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As publicly filed with the Securities and Exchange Commission on October 30, 2017

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM F-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Constellium N.V.

(Exact name of Registrant as specified in its charter)

 

 

 

The Netherlands   3341   Not Applicable

(State or other jurisdiction of

incorporation or organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification Number)

Tupolevlaan 41-61

1119 NW Schiphol-Rijk

The Netherlands

+31 20 654 97 80

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

 

Corporation Service Company

80 State Street

Albany, NY 12207-2543

(518) 433-4740

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

Karessa L. Cain

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, NY 10019

Phone: (212) 403-1000

Fax: (212) 403-2000

 

Keith L. Halverstam

Benjamin D. Stern

Latham & Watkins LLP

885 Third Avenue

New York, NY 10022

Phone: (212) 906-1200

Fax: (212) 751-4864

 

Approximate date of commencement of proposed sale to the public : From time to time after this Registration Statement becomes effective as determined by market conditions.

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.  ☐

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415, check the following box.  ☒

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.  ☒

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.  ☐

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.

Emerging growth company  ☐

If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of each class of

securities to be registered

 

Amount

to be

registered (1)

 

Proposed

maximum

offering price

per share (1)

 

Proposed

maximum

aggregate

offering price (1)

 

Amount of

registration fee (1)

Class A Ordinary shares, par value €0.02 per share

               

 

 

(1) An indeterminate amount of the securities is being registered as may from time to time be offered hereunder at indeterminate prices. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of all registration fees and will pay the registration fees subsequently in advance or