h), the aggregate principal
amount of the applicable Unrestricted Global Note, and the Company shall execute, and, upon
receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall
authenticate and deliver an Unrestricted Definitive Note in the appropriate principal amount
to the Person designated by the holder of such beneficial interest in instructions delivered
to the Registrar by the Depositary and the applicable Participant or Indirect Participant on
behalf of such holder. Any Unrestricted Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall be registered in such name or names and
in such authorized denomination or denominations as the holder of such beneficial interest
shall designate in such instructions. The Trustee shall deliver such Unrestricted
Definitive Notes to the Persons in whose names such Notes are so registered. Any
Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall not bear the first two paragraphs of the Private Placement
Legend.



          (d) Transfer and Exchange of Definitive Notes for Beneficial Interests in the Global Notes.





          (i) Transfer or Exchange of Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to
exchange such Restricted Definitive Note for a beneficial interest in a Restricted Global
Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof
in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:




     (A) if the Holder of such Restricted Definitive Note proposes to exchange such
Restricted Definitive Note for a beneficial interest in a Restricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;




     (B) if such Restricted Definitive Note is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;




     (C) if such Restricted Definitive Note is being transferred to a “non-U.S.
Person” in an offshore transaction (as defined in Rule 902(k) of Regulation S) in
accordance with Rule 903 or



34









 







Rule 904, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (2) thereof;




     (D) if such Restricted Definitive Note is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance
with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;




     (E) if such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration requirements
of the Securities Act other than those listed in clauses (d)(i)(B) through (D) of
this Section 2.06, a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by item
(3)(d) thereof, if applicable; or




     (F) if such Restricted Definitive Note is being transferred to the Company or
any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof,




the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased
in a corresponding amount pursuant to Section 2.06(h), the aggregate principal amount of, in
the case of clause (d)(i)(A) of this Section 2.06, the appropriate Restricted Global Note,
in the case of clause (d)(i)(B) of this Section 2.06, a 144A Global Note, in the case of
clause (d)(i)(C) of this Section 2.06, a Regulation S Global Note, and in all other cases, a
IAI Global Note.




          (ii) Transfer or Exchange of Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such
Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note or
transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note only if:




     (A) such exchange or transfer is effected pursuant to an Exchange Offer in
accordance with a Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a transfer,
makes any and all certifications in the applicable Letter of Transmittal (or is
deemed to have made such certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights Agreement;




     (B) such transfer is effected pursuant to a Shelf Registration Statement in
accordance with a Registration Rights Agreement;




     (C) such transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement; or




     (D) the Registrar receives the following:




     (1) if the Holder of such Restricted Definitive Note proposes to
exchange such Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (1)(c) thereof; or




     (2) if the Holder of such Restricted Definitive Note proposes to
transfer such Restricted Definitive Note to a Person who shall take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;



35









 






and, in each such case set forth in this clause (D), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer shall be
effected in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the first two paragraphs of the Private Placement Legend
shall no longer be required in order to maintain compliance with the Securities Act.




     Upon satisfaction of the conditions of any of the clauses in this Section 2.06(d)(ii),
the Trustee shall cancel such Restricted Definitive Note and increase or cause to be
increased in a corresponding amount pursuant to Section 2.06(h), the aggregate principal
amount of the Unrestricted Global Note.




          (iii) Transfer or Exchange of Unrestricted Definitive Notes to Beneficial Interests
in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange
such Unrestricted Definitive Note for a beneficial interest in an Unrestricted Global Note
or transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a
request for such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased in a corresponding amount
pursuant to Section 2.06(h) the aggregate principal amount of one of the Unrestricted Global
Notes.




          (iv) Transfer or Exchange of Unrestricted Definitive Notes to Beneficial Interests
in Restricted Global Notes Prohibited. An Unrestricted Definitive Note may not be
exchanged for, or transferred to Persons who take delivery thereof in the form of,
beneficial interests in a Restricted Global Note.




          (v) Issuance of Unrestricted Global Notes. If any such exchange or transfer of
a Definitive Note for a beneficial interest in an Unrestricted Global Note is effected
pursuant to clause (ii)(B), (ii)(D) or (iii) of this Section 2.06 at a time when an
Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt
of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate
one or more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.



          (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the
Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 2.06(e).





          (i) Transfer of Restricted Definitive Notes to Restricted Definitive Notes.
Any Restricted Definitive Note may be transferred to and registered in the name of Persons
who take delivery thereof in the form of a Restricted Definitive Note if the Registrar
receives the following:




     (A) if the transfer will be made pursuant to Rule 144A, a certificate in the
form of Exhibit B hereto, including the certifications in item (1) thereof;




     (B) if the transfer will be made pursuant to Rule 903 or Rule 904, a
certificate in the form of Exhibit B hereto, including the certifications in item
(2) thereof; and




     (C) if the transfer will be made pursuant to any other exemption from the
registration requirements of the Securities Act, a certificate in the form of
Exhibit B hereto, including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.



36









 






          (ii) Transfer or Exchange of Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof
in the form of an Unrestricted Definitive Note only if:




     (A) such exchange or transfer is effected pursuant to an Exchange Offer in
accordance with a Registration Rights Agreement and the holder, in the case of an
exchange, or the transferee, in the case of a transfer, makes any and all
certifications in the applicable Letter of Transmittal (or is deemed to have made
such certifications if delivery is made through the Applicable Procedures) as may be
required by a Registration Rights Agreement;




     (B) any such transfer is effected pursuant to a Shelf Registration Statement in
accordance with a Registration Rights Agreement;




     (C) any such transfer is effected by a broker-dealer pursuant to an Exchange
Offer Registration Statement in accordance with a Registration Rights Agreement; or




     (D) the Registrar receives the following:




     (1) if the Holder of such Restricted Definitive Note proposes to
exchange such Restricted Definitive Notes for an Unrestricted Definitive
Note, a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof; or




     (2) if the Holder of such Restricted Definitive Notes proposes to
transfer such Restricted Definitive Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;




and, in each such case set forth in this clause (D), if the Registrar so requests,
an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer complies with the Securities Act and that the
restrictions on transfer contained herein and in the first two paragraphs of the
Private Placement Legend are no longer required in order to maintain compliance with
the Securities Act.




     Upon satisfaction of the conditions of any of the clauses of this Section 2.06(e)(ii),
the Trustee shall cancel the prior Restricted Definitive Note and the Company shall execute,
and upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee
shall authenticate and deliver an Unrestricted Definitive Note in the appropriate aggregate
principal amount to the Person designated by the holder of such prior Restricted Definitive
Note in instructions delivered to the Registrar by such holder.




          (iii) Transfer of Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A holder of Unrestricted Definitive Notes may transfer such Unrestricted
Definitive Notes to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Notes pursuant to the instructions from the holder
thereof.



          (f) Exchange Offer. Upon the occurrence of an Exchange Offer in accordance with a
Registration Rights Agreement, the Company shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02, the Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the aggregate principal amount of the beneficial
interests in the applicable Restricted Global Notes (1) tendered for acceptance by Persons that
make any and all certifications in the applicable Letters of Transmittal (or are deemed to have
made such certifications if delivery is made through the Applicable Procedures) as may be required
by such Registration Rights Agreement and (2) accepted for exchange in such Exchange Offer and (ii)
Unrestricted Definitive Notes in an aggregate principal amount equal to the aggregate principal
amount of the



37









 






Restricted Definitive Notes tendered for acceptance by Persons who made the foregoing
certifications and accepted for exchange in the Exchange Offer. Concurrently with the issuance of
such Notes, the Trustee shall reduce or cause to be reduced in a corresponding amount the aggregate
principal amount of the applicable Restricted Global Notes, and the Company shall execute and, upon
receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate
and deliver to the Persons designated by the Holders of Restricted Definitive Notes so accepted
Unrestricted Definitive Notes in the appropriate aggregate principal amount. All Restricted
Definitive Notes tendered shall be delivered to the Trustee for cancellation.




          (g) Legends. The following legends shall appear on the face of all Global Notes and
Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable
provisions of this Indenture.





     (i) Private Placement Legend.




     (A) Except as permitted by clause (B) below, each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:




“THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE ''SECURITIES ACT’’), AND
THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.




THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY
BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (II) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT, (IV)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (V) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED
INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE
IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (VI) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH
(VI) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND
IN EACH OF CASES (III), (IV) AND (V) SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.




THIS SECURITY HAS NOT BEEN QUALIFIED BY PROSPECTUS OR OTHERWISE PURSUANT TO CANADIAN
SECURITIES LAWS. UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY
MUST NOT TRADE THIS SECURITY BEFORE THE DATE



38









 







THAT IS FOUR MONTHS AND A DAY AFTER THE LATER OF (I) AUGUST 11, 2009 AND (II) THE DATE THE
ISSUER BECAME A REPORTING ISSUER IN ANY PROVINCE OR TERRITORY.”




     (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to clauses (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii),
(e)(iii), (f) or (j) to this Section 2.06 (and all Notes issued in exchange therefor
or substitution thereof) shall not bear the first two paragraphs of the Private
Placement Legend.




          (ii) Global Note Legend. Each Global Note shall bear a legend in substantially
the following form:




     “THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS
NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.




     UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.”



          (h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests
in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note shall
be returned to or retained and cancelled by the Trustee in accordance with Section 2.11. At any
time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the aggregate principal amount of Notes represented by
such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note
by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and
if the beneficial interest is being exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note, the aggregate principal amount
of such other Global Note shall be increased accordingly and an endorsement shall be made on such
Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.




          (i) General Provisions Relating to Transfers and Exchanges.





          (i) No service charge shall be made to a holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in



39









 







connection therewith (other than any such transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 4.12, 4.17 and 9.05).




          (ii) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid obligations of the Company,
evidencing the same debt as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly issued hereunder.




          (iii) Neither the Registrar nor the Company shall be required (A) to issue, to register
the transfer of or to exchange any Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for redemption under Section 3.02
and ending at the close of business on the date of selection, (B) to register the transfer
of or to exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or
to exchange a Note between a record date (including a Regular Record Date) and the next
succeeding Interest Payment Date.




          (iv) Prior to due presentment for the registration of transfer of any Note, the
Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of receiving payment of
principal of, premium, if any, and interest on such Note and for all other purposes, in each
case regardless of any notice to the contrary.




          (v) All certifications, certificates and Opinions of Counsel required to be submitted
to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or
exchange may be submitted by facsimile.




          (vi) The Trustee is hereby authorized and directed to enter into a letter of
representation with the Depositary in the form provided by the Company and to act in
accordance with such letter.



          (j) Automatic Exchange from Restricted Global Note to Unrestricted Global Note. At the option
of the Company and upon compliance with the following procedures, beneficial interests in a
Restricted Global Note shall be exchanged for beneficial interests in an Unrestricted Global Note.
In order to effect such exchange, the Company shall provide written notice to the Trustee
instructing the Trustee to (i) direct the Depositary to transfer the specified amount of the
outstanding beneficial interests in a particular Restricted Global Note to an Unrestricted Global
Note and provide the Depositary with all such information as is necessary for the Depositary to
appropriately credit and debit the relevant Holder accounts and (ii) provide prior written notice
to all Holders of such exchange, which notice must include the date such exchange is proposed to
occur, the CUSIP number of the relevant Restricted Global Note and the CUSIP number of the
Unrestricted Global Note into which such Holders’ beneficial interests will be exchanged. As a
condition to any such exchange pursuant to this Section 2.06(j), the Trustee shall be entitled to
receive from the Company, and rely upon conclusively without any liability, an Officer’s
Certificate and an Opinion of Counsel, in form and in substance reasonably satisfactory to the
Trustee, to the effect that such transfer of beneficial interests to the Unrestricted Global Note
shall be effected in compliance with the Securities Act. The Company may request from Holders such
information it reasonably determines is required in order to be able to deliver such Officer’s
Certificate and Opinion of Counsel. Upon such exchange of beneficial interests pursuant to this
Section 2.06(j), the Registrar shall reflect on its books and records the date of such transfer and
a decrease and increase, respectively, in the principal amount of the applicable Restricted Global
Note and the Unrestricted Global Note, respectively, equal to the principal amount of beneficial
interests transferred. Following any such transfer pursuant to this Section 2.06(j) of all of the
beneficial interests in a Restricted Global Note, such Restricted Global Note shall be cancelled.




Section 2.07. Replacement Notes.




          If any mutilated Note is surrendered to the Trustee, or if the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Note, the Company shall
issue and, upon receipt



40









 






of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate and
deliver in exchange therefor a replacement Note of like tenor and principal amount, bearing a
number not contemporaneously outstanding. If required by the Trustee or the Company, the Holder of
such Note shall provide indemnity that is sufficient, in the judgment of the Company and the
Trustee, to protect the Company, the Trustee, any Agent and any authenticating agent from any loss
that any of them may suffer in connection with such replacement. If required by the Trustee or the
Company, such Holder shall reimburse the Company for its reasonable expenses in connection with
such replacement.




          Every replacement Note issued in accordance with this Section 2.07 shall be the valid
obligation of the Company, evidencing the same debt as the destroyed, lost or stolen Note, and
shall be entitled to all of the benefits of this Indenture equally and proportionately with all
other Notes duly issued hereunder.




Section 2.08. Outstanding Notes.




          (a) The Notes outstanding at any time shall be the entire principal amount of Notes
represented by all of the Global Notes and Definitive Notes authenticated by the Trustee except for
those cancelled by it, those delivered to it for cancellation, those subject to reductions in
beneficial interests effected by the Trustee in accordance with Section 2.06, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09, a Note shall not
cease to be outstanding because the Company or an Affiliate of the Company holds the Note;
provided, however, that Notes held by the Company or a Subsidiary of the Company shall be deemed
not to be outstanding for purposes of Section 3.07(c).




          (b) If a Note is replaced pursuant to Section 2.07, it shall cease to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced note is held by a bona fide
purchaser.




          (c) If the principal amount of any Note is considered paid under Section 4.01, it shall cease
to be outstanding and interest on it shall cease to accrue.




          (d) If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
holds, on a redemption date, a Purchase Date or a maturity date, funds sufficient to pay Notes
payable on that date, then on and after that date such Notes shall be deemed to be no longer
outstanding and shall cease to accrue interest.




Section 2.09. Treasury Notes.




          In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company, or by any Affiliate of the Company,
shall be considered as though not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that
the Trustee knows are so owned shall be so disregarded.




Section 2.10. Temporary Notes.




          Until certificates representing Notes are ready for delivery, the Company may prepare and,
upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form of Definitive
Notes but may have variations that the Company considers appropriate for temporary Notes and as
shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate Global Notes or Definitive Notes in exchange for
temporary Notes, as applicable. After preparation of Definitive Notes, the Temporary Note will be
exchangeable for Definitive Notes upon surrender of the Temporary Notes.




          Holders of temporary Notes shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.




41









 








Section 2.11. Cancellation.




          The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. Upon sole direction of the Company, the Trustee and no one else
shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall destroy cancelled Notes (subject to the record retention requirements of the
Exchange Act or other applicable laws) unless by written order, signed by an Officer of the
Company, the Company directs them to be returned to it. Certification of the destruction of all
cancelled Notes shall be delivered to the Company from time to time upon request. The Company may
not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee
for cancellation.




Section 2.12. Payment of Interest; Defaulted Interest.




          If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01. In such event, the Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the
date of the proposed payment and shall fix or cause to be fixed each such special record date and
payment date; provided that no such special record date shall be less than 10 days prior to the
related Interest Payment Date for such defaulted interest. At least 15 days before any such
special record date, the Company (or, upon the written request of the Company, the Trustee in the
name and at the expense of the Company) shall mail or cause to be mailed to Holders a notice that
states the special record date, the related Interest Payment Date and the amount of such interest
to be paid.




Section 2.13. Additional Interest.




          If Additional Interest is payable by the Company pursuant to a Registration Rights Agreement
and paragraph 1 of the Notes, the Company shall deliver to the Trustee a certificate to that effect
stating (i) the amount of such Additional Interest that is payable and (ii) the date on which such
interest is payable pursuant to Section 4.01. Unless and until a Responsible Officer of the
Trustee receives such a certificate or instruction or direction from the Holders in accordance with
the terms of this Indenture, the Trustee may assume without inquiry that no Additional Interest is
payable. The foregoing shall not prejudice the rights of the Holders with respect to their
entitlement to Additional Interest as otherwise set forth in this Indenture or the Notes and
pursuing any action against the Company directly or otherwise directing the Trustee to take any
such action in accordance with the terms of this Indenture and the Notes. If the Company has paid
Additional Interest directly to the Persons entitled to it, the Company shall deliver to the
Trustee an Officers’ Certificate setting forth the details of such payment.




Section 2.14. CUSIP or ISIN Numbers.




          The Company in issuing the Notes may use “CUSIP” and/or “ISIN” numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP” and/or “ISIN” numbers in notices of redemption or
Offers to Purchase as a convenience to Holders; provided, however, that any such notice may state
that no representation is made as to the correctness of such numbers either as printed on the Notes
or as contained in any notice of a redemption or notice of an Offer to Purchase and that reliance
may be placed only on the other identification numbers printed on the Notes, and any such
redemption or Offer to Purchase shall not be affected by any defect in or omission of such numbers.
The Company shall promptly notify the Trustee of any change in the “CUSIP” and/or “ISIN” numbers.




Section 2.15. Issuance of Additional Notes




          The Company shall be entitled, subject to its compliance with Section 4.09, to issue
Additional Notes under this Indenture which shall have identical terms as the Initial Notes issued
on the date hereof, other than with respect to the date of issuance, issue price and rights under a
related Registration Rights Agreement, if any. The Initial Notes issued on the date hereof, any
Additional Notes and all Exchange Notes issued in exchange



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therefor shall be treated as a single class for all purposes under this Indenture, including
directions, waivers, amendments, consents, redemptions and Offers to Purchase.




          With respect to any Additional Notes, the Company shall set forth in a Board Resolution and an
Officers’ Certificate, a copy of each of which shall be delivered to the Trustee, the following
information:




          (a) the aggregate principal amount of such Additional Notes to be authenticated and delivered
pursuant to this Indenture;




          (b) the issue price, the issue date and the CUSIP and/or ISIN number of such Additional Notes;
provided, however, that Additional Notes may be issued only if they are fungible with the other
Notes issued under this Indenture for United States federal income tax purposes; and




          (c) whether such Additional Notes shall be subject to the restrictions on transfer set forth
in Section 2.06 relating to Restricted Global Notes and Restricted Definitive Notes.




Section 2.16. Record Date.




          The record date for purposes of determining the identity of Holders of Notes entitled to vote
or consent to any action by vote or consent or permitted under this Indenture shall be determined
as provided for in TIA Section 316(c).




Section 2.17. Pro Rata Payments.




          If on any given day the Company makes a payment to the Paying Agent or the Trustee in respect
of the Notes and such payment is not sufficient to pay all amounts due and payable on such date in
respect of such Notes, such payment shall be applied to the amounts then due and payable on the
subject Notes on a pro rata basis based on the amounts then due and payable on such Notes.




ARTICLE 3.




REDEMPTION AND PREPAYMENT




Section 3.01. Notices to Trustee.




          If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07, it shall furnish to the Trustee, at least 30 days but not more than 60 days before a
redemption date (or such shorter period as allowed by the Trustee), an Officers’ Certificate
setting forth (a) the applicable section of this Indenture pursuant to which the redemption shall
occur, (b) the redemption date, (c) the principal amount of Notes to be redeemed and (d) the
calculation of the redemption price but need not include the redemption price itself.




Section 3.02. Selection of Notes to Be Redeemed.




          If less than all of the Notes are to be redeemed at any time, the Trustee shall select the
Notes to be redeemed among the Holders in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if the Notes are not so
listed, on a pro rata basis, by lot or in accordance with any other method the Trustee deems fair
and appropriate. In the event of partial redemption by lot, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior
to the redemption date by the Trustee from the outstanding Notes not previously called for
redemption.




          The Trustee shall promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes and portions of Notes selected shall be in amounts of $2,000 or integral multiples
of $1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even



43









 






if not an integral multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for redemption also apply to
portions of Notes called for redemption.




Section 3.03. Notice of Redemption.




          At least 30 days but not more than 60 days prior to a redemption date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are
to be redeemed at such Holder’s registered address appearing in the Security Register.




          The notice shall identify the Notes to be redeemed and shall state:




          (a) the redemption date;




          (b) the appropriate method for calculation of the redemption price, but need not include the
redemption price itself; the actual redemption price shall be set forth in an Officers’ Certificate
delivered to the Trustee no later than two (2) Business Days prior to the redemption date unless
clause (2) of the definition of “Comparable Treasury Price” is applicable, in which case such
Officer’s Certificate should be delivered on the redemption date;




          (c) if any Note is being redeemed in part, the portion of the principal amount of such Note to
be redeemed and that, after the redemption date upon surrender of such Note, if applicable, a new
Note or Notes in principal amount equal to the unredeemed portion shall be issued upon cancellation
of the original Note;




          (d) the name and address of the Paying Agent;




          (e) that Notes called for redemption must be surrendered to the Paying Agent to collect the
redemption price;




          (f) that, unless the Company defaults in making such redemption payment, interest on Notes
called for redemption ceases to accrue on and after the redemption date;




          (g) the applicable section of this Indenture pursuant to which the Notes called for redemption
are being redeemed; and




          (h) that no representation is made as to the correctness of the CUSIP and/or ISIN numbers, if
any, listed in such notice or printed on the Notes.




          At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense; provided, however, that the Company shall have delivered to the Trustee,
at least 45 days (or such shorter period allowed by the Trustee), prior to the redemption date, an
Officers’ Certificate requesting that the Trustee give such notice (in the name and at the expense
of the Company) and setting forth the information to be stated in such notice as provided in this
Section 3.03.




Section 3.04. Effect of Notice of Redemption.




          Once notice of redemption is mailed in accordance with Section 3.03, Notes called for
redemption shall become irrevocably due and payable on the redemption date at the redemption price.
A notice of redemption may not be conditional.




Section 3.05. Deposit of Redemption Price.




          On or prior to 11:00 a.m. Eastern time on the Business Day prior to any redemption date, the
Company shall deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and, if applicable, accrued and unpaid interest on all Notes to be redeemed on
that date. The Trustee or the Paying Agent shall promptly, and in any event within two (2)
Business Days after the redemption date, return to the



44









 






Company any money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued and unpaid interest, if any, on,
all Notes to be redeemed.




          If the Company complies with the provisions of the preceding paragraph, on and after the
redemption date, interest shall cease to accrue on the Notes or the portions of Notes called for
purchase or redemption in accordance with Section 2.08(d), whether or not such Notes are presented
for payment. If a Note is redeemed on or after a Regular Record Date but on or prior to the
related Interest Payment Date, then any accrued and unpaid interest, if any, shall be paid to the
Person in whose name such Note was registered at the close of business on such Regular Record Date.
If any Note called for redemption shall not be so paid upon surrender for redemption because of
the failure of the Company to comply with the preceding paragraph, interest shall be paid on the
unpaid principal from the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and
in Section 4.01.




Section 3.06. Notes Redeemed in Part.




          Upon surrender of a Note that is redeemed in part, the Company shall issue and, upon receipt
of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate for the
Holder at the expense of the Company a new Note equal in principal amount to the unredeemed portion
of the Note surrendered.




Section 3.07. Optional Redemption.




          (a) Except as set forth in clauses (b), (c) and (d) of this Section 3.07, the Notes will not
be redeemable at the option of the Company prior to August 15, 2012. Starting on that date, the
Company may redeem all or any portion of the Notes, at once or over time, after giving the required
notice under Section 3.03. The Notes may be redeemed at the redemption prices set forth below,
plus accrued and unpaid interest, if any, to but excluding the redemption date (subject to the
right of holders of record on the relevant record date to receive interest due on the relevant
interest payment date). The following prices are for Notes redeemed during the periods set forth
below, and are expressed as percentages of principal amount:




	 	 	 	 	 
	 	 	Redemption
	Year	 	Price
	August 15, 2012 through February 14, 2013 
	 	 	108.625	%
	February 15, 2013 through February 14, 2014 
	 	 	105.750	%
	February 15, 2014 and thereafter 
	 	 	100.000	%






          (b) At any time prior to August 15, 2012, the Company may from time to time redeem all or any
portion of the Notes after giving the required notice under Section 3.03 at a redemption price
equal to the greater of:





          (i) 100% of the principal amount of the Notes to be redeemed; and




          (ii) the sum of the present values of (1) the redemption price of the Notes at August
15, 2012 (as set forth in the preceding paragraph) and (2) the remaining scheduled payments
of interest from the redemption date through August 15, 2012, but excluding accrued and
unpaid interest through the redemption date, discounted to the redemption date (assuming a
360-day year consisting of twelve 30-day months), at the Treasury Rate plus 50 basis points,


plus, in either case, accrued and unpaid interest, if any, to but excluding the redemption date
(subject to the right of holders of record on the relevant record date to receive interest due on
the relevant interest payment date).




          (c) At any time and from time to time prior to August 15, 2012, the Company may redeem up to a
maximum of 35% of the original aggregate principal amount of the Notes (including any Additional
Notes) with the proceeds of one or more Public Equity Offerings at a redemption price equal to
111.500% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if
any, to the redemption date (subject to the right of holders of record on the relevant record date
to receive interest due on the relevant interest payment date);




45









 







provided, however, that after giving effect to any such redemption, at least 65% of the
original aggregate principal amount of the Notes (including any Additional Notes) remains
outstanding. Notice of any such redemption shall be made within 90 days of such Public Equity
Offering and such redemption shall be effected upon not less than 30 nor more than 60 days’ prior
notice to the Holders as provided in Section 3.03.




          (d) The Company may, at its option, at any time redeem in whole but not in part the
outstanding Notes at a redemption price equal to 100% of the principal amount thereof plus accrued
and unpaid interest, if any, to the redemption date (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest payment date) if it has
become obligated to pay any Additional Amounts in respect of the Notes as a result of:





          (i) any change in or amendment to the laws (or regulations promulgated thereunder) of
any Taxing Jurisdiction; or




          (ii) any change in or amendment to any official position regarding the application or
interpretation of such laws or regulations, which change or amendment is announced or is
effective on or after the Issue Date.



          (e) Any redemption to this Section 3.07 shall be made pursuant to the provisions of Sections
3.01 through 3.06.




Section 3.08. Sinking Fund.




          The Company shall not be required to make sinking fund payments for the Notes.




Section 3.09. Offer To Purchase Procedures.




          (a) In the event that, pursuant to Section 4.12 or 4.17, the Company shall be required to
commence a Prepayment Offer or a Change of Control Offer (each, an “Offer to Purchase”), it shall
follow the procedures specified below.




          (b) The Company shall cause a notice of the Offer to Purchase to be sent at least once to the
Dow Jones News Service or similar business news service in the United States.




          (c) The Company shall commence the Offer to Purchase by sending, by first-class mail, with a
copy to the Trustee, to each Holder at such Holder’s address appearing in the Security Register, a
notice the terms of which shall govern the Offer to Purchase stating:





          (i) that the Offer to Purchase is being made pursuant to this Section 3.09, Section
4.12 or Section 4.17, as the case may be, and, in the case of a Change of Control Offer,
that a Change of Control has occurred, the circumstances and relevant facts regarding the
Change of Control (including, if applicable, information with respect to pro forma
historical income, cash flow and capitalization after giving effect to the Change of
Control), and that a Change of Control Offer is being made pursuant to Section 4.17;




          (ii) the principal amount of Notes required to be purchased pursuant to Section 4.12 or
Section 4.17, as the case may be (the “Offer Amount”), the purchase price set forth in
Section 4.12 or Section 4.17, as the case may be (the “Purchase Price”), the Offer Period
and the Purchase Date (each as defined below);




          (iii) except as provided in clause (ix), that all Notes timely tendered and not
withdrawn shall be accepted for payment;




          (iv) that any Note not tendered or accepted for payment shall continue to accrue
interest;



46









 






          (v) that, unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Offer to Purchase shall cease to accrue interest after the Purchase
Date;




          (vi) that Holders electing to have a Note purchased pursuant to an Offer to Purchase
may elect to have Notes purchased in denominations of $2,000 or integral multiples of $1,000
in excess thereof only;




          (vii) that Holders electing to have a Note purchased pursuant to any Offer to Purchase
shall be required to surrender the Note, with the form entitled “Option of Holder to Elect
Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the
Company, the Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice before the close of business on the third Business Day before the
Purchase Date;




          (viii) that Holders shall be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Note (or portions thereof) the Holder delivered for
purchase and a statement that such Holder is withdrawing his election to have such Note
purchased;




          (ix) that, in the case of a Prepayment Offer, if the aggregate principal amount of
Notes surrendered by Holders exceeds the Offer Amount, the Company shall select the Notes to
be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the
Company so that only Notes in denominations of $2,000 or integral multiples of $1,000 in
excess thereof shall be purchased);




          (x) that Holders whose Notes were purchased in part shall be issued replacement Notes
equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer); and




          (xi) any other procedures the Holders must follow in order to tender their Notes (or
portions thereof) for payment and the procedures that Holders must follow in order to
withdraw an election to tender Notes (or portions thereof) for payment.



          (d) The Offer to Purchase shall remain open for a period of at least 30 days but no more than
60 days following its commencement, except to the extent that a longer period is required by
applicable law (the “Offer Period”). No later than five (5) Business Days (and in any event no
later than the 60th day following the Change of Control except to the extent that a longer period
is required by applicable law) after the termination of the Offer Period (the “Purchase Date”), the
Company shall purchase the Offer Amount or, if less than the Offer Amount has been tendered, all
Notes tendered in response to the Offer to Purchase. Payment for any Notes so purchased shall be
made in the same manner as interest payments are made. The Company shall publicly announce the
results of the Offer to Purchase on the Purchase Date.




          (e) On or prior to the Purchase Date, the Company shall, to the extent lawful:





          (i) accept for payment (on a pro rata basis to the extent necessary in connection with
a Prepayment Offer), the Offer Amount of Notes or portions of Notes properly tendered and
not withdrawn pursuant to the Offer to Purchase, or if less than the Offer Amount has been
tendered, all Notes tendered;




          (ii) deposit with the Paying Agent funds in an amount equal to the Purchase Price in
respect of all Notes or portions of Notes properly tendered; and




          (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of Notes



47









 







being purchased by the Company and that such Notes or portions thereof were accepted
for payment by the Company in accordance with the terms of this Section 3.09.



          (f) The Paying Agent (or the Company, if acting as the Paying Agent) shall promptly (but in
the case of a Change of Control, not later than 60 days from the date of the Change of Control)
deliver to each tendering Holder the Purchase Price. In the event that any portion of the Notes
surrendered is not purchased by the Company, the Company shall promptly execute and issue a new
Note in a principal amount equal to such unpurchased portion of the Note surrendered, and, upon
receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate
and deliver (or cause to be transferred by book-entry) such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered; provided, however, that each such
new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess
thereof. Any Note not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof.




          (g) If the Purchase Date is on or after a Regular Record Date and on or before the related
Interest Payment Date, any accrued and unpaid interest on any Note shall be paid to the Person in
whose name such Note is registered at the close of business on such Regular Record Date, and no
additional interest shall be payable to Holders who tender Notes pursuant to the Offer to Purchase.




          (h) The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with the Offer to Purchase. To the extent that
the provisions of any securities laws or regulations conflict with Section 4.12 or 4.17, as
applicable, this Section 3.09 or other provisions of this Indenture, the Company shall comply with
applicable securities laws and regulations and shall not be deemed to have breached its obligations
under Section 4.12 or 4.17, as applicable, this Section 3.09 or such other provision by virtue of
such compliance.




          (i) Other than as specifically provided in this Section 3.09, any purchase pursuant to this
Section 3.09 shall be made in accordance with the provisions of Sections 3.01 through 3.06.




ARTICLE 4.




COVENANTS




Section 4.01. Payment of Notes.




          The Company shall pay or cause to be paid the principal of, premium, if any, and interest,
including Additional Interest, if any, on, the Notes on the dates and in the manner provided in
this Indenture and the Notes. Principal, premium, if any, and interest shall be considered paid on
the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available
funds and designated for and sufficient to pay all principal, premium, if any, and interest then
due. Such Paying Agent shall return to the Company promptly, and in any event, no later than two
(2) Business Days following the date of payment, any money (including accrued interest) that
exceeds such amount of principal, premium, if any, and interest paid on the Notes. The Company
shall pay Additional Interest, if any, in the same manner, on the dates and in the amounts set
forth in a Registration Rights Agreement, the Notes and this Indenture. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening
period.




          The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect and it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace periods), from time to time on demand at the same
rate to the extent lawful.




48









 








          Interest shall be computed on the basis of a 360-day year of twelve 30-day months. For
purposes of the Interest Act (Canada), the yearly rate of interest that is equivalent to the rate
payable hereunder is the rate payable multiplied by the actual number of days in the year and
divided by 360.




Section 4.02. Maintenance of Office or Agency.




          (a) The Company shall maintain in the Borough of Manhattan, The City of New York, an office or
agency (which may be an office or drop facility of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Notes may be presented or surrendered for registration of transfer
or for exchange and where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.




          (b) The Company may also from time to time designate one or more other offices or agencies
where the Notes may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such other office or
agency.




          (c) The Company hereby designates the office of the Trustee located at 101 Barclay Street, New
York, New York 10286 (Attention: Corporate Trust) as one such office, drop facility or agency of
the Company in accordance with Section 2.03.




Section 4.03. Reports.




          The Company shall provide the Trustee and Holders of Notes, within 15 days after it files
with, or furnishes to, the Commission, copies of its annual report and of the information,
documents and other reports (or copies of such portions of any of the foregoing as the Commission
may by rules and regulations prescribe) which the Company is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act or is required to furnish to the Commission
pursuant to this Indenture. Regardless of whether the Company is required to report on an annual
and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and
regulations promulgated by the Commission, the Company shall continue to file with, or furnish to,
the Commission and provide the Trustee and Holders of Notes:




          (a) within 90 days after the end of each fiscal year (or such shorter period as the Commission
may in the future prescribe), an annual report containing substantially the same information
required to be contained in Form 10-K or Form 20-F (or any successor form) that would be required
if the Company were subject to the reporting requirements of Section 13 or 15(d)) of the Exchange
Act; and




          (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal
year (or such shorter period as the Commission may in the future prescribe), a quarterly report
containing substantially the same information required to be contained in Form 10-Q (or any
successor form) that would be required if the Company were organized in the United States and
subject to the reporting requirements of Section 13 or 15(d)) of the Exchange Act;



provided, however, that the Company shall not be so obligated to file any of the foregoing reports
with the Commission if the Commission does not permit such filings.




Section 4.04. Compliance Certificate.




          The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year, an
Officers’ Certificate stating that to the best of his or her knowledge, after due inquiry, the
Company, the Subsidiary Guarantors and their respective Subsidiaries have observed, performed and
fulfilled each covenant contained in this



49









 






Indenture and are not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she may have knowledge
and what action the Company is taking or proposes to take with respect thereto) and that to the
best of his or her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of, premium, if any, or interest, including Additional
Interest, if any, on the Notes is prohibited or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take with respect thereto.




Section 4.05. Taxes.




          The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency,
all material taxes, assessments and governmental levies, except such as are being contested in good
faith and by appropriate proceedings or where the failure to effect such payment is not adverse in
any material respect to the Holders.




Section 4.06. Stay, Extension and Usury Laws.




          The Company covenants (to the extent that it may lawfully do so) that it shall not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it shall not, by resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.




Section 4.07. Corporate Existence.




          Subject to Article 5 and Section 10.04, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate existence, and the
corporate, partnership or other existence of each Restricted Subsidiary, in accordance with the
respective organizational documents (as the same may be amended from time to time) of the Company
or any such Restricted Subsidiary and (ii) the material rights (charter and statutory), licenses
and franchises of the Company and its Restricted Subsidiaries; provided, however, that the Company
shall not be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any Restricted Subsidiary, if an Officer or the Board of
Directors shall determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders, or that such preservation is not
necessary in connection with any transaction not prohibited by this Indenture.




Section 4.08. Payments for Consent.




          The Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or
otherwise, to or for the benefit of any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Notes unless such
consideration is offered to be paid or is paid to all Holders that consent, waive or agree to amend
in the time frame set forth in the solicitation documents relating to such consent, waiver or
agreement.




Section 4.09. Limitation on Debt.




          The Company shall not, and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Debt unless, after giving effect to the application of the proceeds thereof, no
Default or Event of Default would occur as a consequence of such Incurrence or be continuing
following such Incurrence and either:





     (1) such Debt is Debt of the Company or a Subsidiary Guarantor and, after giving effect
to the Incurrence of such Debt and the application of the proceeds thereof, the Consolidated
Interest Coverage Ratio would be greater than 2.00: 1.00; or



50









 






     (2) such Debt is Permitted Debt.




     The term “Permitted Debt” is defined to include the following:




     (a) (i) Debt of the Company evidenced by the Initial Notes issued pursuant to this
Indenture and the Exchange Notes issued in exchange for such Initial Notes and in exchange
for any Additional Notes and (ii) Debt of the Subsidiary Guarantors evidenced by Subsidiary
Guaranties relating to the Initial Notes and the Exchange Notes issued in exchange for such
Notes and in exchange for any Additional Notes;




     (b) Debt of the Company or a Restricted Subsidiary under Credit Facilities, provided
that the aggregate principal amount of all such Debt under Credit Facilities at any one time
outstanding shall not exceed $2.1 billion, which amount shall be permanently reduced by the
amount of Net Available Cash used to Repay Debt under Credit Facilities and not subsequently
reinvested in Additional Assets or used to purchase Notes or Repay other Debt, pursuant to
Section 4.12;




     (c) Debt of the Company or a Restricted Subsidiary in respect of Capital Lease
Obligations and Purchase Money Debt, provided that:




     (1) the aggregate principal amount of such Debt does not exceed the cost of
construction, acquisition or improvement of the Property acquired, constructed or
leased together with the reasonable costs of acquisition; and




     (2) the aggregate principal amount of all Debt Incurred and then outstanding
pursuant to this clause (c) (together with all Permitted Refinancing Debt Incurred
and then outstanding in respect of Debt previously Incurred pursuant to this clause
(c)) does not exceed 5% of Consolidated Net Tangible Assets;




     (d) Debt of the Company owing to and held by any Wholly Owned Restricted Subsidiary and
Debt of a Restricted Subsidiary owing to and held by the Company or any Wholly Owned
Restricted Subsidiary; provided, however, that any subsequent issue or transfer of Capital
Stock or other event that results in any such Wholly Owned Restricted Subsidiary ceasing to
be a Wholly Owned Restricted Subsidiary or any subsequent transfer of any such Debt (except
to the Company or a Wholly Owned Restricted Subsidiary) shall be deemed, in each case, to
constitute the Incurrence of such Debt by the issuer thereof;




     (e) Debt of a Restricted Subsidiary outstanding on the date on which such Restricted
Subsidiary is acquired by the Company or otherwise becomes a Restricted Subsidiary (other
than Debt Incurred as consideration in, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of transactions pursuant to
which such Restricted Subsidiary became a Subsidiary of the Company or was otherwise
acquired by the Company), provided that at the time such Restricted Subsidiary is acquired
by the Company or otherwise becomes a Restricted Subsidiary and after giving effect to the
Incurrence of such Debt, the Company would have been able to Incur $1.00 of additional Debt
pursuant to clause (1) of the first paragraph of this Section 4.09;




     (f) Debt under Interest Rate Agreements entered into by the Company or a Restricted
Subsidiary for the purpose of limiting interest rate risk in the ordinary course of the
financial management of the Company or such Restricted Subsidiary and not for speculative
purposes, provided that the obligations under such agreements are directly related to
payment obligations on Debt otherwise permitted by the terms of this covenant;




     (g) Debt under Currency Exchange Protection Agreements entered into by the Company or a
Restricted Subsidiary for the purpose of limiting currency exchange rate risks directly
related to transactions entered into by the Company or such Restricted Subsidiary in the
ordinary course of business and not for speculative purposes;



51









 






     (h) Debt under Commodity Price Protection Agreements entered into by the Company or a
Restricted Subsidiary in the ordinary course of the financial management of the Company or
such Restricted Subsidiary and not for speculative purposes;




     (i) Debt in connection with one or more standby letters of credit or performance bonds
issued by the Company or a Restricted Subsidiary in the ordinary course of business or
pursuant to self-insurance obligations and not in connection with the borrowing of money or
the obtaining of advances or credit;




     (j) Debt Incurred by a Securitization Entity in a Qualified Securitization Transaction
that is not recourse to the Company or any Restricted Subsidiary (except for Standard
Securitization Undertakings);




     (k) Debt of the Company or a Restricted Subsidiary outstanding on the Issue Date not
otherwise described in clauses (a) through (j) of this Section 4.09 (including in such
clauses (a) through (j), but not limited to, any Debt Incurred under Credit Facilities prior
to the Issue Date), other than Debt Incurred after February 3, 2005 pursuant to Section
4.09(2)(l) of the Existing Indenture;




     (1) Debt of the Company or a Restricted Subsidiary in an aggregate principal amount
outstanding at any one time not to exceed $150.0 million; and




     (m) Permitted Refinancing Debt Incurred in respect of Debt Incurred pursuant to clause
(1) of the first paragraph and clauses (a), (c) and (k) of this Section 4.09.



          Notwithstanding anything to the contrary contained in this covenant, accrual of interest,
accretion or amortization of original issue discount and the payment of interest or dividends in
the form of additional Debt, will be deemed not to be an Incurrence of Debt for purposes of this
covenant.




          For purposes of determining compliance with this Section 4.09, in the event that an item of
Debt meets the criteria of more than one of the categories of Permitted Debt described in clauses
(a) through (m) of this Section 4.09 or is entitled to be incurred pursuant to clause (1) of the
first paragraph of this of this Section 4.09, the Company shall, in its sole discretion, classify
(and may later reclassify in whole or in part, in its sole discretion) such item of Debt in any
manner that complies with this covenant; provided, however, that any incurrence of Debt under
Credit Facilities prior to the Issue Date shall be treated as having been incurred under clause (b)
of this Section 4.09.




Section 4.10. Limitation on Restricted Payments.




          The Company shall not make, and shall not permit any Restricted Subsidiary to make, directly
or indirectly, any Restricted Payment if at the time of, and after giving effect to, such proposed
Restricted Payment,





     (a) a Default or Event of Default shall have occurred and be continuing;




     (b) the Company could not Incur at least $1.00 of additional Debt pursuant to clause
(1) of the first paragraph of Section 4.09; or




     (c) the sum of the aggregate amount of such Restricted Payment and all other Restricted
Payments declared or made since February 3, 2005 (the amount of any Restricted Payment, if
made other than in cash, to be based upon Fair Market Value at the time of such Restricted
Payment) would exceed an amount equal to the sum of:




     (1) 50% of the aggregate amount of Consolidated Net Income accrued during the
period (treated as one accounting period) from January 1, 2005 to the end of the
most recent fiscal quarter for which financial statements have been provided (or if
the aggregate amount of Consolidated Net Income for such period shall be a deficit,
minus 100% of such deficit), plus




     (2) 100% of the Capital Stock Sale Proceeds, plus



52









 






     (3) the sum of:




     (A) the aggregate net cash proceeds received by the Company or any
Restricted Subsidiary from the issuance or sale after February 3, 2005 of
convertible or exchangeable Debt that has been converted into or exchanged
for Capital Stock (other than Disqualified Stock) of the Company; and




     (B) the aggregate amount by which Debt (other than Subordinated Debt)
of the Company or any Restricted Subsidiary is reduced on the Company’s
consolidated balance sheet on or after February 3, 2005 upon the conversion
or exchange of any Debt issued or sold on or prior to February 3, 2005 that
is convertible or exchangeable for Capital Stock (other than Disqualified
Stock) of the Company,




     excluding, in the case of clause (A) or (B):




     (x) any such Debt issued or sold to the Company or a Subsidiary of the
Company or an employee stock ownership plan or trust established by the
Company or any such Subsidiary for the benefit of their employees; and




     (y) the aggregate amount of any cash or other Property distributed by
the Company or any Restricted Subsidiary upon any such conversion or
exchange, plus




     (4) an amount equal to the sum of:




     (A) the net reduction in Investments in any Person other than the
Company or a Restricted Subsidiary resulting from dividends, repayments of
loans or advances or other transfers of Property, in each case to the
Company or any Restricted Subsidiary from such Person; and




     (B) the portion (proportionate to the Company’s equity interest in such
Unrestricted Subsidiary) of the Fair Market Value of the net assets of an
Unrestricted Subsidiary at the time such Unrestricted Subsidiary is
designated a Restricted Subsidiary;




     provided, however, that the foregoing sum shall not exceed, in the case
of any Person, the amount of Investments previously made (and treated as a
Restricted Payment) by the Company or any Restricted Subsidiary in such
Person.




     Notwithstanding the foregoing limitation, the Company may:




     (a) pay dividends on its Capital Stock within 60 days of the declaration thereof if, on
the declaration date, such dividends could have been paid in compliance with this Indenture;
provided, however, that at the time of such payment of such dividend, no other Default or
Event of Default shall have occurred and be continuing (or result therefrom); provided
further, however, that such dividend shall be included in the calculation of the amount of
Restricted Payments;




     (b) purchase, repurchase, redeem, legally defease, acquire or retire for value Capital
Stock of the Company or Subordinated Debt in exchange for, or out of the proceeds of the
substantially concurrent sale of, Capital Stock of the Company (other than Disqualified
Stock and other than Capital Stock issued or sold to a Subsidiary of the Company or an
employee stock ownership plan or trust established by the Company or any such Subsidiary for
the benefit of their employees); provided, however, that




     (1) such purchase, repurchase, redemption, legal defeasance, acquisition or
retirement shall be excluded in the calculation of the amount of Restricted Payments
and



53









 






     (2) the Capital Stock Sale Proceeds from such exchange or sale shall be
excluded from the calculation pursuant to clause (c)(2) above; and




     (c) purchase, repurchase, redeem, legally defease, acquire or retire for value any
Subordinated Debt in exchange for, or out of the proceeds of the substantially concurrent
sale of, Permitted Refinancing Debt; provided, however, that such purchase, repurchase,
redemption, legal defeasance, acquisition or retirement shall be excluded in the calculation
of the amount of Restricted Payments;




     (d) repurchase shares of, or options to purchase shares of, common stock of the Company
or any of its Subsidiaries from current or former officers, directors or employees of the
Company or any of its Subsidiaries (or permitted transferees of such current or former
officers, directors or employees); provided, however, that the aggregate amount of such
repurchases shall not exceed $10.0 million in any calendar year and such repurchases shall
be included in the calculation of the amount of Restricted Payments; and




     (e) make other Restricted Payments in an aggregate amount after February 3, 2005 not to
exceed $75.0 million.



Section 4.11. Limitation on Liens.




               (a) Prior to the Notes achieving Investment Grade Status and during any period other than a
Suspension Period (and during any period that this paragraph shall apply when there is no election
by the Company pursuant to the following paragraph), the Company shall not, and shall not permit
any Restricted Subsidiary to, directly or indirectly, Incur or suffer to exist, any Lien (other
than Permitted Liens) upon any of its Property (including Capital Stock of a Restricted
Subsidiary), whether owned at the Issue Date or thereafter acquired, or any interest therein or any
income or profits therefrom, unless it has made or will make effective provision whereby the Notes
or the applicable Subsidiary Guaranty will be secured by such Lien equally and ratably with (or, if
such other Debt constitutes Subordinated Debt, prior to) all other Debt of the Company or any
Restricted Subsidiary secured by such Lien for so long as such other Debt is secured by such Lien.




               (b) After the Notes achieve Investment Grade Status and during any Suspension Period, the
Company may elect by written notice to the Trustee and the Holders to be subject to this clause (b)
in lieu of clause (a) of this Section 4.11. The Company will not, and will not permit any
Restricted Subsidiary to, create, incur, assume or suffer to exist any Lien securing Debt (other
than Permitted Liens pursuant to clauses (c) through (j) and (1) (but disregarding the reference to
clause (b) therein) through (s) (each inclusive) of the definition of “Permitted Liens”) upon (1)
any Principal Property of the Company or any Restricted Subsidiary, (2) any Capital Stock of a
Restricted Subsidiary or (3) any Debt of a Restricted Subsidiary owed to the Company or another
Restricted Subsidiary, unless all payments due under this Indenture and the Notes are secured on an
equal and ratable basis with (or prior to) the obligations so secured until such time as such other
obligations are no longer secured by such lien. Notwithstanding the foregoing, after the Notes
achieve Investment Grade Status and during a Suspension Period, the Company and its Restricted
Subsidiaries will be permitted to create, incur, assume or suffer to exist Liens, and renew, extend
or replace such Liens, in each case without complying with the foregoing; provided that the
aggregate amount of all Debt of the Company and its Restricted Subsidiaries outstanding at such
time that is secured by these Liens (other than (1) Debt secured solely by Permitted Liens pursuant
to clauses (c) through (j) and (1) (but disregarding the reference to clause (b) therein) through
(s) (each inclusive) of the definition of “Permitted Liens,” (2) Debt that is secured equally and
ratably with (or on a basis subordinated to) the Notes and (3) the Notes) plus the aggregate amount
of all Attributable Debt of the Company and our Restricted Subsidiaries with respect to all Sale
and Leaseback Transactions outstanding at such time (other than Sale and Leaseback Transactions
permitted by the second paragraph under Section 4.15), would not exceed the greater of 10% of
Consolidated Net Tangible Assets, determined based on the consolidated balance sheet of the Company
as of the end of the most recent fiscal quarter for which financial statements have been filed or
furnished and $400,000,000.




Section 4.12. Limitation on Asset Sales.




               (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, consummate any Asset Sale unless:




54









 









          (i) the Company or such Restricted Subsidiary receives consideration at the time of
such Asset Sale at least equal to the Fair Market Value of the Property subject to such
Asset Sale;




          (ii) at least 75% of the consideration paid to the Company or such Restricted
Subsidiary in connection with such Asset Sale is in the form of any one or a combination of
the following: (A) cash, Cash Equivalents or Additional Assets, (B) the assumption by the
purchasers of liabilities of the Company or any Restricted Subsidiary (other than contingent
liabilities or liabilities that are by their terms subordinated to the Notes or the
applicable Subsidiary Guaranty) as a result of which the Company and the Restricted
Subsidiaries are no longer obligated with respect to such liabilities, or (C) securities,
notes or other obligations received by the Company or such Restricted Subsidiary to the
extent such securities, notes or other obligations are converted by the Company or such
Restricted Subsidiary into cash, Cash Equivalents or Additional Assets within 90 days of
such Asset Sale;




          (iii) no Default or Event of Default would occur as a result of such Asset Sale; and




          (iv) the Company delivers an Officers’ Certificate to the Trustee certifying that such
Asset Sale complies with the foregoing clauses (i) and (iii).




          (b) The Net Available Cash (or any portion thereof, if any) from Asset Sales may be applied by
the Company or a Restricted Subsidiary, to the extent the Company or such Restricted Subsidiary
elects (or is required by the terms of any Debt):




          (i) to Repay Senior Debt of the Company or any Subsidiary Guarantor or Debt of any
Restricted Subsidiary that is not a Subsidiary Guarantor (excluding, in any such case, any
Debt owed to the Company or an Affiliate of the Company); or




          (ii) to reinvest in Additional Assets (including by means of an Investment in
Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company
or another Restricted Subsidiary).



          (c) Any Net Available Cash from an Asset Sale not applied in accordance with the preceding
paragraph within 365 days from the date of the receipt of such Net Available Cash or that is not
segregated from the general funds of the Company for investment in identified Additional Assets in
respect of a project that shall have been commenced and for which binding contractual commitments
have been entered into prior to the end of such 365-day period and that shall not have been
completed or abandoned, shall constitute “Excess Proceeds”; provided, however, that the amount of
any Net Available Cash that ceases to be so segregated as contemplated above and any Net Available
Cash that is segregated in respect of a project that is abandoned or completed shall also
constitute “Excess Proceeds” at the time any such Net Available Cash ceases to be so segregated or
at the time the relevant project is so abandoned or completed, as applicable; provided further,
however, that the amount of any Net Available Cash that continues to be segregated for investment
and that is not actually reinvested within twenty-four months from the date of the receipt of such
Net Available Cash shall also constitute “Excess Proceeds.”




          (d) When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will be
required to make an offer to repurchase (the “Prepayment Offer”) the Notes, which offer shall be in
the amount of the Allocable Excess Proceeds (rounded to the nearest $1,000), on a pro rata basis
according to principal amount (of a minimum $2,000 or integral multiples of $1,000 in excess
thereof) at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the repurchase date (subject to the right of holders of record on the relevant
record date to receive interest due on the relevant interest payment date), in accordance with the
procedures (including prorating in the event of oversubscription) set forth in this Indenture. To
the extent that any portion of the amount of Net Available Cash remains after compliance with the
preceding sentence and provided that all Holders have been given the opportunity to tender their
Notes for repurchase in accordance with this Indenture, the Company or such Restricted Subsidiary
may use such remaining amount for any purpose permitted by this Indenture, and the amount of Excess
Proceeds will be reset to zero.





     (A) The term “Allocable Excess Proceeds” shall mean the product of:



55









 






     (1) the Excess Proceeds; and




     (2) a fraction,




     (x) the numerator of which is the aggregate principal amount of the
Notes outstanding on the date of the Prepayment Offer; and




     (y) the denominator of which is the sum of the aggregate principal
amount of the Notes outstanding on the date of the Prepayment Offer and the
aggregate principal amount of other Debt of the Company outstanding on the
date of the Prepayment Offer that is pari passu in right of payment with the
Notes and subject to terms and conditions in respect of Asset Sales similar
in all material respects to this covenant and requiring the Company to make
an offer to repurchase such Debt at substantially the same time as the
Prepayment Offer.



          Within five business days after the Company is obligated to make a Prepayment Offer as
described in the preceding paragraph, the Company shall send a written notice, by first-class mail,
to the Holders, accompanied by such information regarding the Company and its Subsidiaries as the
Company in good faith believes will enable such holders to make an informed decision with respect
to such Prepayment Offer. Such notice shall state, among other things, the purchase price and the
repurchase date, which shall be, subject to any contrary requirements of applicable law, a business
day no earlier than 30 days nor later than 60 days from the date such notice is mailed.




          (e) The Company will comply, to the extent applicable, with the requirements of Section 14(e)
of the Exchange Act and any other securities laws or regulations in connection with the repurchase
of Notes pursuant to this covenant. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this covenant, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its obligations under this
covenant by virtue thereof.




Section 4.13. Limitation on Restrictions on Distributions from Restricted Subsidiaries.




          The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, create or otherwise cause or suffer to exist any consensual restriction on the right of
any Restricted Subsidiary to:





     (a) pay dividends, in cash or otherwise, or make any other distributions on or in
respect of its Capital Stock, or pay any Debt or other obligation owed, to the Company or
any other Restricted Subsidiary;




     (b) make any loans or advances to the Company or any other Restricted Subsidiary; or




     (c) transfer any of its Property to the Company or any other Restricted Subsidiary.



The foregoing limitations will not apply:





     (1) to restrictions or encumbrances existing under or by reason of:




     (A) agreements in effect on the Issue Date (including, without limitation,
restrictions pursuant to the Notes, this Indenture, the Subsidiary Guaranties and
the Senior Secured Credit Facilities), and any amendments, modifications,
restatements, renewals, replacements, refundings, refinancings, increases or
supplements of those agreements, provided that the encumbrances or restrictions
contained in any such amendments, modifications, restatements, renewals,
replacements, refundings, refinancings, increases or supplements taken as a whole,
are not materially more restrictive than the encumbrances or restrictions contained
in agreements to which they relate as in place on the Issue Date;



56









 






     (B) Debt or Capital Stock of a Restricted Subsidiary existing at the time it
became a Restricted Subsidiary or at the time it merges with or into the Company or
a Restricted Subsidiary if such restriction was not created in connection with or in
anticipation of the transaction or series of transactions pursuant to which such
Restricted Subsidiary became a Restricted Subsidiary or was acquired by the Company,
and any amendments, modifications, restatements, renewals, replacements, refundings,
refinancings, increases or supplements of those instruments, provided that the
encumbrances or restrictions contained in any such amendments, modifications,
restatements, renewals, replacements, refundings, refinancings, increases or
supplements, taken as a whole, are not materially more restrictive than the
encumbrances or restrictions contained in instruments in effect on the date of
acquisition;




     (C) the Refinancing of Debt Incurred pursuant to an agreement referred to in
clause (1)(A) or (B) above or in clause (2)(A) or (B) below, provided such
restrictions are not materially less favorable, taken as a whole to the holders of
Notes than those under the agreement evidencing the Debt so Refinanced;




     (D) any applicable law, rule, regulation or order;




     (E) Permitted Refinancing Debt, provided that the restrictions contained in the
agreements governing such Permitted Refinancing Debt, taken as a whole, are not
materially more restrictive than those contained in the agreements governing the
Debt being refinanced;




     (F) Liens securing obligations otherwise permitted to be incurred under the
provisions of the covenant described above under the caption Section 4.11 or Section
4.16 that limit the right of the debtor to dispose of the assets subject to such
Liens;




     (G) customary provisions limiting or prohibiting the disposition or
distribution of assets or property in joint venture agreements, asset sale
agreements, Sale and Leaseback Transactions, stock sale agreements and other similar
agreements entered into in the ordinary course of business, which limitation or
prohibition is applicable only to the assets that are the subject of such
agreements;




     (H) restrictions on cash or other deposits or net worth imposed by customers or
lessors under contracts or leases entered into in the ordinary course of business;
or




     (I) arising under Debt or other contractual requirements of a Securitization
Entity in connection with a Qualified Securitization Transaction; provided that such
restrictions apply only to such Securitization Entity; and




     (2) with respect to clause (c) only, to restrictions or encumbrances:




     (A) relating to Debt that is permitted to be Incurred and secured without also
securing the Notes or the applicable Subsidiary Guaranty pursuant to the covenants
described under Section 4.09 and Section 4.11 that limit the right of the debtor to
dispose of the Property securing such Debt;




     (B) encumbering Property at the time such Property was acquired by the Company
or any Restricted Subsidiary, so long as such restrictions relate solely to the
Property so acquired and were not created in connection with or in anticipation of
such acquisition;




     (C) resulting from customary provisions restricting subletting or assignment of
leases or customary provisions in other agreements that restrict assignment of such
agreements or rights thereunder;



57









 






          (D) customary restrictions contained in any asset purchase, stock purchase,
merger or other similar agreement, pending the closing of the transaction
contemplated thereby; or




          (E) customary restrictions contained in joint venture agreements entered into
in the ordinary course of business in good faith.



Section 4.14. Limitation on Transactions with Affiliates.




          (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, conduct any business or enter into or suffer to exist any transaction or series of
transactions (including the purchase, sale, transfer, assignment, lease, conveyance or exchange of
any Property or the rendering of any service) with, or for the benefit of, any Affiliate of the
Company (an “Affiliate Transaction”), unless:





               (i) the terms of such Affiliate Transaction are no less favorable to the Company or
such Restricted Subsidiary, as the case may be, than those that could be obtained in a
comparable arm’s length transaction with a Person that is not an Affiliate of the Company;




               (ii) if such Affiliate Transaction involves aggregate payments or value in excess of
$20.0 million, the Board of Directors approves such Affiliate Transaction and, in its good
faith judgment, believes that such Affiliate Transaction complies with clause (a) of this
Section 4.14 as evidenced by a Board Resolution promptly delivered to the Trustee; and




               (iii) if such Affiliate Transaction involves aggregate payments or value in excess of
$50.0 million (1) the Board of Directors (including at least a majority of the disinterested
members of the Board of Directors) approves such Affiliate Transaction and, in its good
faith judgment, believes that such Affiliate Transaction complies with clause (a) of this
Section 4.14 as evidenced by a Board Resolution promptly delivered to the Trustee, or (2)
the Company obtains a written opinion from an Independent Financial Advisor to the effect
that the consideration to be paid or received in connection with such Affiliate Transaction
is fair, from a financial point of view, to the Company and the Restricted Subsidiaries.



          (b) Notwithstanding the foregoing limitation, the Company or any Restricted Subsidiary may
enter into or suffer to exist the following, which shall not be deemed to be Affiliate Transactions
and therefore will not be subject to the provisions of clauses (a)(i), (ii) and (iii) of this
Section 4.14:





     (i) any transaction or series of transactions between the Company and one or more
Restricted Subsidiaries or between two or more Restricted Subsidiaries in the ordinary
course of business, provided that no more than 10% of the total voting power of the Voting
Stock (on a fully diluted basis) of any such Restricted Subsidiary is owned by an Affiliate
of the Company (other than a Restricted Subsidiary);




     (ii) any Restricted Payment permitted to be made pursuant to Section 4.10 or any
Permitted Investment;




     (iii) any employment, compensation, benefit or indemnification agreement or arrangement
(and any payments or other transactions pursuant thereto) entered into by the Company or any
Restricted Subsidiary in the ordinary course of business (or that is otherwise reasonable as
determined in good faith by the board of directors of the Company or the Restricted
Subsidiary, as the case may be) with an officer, employee, consultant or director and any
transactions pursuant to stock option plans, stock ownership plans and employee benefit
plans or arrangements;




     (iv) loans and advances to employees made in the ordinary course of business other than
any loans or advances that would be in violation of Section 402 of the Sarbanes-Oxley Act;
provided that the Dollar Equivalent of the aggregate principal amount of such loans and
advances do not exceed $15.0 million in the aggregate at any time outstanding;



58









 






     (v) any transactions between or among any of the Company, any Restricted Subsidiary and
any Securitization Entity in connection with a Qualified Securitization Transaction, in each
case provided that such transactions are not otherwise prohibited by terms of this
Indenture;




     (vi) agreements in effect on the Issue Date and any amendments, modifications,
extensions or renewals thereto that are no less favorable to the Company or any Restricted
Subsidiary than such agreements as in effect on the Issue Date;




     (vii) transactions with a Person that is an Affiliate of the Company solely because the
Company or a Restricted Subsidiary owns Capital Stock of and/or controls, such Person;




     (viii) payment of fees and expenses to directors who are not otherwise employees of the
Company or a Restricted Subsidiary, for services provided in such capacity, so long as the
Board of Directors or a duly authorized committee thereof shall have approved the terms
thereof;




     (ix) the granting and performance of registration rights for shares of Capital Stock of
the Company under a written registration rights agreement approved by the Company’s Board of
Directors as a duly authorized committee thereof; and




     (x) transactions with Affiliates solely in their capacity as holders of Debt or Capital
Stock of the Company or any of its Subsidiaries, provided that a significant amount of Debt
or Capital Stock of the same class is also held by persons that are not Affiliates of the
Company and those Affiliates are treated no more favorably than holders of the Debt or
Capital Stock generally.



Section 4.15. Limitation on Sale and Leaseback Transactions.




          (a) Prior to the Notes achieving Investment Grade Status and during any period other than a
Suspension Period, the Company shall not, and shall not permit any Restricted Subsidiary to, enter
into any Sale and Leaseback Transaction with respect to any Property unless:





     (i) the Company or such Restricted Subsidiary would be entitled to:




     (A) Incur Debt in an amount equal to the Attributable Debt with respect to such
Sale and Leaseback Transaction pursuant to Section 4.09; and




     (B) create a Lien on such Property securing such Attributable Debt without also
securing the Notes or the applicable Subsidiary Guaranty pursuant to Section 4.11;
and




          (ii) such Sale and Leaseback Transaction is effected in compliance with Section 4.12.



          (b) After the Notes achieve Investment Grade Status or during any Suspension Period, the
Company will not, and will not permit any Restricted Subsidiary to, enter into any Sale and
Leaseback Transaction involving any Principal Property, except for any Sale and Leaseback
Transaction involving a lease not exceeding three years unless:





          (i) the Company or that Restricted Subsidiary, as applicable, would at the time of
entering into the transaction be entitled to incur Debt secured by a Lien on that Principal
Property in an amount equal to the Attributable Debt with respect to such Sale and Leaseback
Transaction without equally and ratably securing the Notes; or




          (ii) an amount equal to the net cash proceeds of the Sale and Leaseback Transaction is
applied within 180 days to:



59









 






     (A) the voluntary retirement or prepayment of any Debt of the Company or any
Restricted Subsidiary maturing more than one year after the date incurred, and which
is senior to or pari passu in right of payment with the Notes; or




     (B) the purchase of other property that will constitute Principal Property
having a value (as determined in good faith by the Board of Directors) in an amount
at least equal to the net cash proceeds of the Sale and Leaseback Transaction; or




          (iii) within the 180-day period specified in clause (2) above, the Company or that
Restricted Subsidiary, as applicable, deliver to the trustee for cancellation Notes in an
aggregate principal amount at least equal to the net proceeds of the Sale and Leaseback
Transaction.


Notwithstanding the foregoing, after the Notes achieve Investment Grade Status or during any
Suspension Period, the Company and any Restricted Subsidiary may enter into Sale and Leaseback
Transactions that would not otherwise be permitted under the limitations described in the preceding
paragraph, provided that the sum of the aggregate amount of all Debt of the Company and its
Restricted Subsidiaries that is secured by Liens (other than (1) Debt secured solely by Permitted
Liens pursuant to clauses (c) through (j) and (1) (but disregarding the reference to clause (b)
therein) through (s) of the definition of “Permitted Liens,” (2) Debt that is secured equally and
ratably with (or on a basis subordinated to) the Notes and (3) the Notes) and the aggregate amount
of all Attributable Debt of the Company and its Restricted Subsidiaries with respect to all Sale
and Leaseback Transactions outstanding at such time (other than Sale and Leaseback Transactions
permitted by the preceding paragraph) would not exceed 10% of the Consolidated Net Tangible Assets
of the Company and its Restricted Subsidiaries.




Section 4.16. Designation of Restricted and Unrestricted Subsidiaries.




          The Board of Directors may designate any Subsidiary of the Company to be an Unrestricted
Subsidiary if:





     (a) the Subsidiary to be so designated does not own any Capital Stock or Debt of, or
own or hold any Lien on any Property of, the Company or any other Restricted Subsidiary; and




     (b) either:




     (1) the Subsidiary to be so designated has total assets of $1,000 or less; or




     (2) such designation is effective immediately upon such entity becoming a
Subsidiary of the Company; or




     (3) the Investment by the Company or another Restricted Subsidiary in such
Subsidiary is treated as a Restricted Payment under Section 4.10 and such Restricted
Payment is permitted under such covenant at the time such Investment is made.


Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the
Company will be classified as a Restricted Subsidiary; provided, however, that such Subsidiary
shall not be designated a Restricted Subsidiary and shall be automatically classified as an
Unrestricted Subsidiary if either of the requirements set forth in clauses (x) and (y) of the
second immediately following paragraph will not be satisfied after giving pro forma effect to such
classification or if such Person is a Subsidiary of an Unrestricted Subsidiary.




          Except as provided in the preceding paragraph, no Restricted Subsidiary may be redesignated as
an Unrestricted Subsidiary, and neither the Company nor any Restricted Subsidiary shall at any time
be directly or indirectly liable for any Debt that provides that the Holder thereof may (with the
passage of time or notice or both) declare a default thereon or cause the payment thereof to be
accelerated or payable prior to its Stated Maturity upon the occurrence of a default with respect
to any Debt, Lien or other obligation of any Unrestricted Subsidiary (including any right to take
enforcement action against such Unrestricted Subsidiary). Upon designation of a Restricted
Subsidiary as an Unrestricted Subsidiary in compliance with this covenant, such Restricted
Subsidiary




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shall, by execution and delivery of a supplemental indenture in form satisfactory to the
Trustee, be released from any Subsidiary Guaranty previously made by such Restricted Subsidiary.




          The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary
if, immediately after giving pro forma effect to such designation,





     (x) the Company could Incur at least $1.00 of additional Debt pursuant to clause (1) of
the first paragraph of Section 4.09; and




     (y) no Default or Event of Default shall have occurred and be continuing or would
result therefrom.



          Any such designation or redesignation by the Board of Directors will be evidenced to the
Trustee by filing with the Trustee a Board Resolution giving effect to such designation or
redesignation and an Officers’ Certificate that:





     (a) certifies that such designation or redesignation complies with the foregoing
provisions; and




     (b) gives the effective date of such designation or redesignation,


such filing with the Trustee to occur within 45 days after the end of the fiscal quarter of the
Company in which such designation or redesignation is made (or, in the case of a designation or
redesignation made during the last fiscal quarter of the Company’s fiscal year, within 90 days
after the end of such fiscal year).




Section 4.17. Change of Control Offer.




          (a) Upon the occurrence of a Change of Control, the Company shall, within 30 days of a Change
of Control, make an offer (the “Change of Control Offer”) pursuant to the procedures set forth in
Section 3.09. Each Holder shall have the right to accept such offer and require the Company to
repurchase all or any portion (equal to $2,000 or integral multiples of $1,000 in excess thereof)
of such Holder’s Notes pursuant to the Change of Control Offer at a purchase price, in cash (the
“Change of Control Amount”), equal to 101% of the aggregate principal amount of Notes repurchased,
plus in each case accrued and unpaid interest, including Additional Interest, if any, on the Notes
repurchased, to the repurchase date.




          (b) The Company will not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Indenture applicable to the Company
and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer.




Section 4.18. Future Subsidiary Guarantors.




          The Company shall cause each Person that is or becomes (a) a Canadian Restricted Subsidiary or
U.S. Restricted Subsidiary or (b) a Restricted Subsidiary that is a Guarantor of Debt in the future
under Credit Facilities, provided that the borrower of such Debt is the Company or a Canadian
Restricted Subsidiary or U.S. Restricted Subsidiary, in each case following the Issue Date, to
execute and deliver to the Trustee a Subsidiary Guaranty at the time such Person becomes a Canadian
Restricted Subsidiary or U.S. Restricted Subsidiary or otherwise becomes obligated to become a
Subsidiary Guarantor under this Indenture.




Section 4.19. Additional Amounts.




          (a) Payments made by or on behalf of the Company under or with respect to the Notes will be
made free and clear of and without withholding or deduction for or on account of any Taxes imposed
or levied by or on behalf of a Taxing Jurisdiction, unless the Company or any Subsidiary Guarantor
is required by law to withhold or deduct Taxes from any payment made under or with respect to the
Notes or by the interpretation or administration thereof. If, after the Issue Date, the Company or
any Subsidiary Guarantor is so required to withhold




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or deduct any amount for or on account of Taxes from any payment made under or with respect to
the Notes, the Company or such Subsidiary Guarantor will pay to each Holder of Notes that are
outstanding on the date of the required payment, such additional amounts (“Additional Amounts”) as
may be necessary so that the net amount received by such Holder (including the Additional Amounts)
after such withholding or deduction will not be less than the amount such Holder would have
received if such Taxes had not been withheld or deducted; provided that no Additional Amounts will
be payable with respect to a payment made to a Holder (an “Excluded Holder”):





          (i) with which the Company or such Subsidiary Guarantor does not deal at arm’s length
(within the meaning of the Income Tax Act (Canada)) at the time of making such payment; or




          (ii) which is subject to such Taxes by reason of its being connected with the relevant
Taxing Jurisdiction otherwise than by the mere acquisition, holding or disposition of the
Notes or the Subsidiary Guaranty or the receipt of payments thereunder.



               (b) The Company and the Subsidiary Guarantors will also:





          (i) make such withholding or deduction; and




          (ii) remit the full amount deducted or withheld to the relevant authority in accordance
with applicable law.



               (c) The Company and the Subsidiary Guarantors will furnish to the Trustee, or cause to be
furnished to the Trustee, within 30 days after the date the payment of any Taxes is due pursuant to
applicable law, certified copies of tax receipts evidencing that such payment has been made by the
Company or any such Subsidiary Guarantor or other evidence of such payment satisfactory to the
Trustee. The Trustee shall make such evidence available upon the written request of any Holder of
Notes that are outstanding on the date of any such withholding or deduction.




               (d) The Company and the Subsidiary Guarantors will indemnify and hold harmless each Holder of
Notes that are outstanding on the date of the required payment (other than an Excluded Holder) and
upon written request reimburse each such Holder for the amount of:





          (i) any Taxes so levied or imposed by or on behalf of a Taxing Jurisdiction and paid by
such holder as a result of payments made under or with respect to the Notes and any
liability (including penalties, interest and expense) arising therefrom or with respect
thereto; and




          (ii) any Taxes (other than Taxes on such Holder’s profits or net income) imposed with
respect to any reimbursement under clause (d)(i) of this Section 4.19 so that the net amount
received by such Holder after such reimbursement will not be less than the net amount such
holder would have received if such reimbursement had not been imposed.



               (e) At least 30 days prior to each date on which any payment under or with respect to the
Notes is due and payable, if the Company or any such Subsidiary Guarantor becomes obligated to pay
Additional Amounts with respect to such payment, the Company or such Subsidiary Guarantor will
deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will
be payable, and the amounts so payable and will set forth such other information as is necessary to
enable the Trustee to pay such Additional Amounts to the Holders on the payment date. Whenever in
this Indenture there is mentioned, in any context:





          (i) the payment of principal (and premium, if any);




          (ii) purchase prices in connection with a repurchase of Notes;




          (iii) interest; or




          (iv) any other amount payable on or with respect to any of the Notes,



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such mention shall be deemed to include mention of the payment of Additional Amounts provided for
in this Section 4.19 to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof.




Section 4.20. Covenant Termination and Suspension 




          (a) All of the covenants set forth in Article 4 shall be applicable to the Company and its
Restricted Subsidiaries unless the Company reaches Investment Grade Status. Once the Company has
reached Investment Grade Status, and notwithstanding that the Company may later cease to have an
Investment Grade Rating from either or both of the Rating Agencies, the Company and its Restricted
Subsidiaries shall be released from their obligations to comply with Sections 4.09, 4.10, 4.11
(provided, however, that clause (a) thereof shall continue to apply until the Company otherwise
elects to have clause (b) thereof apply as provided therein) 4.12, 4.13, 4.14 and 4.15(a) but shall
remain obligated to comply with the following:





          (i) Sections 4.01 through 4.08;




               (ii) Section 4.16 (other than clause (x) of the third paragraph thereof (and such
clause (x) as referred to in the first paragraph thereunder));




          (iii) Section 4.17;




          (iv) Section 4.18; and




          (v) Section 4.19.



          The Company and the Subsidiary Guarantors shall also, upon reaching Investment Grade Status,
remain obligated to comply with Section 5.01 (other than clause (e) of the first and second
paragraph thereunder).




          (b) If, prior to the Company reaching Investment Grade Status, the Notes receive an Investment
Grade Rating from one of the Rating Agencies and no Default or Event of Default has occurred and is
continuing then, beginning on that day and continuing until the Investment Grade Rating assigned by
that Rating Agency to the Notes subsequently decline as a result of which the Notes do not carry an
Investment Grade Rating from at least one Rating Agency (such period being referred to as a
(“Suspension Period”), the covenants set forth in Article 4, except for clause (a) of Section 4.11
(until the Company otherwise elects to have clause (b) thereof apply as provided therein), the
covenants specifically listed in clauses (a)(i) to (v) of this Section 4.20, and clause (e) of the
first and second paragraphs of Section 5.01, will be suspended and will not be applicable during
that Suspension Period.




          In the event that the Company and the Restricted Subsidiaries are not subject to the suspended
covenants for any period of time as a result of the preceding paragraph and, subsequently, the
Rating Agency withdraws its ratings or downgrades the ratings assigned to the Notes below the
required Investment Grade Ratings or a Default or Event of Default occurs and is continuing, then
the Company and the Restricted Subsidiaries will from such time and thereafter again be subject to
all of the suspended covenants, and compliance with such covenants with respect to Restricted
Payments made after the time of such withdrawal, downgrade, Default or Event of Default will be
calculated in accordance with the terms of Section 4.10 as though Section 4.10 had been in effect
during the entire period of time from the Issue Date.




ARTICLE 5.




SUCCESSORS




Section 5.01. Merger, Consolidation and Sale of Property.




          The Company shall not merge, consolidate or amalgamate with or into any other Person (other
than a merger of a Wholly Owned Restricted Subsidiary into the Company) or sell, transfer, assign,
lease, convey or otherwise dispose of all or substantially all its Property in any one transaction
or series of transactions unless:




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          (a) the Company shall be the Surviving Person in such merger, consolidation or amalgamation,
or the Surviving Person (if other than the Company) formed by such merger, consolidation or
amalgamation or to which such sale, transfer, assignment, lease, conveyance or disposition is made
shall be a corporation organized and existing under the laws of the United States, any State
thereof, the District of Columbia, Canada or any province or territory of Canada;




          (b) the Surviving Person (if other than the Company) expressly assumes, by supplemental
indenture in form satisfactory to the Trustee, executed and delivered to the Trustee by such
Surviving Person, the due and punctual payment of the principal of, and premium, if any, and
interest on, all the Notes, according to their tenor, and the due and punctual performance and
observance of all the covenants and conditions of this Indenture to be performed by the Company;




          (c) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all
or substantially all the Property of the Company, such Property shall have been transferred as an
entirety or virtually as an entirety to one Person;




          (d) immediately before and after giving effect to such transaction or series of transactions
on a pro forma basis (and treating, for purposes of this clause (d) and clause (e) of this Section
5.01, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person or
any Restricted Subsidiary as a result of such transaction or series of transactions as having been
Incurred by the Surviving Person or such Restricted Subsidiary at the time of such transaction or
series of transactions), no Default or Event of Default shall have occurred and be continuing;




          (e) except in the case of a transaction constituting a Permitted Holdings Amalgamation under
the Senior Secured Credit Facilities, immediately after giving effect to such transaction or series
of transactions on a pro forma basis, the Company or the Surviving Person, as the case may be,
would be able to Incur at least $1.00 of additional Debt under clause (1) of the first paragraph of
Section 4.09;




          (f) the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each
stating that such transaction or series of transactions and the supplemental indenture, if any, in
respect thereto comply with this covenant and that all conditions precedent herein provided for
relating to such transaction or series of transactions have been satisfied;




          (g) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders will not recognize income, gain or loss for United States Federal income tax purposes
as a result of such transaction or series of transactions and will be subject to United States
Federal income tax on the same amounts, in the same manner and at the same times as would be the
case if such transaction or series of transactions had not occurred; and




          (h) the Company shall have delivered to the Trustee an Opinion of Counsel in Canada to the
effect that Holders will not recognize income, gain or loss for Canadian federal, provincial or
territorial income tax purposes as a result of such transaction or series of transactions and will
be subject to Canadian federal, provincial or territorial income taxes (including withholding
taxes) on the same amounts, in the same manner and at the same times as would be the case if such
transaction or series of transactions had not occurred.




          The foregoing provisions (other than clause (d)) shall not apply to any transaction or series
of transactions which constitute an Asset Sale if the Company has complied with Section 4.12.




          The Company shall not permit any Subsidiary Guarantor to merge, consolidate or amalgamate with
or into any other Person (other than a merger of a Wholly Owned Restricted Subsidiary into the
Company or such Subsidiary Guarantor) or sell, transfer, assign, lease, convey or otherwise dispose
of all or substantially all its Property in any one transaction or series of transactions unless:




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          (a) the Surviving Person (if other than such Subsidiary Guarantor) formed by such merger,
consolidation or amalgamation or to which such sale, transfer, assignment, lease, conveyance or
disposition is made shall be a corporation, company (including a limited liability company) or
partnership organized and existing under the laws of the United States, any State thereof, the
District of Columbia or Canada or any province or territory of Canada;




          (b) the Surviving Person (if other than such Subsidiary Guarantor) expressly assumes, by
supplemental indenture in form satisfactory to the Trustee, executed and delivered to the Trustee
by such Surviving Person, the due and punctual performance and observance of all the obligations of
such Subsidiary Guarantor under its Subsidiary Guaranty;




          (c) in the case of a sale, transfer, assignment, lease, conveyance or other disposition of all
or substantially all the Property of such Subsidiary Guarantor, such Property shall have been
transferred as an entirety or virtually as an entirety to one Person;




          (d) immediately before and after giving effect to such transaction or series of transactions
on a pro forma basis (and treating, for purposes of this clause (d) and clause (e) of this Section
5.01, any Debt that becomes, or is anticipated to become, an obligation of the Surviving Person,
the Company or any Restricted Subsidiary as a result of such transaction or series of transactions
as having been Incurred by the Surviving Person, the Company or such Restricted Subsidiary at the
time of such transaction or series of transactions), no Default or Event of Default shall have
occurred and be continuing;




          (e) immediately after giving effect to such transaction or series of transactions on a pro
forma basis, the Company would be able to Incur at least $1.00 of additional Debt under clause (1)
of the first paragraph of Section 4.09;




          (f) the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion of Counsel, each
stating that such transaction or series of transactions and such Subsidiary Guaranty, if any, in
respect thereto comply with this covenant and that all conditions precedent herein provided for
relating to such transaction or series of transactions have been satisfied;




          (g) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders will not recognize income, gain or loss for Federal income tax purposes as a result of
such transaction or series of transactions and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would be the case if such transaction or
series of transactions had not occurred; and




          (h) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that
Holders will not recognize income, gain or loss for Canadian federal, provincial or territorial
income tax purposes as a result of such transaction or series of transactions and will be subject
to Canadian federal, provincial or territorial income taxes (including withholding taxes) on the
same amounts, in the same manner and at the same times as would be the case if such transaction or
series of transactions had not occurred.



The foregoing provisions (other than clause (d)) shall not apply to any transaction or series of
transactions which constitute an Asset Sale if the Company has complied with Section 4.12.




Section 5.02. Successor Corporation Substituted.




          The Surviving Person shall succeed to, and be substituted for, and may exercise every right
and power of the Company under this Indenture (or of the Subsidiary Guarantor under the Subsidiary
Guaranty, as the case may be), but the predecessor Company in the case of:




          (a) a sale, transfer, assignment, conveyance or other disposition (unless such sale, transfer,
assignment, conveyance or other disposition is of all the assets of the Company as an entirety or
virtually as an entirety); or




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          (b) a lease,



shall not be released from any of the obligations or covenants under this Indenture, including with
respect to the payment of the Notes.




ARTICLE 6.




DEFAULTS AND REMEDIES 




Section 6.01. Events of Default.




          Each of the following constitutes an “Event of Default” with respect to the Notes:




          (a) failure to make the payment of any interest, including Additional Interest, if any, on any
of the Notes when the same becomes due and payable, and such failure continues for a period of 30
days;




          (b) failure to make the payment of any principal of, or premium, if any, on, any of the Notes
when the same becomes due and payable at its Stated Maturity, upon acceleration, redemption,
optional redemption, required repurchase or otherwise;




          (c) failure to comply with the provisions of Section 5.01;




          (d) failure to comply with any other covenant or agreement in the Notes or in this Indenture
(other than a failure that is the subject of the foregoing clause (a), (b) or (c)), and such
failure continues for 60 days after written notice is given to the Company as provided below;




          (e) a default under any Debt by the Company or any Restricted Subsidiary that results in
acceleration of the maturity of such Debt, or failure to pay any such Debt at maturity, in an
aggregate amount greater than $50 million (the “cross acceleration provisions”);




          (f) any judgment or judgments for the payment of money in an aggregate amount in excess of $50
million that shall be rendered against the Company or any Restricted Subsidiary and that shall not
be waived, satisfied or discharged for any period of 60 consecutive days during which a stay of
enforcement shall not be in effect (the “judgment default provisions”);




          (g) the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, when
taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:





          (i) commences a voluntary case or proceeding, or gives notice of intention to make a
proposal, under any Bankruptcy Law;




          (ii) consents to the entry of an order for relief against it in an involuntary case or
consents to its dissolution or winding up;




               (iii) consents to the appointment of a receiver, interim receiver, receiver and
manager, liquidator, trustee or custodian of it or for all or substantially all of its
property;




          (iv) makes a general assignment for the benefit of its creditors; or




               (v) admits in writing its inability to pay its debts as they become due or otherwise
admits its insolvency, or takes any comparable action under any foreign laws relating to
insolvency;



          (h) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:




66









 









               (i) is for relief against the Company or any of its Significant Subsidiaries or any
group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary
in an involuntary case or proceeding; or




               (ii) appoints a receiver, interim receiver, receiver and manager, liquidator, trustee
or custodian of the Company or any of its Significant Subsidiaries or any group of
Subsidiaries that, when taken together, would constitute a Significant Subsidiary or for all
or substantially all of the property of the Company or any of its Significant Subsidiaries
or any group of Subsidiaries that, when taken together, would constitute a Significant
Subsidiary; or




               (iii) orders the liquidation of the Company or any of its Significant Subsidiaries or
any group of Subsidiaries that, when taken together, would constitute a Significant
Subsidiary,


and such order or decree remains unstayed and in effect for 60 consecutive days;




          (i) any Subsidiary Guaranty ceases to be in full force and effect (other than in accordance
with the terms of such Subsidiary Guaranty and this Indenture) or any Subsidiary Guarantor denies
or disaffirms its obligations under its Subsidiary Guaranty; and




          (j) any security interest securing the Notes or any Subsidiary Guaranty that may be granted
after the Issue Date pursuant to the terms of this Indenture shall, at any time, (A) cease to be in
full force and effect for any reason other than in accordance with its terms or the satisfaction in
full of all obligations under this Indenture and discharge of this Indenture or (B) be declared
invalid or unenforceable or the Company or any Subsidiary Guarantor shall assert, in any pleading
in any court of competent jurisdiction, that any such security interest is invalid or unenforceable
(the “security default provisions”).




          A Default under Section 6.01(d) is not an Event of Default until the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Notes then outstanding notify the Company in
writing by registered or certified mail, return receipt requested, of the Default and the Company
does not cure such Default within the time specified in Sections 6.01(d) after receipt of such
notice. Such notice must specify the Default, demand that it be remedied and state that such
notice is a “Notice of Default.”




          Upon any Officer becoming aware of any Default or Event of Default, the Company shall deliver
to the Trustee, within ten days of becoming so aware, written notice in the form of an Officers’
Certificate specifying such Default or Event of Default, its status, and the action the Company
proposes to take with respect thereto.




Section 6.02. Acceleration.




          If any Event of Default (other than those of the type described in Section 6.01(g) or (h))
shall have occurred and be continuing, the Trustee may, and the Trustee upon the request of Holders
of 25% in principal amount of the outstanding Notes shall, or the Holders of not less than 25% in
principal amount of outstanding Notes may, declare the principal of all the Notes, plus all accrued
and unpaid interest, including Additional Interest, if any, to be immediately due and payable by
notice in writing to the Company and the Trustee specifying the respective Event of Default and
that such notice is a notice of acceleration (the “Acceleration Notice”), and the same shall become
immediately due and payable.




          In the case of an Event of Default specified in Section (g) or (h) of Section 6.01, all
outstanding Notes shall become due and payable immediately without any further declaration or other
act on the part of the Trustee or the Holders. Holders may not enforce this Indenture or the Notes
except as provided in this Indenture.




          After any declaration of acceleration pursuant to this Section 6.02, but before a judgment or
decree based on acceleration is obtained by the Trustee, the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding may rescind and annul such acceleration if
all Events of Default, other than the




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nonpayment of accelerated principal, premium or interest (including Additional Interest, if
any), have been cured or waived as provided herein, if:




          (a) the rescission would not conflict with any judgment or decree of a court of competent
jurisdiction;




          (b) to the extent the payment of such interest is lawful, interest (at the same rate specified
in the Notes) on overdue installments of interest and overdue payments of principal which has
become due otherwise than by such declaration of acceleration has been paid;




          (c) in the event of the cure or waiver of an Event of Default of the type described in Section
6.01(g) or (h), the Trustee has received an Officers’ Certificate and, if requested, an Opinion of
Counsel, that such Event of Default has been cured or waived; and




          (d) the Company has paid to the Trustee all fees then due and payable or in arrears and has
reimbursed the Trustee for all expenses incurred and reasonable fees paid in connection with such
declaration of acceleration.




Section 6.03. Other Remedies.




          If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium and interest, including Additional Interest, if any,
on the Notes or to enforce the performance of any provision of the Notes or this Indenture.




          The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies shall be
cumulative to the extent permitted by law.




Section 6.04. Waiver of Defaults.




          The Holders of at least a majority in aggregate principal amount of the Notes then outstanding
by notice to the Trustee may on behalf of the Holders of all of the Notes, waive any existing
Default or Event of Default, and its consequences, except a continuing Default or Event of Default
(a) in the payment of the principal of, premium, if any, or interest, including Additional
Interest, if any, on the Notes and (b) in respect of a covenant or provision which under this
Indenture cannot be modified or amended without the consent of the Holder of each Note affected by
such modification or amendment. In the event of any Event of Default specified in Section 6.01(e),
such Event of Default and all consequences of that Event of Default, including without limitation
any acceleration or resulting payment default, shall be annulled, waived and rescinded,
automatically and without any action by the Trustee or the Holders, if within 60 days after the
Event of Default arose:





          (i) the Debt that is the basis for the Event of Default has been discharged;




               (ii) the holders of such Debt have rescinded or waived the acceleration, notice or
action, as the case may be, giving rise to the Event of Default; or




          (iii) if the default that is the basis for such Event of Default has been cured.


Upon any waiver of a Default or Event of Default, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed cured for every purpose of this Indenture but no such
waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereon.




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Section 6.05. Control by Majority.




          Subject to Section 7.01, in case an Event of Default shall occur and be continuing, the
Trustee will be under no obligation to exercise any of its rights or powers under this Indenture at
the request or direction of any of the Holders, unless such Holders shall have offered to the
Trustee reasonable indemnity. Subject to Section 7.01, 7.02 and 7.07, the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding will have the right to direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Notes.




Section 6.06. Limitation on Suits.




          No Holder will have any right to institute any proceeding with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any remedy thereunder, unless:




          (a) such Holder has previously given to the Trustee written notice of a continuing Event of
Default;




          (b) Holders of at least 25% in aggregate principal amount of the Notes then outstanding have
made a written request and offered reasonable indemnity to the Trustee to institute such proceeding
as trustee; and




          (c) the Trustee shall not have received from the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days.




          The preceding limitations do not apply to a suit instituted by a Holder for enforcement of
payment of the principal of, and premium, if any, or interest, including Additional Interest, if
any, on, such Note on or after the respective due dates expressed in such Note.




          A Holder may not use this Indenture to affect, disturb or prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.




Section 6.07. Rights of Holders to Receive Payment.




          Notwithstanding any other provision of this Indenture (including Section 6.06), the right of
any Holder to receive payment of principal, premium, if any, and interest, including Additional
Interest, if any, on the Notes held by such Holder, on or after the respective due dates expressed
in the Notes (including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.




Section 6.08. Collection Suit by Trustee.




          If an Event of Default specified in Section 6.01 (a) or (b) occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal of, premium, if any, and interest, including
Additional Interest, if any, then due and owing (together with interest, including Additional
Interest, if any, on overdue principal and, to the extent lawful, interest, including Additional
Interest, if any,) and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.




Section 6.09. Trustee May File Proofs of Claim.




          The Trustee shall be authorized to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders allowed in any judicial proceedings relative to the Company (or any other
obligor upon the Notes), its creditors or its




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property and shall be entitled and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07. To the extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee and its agents and counsel, and any other amounts due the Trustee under
Section 7.07 out of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all distributions,
moneys, securities and any other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.




Section 6.10. Priorities.




          If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in
the following order:




          First: to the Trustee, its agents and attorneys for amounts due under Section 7.07, including
payment of all compensation, expenses and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;




          Second: to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and
interest ratably, without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, and interest, respectively; and




          Third: to the Company or to such party as a court of competent jurisdiction shall direct.




          The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.10.




Section 6.11. Undertaking for Costs.




          In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and the court in its discretion may assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11 shall not apply to a
suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to Section 6.07, or a suit
by Holders of more than 10% in principal amount of the then outstanding Notes.




ARTICLE 7.




TRUSTEE




Section 7.01. Duties of Trustee.




          (a) If an Event of Default has occurred and is continuing, and is known by a Responsible
Officer of the Trustee, the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in its exercise, as a prudent Person
would exercise or use under the circumstances in the conduct of such Person’s own affairs.




          (b) Except during the continuance of an Event of Default:




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     (1) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only those duties
that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against
the Trustee; and




     (2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).



          (c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:





     (1) this paragraph does not limit the effect of paragraph (b) of this
Section;




     (2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and




     (3) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.05.



          (d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.




          (e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or incur any financial liability if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
The Trustee shall be under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or expense.




          (f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.




Section 7.02. Rights of Trustee.




          Subject to TIA Section 315:




          (a) The Trustee may conclusively rely upon any document reasonably believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in any such document.




          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.




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          (c) The Trustee shall not be liable for any action it takes or omits to take in good faith
that it reasonably believes to be authorized or within the rights or powers conferred upon it by
this Indenture.




          (d) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company shall be sufficient if signed by an Officer of the Company.




          (e) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a Default or Event of Default is received by a Responsible Officer of
the Trustee at the Corporate Trust Office of the Trustee from the Company or the Holders of 25% in
aggregate principal amount of the outstanding Notes, and such notice references the specific
Default or Event of Default, the Notes and this Indenture.




          (f) The Trustee shall not be required to give any bond or surety in respect of the performance
of its power and duties hereunder.




          (g) The Trustee shall have no duty to inquire as to the performance of the Company’s covenants
herein.




          (h) The Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.




Section 7.03. Individual Rights of Trustee.




          The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the Commission for permission to
continue as Trustee or resign. Any Agent may do the same with like rights and duties. The Trustee
shall also be subject to Sections 7.10 and 7.11.




Section 7.04. Trustee’s Disclaimer.




          The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the
proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.




Section 7.05. Notice of Defaults.




          If a Default or Event of Default occurs and is continuing and if it is known to a Responsible
Officer of the Trustee, the Trustee shall mail to Holders a notice of the Default or Event of
Default within 90 days after it occurs. Except in the case of a Default or Event of Default in
payment of principal of, premium, if any, or interest, including Additional Interest, if any, on
any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the interests of the Holders.




Section 7.06. Reports by Trustee to Holders.




          Within 60 days after each May 15 beginning with the May 15 following the Issue Date, and for
so long as Notes remain outstanding, the Trustee shall mail to the Holders a brief report dated as
of such reporting date that complies with TIA §313(a) (but if no event described in TIA §313(a) has
occurred within the twelve months preceding the reporting date, no report need be transmitted).
The Trustee also shall comply with TIA §313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA §313(c).





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          A copy of each report at the time of its mailing to the Holders shall be mailed to the Company
and filed with the Commission and each stock exchange on which the Notes are listed in accordance
with TIA §313(d). The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange and any delisting thereof.



Section 7.07. Compensation and Indemnity.




          The Company shall pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder. The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company shall reimburse
the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel, when
reasonably necessary.



          The Company shall indemnify the Trustee (in its capacity as Trustee) or any predecessor
Trustee (in its capacity as Trustee) against any and all losses, claims, damages, penalties, fines,
liabilities or expenses, including incidental and out-of-pocket expenses and reasonable attorneys
fees (for purposes of this Article, “losses”) incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Indenture (including its execution and
delivery under the Engagement Letter), including the costs and expenses of enforcing this Indenture
against the Company (including this Section 7.07) and defending itself against any claim (whether
asserted by the Company or any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to the extent such losses
may be attributable to its negligence or bad faith. The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations under this Section 7.07, to the extent the Company
has not been prejudiced thereby. The Company shall defend the claim, and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel if the Trustee has been reasonably
advised by counsel that there may be one or more legal defenses available to it that are different
from or additional to those available to the Company and in the reasonable judgment of such counsel
it is advisable for the Trustee to engage separate counsel, and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss incurred by the Trustee through the Trustee’s
own willful misconduct, gross negligence or bad faith.



          The obligations of the Company under this Section 7.07 shall survive the satisfaction and
discharge of this Indenture, the resignation or removal of the Trustee and payment in full of the
Notes through the expiration of the applicable statute of limitations.



          To secure the Company’s payment obligations in this Section, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee, except that held in
trust to pay principal, premium, if any, and interest, including Additional Interest, if any, on
particular Notes.



          When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(g) or (h) occurs, the expenses and the compensation for the services (including the
fees and expenses of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.



Section 7.08. Replacement of Trustee.




          A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section
7.08.



          The Trustee may resign in writing at any time upon 30 days’ prior written notice to the
Company and the Subsidiary Guarantors and be discharged from the trust hereby created by so
notifying the Company and the Subsidiary Guarantors. The Holders of a majority in aggregate
principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee
and the Company in writing. The Company may remove the Trustee if:



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          (a) the Trustee fails to comply with, or ceases to be eligible under, Section 7.10;



          (b) the Trustee is adjudged bankrupt or insolvent or an order for relief is entered with
respect to the Trustee under any Bankruptcy Law;



          (c) a custodian or public officer takes charge of the Trustee or its property; or



          (d) the Trustee becomes incapable of acting.



          If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company
shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.



          If a successor Trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in aggregate
principal amount of the then outstanding Notes may petition any court of competent jurisdiction for
the appointment of a successor Trustee.



          If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. Subject to the Lien provided for in Section 7.07, the retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee; provided, however, that all
sums owing to the Trustee hereunder shall have been paid. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 shall continue
for the benefit of the retiring Trustee.



          In the case of an appointment hereunder of a separate or successor Trustee with respect to the
Notes, the Company, the Subsidiary Guarantors, any retiring Trustee and each successor or separate
Trustee with respect to the Notes shall execute and deliver an Indenture supplemental hereto (1)
which shall contain such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of any retiring Trustee with respect to the Notes as to which
any such retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and
(2) that shall add to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it
being understood that nothing herein or in such supplemental indenture shall constitute such
Trustee co-trustees of the same trust and that each such separate, retiring or successor Trustee
shall be Trustee of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any such other Trustee.



Section 7.09. Successor Trustee by Merger, etc.




          If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation or banking association, the successor
corporation or banking association without any further act shall, if such successor corporation or
banking association is otherwise eligible hereunder, be the successor Trustee.



Section 7.10. Eligibility; Disqualification.




          There shall at all times be a Trustee hereunder that is a Person organized and doing business
under the laws of the United States of America or of any state thereof that is authorized under
such laws to exercise corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at least $50.0 million
(or a wholly-owned subsidiary of a bank or trust company, or



74









 







of a bank holding company, the principal subsidiary of which is a bank or trust company having
a combined capital and surplus of at least $50.0 million) as set forth in its most recent published
annual report of condition.



          This Indenture shall always have a Trustee who satisfies the requirements of TIA §310(a)(1),
(2) and (5). The Trustee is subject to TIA §310(b).



Section 7.11. Preferential Collection of Claims Against Company.




          The Trustee is subject to TIA §311(a), excluding any creditor relationship listed in TIA
§311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated therein.



ARTICLE 8.




LEGAL DEFEASANCE AND COVENANT DEFEASANCE




Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.




          The Company may, at its option and at any time, elect to have either Section 8.02 or 8.03 be
applied to all outstanding Notes upon compliance with the conditions set forth in this Article 8.



Section 8.02. Legal Defeasance and Discharge.




          Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.02,
the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04, be
deemed to have been discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”) and any
collateral then securing the Notes will be released and each Subsidiary Guarantor shall be released
from all of its obligations under its Guarantee. For this purpose, Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire Debt represented by the outstanding
Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05
and the other Sections of this Indenture referred to in (a), (b), (c),and (d) below, and to have
satisfied all its other obligations under the Notes and this Indenture (and the Trustee, on demand
of and at the expense of the Company, shall execute proper instruments acknowledging the same),
except for the following provisions which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of outstanding Notes to receive solely from the trust fund
described in Section 8.04, and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, or interest, including Additional Interest, if any, on such Notes
when such payments are due; (b) the Company’s obligations with respect to such Notes under Article
2 and Sections 4.01, 4.02 and 4.19; (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company’s obligations in connection therewith; and (d) this Article 8.
If the Company exercises under Section 8.01 the option applicable to this Section 8.02, subject to
the satisfaction of the conditions set forth in Section 8.04, payment of the Notes may not be
accelerated because of an Event of Default. Subject to compliance with this Article 8, the Company
may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03.



Section 8.03. Covenant Defeasance.




          Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.03,
the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04, be
released from its obligations under the covenants contained in Sections 4.03, 4.09 through 4.18,
and subsection (e) of the first and second paragraphs of Section 5.01 shall cease to be operative,
with respect to the outstanding Notes on and after the date the conditions set forth in Section
8.04 are satisfied (hereinafter, “Covenant Defeasance”) and any collateral then securing the Notes
will be released and each Subsidiary Guarantor shall be released from all of its obligations under
its Guarantee with respect to such covenants in connection with such outstanding Notes and the
Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any thereof) in connection with
such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it
being understood that such Notes shall not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the outstanding Notes,



75









 







the Company may omit to comply with and shall have no obligation or liability in respect of
any term, condition or limitation set forth in any such covenant, whether directly or indirectly,
by reason of any reference elsewhere in this Indenture (including any certificate deliverable
hereunder) to any such covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under this Indenture or the Notes. If the Company exercises under
Section 8.01 the option applicable to this Section 8.03, subject to the satisfaction of the
conditions set forth in Section 8.04, payment of the Notes may not be accelerated because of an
Event of Default specified in clause (d) (with respect to the covenants contained in Sections 4.03,
4.09 through 4.18), (e), (f), (g) and (h) (but in the case of (g) and (h) of Section 6.01, with
respect to Significant Subsidiaries only) or (i) or because of the Company’s failure to comply with
clause (e) under the first paragraph of, or with the second paragraph of, Section 5.01.



Section 8.04. Conditions to Legal or Covenant Defeasance.




          The following shall be the conditions to the application of either Section 8.02 or 8.03 to the
outstanding Notes.



          The Legal Defeasance or Covenant Defeasance may be exercised only if:



          (a) the Company irrevocably deposits in trust with the Trustee money or U.S. Government
Obligations for the payment of principal of, premium, if any, and interest, including Additional
Interest, if any, on the Notes to maturity or redemption, as the case may be;



          (b) the Company delivers to the Trustee a certificate from a nationally recognized firm of
independent certified public accountants expressing their opinion that the payments of principal,
premium, if any, and interest, when due and without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without investment will provide cash at such times and in such
amounts as will be sufficient to pay principal, premium, if any, and interest, when due on all the
Notes to be defeased to maturity or redemption, as the case may be;



          (c) 90 days pass after the deposit is made, and during the 90-day period, no Default described
in Sections 6.01(g) and (h) occurs with respect to the Company or any other Person making such
deposit which is continuing at the end of the period;



          (d) no Default or Event of Default has occurred and is continuing on the date of such deposit
and after giving effect thereto;



          (e) such deposit does not constitute a default under any other agreement or instrument binding
on the Company;



          (f) the Company delivers to the Trustee an Opinion of Counsel to the effect that the trust
resulting from the deposit does not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940;



          (g) in the case of the Legal Defeasance option, the Company delivers to the Trustee an Opinion
of Counsel stating that:




          (i) the Company has received from the Internal Revenue Service a ruling, or




          (ii) since the Issue Date there has been a change in the applicable Federal income tax
law, to the effect, in either case, that, and based thereon such Opinion of Counsel shall
confirm that, the Holders will not recognize income, gain or loss for U.S. Federal income
tax purposes as a result of such defeasance and will be subject to U.S. Federal income tax
on the same amounts, in the same manner and at the same times as would be the case if such
defeasance has not occurred;



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          (h) in the case of the Covenant Defeasance option, the Company delivers to the Trustee an
Opinion of Counsel to the effect that the Holders will not recognize income, gain or loss for U.S.
Federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S.
Federal income tax on the same amounts, in the same manner and at the same times as would be the
case if such covenant defeasance had not occurred;



          (i) the Company delivers to the Trustee an Opinion of Counsel in Canada to the effect that
Holders will not recognize income, gain or loss for Canadian federal, provincial or territorial tax
purposes as a result of such deposit and defeasance and will be subject to Canadian federal,
provincial or territorial taxes (including withholding taxes) on the same amounts, in the same
manner and at the same times as would have been the case if such deposit and defeasance had not
occurred; and



          (j) the Company delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent to the defeasance and discharge of the Notes have been
complied with as required by this Indenture.




	Section 8.05. Deposited Cash and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions.





          Subject to Section 8.06, all cash and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.05, the “Trustee”) pursuant to Section 8.04 in respect of the outstanding Notes shall be
held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and to become
due thereon in respect of principal, premium, if any, and interest, including Additional Interest,
if any, but such cash and securities need not be segregated from other funds except to the extent
required by law.



          The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or U.S. Government Obligations deposited pursuant to Section 8.04
or the principal and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.



Section 8.06. Repayment to Company.




          Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Company from time to time upon the request of the Company any cash or U.S. Government
Obligations held by it as provided in Section 8.04 which, in the opinion of a nationally recognized
firm of independent certified public accountants of recognized international standing expressed in
a written certification thereof delivered to the Trustee (which may be the certification delivered
under Section 8.04(a)), are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.



          Any cash or U.S. Government Obligations deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal, premium, if any, or interest,
including Additional Interest, if any, on any Note and remaining unclaimed for two years after such
principal, premium, if any, or interest, including Additional Interest, if any, has become due and
payable shall be paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder shall thereafter, as an unsecured creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect
to such cash and securities, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be published once, in The New York Times
and The Wall Street Journal (national edition), notice that such cash and securities remains
unclaimed and that, after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such cash and securities then
remaining shall be repaid to the Company.



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Section 8.07. Reinstatement.




          If the Trustee or Paying Agent is unable to apply any cash or U.S. Government Obligations in
accordance with Section 8.02 or 8.03, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting such application,
then the Company’s obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee
or Paying Agent is permitted to apply all such cash and securities in accordance with Section 8.02
or 8.03, as the case may be; provided, however, that, if the Company makes any payment of principal
of, premium, if any, or interest, including Additional Interest, if any, on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders to
receive such payment from the cash and securities held by the Trustee or Paying Agent.



ARTICLE 9.




AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.01. Without Consent of Holders of Notes.




          Notwithstanding Section 9.02, the Company and the Trustee may amend or supplement this
Indenture or the Notes without the consent of any Holder to:



          (a) cure any ambiguity, omission, defect or inconsistency;



          (b) provide for the assumption by a Surviving Person of the obligations of the Company under
this Indenture, provided, that the Company delivers to the Trustee:




          (i) an Opinion of Counsel to the effect that Holders will not recognize income, gain or
loss for U.S. Federal income tax purposes as a result of such assumption by a successor
corporation and will be subject to U.S. Federal income tax on the same amounts, in the same
manner and at the same times as would be the case if such assumption had not occurred, and




          (ii) an Opinion of Counsel to the effect that Holders will not recognize income, gain
or loss for Canadian federal, provincial or territorial income tax purposes as a result of
such assumption by a successor corporation and will be subject to Canadian federal,
provincial or territorial income taxes (including withholding taxes) on the same amounts, in
the same manner and at the same times as would be the case if such assumption had not
occurred;



          (c) provide for uncertificated Notes in addition to or in place of certificated Notes
(provided that the uncertificated Notes are issued in registered form for purposes of Section
163(f) of the Code, or in a manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code);



          (d) add additional Guarantees with respect to the Notes or release Subsidiary Guarantors from
Subsidiary Guaranties as provided or permitted by the terms of this Indenture;



          (e) secure the Notes, add to the covenants of the Company for the benefit of the Holders or
surrender any right or power conferred upon the Company;



          (f) make any change that does not adversely affect the rights of any Holder;



          (g) comply with any requirement of the Commission in connection with the qualification of this
Indenture under the TIA;



          (h) evidence or provide for a successor Trustee; or



          (i) provide for the issuance of Additional Notes in accordance with this Indenture.



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Section 9.02. With Consent of Holders of Notes.




          Except as provided below in this Section 9.02, the Company and the Trustee may amend or
supplement this Indenture and the Notes with the consent of the Holders of at least a majority in
aggregate principal amount of the Notes, then outstanding voting as a single class (including
consents obtained in connection with a purchase of or tender offer or exchange offer for the
Notes), and, subject to Sections 6.04 and 6.07, any existing Default or Event of Default (except a
continuing Default or Event of Default in (a) the payment of principal, premium, if any, or
interest, including Additional Interest, if any, on the Notes and (b) respect of a covenant or
provision which under this Indenture cannot be modified or amended without the consent of the
Holder of each Note affected by such modification or amendment) or compliance with any provision of
this Indenture or the Notes may be waived with the consent of the Holders of at least a majority in
aggregate principal amount of the Notes, then outstanding voting as a single class (including
consents obtained in connection with a purchase of or tender offer or exchange offer for the
Notes).



          Without the consent of each Holder affected, an amendment or waiver under this Section 9.02
may not (with respect to any Notes held by a non-consenting Holder):




          (i) reduce the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;




          (ii) reduce the rate of, or extend the time for payment of, interest, including
Additional Interest, if any, on, any Note;




          (iii) reduce the principal of, or extend the Stated Maturity of, any Note, or alter the
provisions with respect to the redemption of the Notes;




          (iv) make any Note payable in money other than that stated in the Note;




          (v) impair the right of any Holder to receive payment of principal of, premium, if any,
and interest, including Additional Interest, if any, on, such Holder’s Notes on or after the
due dates therefor or to institute suit for the enforcement of any payment on or with
respect to such Holder’s Notes or any Subsidiary Guaranty;




          (vi) waive a Default or Event of Default in the payment of principal of, premium, if
any, and interest, including Additional Interest, if any, on such Notes (except a rescission
of acceleration of such Notes by the Holders of at least a majority in aggregate principal
amount of the Notes and a waiver of the payment default that resulted from such
acceleration);




          (vii) make any change to Section 6.04 relating to waivers of past Defaults or the
rights of Holders of such Notes to receive payments of principal of, or interest or premium
or Additional Interest, if any, on such Notes as described in Section 6.07;




          (viii) subordinate the Notes or any Subsidiary Guaranty to any other obligation of the
Company or the applicable Subsidiary Guarantor;




          (ix) release any security interest that may have been granted in favor of the Holders
other than pursuant to the terms of such security interest;




          (x) reduce the premium payable upon the redemption of any Note or change the time at
which any Note may be redeemed, as described under Sections 3.07 and 4.19;




          (xi) reduce the premium payable upon a Change of Control or, at any time after a Change
of Control has occurred, change the time at which the Change of Control Offer relating
thereto must be made or at which the Notes must be repurchased pursuant to such Change of
Control Offer;



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          (xii) at any time after the Company is obligated to make a Prepayment Offer, change the
time at which such offer must be made or at which the Notes must be repurchased pursuant
thereto;




          (xiii) amend or modify the provisions described under Section 4.19;




          (xiv) make any change in any Subsidiary Guaranty, that would adversely affect the
Holders; or




          (xv) make any change in the preceding amendment and waiver provisions.



          The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any supplemental indenture. If a record date is
fixed, the Holders on such record date, or their duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided that unless such consent shall have become effective by
virtue of the requisite percentage having been obtained prior to the date which is 120 days after
such record date, any such consent previously given shall automatically and without further action
by any Holder be cancelled and of no further effect.



          The consent of the Holders is not necessary to approve the particular form of any proposed
amendment, waiver or supplement. It is sufficient if such consent approves the substance of the
proposed amendment, waiver or supplement. After an amendment, waiver or supplement under this
Section 9.02 becomes effective, the Company is required to mail to each registered Holder at such
Holder’s address appearing in the Security Register a notice briefly describing such amendment,
waiver or supplement. However, the failure to give such notice to all Holders, or any defect
therein, will not impair or affect the validity of the amendment, waiver or supplement.



Section 9.03. Compliance with Trust Indenture Act.




          Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended
or supplemental indenture that complies with the TIA as then in effect.



Section 9.04. Revocation and Effect of Consents.




          Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion thereof
that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is
not made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to
its Note or portion thereof if the Trustee receives written notice of revocation before the date
the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver shall
become effective in accordance with its terms and thereafter shall bind every Holder.



Section 9.05. Notation on or Exchange of Notes.




          The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company in exchange for all Notes may issue and, upon receipt
of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate new
Notes that reflect the amendment, supplement or waiver.



          Failure to make the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.



Section 9.06. Trustee to Sign Amendments, etc.




          The Trustee shall sign any amended or supplemental indenture authorized pursuant to this
Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the



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Trustee. Neither the Company nor any Subsidiary Guarantor may sign an amendment or
supplemental indenture until its board of directors (or a committee serving a similar function)
approves it. In executing any amended or supplemental indenture, the Trustee shall be entitled to
receive and (subject to Section 7.01) shall be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture and that such amended or supplemental
indenture is the legal, valid and binding obligations of the Company enforceable against it in
accordance with its terms, subject to customary exceptions and that such amended or supplemental
indenture complies with the provisions hereof (including Section 9.03).



ARTICLE 10.




GUARANTEES




Section 10.01. Guarantee.




          Subject to this Article 10, the Subsidiary Guarantors hereby unconditionally guarantee to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns: (a) the due and punctual payment of the principal of, premium, if any, and interest on
the Notes, subject to any applicable grace period, whether at Stated Maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on the overdue principal of and
premium, if any, and, to the extent permitted by law, interest, and the due and punctual
performance of all other obligations of the Company to the Holders or the Trustee under this
Indenture, the Registration Rights Agreement or any other agreement with or for the benefit of the
Holders, in their capacities as such, or the Trustee relating to the Company’s obligations under
the Notes, this Indenture or the Registration Rights Agreement, all in accordance with the terms
hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration
pursuant to Section 6.02, redemption or otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be
jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection.



          Each Subsidiary Guarantor hereby agrees that its obligations with regard to its Subsidiary
Guaranty shall be joint and several and unconditional, and such obligation shall exist irrespective
of: (a) the validity or enforceability of the Notes or the obligations of the Company under this
Indenture, the Registration Rights Agreement or any other agreement with or for the benefit of the
Holders or the Trustee; (b) the absence of any action to enforce the Subsidiary Guaranty; (c) the
recovery of any judgment against the Company or any other obligor with respect to this Indenture,
the Registration Rights Agreement, the Notes or any other agreement with or for the benefit of the
Holders or the Trustee, or the Obligations of the Company under this Indenture, the Registration
Rights Agreement, the Notes or any other agreement with or for the benefit of the Holders or the
Trustee; and (d) any action to enforce the same or any other circumstances (other than complete
performance) which might otherwise constitute a legal or equitable discharge or defense of a
Subsidiary Guarantor. Each Subsidiary Guarantor further, to the extent permitted by applicable
law, waives and relinquishes all claims, rights and remedies accorded by applicable law to
guarantors and agrees not to assert or take advantage of any such claims, rights or remedies,
including but not limited to: (a) any right to require any of the Trustee, the Holders or the
Company (each a “Benefited Party”), as a condition of payment or performance by such Subsidiary
Guarantor, to (1) proceed against the Company (provided that any demand in respect of the
Subsidiary Guaranty shall be following and in respect of a Default hereunder), any other guarantor
(including any other Subsidiary Guarantor) of the Obligations under the Subsidiary Guaranties or
any other Person, (2) proceed against or exhaust any security held from the Company, any such other
guarantor or any other Person, (3) proceed against or have resort to any balance of any deposit
account or credit on the books of any Benefited Party in favor of the Company or any other Person,
or (4) pursue any other remedy in the power of any Benefited Party whatsoever; (b) any defense
arising by reason of the incapacity, lack of authority or any disability or other defense of the
Company including any defense based on or arising out of the lack of validity or the
unenforceability of the Obligations under the Subsidiary Guaranties or any agreement or instrument
relating thereto or by reason of the cessation of the liability of the Company from any cause other
than payment in full of the Obligations under the Subsidiary Guaranties; (c) any defense based upon
any statute or rule of law which provides that the obligation of a surety must be neither larger in
amount nor in other respects more



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burdensome than that of the principal; (d) any defense based upon any Benefited Party’s errors
or omissions in the administration of the Obligations under the Subsidiary Guaranties, except
behavior which amounts to bad faith; (e)(1) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of the Subsidiary Guaranties and any
legal or equitable discharge of such Subsidiary Guarantor’s obligations hereunder to the extent
permitted under applicable law, (2) the benefit of any statute of limitations affecting such
Subsidiary Guarantor’s liability hereunder or the enforcement hereof, (3) any rights to set-offs,
recoupments and counterclaims and (4) promptness, diligence and any requirement that any Benefited
Party protect, secure, perfect or insure any security interest or lien or any property subject
thereto; (f) notices, demands, presentations, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance of the Subsidiary Guaranties, notices of
any renewal, extension or modification of the Obligations under the Subsidiary Guaranties or any
agreement related thereto, and notices of any extension of credit to the Company and any right to
consent to any thereof; (g) to the extent permitted under applicable law, the benefits of any “One
Action” rule and (h) any defenses or benefits that may be derived from or afforded by law which
limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms of
the Subsidiary Guaranties. Without limiting the generality of the foregoing, Novelis do Brasil
Ltda and any other Guarantor that is organized under the laws of Brazil (each a “Brazilian
Guarantor” and collectively the “Brazilian Guarantors”) expressly waive the benefits set forth in
Articles 827, 835, 837, 838 and 839 of the Brazilian Civil Code and Article 595 of the Brazilian
Code of Civil Procedure. Except to the extent expressly provided herein, including Sections 8.02,
8.03 and 10.05, each Subsidiary Guarantor hereby covenants that its Subsidiary Guaranty shall not
be discharged except by complete performance of the obligations contained in its Subsidiary
Guaranty and this Indenture.



          If any Holder or the Trustee is required by any court or otherwise to return to the Company,
the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or the Subsidiary Guarantors, any amount paid by either to the
Trustee or such Holder, this Subsidiary Guaranty, to the extent theretofore discharged, shall be
reinstated in full force and effect.



          Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in full of
all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the
Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in Section 6.02 for
the purposes of this Subsidiary Guaranty, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby and (y) in the event
of any declaration of acceleration of such obligations as provided in Section 6.02, such
obligations (whether or not due and payable) shall forthwith become due and payable by the
Subsidiary Guarantors for the purpose of this Subsidiary Guaranty. The Subsidiary Guarantors shall
have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the Subsidiary Guaranty.



Section 10.02. Limitation on Subsidiary Guarantor Liability.




          (a) Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms
that it is the intention of all such parties that the Subsidiary Guaranty of such Subsidiary
Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal,
provincial, state or other law to the extent applicable to any Subsidiary Guaranty. To effectuate
the foregoing intention, the Trustee, the Holders and the Subsidiary Guarantors hereby irrevocably
agree that each Subsidiary Guarantor’s liability shall be that amount from time to time equal to
the aggregate liability of such Subsidiary Guarantor under the Subsidiary Guaranty, but shall be
limited to the lesser of (i) the aggregate amount of the Company’s obligations under the Notes and
this Indenture or (ii) the amount, if any, which would not have (1) rendered the Subsidiary
Guarantor “insolvent” (as such term is defined in the Federal Bankruptcy Code and in the Debtor and
Creditor Law of the State of New York) or (2) left it with unreasonably small capital at the time
its Subsidiary Guaranty with respect to the Notes was entered into, after giving effect to the
incurrence of existing Debt immediately before such time; provided, however, it shall be a
presumption in any lawsuit or proceeding in which a Subsidiary Guarantor is a party that the amount
guaranteed pursuant to the Subsidiary Guaranty with respect to the Notes is the amount described in
clause (a)(i) of this Section 10.02 unless any creditor, or representative of creditors of the
Subsidiary Guarantor, or debtor in possession or Trustee in bankruptcy of the Subsidiary Guarantor,
otherwise proves in a lawsuit that the aggregate liability of the Subsidiary



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Guarantor is limited to the amount described in clause (ii) of this Section 10.02. Without
limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor identified
in Schedule A hereto shall be limited as set forth therein.



          (b) In making any determination as to the solvency or sufficiency of capital of a Subsidiary
Guarantor in accordance with the proviso of Section 10.02(a), the right of each Subsidiary
Guarantor to contribution from other Subsidiary Guarantors and any other rights such Subsidiary
Guarantor may have, contractual or otherwise, shall be taken into account.



Section 10.03. Execution and Delivery of Subsidiary Guaranty.




          To evidence its Subsidiary Guaranty set forth in Section 10.01, each Subsidiary Guarantor
hereby agrees that a notation of such Subsidiary Guaranty in substantially the form included in
Exhibit E attached hereto shall be endorsed by an Officer of such Subsidiary Guarantor on each Note
authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of
such Subsidiary Guarantor by its President or one of its Vice Presidents (or equivalent senior
officer if such titles are not applicable). Such endorsement and execution may be effected
pursuant to a valid power of attorney.



          Each Subsidiary Guarantor hereby agrees that its Subsidiary Guaranty set forth in Section
10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a
notation of such Subsidiary Guaranty.



          If an Officer whose signature is on this Indenture or on the Subsidiary Guaranty no longer
holds that office at the time the Trustee authenticates the Note on which a Subsidiary Guaranty is
endorsed, the Subsidiary Guaranty shall be valid nevertheless.



          The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Subsidiary Guaranty set forth in this Indenture on behalf of the
Subsidiary Guarantors.



          The Company hereby agrees that it shall cause each Person that becomes obligated to provide a
Subsidiary Guaranty pursuant to Section 4.18 to execute a supplemental indenture in form and
substance reasonably satisfactory to the Trustee, pursuant to which such Person provides the
guarantee set forth in this Article 10 and otherwise assumes the obligations and accepts the rights
of a Subsidiary Guarantor under this Indenture, in each case with the same effect and to the same
extent as if such Person had been named herein as a Subsidiary Guarantor. The Company also hereby
agrees to cause each such new Subsidiary Guarantor to evidence its guarantee by endorsing a
notation of such guarantee on each Note as provided in this Section 10.03.



Section 10.04. Subsidiary Guarantors May Consolidate, etc., on Certain Terms.




          Except as otherwise provided in Section 10.05, no Subsidiary Guarantor may consolidate with or
merge with or into (whether or not such Subsidiary Guarantor is the Surviving Person) another
Person whether or not affiliated with such Subsidiary Guarantor unless:



          (a) subject to Section 10.05, the Person formed by or surviving any such consolidation or
merger (if other than a Subsidiary Guarantor or the Company) unconditionally assumes all the
obligations of such Subsidiary Guarantor, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee, under this Indenture, the Subsidiary Guaranty and
any Registration Rights Agreements on the terms set forth herein or therein; and



          (b) the Subsidiary Guarantor complies with the requirements of Article 5.



          In case of any such consolidation, merger, sale or conveyance and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the Subsidiary Guaranty endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be performed by the
Subsidiary Guarantor, such successor Person shall



83









 







succeed to and be substituted for the Subsidiary Guarantor with the same effect as if it had
been named herein as a Subsidiary Guarantor. Such successor Person thereupon may cause to be
signed any or all of the Subsidiary Guaranties to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee.
All the Subsidiary Guaranties so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Subsidiary Guaranties theretofore and thereafter issued in accordance
with the terms of this Indenture as though all of such Subsidiary Guaranties had been issued at the
date of the execution hereof.



          Except as set forth in Articles 4 and 5, and notwithstanding clauses (a) and (b) of this
Section 10.04, nothing contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into the Company or another Subsidiary
Guarantor, or shall prevent any sale or conveyance of the property of a Subsidiary Guarantor as an
entirety or substantially as an entirety to the Company or another Subsidiary Guarantor.



Section 10.05. Releases Following Merger, Consolidation or Sale of Assets, Etc.




          In the event of a sale or other disposition of all or substantially all of the assets of any
Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition
of all of the Capital Stock of any Subsidiary Guarantor, in each case to a Person that is not
(either before or after giving effect to such transactions) a Subsidiary of the Company, then such
Subsidiary Guarantor (in the event of a sale or other disposition, by way of merger, consolidation
or otherwise, of all of the Capital Stock of such Subsidiary Guarantor) or the corporation
acquiring the property (in the event of a sale or other disposition of all or substantially all of
the assets of such Subsidiary Guarantor) shall be released and relieved of any obligations under
its Subsidiary Guaranty; provided that the net proceeds of such sale or other disposition shall be
applied in accordance with the applicable provisions of this Indenture, including Section 4.12. If
a Restricted Subsidiary is designated as an Unrestricted Subsidiary in accordance with the
provisions of Section 4.17, such Subsidiary shall be fully released and relieved of any obligations
under its Subsidiary Guaranty. Upon delivery by the Company to the Trustee of an Officers’
Certificate and an Opinion of Counsel to the effect that such sale or other disposition was made by
the Company in accordance with the provisions of this Indenture, including Section 4.12, the
Trustee shall promptly execute any documents reasonably required in order to evidence the full
release of any Subsidiary Guarantor from its obligations under its Subsidiary Guaranty.



ARTICLE 11.




SATISFACTION AND DISCHARGE




Section 11.01. Satisfaction and Discharge.




          The Company may discharge this Indenture such that it will cease to be of further effect,
except as to surviving rights of registration of transfer or exchange of the Notes, as to all
outstanding Notes when:



          (a) either:




          (i) all the Notes previously authenticated (except lost, stolen or destroyed Notes that
have been replaced or paid and Notes for whose payment money has previously been deposited
in trust or segregated and held in trust by the Company and is thereafter repaid to the
Company or discharged from the trust) have been delivered to the Trustee for cancellation;
or




          (ii) all Notes not previously delivered to the Trustee for cancellation;




     (A) have become due and payable;




     (B) will become due and payable at their maturity within one year; or



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     (C) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of a redemption by the Trustee;
and


in the case of clauses (a)(ii)(A), (B) or (C) of this Section 11.01, the Company has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit
of the Holders, cash in U.S. dollars, U.S. Government Obligations, or a combination of such cash
and U.S. Government Obligations, in such amounts as will be sufficient without consideration of any
reinvestment of interest, to pay and discharge the entire Debt on the Notes not previously
delivered to the Trustee for cancellation or redemption, for principal, premium, if any, and
interest and Additional Interest, if any, on the Notes to the date of deposit, in the case of Notes
that have become due and payable, or to the Stated Maturity or redemption date, as the case may be;




          (b) the Company has paid or caused to be paid all other sums payable by it under this
Indenture; and



          (c) if reasonably required by the Trustee, the Company delivers to the Trustee an Officers’
Certificate and Opinion of Counsel stating that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture have been satisfied.




	Section 11.02. Deposited Cash and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions.





          Subject to Section 11.03, all cash and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 11.02, the “Trustee”) pursuant to Section 11.01 in respect of the outstanding Notes shall
be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due
and to become due thereon in respect of principal, premium, if any, and interest but such cash and
securities need not be segregated from other funds except to the extent required by law.



Section 11.03. Repayment to Company.




          Any cash or U.S. Government Obligations deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium, if any, or
interest, including Additional Interest, if any, on, any Note and remaining unclaimed for two years
after such principal, and premium, if any, or interest, including Additional Interest, if any, has
become due and payable shall be paid to the Company on its request or (if then held by the Company)
shall be discharged from such trust; and the Holder shall thereafter, as an unsecured creditor,
look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent
with respect to such cash and securities, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to be published once,
in The Wall Street Journal (national edition), notice that such cash and securities remains
unclaimed and that, after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such cash and securities then
remaining shall be repaid to the Company.



ARTICLE 12.




MISCELLANEOUS




Section 12.01. Trust Indenture Act Controls.




          If any provision of this Indenture limits, qualifies or conflicts with another provision which
is required to be included in this Indenture by the TIA, the provision required by the TIA shall
control.



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Section 12.02. Notices.




          Any notice or communication by the Company and/or a Subsidiary Guarantor or the Trustee to the
other is duly given if in writing and delivered in person or mailed by first class mail (registered
or certified, return receipt requested), facsimile transmission or overnight air courier
guaranteeing next-day delivery, to the other’s address:


Novelis Inc.

3399 Peachtree Road, Suite 1500

Atlanta, Georgia 30326

Attention: Treasurer

Facsimile: 404-814-4219



with a copy to:



King & Spalding LLP

1180 Peachtree Street, N.E.

Atlanta, GA 30309-3521

Tele: 404-572-4600

Facsimile: 404-572-5100

Attention: John J. Kelley, III



If to the Trustee:



The Bank of New York Mellon Trust Company, N.A.

900 Ashwood Parkway

Suite 425

Atlanta, Georgia 30338

Attention: Lee Ann Willis

Tele: 770-698-5131

Facsimile: 770-698-5196




          The Company or the Trustee, by notice to the other, may designate additional or different
addresses for subsequent notices or communications.



          All notices and communications (other than those sent to the Trustee or Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if sent by facsimile transmission; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next-day delivery. All notices and
communications to the Trustee or Holders shall be deemed duly given and effective only upon
receipt.



          Any notice or communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next-day delivery to
its address shown on the Security Register. Any notice or communication shall also be so mailed to
any Person described in TIA §313(c), to the extent required by the TIA. Failure to mail a notice
or communication to a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.



          If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.



          If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.



86









 





Section 12.03. Communication by Holders of Notes with Other Holders of Notes.




          Holders may communicate pursuant to TIA §312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA §312(c).



Section 12.04. Certificate and Opinion as to Conditions Precedent.




          Upon any request or application by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall:



          (a) if requested by the Trustee, furnish to the Trustee an Officers’ Certificate in form and
substance reasonably satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05) stating that, in the opinion of the signers, all conditions precedent and covenants,
if any, provided for in this Indenture relating to the proposed action have been complied with; and



          (b) if requested by the Trustee, furnish to the Trustee an Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee (which shall include the statements set forth in
Section 12.05) stating that, in the opinion of such counsel, all such conditions precedent and
covenants have been complied with.



Section 12.05. Statements Required in Certificate or Opinion.




          Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA §314(a)(4)) shall comply
with the provisions of TIA §314(e) and shall include:



          (a) a statement that the Person making such certificate or opinion has read such covenant or
condition;



          (b) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;



          (c) a statement that, in the opinion of such Person, he or she has made such examination or
investigation as is necessary to enable such Person to express an opinion as to whether or not such
covenant or condition has been complied with; and



          (d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.



With respect to matters of fact, an Opinion of Counsel may rely on one or more Officers’
Certificates, certificates of public officials or reports or opinions of experts.



Section 12.06. Rules by Trustee and Agents.




          The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.



Section 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders.




          No director, officer, employee, incorporator, stockholder or member of the Company or any
Subsidiary or Affiliate of the Company, as such, will have any liability for any obligations under
the Notes, this Indenture, the Subsidiary Guaranties or the Registration Rights Agreement, or for
any claim based on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Notes.



87









 





Section 12.08. Governing Law.




          THIS INDENTURE, THE NOTES AND EACH NOTATION OF A SUBSIDIARY GUARANTY DELIVERED PURSUANT TO
SECTION 10.03 ARE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.



Section 12.09. No Adverse Interpretation of Other Agreements.




          This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.



Section 12.10. Successors.




          All covenants and agreements of the Company in this Indenture and the Notes shall bind its
successors. All covenants and agreements of the Trustee in this Indenture shall bind its
successors.



Section 12.11. Severability.




          In case any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.



Section 12.12. Consent to Jurisdiction and Service of Process.




          (a) The Company and each Subsidiary Guarantor irrevocably consents to the jurisdiction of the
courts of the State of New York and the courts of the United States of America located in the
Borough of Manhattan, City and State of New York over any suit, action or proceeding with respect
to this Indenture or the transactions contemplated hereby. The Company and each Subsidiary
Guarantor waives any objection that it may have to the venue of any suit, action or proceeding with
respect to this Indenture or the transactions contemplated hereby in the courts of the State of New
York or the courts of the United States of America, in each case, located in the Borough of
Manhattan, City and State of New York, or that such suit, action or proceeding brought in the
courts of the State of New York or the United States of America, in each case, located in the
Borough of Manhattan, City and State of New York was brought in an inconvenient court and agrees
not to plead or claim the same.



          (b) The Company and each Subsidiary Guarantor irrevocably appoints Corporation Service Company
as its authorized agent in the State of New York upon which process may be served in any such suit
or proceedings, and agrees that service of process upon such agent, and written notice of said
service to Corporation Service Company, 1133 Avenue of the Americas, Suite 3100, New York, New York
10036 (telecopy no: 212-299-5656), by the person serving the same to the address provided in
Section 12.02, shall be deemed in every respect effective service of process upon the Company and
each Subsidiary Guarantor in any such suit or proceeding. The Company and each Subsidiary
Guarantor further agrees to take any and all action as may be necessary to maintain such
designation and appointment of such agent in full force and effect for a period of 11 years from
the Issue Date.



Section 12.13. Foreign Currency Equivalents.




          For purposes of determining compliance with any U.S. dollar-denominated restriction or amount,
the U.S dollar-equivalent principal amount of any amount denominated in a foreign currency will be
the Dollar Equivalent calculated on the date the Debt was incurred or other transaction was entered
into, or first committed, in the case of revolving credit debt, provided that if any Permitted
Refinancing Debt is incurred to refinance Debt denominated in a foreign currency, and such
refinancing would cause the applicable U.S dollar-denominated restriction to be exceeded if
calculated on the date of such refinancing, such U.S dollar-denominated restriction will be deemed
not have been exceeded so long as the principal amount of such Permitted Refinancing Debt does not
exceed the principal amount of such Debt being refinanced. Notwithstanding any other provision in
this Indenture, no restriction or amount will be exceeded solely as a result of fluctuations in the
exchange rate of currencies.



88









 





Section 12.14. Conversion of Currency.




          The Company and the Subsidiary Guarantors covenant and agree that the following provisions
shall apply to the conversion of currency in the case of the Notes, the Subsidiary Guaranties and
this Indenture:



          (a) (i) If, for the purpose of obtaining judgment in, or enforcing the judgment of, any court
in any country, it becomes necessary to convert into a currency (the “Judgment Currency”) an amount
due in any other currency (the “Base Currency”), then the conversion shall be made at the rate of
exchange prevailing on the Business Day before the day on which the judgment is given or the order
of enforcement is made, as the case may be (unless a court shall otherwise determine).




          (ii) If there is a change in the rate of exchange prevailing between the Business Day
before the day on which the judgment is given or an order of enforcement is made, as the
case may be (or such other date as a court shall determine), and the date of receipt of the
amount due, the Company will pay such additional (or, as the case may be, such lesser)
amount, if any, as may be necessary so that the amount paid in the Judgment Currency when
converted at the rate of exchange prevailing on the date of receipt will produce the amount
in the Base Currency originally due.



          (b) In the event of the winding up of the Company at any time while any amount or damages
owing under the Notes, this Indenture, and the Subsidiary Guaranties, or any judgment or order
rendered in respect thereof, shall remain outstanding, the Company shall indemnify and hold the
Holders and the Trustee harmless against any deficiency arising or resulting from any variation in
rates of exchange between (i) the date as of which the equivalent of the amount in U.S. dollars or
Canadian dollars, as the case may be, due or contingently due under the Notes, this Indenture
(other than under this Section 12.14(b)), and the Subsidiary Guaranties is calculated for the
purposes of such winding up and (ii) the final date for the filing of proofs of claim in such
winding up. For the purpose of this Section 12.14(b), the final date for the filing of proofs of
claim in the winding up of the Company shall be the date fixed by the liquidator or otherwise in
accordance with the relevant provisions of applicable law as being the latest practicable date as
at which liabilities of the Company may be ascertained for such winding up prior to payment by the
liquidator or otherwise in respect thereto.



          (c) The obligations contained in Sections 12.14(a)(ii) and (b) shall constitute obligations of
the Company separate and independent from its other respective obligations under the Notes, this
Indenture, and the Subsidiary Guaranties, shall give rise to separate and independent causes of
action against the Company, shall apply irrespective of any waiver or extension granted by any
Holder or the Trustee or any of them from time to time and shall continue in full force and effect
notwithstanding any judgment or order or the filing of any proof of claim in the winding up of the
Company for a liquidated sum in respect of amounts due hereunder (other than under Section
12.14(b)) or under any such judgment or order. Any such deficiency as aforesaid shall be deemed to
constitute a loss suffered by the Holders or the Trustee, as the case may be, and no proof or
evidence of any actual loss shall be required by the Company or the liquidator otherwise or any of
them. In the case of Section 12.14(b), the amount of such deficiency shall not be deemed to be
reduced by any variation in rates of exchange occurring between the said final date and the date of
any liquidating distribution.



          (d) The term “rate(s) of exchange” shall mean the rate of exchange quoted by Royal Bank of
Canada at its central foreign exchange desk in its head office in Toronto at 12:00 noon (Toronto,
Ontario time) for purchases of the Base Currency with the Judgment Currency other than the Base
Currency referred to in Sections 12.14(a) and (b) and includes any premiums and costs of exchange
payable.



          (e) The Trustee shall have no duty or liability with respect to monitoring or enforcing this
Section 12.14.



Section 12.15. Documents in English.




          By common accord, this Indenture, the Notes, the Subsidiary Guaranties and all documents
related thereto have been or will be drafted solely in the English language.



89









 





Section 12.16. Counterpart Originals.




          The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.



Section 12.17. Table of Contents, Headings, etc.




          The Table of Contents, Cross-Reference Table and Headings in this Indenture have been inserted
for convenience of reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.



Section 12.18. Qualification of this Indenture.




          The Company shall qualify this Indenture under the TIA in accordance with the terms and
conditions of any Registration Rights Agreement and shall pay all reasonable costs and expenses
(including attorneys’ fees and expenses for the Company, the Trustee and the Holders) incurred in
connection therewith, including, but not limited to, costs and expenses of qualification of this
Indenture and the Notes and printing this Indenture and the Notes. The Trustee shall be entitled
to receive from the Company any such Officers’ Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such qualification of this
Indenture under the TIA.



[Signatures on following page]




90









 





	 	 	 	 	 
	 	Company:



Novelis Inc.

 	 
	 	By:  	/s/ Steven R. Fisher
 	 
	 	 	Name:  	Steven R. Fisher 	 
	 	 	Title:  	Senior Vice President and CFO 	 
	 
	 	Subsidiary Guarantors



US Subsidiary Guarantors:



Novelis Corporation

By its duly appointed attorney:

 	 
	 	   	/s/ Christopher M. Courts
 	 
	 	   	Name:  	Christopher M. Courts 	 
	 	 	 
	 
	 	Eurofoil Inc. (USA)

By its duly appointed attorney:

 	 
	 	   	/s/ Christopher M. Courts
 	 
	 	   	Name:  	Christopher M. Courts 	 
	 	 	 
	 
	 	Novelis PAE Corporation

By its duly appointed attorney:

 	 
	 	   	/s/ Christopher M. Courts
 	 
	 	   	Name:  	Christopher M. Courts 	 
	 	 	 
	 
	 	Novelis Brand LLC

By its duly appointed attorney:

 	 
	 	   	/s/ Christopher M. Courts
 	 
	 	   	Name:  	Christopher M. Courts 	 
	 	 	 
	 
	 	Novelis South America Holdings LLC

By its duly appointed attorney:

 	 
	 	   	/s/ Christopher M. Courts
 	 
	 	   	Name:  	Christopher M. Courts 	 
	 	 	 
	 



Signature Page to Novelis Inc.’s Senior Notes Indenture




	 	 	 	 	 



 









 






	 	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 



	 	 	 	 	 
	 	Aluminum Upstream Holdings LLC

By its duly appointed attorney:

 	 
	 	   	/s/ Christopher M. Courts
 	 
	 	   	Name:  	Christopher M. Courts 	 
	 	 	 
	 
	 	Canadian Subsidiary Guarantors:



Novelis Cast House Technology Ltd.

By its duly appointed attorney:

 	 
	 	   	/s/ Christopher M. Courts
 	 
	 	   	Name:  	Christopher M. Courts 	 
	 	 	 
	 
	 	4260848 Canada Inc.

By its duly appointed attorney:

 	 
	 	   	/s/ Christopher M. Courts
 	 
	 	   	Name:  	Christopher M. Courts 	 
	 	 	 
	 
	 	4260856 Canada Inc.

By its duly appointed attorney:

 	 
	 	   	/s/ Christopher M. Courts
 	 
	 	   	Name:  	Christopher M. Courts 	 
	 	 	 
	 
	 	Novelis No. 1 Limited Partnership



By: 4260848 Canada Inc., its General Partner

By its duly appointed attorney:

 	 
	 	   	/s/ Christopher M. Courts
 	 
	 	   	Name:  	Christopher M. Courts 	 
	 	 	 
	 



Signature Page to Novelis Inc.’s Senior Notes Indenture




	 	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 



 









 






	 	 	 	 	 
	 	UK Subsidiary Guarantors:



Executed and Delivered as a Deed on the date first

 shown above by Novelis Europe Holdings Limited

By its duly appointed attorney:

 	 
	 	   	/s/ Christopher M. Courts
 	   
	 	   	Name:  	Christopher M. Courts 
	 	 	 
	 	In the presence of:

 	 
	 	   	 /s/ Denise Jones
	   
	 	   	Witness name: Denise Jones


Witness occupation: Executive Assistant



Witness address: 3399 Peachtree Rd. NE, Ste. 1500

Atlanta, GA 30326 

	 
	 	Executed and Delivered as a Deed on the date

first shown above by Novelis UK Ltd.

By its duly appointed attorney:

 	 
	 	   	/s/ Christopher M. Courts 	   
	 	   	Name:  	Christopher M. Courts 
	 	 	 
	 	In the presence of:

 	 
	 	   	/s/ Denise Jones 
	   
	 	   	Witness name: Denise Jones


Witness occupation: Executive Assistant





Witness address: 3399 Peachtree Rd. NE, Ste. 1500

Atlanta, GA 30326 

	 		 
	 	Executed and Delivered as a Deed on the date

first shown above by Novelis Services Limited

By its duly appointed attorney:

 	 
	 	   	/s/ Christopher M. Courts
 	   	 
	 	   	Name:  	Christopher M. Courts 	 
	 	 	 
	 	In the presence of:

 	 
	 	   	 /s/ Denise Jones

	   	 
	 	   	Witness name: Denise Jones

	 
	 	 	Witness occupation: Executive Assistant


Witness address: 3399 Peachtree Rd. NE, Ste.
1500 
Atlanta, GA 30326 

	 



Signature Page to Novelis Inc.’s Senior Notes Indenture




	 	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 



 









 





	 	 	 	 	 	 	 
	 	 	Brazilian Subsidiary Guarantor:	 	 
	 
	 	 	 	 	 	 
	 	 	Novelis do Brasil Ltda.	 	 
	 	 	By its duly appointed attorney:	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Christopher M. Courts	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Christopher M. Courts	 	 
	 
	 	 	 	 	 	 
	 	 	Witnesses:	 	 
	 

	 	1. 
	 	/s/ Denise Jones	 	 
	 

	 	 	 	 	 	 
	 

	 	Name
	 	Denise Jones	 	 
	 

	 	ID
	 	GA License 054850559	 	 
	 
	 	 	 	 	 	 
	 

	 	2. 
	 	/s/ Shannon Curran	 	 
	 

	 	 	 	 	 	 
	 

	 	Name
	 	Shannon Curran	 	 
	 

	 	ID
	 	GA License 054162208	 	 
	 
	 	 	 	 	 	 
	 	 	Luxembourg Subsidiary Guarantor:	 	 
	 
	 	 	 	 	 	 
	 	 	Novelis Luxembourg S.A.	 	 
	 	 	By its duly appointed attorney:	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Christopher M. Courts	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Christopher M. Courts	 	 
	 
	 	 	 	 	 	 
	 	 	French Subsidiary Guarantor:	 	 
	 
	 	 	 	 	 	 
	 	 	Novelis PAE S.A.S.	 	 
	 	 	By its duly appointed attorney:	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Christopher M. Courts	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Christopher M. Courts	 	 
	 
	 	 	 	 	 	 
	 	 	Portuguese Subsidiary Guarantor:	 	 
	 
	 	 	 	 	 	 
	 	 	Novelis Madeira, Unipessoal, Lda	 	 
	 	 	By its duly appointed attorney:	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Christopher M. Courts	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Christopher M. Courts	 	 






Signature Page to Novelis Inc.’s Senior Notes Indenture

















 






	 	 	 	 	 
	 	Irish Subsidiary Guarantor:




Signed Sealed and Delivered

for and on behalf of

Novelis Aluminium Holding Company

By its lawfully appointed attorney:

 	 
	 	 	/s/ Christopher M. Courts
 	 
	 	 	Name:  Christopher M. Courts 	 
	 	 	 
	 	in the presence of:

 	 
	 	 	 	/s/ Denise Jones
 	 
	 	 	 	Name:  Denise Jones 	 
	 	 	 
	 	German Subsidiary Guarantor:




Novelis Deutschland Gmbh

By its duly appointed attorney:

 	 
	 	 	/s/ Christopher M. Courts
 	 
	 	 	Name:  Christopher M. Courts 	 
	 	 	 
	 	Swiss Subsidiary Guarantors:




Novelis AG

By its duly appointed attorney:

 	 
	 	 	/s/ Christopher M. Courts
 	 
	 	 	Name:  Christopher M. Courts 	 
	 	 	 
	 	Novelis Switzerland SA

By its duly appointed attorney:

 	 
	 	 	/s/ Christopher M. Courts
 	 
	 	 	Name:  Christopher M. Courts 	 
	 	 	 
	 	Novelis Technology AG

By its duly appointed attorney:

 	 
	 	 	/s/ Christopher M. Courts
 	 
	 	 	Name:  Christopher M. Courts 	 
	 	 	 
	 



Signature Page to Novelis Inc.’s Senior Notes Indenture




 









 






	 	 	 	 	 	 	 
	State of Georgia

	 	 	)	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	) ss.:
	 
	 	 	 	 	 	 
	County of Cobb

	 	 	)	 	 	 






          On 8/7/09 before me, Denise Jones, Notary Public, personally appeared Christopher M. Courts,
personally known to me or proved to me on the basis of satisfactory evidence to be the individual
who executed the foregoing document, and who acknowledged to me that s/he executed the same in
his/her authorized capacity, and that by his/her signature on the foregoing document the person, or
the entity upon behalf of which the person acted, executed the foregoing document.



	 	 	 	 	 
	 	 	 
	 	/s/ Denise Jones
 	 
	 	Notary Public 	 
	 	 	 
	 



Notary Public Cobb County Georgia

My Commission Expires November 25, 2009




Signature Page to Novelis Inc.’s Senior Notes Indenture





 









 





Trustee




By: The Bank of New York Mellon Trust Company, N.A.




	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Karen Z. Kelly
 	 
	 	 	Name:  	Karen Z. Kelly 	 
	 	 	Title:  	Vice President 	 
	 


 Signature Page to Novelis Inc.’s Senior Notes Indenture






 









 








EXHIBIT A




(Face of Note)




111/2% SENIOR NOTES DUE 2015




			
	 	 	 
	 
	 	CUSIP                     
	No.                     
	 	$                    






NOVELIS INC.



promises to pay to CEDE & CO., INC. or registered assigns, the principal sum of                      Dollars
($___) on February 15, 2015.



Interest Payment Dates: February 15, and August 15, commencing February 15, 2010.



Record Dates: February 1, and August 1.



Dated: August 11, 2009.




A-1









 





          IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by
its duly authorized officer.



	 	 	 	 	 
	 	NOVELIS INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



This is one of the Global Notes referred to

in the within-mentioned Indenture:




THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

as Trustee




	 	 	 	 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 



Dated                     , 2009




A-2









 





(Back of Note)


111/2% SENIOR NOTES DUE 2015






THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTIONS 1271 ET SEQ. OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE ISSUE PRICE OF THIS NOTE IS $980.22 PER
PRINCIPAL AMOUNT OF $1,000 AT MATURITY. THE ISSUE DATE OF THIS NOTE IS AUGUST 11, 2009.
THE YIELD-TO-MATURITY OF THIS NOTE IS 12.00% PER ANNUM, COMPOUNDED SEMI-ANNUALLY. THE TOTAL
AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS NOTE AS OF THE ISSUE DATE IS $19.78 PER PRINCIPAL
AMOUNT OF $1,000 AT MATURITY.



[Insert the Global Note Legend, if applicable pursuant to the terms of the Indenture]




[Insert the Private Placement Legend, if applicable pursuant to the terms of the Indenture]




          Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.



          1. Interest. Novelis Inc., a Canadian corporation (the “Company”), promises to pay interest
(as defined in the Indenture) on the principal amount of this Note at 11.5% per annum until
maturity and shall pay Additional Interest, if any, as provided in the Registration Rights
Agreement relating to the Notes. The Company shall pay interest semi-annually in arrears in cash
on February 15 and August 15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an “Interest Payment Date”). Interest on the Notes shall accrue from
the most recent date to which interest has been paid or, if no interest has been paid, from August
11, 2009; provided, however, that if there is no existing Default in the payment of interest, and
if this Note is authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment
Date; provided, further, that the first Interest Payment Date shall be February 15, 2010. The
Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue principal and premium, if any, from time to time at a rate that is 1% per annum in
excess of the interest rate then in effect under the Indenture and the Notes; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods), from time to time at the
same rate to the extent lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months. For purposes of the Interest Act (Canada), the yearly rate of interest that
is equivalent to the rate payable hereunder is the rate payable multiplied by the actual number of
days in the year and divided by 360.



          2. Method of Payment. The Company shall pay interest on this Note (except defaulted interest)
to the Persons in whose name this Note is registered at the close of business on the February 1 or
August 1 next preceding the Interest Payment Date, even if such Note is cancelled after such record
date and on or before such Interest Payment Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest. This Note shall be payable as to principal, premium,
if any, and interest and Additional Interest, if any, at the office or agency of the Company
maintained for such purpose, or, at the option of the Company, payment of interest may be made by
check mailed to the Holders at their addresses set forth in the Security Register; provided,
however, that payment by wire transfer of immediately available funds shall be required with
respect to principal of and interest and Additional Interest, if any, and premium, if any, on, all
Global Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in such coin or currency of
the United States of America as at the time of payment is legal tender for payment of public and
private debts.



          3. Paying Agent and Registrar. Initially, The Bank of New York Mellon Trust Company, N.A.,
the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Company may change
any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.



A-3









 





          4. Indenture. The Company issued the Notes under an Indenture dated as of August 11, 2009
(“Indenture”) among the Company, the subsidiary guarantors party thereto (the “Subsidiary
Guarantors”) and the Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code §§ 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to
the Indenture and such Act for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling.



          5. Optional Redemption.



          (a) Except as set forth in clauses (b), (c) and (d) of this paragraph 5, the Notes will not be
redeemable at the option of the Company prior to August 15, 2012. Starting on that date, the
Company may redeem all or any portion of the Notes, at once or over time, after giving the required
notice under the Indenture. The Notes may be redeemed at the redemption prices set forth below,
plus accrued and unpaid interest, if any, to but excluding the redemption date (subject to the
right of holders of record on the relevant record date to receive interest due on the relevant
interest payment date). The following prices are for Notes redeemed during the periods set forth
below, and are expressed as percentages of principal amount:



	 	 	 	 	 
	 	 	Redemption
	Year	 	Price
	August 15, 2012 through February 14, 2013 
	 	 	108.625	%
	February 15, 2013 through February 14, 2014 
	 	 	105.750	%
	February 15, 2014 and thereafter 
	 	 	100.000	%






          (b) At any time prior to August 15, 2012, the Company may from time to time redeem all or any
portion of the Notes after giving the required notice under the Indenture at a redemption price
equal to the greater of:




          (i) 100% of the principal amount of the Notes to be redeemed; and




          (ii) the sum of the present values of (1) the redemption price of the Notes at August
15, 2012 (as set forth in the preceding paragraph) and (2) the remaining scheduled payments
of interest from the redemption date through August 15, 2012, but excluding accrued and
unpaid interest through the redemption date, discounted to the redemption date (assuming a
360-day year consisting of twelve 30-day months), at the Treasury Rate plus 50 basis points,



          plus, in either case, accrued and unpaid interest, including Additional Interest, if any, to
but excluding the redemption date (subject to the right of holders of record on the relevant record
date to receive interest due on the relevant interest payment date).



          (c) At any time and from time to time prior to August 15, 2012, the Company may redeem up to a
maximum of 35% of the original aggregate principal amount of the Notes (including any Additional
Notes) with the proceeds of one or more Public Equity Offerings at a redemption price equal to
111.500% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest,
including Additional Interest, if any, to the redemption date (subject to the right of holders of
record on the relevant record date to receive interest due on the relevant interest payment date);
provided, however, that after giving effect to any such redemption, at least 65% of the original
aggregate principal amount of the Notes (including any Additional Notes) remains outstanding.
Notice of any such redemption shall be made within 90 days of such Public Equity Offering and such
redemption shall be effected upon not less than 30 nor more than 60 days’ prior notice to the
Holders as provided in Section 3.03 of the Indenture.



          (d) The Company may, at its option, at any time redeem in whole but not in part the
outstanding Notes at a redemption price equal to 100% of the principal amount thereof plus accrued
and unpaid interest, including Additional Interest, if any, to the redemption date (subject to the
right of holders of record on the relevant record date to receive interest due on the relevant
interest payment date) if it has become obligated to pay any Additional Amounts in respect of the
Notes as a result of:



A-4









 






     (i) any change in or amendment to the laws (or regulations promulgated thereunder) of
any Taxing Jurisdiction; or




     (ii) any change in or amendment to any official position regarding the application or
interpretation of such laws or regulations, which change or amendment is announced or is
effective on or after the Issue Date.



          (e) Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 of the Indenture.



          6. Sinking Fund.



          The Company shall not be required to make sinking fund payments for the Notes.



          7. Repurchase at Option of Holder.



          (a) Upon the occurrence of a Change of Control, the Company shall, within 30 days of a Change
of Control, make an offer (the “Change of Control Offer”) pursuant to the procedures set forth in
Section 3.09 of the Indenture. Each Holder shall have the right to accept such offer and require
the Company to repurchase all or any portion (equal to $2,000 or any integral multiple of $1,000 in
excess thereof) of such Holder’s Notes pursuant to the Change of Control Offer at a purchase price,
in cash, equal to 101% of the aggregate principal amount of Notes repurchased, plus in each case
accrued and unpaid interest, including Additional Interest, if any, on the Notes repurchased, to
the repurchase date.



          (b) Any Net Available Cash from Asset Sales that is not applied as provided in Section 4.12(b)
of the Indenture will constitute Excess Proceeds (“Excess Proceeds”). When the aggregate amount of
Excess Proceeds exceeds $25.0 million, the Company shall commence an offer to all Holders for Notes
pursuant to the Indenture by applying the Allocable Excess Proceeds (a “Prepayment Offer”) pursuant
to Section 3.09 of the Indenture to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds at an offer price in cash equal to 100% of the principal
amount thereof plus accrued and unpaid interest, including Additional Interest, if any, to the date
fixed for the closing of such offer in accordance with the procedures set forth in the Indenture.
To the extent that the aggregate amount of Notes tendered pursuant to a Prepayment Offer is less
than the Excess Proceeds after compliance with the previous sentence and provided that all Holders
have been given the opportunity to tender their Notes for repurchase in accordance with the
Indenture, the Company or such Restricted Subsidiary may use such deficiency for any purpose
permitted by the Indenture and the amount of Excess Proceeds will be reset to zero. If the
aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Holders of Notes
that are the subject of an offer to purchase will receive a Prepayment Offer from the Company prior
to any related purchase date and may elect to have such Notes purchased by completing the form
entitled “Option of Holder to Elect Purchase” on the reverse of the Notes.



          8. Notice of Redemption. Notice of redemption shall be mailed at least 30 days but not more
than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its
registered address. Notes in denominations larger than $2,000 may be redeemed in part but only in
whole multiples of $1,000 in excess thereof, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.



          9. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in
denominations of $2,000 or an integral multiple of $1,000 in excess thereof except in the case of
issuances of Notes in payment of Additional Interest as provided in Section 2.13 of the Indenture.
This Note shall represent the aggregate principal amount of outstanding Notes from time to time
endorsed hereon and the aggregate principal amount of Notes represented hereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and redemptions. The transfer
of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar
and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and fees required by



A-5









 







law or permitted by the Indenture. The Company need not exchange or register the transfer of
any Note or portion of any Note selected for redemption, except for the unredeemed portion of any
Note being redeemed in part. Also, the Company need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be redeemed or during the period
between a record date and the corresponding Interest Payment Date.



          10. Persons Deemed Owners. The registered Holder of a Note may be treated as its owner for
all purposes.



          11. Amendment, Supplement and Waiver.



          (a) Subject to certain exceptions in Section 9.02 of the Indenture, the Company and the
Trustee may amend or supplement the Indenture or the Notes with the consent of the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as a single class
(including consents obtained in connection with a purchase of or tender offer or exchange offer for
the Notes), and, subject to Sections 6.04 and 6.07 of the Indenture, any existing Default or Event
of Default (except a continuing Default or Event of Default in (a) the payment of principal,
premium, if any, interest or Additional Interest, if any, on the Notes and (b) in respect of a
covenant or provision which under the Indenture cannot be modified or amended without the consent
of each Holder of each Note affected by such modification or amendment) or compliance with any
provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority
in aggregate principal amount of the Notes then outstanding voting as a single class (including
consents obtained in connection with a purchase of or tender offer or exchange offer for the
Notes).



          (b) The Company and the Trustee may amend or supplement the Indenture or the Notes, without
the consent of any Holder, to cure any ambiguity, omission, defect or inconsistency, to provide for
the assumption by a successor corporation, partnership or limited liability company of the
obligations of the Company under the Indenture, to provide for uncertificated Notes in certain
circumstances in addition to or in place of certificated Notes, to add additional Subsidiary
Guaranties with respect to the Notes, to secure the Notes, to add to the covenants of the Company
for the benefit of the Holders or to surrender any right or power conferred upon the Company, to
make any change that does not adversely affect the rights under the Indenture of any Holder, to
make any change to comply with any requirement of the Commission in connection with the
qualification of the Indenture under the TIA, to evidence or provide for a successor Trustee or to
provide for the issuance of Additional Notes.



          12. Defaults and Remedies. Each of the following is an Event of Default under the Indenture:
failure to make the payment of any interest, including Additional Interest, if any, on any of the
Notes when the same becomes due and payable, and such failure continues for a period of 30 days;
failure to make the payment of any principal of, or premium, if any, on, any of the Notes when the
same becomes due and payable at its Stated Maturity, upon acceleration, redemption, optional
redemption, required repurchase or otherwise; failure to comply with the provisions of Section 5.01
of the Indenture; failure to comply with any other covenant or agreement in the Notes or in the
Indenture (other than a failure that is the subject of the foregoing clauses) and such failure
continues for 60 days after written notice is given to the Company as provided below; a default
under any Debt by the Company or any Restricted Subsidiary that results in acceleration of the
maturity of such Debt, or failure to pay any such Debt at maturity, in an aggregate amount greater
than $50 million (or its foreign currency equivalent at the time); any judgment or judgments for
the payment of money in an aggregate amount in excess of $50 million (or its foreign currency
equivalent at the time) that shall be rendered against the Company or any Restricted Subsidiary and
that shall not be waived, satisfied or discharged for any period of 60 consecutive days during
which a stay of enforcement shall not be in effect; certain events of bankruptcy, insolvency or
reorganization affecting the Company or any of its Significant Subsidiaries; any Subsidiary
Guaranty ceases to be in full force and effect (other than in accordance with the terms of such
Subsidiary Guaranty and the Indenture) or any Subsidiary Guarantor denies or disaffirms its
obligations under its Subsidiary Guaranty; and any security interest securing the Notes or any
Subsidiary Guaranty that may be granted after the Issue Date pursuant to the terms of the Indenture
shall, at any time, cease to be in full force and effect for any reason other than in accordance
with its terms or the satisfaction in full of all obligations under the Indenture and discharge of
the Indenture or be declared invalid or unenforceable or the Company or any Subsidiary Guarantor
shall assert, in any pleading in any court of competent jurisdiction, that any such security
interest is invalid or unenforceable.



A-6









 





          Upon any Officer becoming aware of any Default or Event of Default, the Company shall deliver
to the Trustee, within ten days of becoming so aware, written notice in the form of an Officers’
Certificate specifying such Default or Event of Default, its status, and the action the Company
proposes to take with respect thereto.



          If any Event of Default (other than those of the type described in Section 6.01(g) or (h)) of
the Indenture shall have occurred and be continuing, the Trustee may, and the Trustee upon the
request of Holders of 25% in principal amount of the outstanding Notes shall, or the Holders of not
less than 25% in principal amount of outstanding Notes may, declare the principal of all the Notes,
plus all accrued and unpaid interest, including Additional Interest, if any, to be immediately due
and payable by notice in writing to the Company and the Trustee specifying the respective Event of
Default and that such notice is a notice of acceleration, and the same shall become immediately due
and payable. In the case of an Event of Default specified in Section (g) or (h) of Section 6.01 of
the Indenture, all outstanding Notes shall become due and payable immediately without any further
declaration or other act on the part of the Trustee or the Holders. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture.



          13. Trustee Dealings with Company. Subject to certain limitations, the Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal
with the Company or any Affiliate of the Company with the same rights it would have if it were not
Trustee.



          14. No Personal Liability. No director, officer, employee, incorporator, stockholder or
member of the Company or any Subsidiary or Affiliate of the Company, as such, will have any
liability for any obligations under the Notes, the Indenture, the Subsidiary Guaranties or the
Registration Rights Agreement, or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and releases all such
liability.



          15. Authentication. This Note shall not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent.



          16. Abbreviations. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).



          17. Additional Rights of Holders of Restricted Global Notes and Restricted Definitive Notes.
In addition to the rights provided to Holders of Notes under the Indenture, Holders of Restricted
Global Notes and Restricted Definitive Notes shall have all the rights set forth in the
Registration Rights Agreement, dated as of August 11, 2009, between the Company and the parties
named on the signature pages thereto.



          18. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes
and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as printed on the
Notes or as contained in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.



          The Company shall furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:


Novelis Inc.

3399 Peachtree Road, Suite 1500

Atlanta, Georgia 30326

Attention: Treasurer

Facsimile: 404-814-4219




          19. Governing Law. The laws of the State of New York shall govern and be used to
construe this Note.



A-7









 





Option of Holder to Elect Purchase



If you want to elect to have this Note purchased by the Company pursuant to Section 4.12 or 4.17 of
the Indenture, check the box below:




o      Section 4.12




o      Section 4.17



If you want to elect to have only part of the Note purchased by the Company pursuant to Section
4.12 or Section 4.17 of the Indenture, state the amount you elect to have purchased:
$                                        




	 	 	 	 	 
	Date:

	 	 	 	Your Signature:                                        
	 

	 	 	 	 
	 

	 	 	 	(Sign exactly as your name appears on the Note)






	 	 	 
	 

	 	Tax Identification No.:
	 
	 

	 	 
	 
	 	 
	 

	 	SIGNATURE GUARANTEE:
	 
	 	 
	 

	 	 
	 
	 

	 	Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of
the Registrar, which requirements include membership
or participation in the Security Transfer Agent
Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined by the
Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.






A-8









 





Assignment Form



To assign this Note, fill in the form below:




(I) or (we) assign and transfer this Note to




 




(Insert assignee’s social security or other tax I.D. no.)






 





 





 





 




(Print or type assignee’s name, address and zip code)



and irrevocably appoint  
as agent to transfer this Note on the books of the Company. The agent may substitute another to
act for him.




 






	 	 	 	 	 
	Date:

	 	 	 	Your Signature                                                             
	 

	 	 	 	 
	 

	 	 	 	(Sign exactly as your name appears on the face of
this Note)
	 
	 	 	 	 
	 

	 	 	 	Signature Subsidiary Guaranty:                                         






A-9









 






SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE




          The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount	 	 
	 	 	Amount of	 	 	 	of this Global Note	 	Signature of
	 	 	decrease in	 	Amount of increase	 	following such	 	authorized signatory
	 	 	Principal Amount	 	in Principal Amount	 	decrease (or	 	of Trustee or
	Date of Exchange	 	of this Global Note	 	of this Global Note	 	increase)	 	Note Custodian
	 	 	 	 	 	 	 	 	 






A-10









 








EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




Novelis Inc.

3399 Peachtree Road, Suite 1500

Atlanta, Georgia 30326

Attention: Treasurer

Facsimile: 404-814-4219




The Bank of New York Mellon Trust Company, N.A.

900 Ashwood Parkway

Suite 425

Atlanta, Georgia 30338

Attention: Lee Ann Willis

Facsimile: 770-698-5196




     Re:      111/2% Senior Notes due 2015



          Reference is hereby made to the Indenture, dated as of August 11, 2009 (the “Indenture”),
among Novelis Inc., as issuer (the “Company”), the Subsidiary Guarantors party thereto and The Bank
of New York Mellon Trust Company, N.A., as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.



          ___, (the “Transferor”) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount of $___ in such
Note[s] or interests (the “Transfer”), to ___ (the “Transferee”), as
further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:



[CHECK ALL THAT APPLY]




          1. o Check if Transferee will take delivery of a beneficial interest in the 144A Global
Note or a Definitive Note Pursuant to Rule 144A. The Transfer is being effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the
“Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor reasonably
believed and believes is purchasing the beneficial interest or Definitive Note for its own account,
or for one or more accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a “qualified institutional buyer” within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance
with any applicable blue sky securities laws of any state of the United States. Upon consummation
of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the 144A Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.



          2. o Check if Transferee will take delivery of a beneficial interest in the Regulation S
Global Note or a Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant
to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the
United States and (x) at the time the buy order was originated, the Transferee was outside the
United States or such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and neither such Transferor
nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in contravention of the requirements
of Rule 903(b) or Rule 904(a) of Regulation S under the Securities Act, (iii) the transaction is
not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv)
if the proposed transfer is being made prior to the expiration of the Distribution Compliance



B-1









 







Period, the transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed
on the Regulation S Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.



          3. o Check and complete if Transferee will take delivery of a beneficial interest in the
IAI Global Note or a Definitive Note pursuant to any provision of the Securities Act other than
Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the Transferor hereby
further certifies that (check one):




     (a) such Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act;



or





     (b) such Transfer is being effected to the Company or a subsidiary thereof;



or





     (c) such Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery requirements of the
Securities Act;



or





     (d) o such Transfer is being effected to an Institutional Accredited Investor and
pursuant to an exemption from the registration requirements of the Securities Act other than
Rule 144A, Rule 144 or Rule 904, and the Transferor hereby further certifies that it has not
engaged in any general solicitation within the meaning of Regulation D under the Securities
Act and the Transfer complies with the transfer restrictions applicable to beneficial
interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) if such Transfer is in respect
of a principal amount of Notes at the time of transfer of less than $250,000, an Opinion of
Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with the terms of
the Indenture, the transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the IAI
Global Note and/or the Definitive Notes and in the Indenture and the Securities Act.



          4. o Check if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.



          (a) o Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant
to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.



          (b) o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance
with the



B-2









 







transfer restrictions contained in the Indenture and any applicable blue sky securities laws
of any state of the United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.



          (c) o Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.



          5. o Check if Transferor is an affiliate of the Company.



          6. o Check if Transferee is an affiliate of the Company.



          The Transferor further certifies, in connection with each of the foregoing certifications,
that if the transfer is being made within four months and a day after the original issuance of the
Notes, the Transferee is not a person resident in any province or territory of Canada unless the
Transferee is eligible to acquire the Notes under an exemption from the applicable Canadian
securities laws and such transfer is in compliance with, or pursuant to, such exemption.



          This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 
	 	 	 
	 	[Insert Name of Transferor]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                                         





B-3









 





ANNEX A TO CERTIFICATE OF TRANSFER





	 	1.	 	The Transferor owns and proposes to transfer the following:





[CHECK ONE OF (a) OR (b)]





	 	(a)	 	o a beneficial interest in the:






	 	(i)	 	o 144A Global Note (CUSIP 67000XAD8); or
	 
	 	(ii)	 	o Regulation S Global Note (CUSIP C6780CAB9); or
	 
	 	(iii)	 	o IAI Global Note (CUSIP ___); or






	 	(b)	 	o a Restricted Definitive Note.






	 	2.	 	After the Transfer the Transferee will hold:





[CHECK ONE OF (a), (b) OR (c)]





	 	(a)	 	o a beneficial interest in the:






	 	(i)	 	o 144A Global Note (CUSIP 67000XAD8); or
	 
	 	(ii)	 	o Regulation S Global Note (CUSIP C6780CAB9); or
	 
	 	(iii)	 	o IAI Global Note (CUSIP ___); or
	 
	 	(iv)	 	o Unrestricted Global Note (CUSIP ___); or






	 	(b)	 	o a Restricted Definitive Note; or
	 
	 	(c)	 	an Unrestricted Definitive Note,






	 	 	 	in accordance with the terms of the Indenture.






B-4









 








EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




Novelis Inc.

3399 Peachtree Road, Suite 1500

Atlanta, Georgia 30326

Attention: Treasurer

Facsimile: 404-814-4219




The Bank of New York Mellon Trust Company, N.A.

900 Ashwood Parkway

Suite 425

Atlanta, Georgia 30338

Attention: Lee Ann Willis

Facsimile: 770-698-5196




          Re: 111/2% Senior Notes due 2015



          Reference is hereby made to the Indenture, dated as of August 11, 2009 (the “Indenture”),
among Novelis Inc., as issuer (the “Company”), the Subsidiary Guarantors party thereto and The Bank
of New York Mellon Trust Company, N.A., as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.



          ___, (the “Owner”) owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of $___ in such Note[s]
or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:



          1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note 



          (a) o Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial
interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial
interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Note and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the “Securities Act”), (iii)
the restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the beneficial interest
in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.



          (b) o Check if Exchange is from beneficial interest in a Restricted Global Note to
Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest
in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions applicable to the
Restricted Global Note and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.



          (c) o Check if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the



C-1









 







transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.



          (d) o Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note.
In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.



          2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes



          (a) o Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted
Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a
Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.



          (b) o Check if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note
for a beneficial interest in the [CIRCLE ONE] 144A Global Note, Regulation S Global Note, IAI
Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Restricted Definitive Note
and pursuant to and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be
subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the
relevant Restricted Global Note and in the Indenture and the Securities Act.



          3. o Check if owner is an affiliate of the Company.



          4. o Check if owner is exchanging this note in connection with an expected transfer to an
affiliate of the Company.



          This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 
	 	 	 
	 	[Insert Name of Transferor]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                                         





C-2









 








EXHIBIT D




FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR




Novelis Inc.

3399 Peachtree Road, Suite 1500

Atlanta, Georgia 30326

Attention: Treasurer

Facsimile: 404-814-4219




The Bank of New York Mellon Trust Company, N.A.

900 Ashwood Parkway

Suite 425

Atlanta, Georgia 30338

Attention: Lee Ann Willis

Facsimile: 770-698-5196





          Re: 111/2% Senior Notes due 2015



          Reference is hereby made to the Indenture, dated as of August 11, 2009 (the “Indenture”),
among Novelis Inc., as issuer (the “Company”), the Subsidiary Guarantors party thereto and The Bank
of New York Mellon Trust Company, N.A., as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.



          In connection with our proposed purchase of $___ aggregate principal amount of:



          (a) o a beneficial interest in a Global Note, or



          (b) o a Definitive Note,




          we confirm that:



          1. We understand that any subsequent transfer of the Notes or any interest therein is subject
to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except
in compliance with, such restrictions and conditions and the United States Securities Act of 1933,
as amended (the “Securities Act”).



          2. We understand that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell the Notes or any interest
therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with
Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C)
to an institutional “accredited investor” (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a
signed letter substantially in the form of this letter and, if such transfer is in respect of a
principal amount of Notes, at the time of transfer of less than $250,000, an Opinion of Counsel in
form reasonably acceptable to the Company to the effect that such transfer is in compliance with
the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation S under
the Securities Act, (E) pursuant to the provisions of Rule 144(k) under the Securities
Act or (F) pursuant to an effective registration statement under the Securities Act, and we further
agree to provide to any Person purchasing the Definitive Note or beneficial interest in a Global
Note from us in a transaction meeting the requirements of clauses (A) through (E) of this paragraph
a notice advising such purchaser that resales thereof are restricted as stated herein.



D-1









 





          3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to you and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.



          4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear the economic risk of
our or its investment. We have had access to such financial and other information, and have been
afforded the opportunity to ask such questions of representatives of the Company and receive
answers thereto, as we deem necessary in connection with our decision to purchase the Notes.



          5. We are acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion and are not acquiring the Notes with a view to
any distribution thereof in a transaction that would violate the Securities Act of the securities
laws of any state of the United States or any other applicable jurisdiction.



          You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby. This letter shall be
governed by, and construed in accordance with, the laws of the State of New York.



	 	 	 	 	 
	 	 	 
	 	[Insert Name of Accredited Investor]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                                         





D-2









 








EXHIBIT E




FORM OF NOTATION OF GUARANTEE





          For value received, each Subsidiary Guarantor (which term includes any successor Person under
the Indenture), jointly and severally, unconditionally guarantees, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, dated as of August 11, 2009 (the
“Indenture”), among Novelis Inc., as issuer (the “Company”), the Subsidiary Guarantors listed on
the signature pages thereto and The Bank of New York Mellon Trust Company, N.A., as trustee (the
“Trustee”), (a) the due and punctual payment of the principal of, premium, if any, and interest and
Additional Interest, if any, on the Notes, whether at maturity, by acceleration, redemption or
otherwise, the due and punctual payment of interest on overdue principal and premium, if any, and,
to the extent permitted by law, interest and Additional Interest, if any, and the due and punctual
performance of all other obligations of the Company to the Holders or the Trustee all in accordance
with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. The obligations of the Subsidiary Guarantors to the Holders, in their
capacities as such, of Notes and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth in the Indenture, including Article 10 and Schedule A thereto, and reference is
hereby made to the Indenture for the precise terms and any limitations of the Guarantee. This
Guarantee is subject to release as and to the extent set forth in Sections 8.02, 8.03 and 10.05 of
the Indenture. Each Holder of a Note, by accepting the same agrees to and shall be bound by such
provisions. Capitalized terms used herein and not defined are used herein as so defined in the
Indenture.



E-1









 





	 	 	 	 	 
	 	Subsidiary Guarantors



US Subsidiary Guarantors:



Novelis Corporation

By its duly appointed attorney:

	 
	 	   	
 	 
	 	   	Name:  	 	 
	 
	 	Eurofoil Inc. (USA)

By its duly appointed attorney:

	 
	 	 	
 	 
	 	 	Name:  	 	 
	 
	 	Novelis PAE Corporation

By its duly appointed attorney:

	 
	 	 	
 	 
	 	 	Name:  	 	 
	 
	 	Novelis Brand LLC

By its duly appointed attorney:

	 
	 	 	
 	 
	 	 	Name:  	 	 
	 	 	 
	 	Novelis South America Holdings LLC

By its duly appointed attorney:

	 
	 	
 	 
	 	 	Name:  	 	 
	 
	 	Aluminum Upstream Holdings LLC

By its duly appointed attorney:

	 
	 	 	
 	 
	 	 	Name:  	 	 
	 	 	 



E-2









 






	 	 	 	 	 



	 	 	 	 	 
	 	Canadian Subsidiary Guarantors:




Novelis Cast House Technology Ltd.

By its duly appointed attorney:

	 
	 	 	
 	 
	 	 	Name:  	 	 
	 	 	 
	 	4260848 Canada Inc.

By its duly appointed attorney:

	 
	 	   	
 	 
	   	 	Name:  	 	 
	 	 	 
	 	4260856 Canada Inc.

By its duly appointed attorney:

	 
	 	   	
 	 
	 	   	Name:  	 	 
	 	 	 
	 	Novelis No. 1 Limited Partnership




By: 4260848 Canada Inc., its General Partner

By its duly appointed attorney:

	 
	 	   	
 	 
	 	   	Name:  	 	 
	 	 	 



E-3









 






	 	 	 	 	 



	 	 	 	 	 
	 	UK Subsidiary Guarantors:




Executed and Delivered as a Deed on the date
first
 shown above by Novelis Europe Holdings Limited

By its duly appointed attorney:
	 
	 	   	
 	 
	 	   	Name:  	 	 
	 	 	 
	 	In the presence of:
	 
	 	 	
 	 
	 	 	Witness name:
 	 
	 	 	Witness occupation:




Witness address: 	 
	 
	 	Executed and Delivered as a Deed on the date

first shown above by Novelis UK Ltd.

By its duly appointed attorney:

	 
	 	   	
 	 
	 	   	Name:  	 	 
	 	 	 
	 	In the presence of:

	 
	 	 	
 	 
	 	 	Witness name:
 	 
	 	 	Witness occupation:




Witness address: 	 
	 
	 	Executed and Delivered as a Deed on the date

first shown above by Novelis Services Limited

By its duly appointed attorney:

	 
	 	   	
 	 
	 	   	Name:  	 	 
	 	 	 
	 	In the presence of:

	 
	 	 	
 	 
	 	 	Witness name:
 	 
	 	 	Witness occupation:




Witness address: 	 



E-4









 






	 	 	 	 	 



	 	 	 	 	 
	 	Brazilian Subsidiary Guarantor:




Novelis do Brasil Ltda.

By its duly appointed attorney:

	 
	 	   	
 	 
	 	   	Name:  	 	 



	 	 	 	 	 	 	 
	 	 	Witnesses:
	 

	 	1.	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name
	 	 
	 

	 	 	 	 	 	 
	 

	 	ID
	 	 
	 

	 	 	 	 	 	 
	 
	 

	 	2.	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name
	 	 
	 

	 	 	 	 	 	 
	 

	 	ID
	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 
	 	Luxembourg Subsidiary Guarantor:




Novelis Luxembourg S.A.

By its duly appointed attorney:

	 
	 	   	
 	 
	 	   	Name:  	 	 
	 	 	 
	 	French Subsidiary Guarantor:




Novelis PAE S.A.S.

By its duly appointed attorney:

	 
	 	   	
 	 
	 	   	Name:  	 	 
	 	 	 
	 	Portuguese Subsidiary Guarantor:




Novelis Madeira, Unipessoal, Lda

By its duly appointed attorney:

	 
	 	   	
 	 
	 	   	Name:  	 	 
	 	 	 



E-5









 






	 	 	 	 	 



	 	 	 	 	 
	 	Irish Subsidiary Guarantor:




Signed Sealed and Delivered

for and on behalf of

Novelis Aluminium Holding Company

By its lawfully appointed attorney:

	 
	 	   	
 	 
	 	   	Name:  	 	 
	 	 	 
	 	in the presence of:

	 
	 	   	
 	 
	 	   	Name:  	 	 
	 	 	 
	 	German Subsidiary Guarantor:




Novelis Deutschland Gmbh

By its duly appointed attorney:

	 
	 	   	
 	 
	 	   	Name:  	 	 
	 	 	 
	 	Swiss Subsidiary Guarantors:




Novelis AG

By its duly appointed attorney:

	 
	 	   	
 	 
	 	   	Name:  	 	 
	 	 	 
	 	Novelis Switzerland SA

By its duly appointed attorney:

	 
	 	   	
 	 
	 	   	Name:  	 	 
	 	 	 
	 	Novelis Technology AG

By its duly appointed attorney:

	 
	 	   	
 	 
	 	   	Name:  	 	 
	 	 	 




E-6











 





EXHIBIT F




FORM OF INDENTURE SUPPLEMENT TO ADD SUBSIDIARY GUARANTORS




          This Supplemental Indenture, dated as of [                    ], 20___ (this “Supplemental Indenture” or
“Guarantee”), among [name of future Subsidiary Guarantor] (the “Subsidiary Guarantor”), Novelis
Inc. (together with its successors and assigns, the “Company” or the “Issuer”), each other then
existing Guarantor under this Indenture referred to below (the “Subsidiary Guarantors”), and The
Bank of New York Mellon Trust Company, N.A., as Trustee under this Indenture referred to below.




W I T N E S S E T H :




          WHEREAS, the Issuer, the Subsidiary Guarantors and the Trustee have heretofore executed and
delivered an Indenture, dated as of August 11, 2009 (as amended, supplemented, waived or otherwise
modified, the “Indenture”), providing for the issuance of Notes of the Issuer (the “Notes”);




          WHEREAS, Section 4.18 of this Indenture provides that the Company is required to cause
each Subsidiary Guarantor to execute and deliver to the Trustee a supplemental indenture pursuant
to which the Subsidiary Guarantor will unconditionally Guarantee, on a joint and several basis with
the other Subsidiary Guarantors, the full and prompt payment of the principal of, premium, if any,
and interest on the Notes on a senior basis; and




          WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Issuer are
authorized to execute and deliver this Supplemental Indenture to amend or supplement this
Indenture, without the consent of any Holder.




          NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Subsidiary Guarantor, the Issuer,
the other Subsidiary Guarantors and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders as follows:




ARTICLE I


DEFINITIONS 




          SECTION 1.1 Defined Terms. As used in this Supplemental Indenture, terms defined in
this Indenture or in the preamble or recital hereto are used herein as therein defined, except that
the term “Holders” in this Guarantee shall refer to the term “Holders” as defined in this Indenture
and the Trustee acting on behalf or for the benefit of such Holders. The words “herein,” “hereof”
and “hereby” and other words of similar import used in this Supplemental Indenture refer to this
Supplemental Indenture as a whole and not to any particular section hereof.




ARTICLE II




AGREEMENT TO BE BOUND; GUARANTEE




          SECTION 2.1 Agreement to be Bound. The Subsidiary Guarantor hereby becomes a party to
this Indenture as a Subsidiary Guarantor and as such will have all of the rights and be subject to
all of the obligations and agreements of a Guarantor under this Indenture. The Subsidiary
Guarantor agrees to be bound by all of the provisions of this Indenture applicable to a Subsidiary
Guarantor and to perform all of the obligations and agreements of a Subsidiary Guarantor under this
Indenture.




          SECTION 2.2 Guarantee. The Subsidiary Guarantor agrees, on a joint and several basis
with all the existing Subsidiary Guarantors, to fully, unconditionally and irrevocably Guarantee to
each Holder and the Trustee the Obligations on a senior basis as provided in Article 10 of this
Indenture.




F-1









 





ARTICLE III




MISCELLANEOUS 




          SECTION 3.1 Notices. All notices and other communications to the Subsidiary Guarantor
shall be given as provided in this Indenture to the Subsidiary Guarantor, at its address set forth
below, with a copy to the Issuer as provided in this Indenture for notices to the Issuer.




          SECTION 3.2 Parties. Nothing expressed or mentioned herein is intended or shall be
construed to give any Person, firm or corporation, other than the Holders and the Trustee, any
legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or
this Indenture or any provision herein or therein contained.




          SECTION 3.3 Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.




          SECTION 3.4 Severability Clause. In case any provision in this Supplemental Indenture
shall be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction be
ineffective to the extent of such invalidity, illegality or unenforceability without affecting the
validity, legality and enforceability of the remaining provisions; and the invalidity of a
particular provision in a particular jurisdictions shall not invalidate such provision in any other
jurisdiction.




          SECTION 3.5 Ratification of Indenture; Supplemental Indentures Part of Indenture.
Except as expressly amended hereby, this Indenture is in all respects ratified and confirmed and
all the terms, conditions and provisions thereof shall remain in full force and effect. This
Supplemental Indenture shall form a part of this Indenture for all purposes, and every Holder
heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no
representation or warranty as to the validity or sufficiency of this Supplemental Indenture.




          SECTION 3.6 Counterparts. The parties hereto may sign one or more copies of this
Supplemental Indenture in counterparts, each of which shall constitute an original, but all of
which when taken together shall constitute one and the same agreement.




          SECTION 3.7 Headings. The headings of the Articles and the sections in this
Supplemental Indenture are for convenience of reference only, are not part of this Supplemental
Indenture and shall not be deemed to alter or affect the meaning or interpretation of any
provisions hereof.




F-2









 





          IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.




	 	 	 	 	 
	 	

Company:



NOVELIS INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	

Subsidiary Guarantors:





[FUTURE GUARANTORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




F-3









 








SCHEDULE A




LIMITATION OF GUARANTY




Germany






Limitation on Liability


(a) The Holders and the Trustee agree not to enforce against a guarantor incorporated
in Germany and constituted in the form of a GmbH (a “German GmbH Guarantor”), including but not
limited to Novelis Deutschland GmbH, or a GmbH & Co. KG (a “German GmbH & Co. KG Guarantor” and
together with any German GmbH Guarantor hereinafter referred to as a “German Guarantor”) any
payment obligation arising out of the Guarantee, (the “Payment Obligation”) if and to the extent
such guarantee secures obligations of an affiliated company (verbundenes Unternehmen) of such
German Guarantor within the meaning of Section 15 of the German Stock Corporation Act
(Aktiengesetz) (other than any of the German Guarantor’s Subsidiaries) and the enforcement of such
Payment Obligation would cause the German Guarantor’s, or in the case of a German GmbH & Co. KG
Guarantor its general partner’s net assets (Reinvermögen), i.e., assets (the calculation of which
shall include all items set forth in Section 266(2) A., B. and C. of the German Commercial Code
(Handelsgesetzbuch)) minus liabilities (the calculation of which shall include all items set forth
in Section 266(3) B., C. and D. of the German Commercial Code (Handelsgesetzbuch)) and accruals
(Rückstellungen) to fall below its stated share capital (Stammkapital) (Begründung einer
Unterbilanz) or, if such net assets are already less than its stated share capital (Stammkapital),
would cause such amount to be further reduced (Vertiefung einer Unterbilanz) (such event a “Capital
Impairment”) provided that for the purposes of calculating the amount not to be enforced (if any)
the following balance sheet items shall be adjusted as follows:



(i) the amount of any increase of stated share capital (Stammkapital) of the
German Guarantor or, in the case of a German GmbH & Co. KG Guarantor of its general partner, after
the date hereof that has been effected out of retained earnings (Kapitalerhöhung aus
Gesellschaftsmitteln) without the prior written consent of the Holders and the Trustee shall be
deducted from the stated share capital (Stammkapital);



(ii) any loans provided to the German Guarantor by any members of the Group or any
of its shareholders shall be disregarded to the extent that such loans are subordinated to any
claims pursuant to Section 39 (1) Nr. 1 through Nr. 5 of the German Insolvency Code
(Insolvenzordnung) or subordinated in any other way by law or contract; and



(iii) any loans and other contractual liabilities incurred by the German Guarantor in
violation of the provisions of any of the Transaction Documents shall be disregarded.



(b) Upon delivery of an Enforcement Notice and upon request of the Holders and the
Trustee each German Guarantor shall realize by way of sale or auction any asset that is shown in
the balance sheet with a book value (Buchwert) that is significantly lower than the market value of
such asset, which is not necessary for the German Guarantor’s business (betriebsnotwendig) and that
can be realized (if this is not unreasonably in respect of the German Guarantor’s business and to
the extent legally possible).



(c) The limitations set out in paragraph (a) hereof shall not apply in relation and
to the extent the proceeds of any borrowings under the Notes have been on-lent, or otherwise passed
on, to such German Guarantor or any of its Subsidiaries.



(d) The limitation pursuant to these paragraphs shall apply, subject to the following
requirements, if following the call of guarantee or other obligations by the the Holders and the
Trustee, the relevant German Guarantor notifies the the Holders and the Trustee in writing that a
Capital Impairment would occur (a “Management Notification”) within 30 Business Days upon receipt
of the relevant demand. If the the Holders and the Trustee raise any objection against the
Management Notification and any such objection is delivered to the relevant German Guarantor within
five Business Days after the date of the Management Notification, the relevant German Guarantor
undertakes (at its own cost and expense) to arrange for the preparation of a balance sheet by
auditors of international standard and reputation in order to have such auditors determine whether
(and if so, to what




Schedule A



1









 




extent) any payment under the Guarantee would cause a Capital Impairment (the “Auditor’s
Determination”). The Auditor’s Determination shall be prepared, taking into account the adjustments
set out in sub-paragraph (a)(i) to (iii) above, by applying the generally accepted accounting
principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) based
on the same principles and evaluation methods as constantly applied by the relevant German
Guarantor in the preparation of its financial statements, in particular in the preparation of its
most recent annual balance sheet, and taking into consideration applicable court rulings of German
courts. The relevant German Guarantor shall provide the Auditor’s Determination to the Holders and
the Trustee within 60 Business Days from the date on which it receives the the Holders’ and the
Trustee’s objection against the Management Notification in writing. The Auditor’s Determination
shall be binding on the relevant German Guarantor and the Holders and the Trustee.



(e) Regardless of the provisions set out in paragraphs (a) through (d) above, the
enforcement of a Payment Obligation shall, at the date hereof and at any time hereafter, be limited
to the extent that such enforcement would result in a violation of the prohibition of an
intervention threatening the corporate existence of the German Guarantor or, in the case of a
German GmbH & Co. KG Guarantor, of its general partner (existenzvernichtender Eingriff) as a result
of a Liquidity Impairment.



“Liquidity Impairment” means that, if the Payment Obligation was enforced, the German Guarantor, or
in the case of a German GmbH & Co. KG Guarantor, its general partner, would not be able to fulfil
its financial obligations which such German Guarantor, or in the case of a German GmbH & Co. KG
Guarantor, its general partner, owes to its creditors and which (i) are due at the time the
Enforcement Notice is received by the German Guarantor or (ii) will become due within a period of
30 calendar days following receipt of such Enforcement Notice (the “Test Period”). For the purposes
of determining whether a Liquidity Impairment occurs all liquid assets, i.e., cash, amounts
standing to the credit of bank accounts and securities standing to the credit of securities
accounts, of the German Guarantor, or in the case of a German GmbH & Co. KG Guarantor of its
general partner, shall be taken into account (including liquid assets the German Guarantor, or in
the case of a German GmbH & Co. KG Guarantor its general partner, is due to receive within the Test
Period as well as any of its assets that can be realized within the Test Period provided that such
realization is legally permitted and such asset is not necessary (nicht betriebsnotwendig) for the
operation of its business).



(f) Regardless of the provisions set out in paragraphs (a) through (d) above, the
enforcement of a Payment Obligation shall, at the date hereof and at any time hereafter, be limited
to the extent that such enforcement would result in a personal liability (criminal or civil) of any
officer of the respective German Guarantor, or in the case of a German GmbH & Co. KG Guarantor, its
general partner, or any officer of its respective shareholder.



(g) Any amount received by the the Holders and the Trustee from the relevant German
Guarantor under the Guarantee which would be necessary for such German Guarantor to be able to cure
any Capital Impairment shall immediately upon demand be returned to such German Guarantor.



Switzerland



Notwithstanding any term or provision of the Notation of Guarantee or any other term or provision
of the Indenture or any related agreement, such as the Purchase Agreement and/or the Registration
Rights Agreement or the Offering Circular (together the “Agreements”), if and to the extent that
any Guarantor incorporated or established under the laws of, or for tax purposes resident in,
Switzerland or for tax purposes having a permanent establishment in Switzerland with which the
Agreements are effectively connected (each, a “Swiss Guarantor”) is liable pursuant to the Notation
of Guarantee and these Agreements for, or with respect to, obligations of the Company, any other
Guarantors or any other affiliates (other than its own subsidiaries) (the “Restricted
Obligations”), such Swiss Guarantor shall (to the extent that such is a requirement of the
applicable law in force at the relevant time) only be liable for a sum equal to the maximum amount
of its profits available for distribution as dividend at any given time (being the balance sheet
profits and any reserves made for this purpose, in each case in accordance with the applicable
provisions of the Swiss Code of Obligations), which amount shall be, if and to the extent required
by Swiss law and practice at the relevant time, (a) determined on the basis of an audited annual or
interim balance sheet of the Swiss Guarantor, (b) approved by the auditors of the Swiss Guarantor
as distributable amount, and (c) approved as distribution by a duly convened meeting of the
shareholders of the Swiss Guarantor, always provided




Schedule A



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that such limitation shall not free the relevant Swiss Guarantor from its payment obligations under
this Agreement in excess of its distributable profits, but merely postpone the payment date
therefore until such times as payment is permitted notwithstanding such limitation.



To the extent required by applicable law and any applicable double taxation treaty in force at the
relevant time, in respect of the Restricted Obligations, each Swiss Guarantor shall (A) (a) deduct
Swiss withholding tax at the rate of 35% (or such other rate as is applicable) from any payment
made by it in respect of the Restricted Obligations, (b) pay any such deduction to the Swiss
Federal Tax Administration, and (c) promptly notify (or procure that the Company notifies) the
Representative that such a deduction has been made and provide the Representative with evidence
that such a deduction has been paid to the Swiss Federal Tax Administration; and (B) to the extent
such a deduction is made, not be obliged to gross-up or indemnify (or otherwise hold harmless) the
Indemnified Parties in relation to any such deduction and payment made by it to the Swiss Federal
Tax Administration if such gross-up or indemnification is illegal or the amount paid to the Swiss
Federal Tax Administration plus the amount of the gross-up or indemnification exceeds the maximum
amount of the Swiss Guarantor’s profits available for distribution as dividend as determined
pursuant to the above sub-paragraph.



Subject only to the limitation of the amount to be paid in respect of the Restricted Obligations,
each Swiss Guarantor and the Company undertake to take and/or cause all measures necessary or
useful to (a) make such payment valid and non-refundable under Swiss corporate law; and (b)
implement the forgoing documents and other acts.





Schedule A


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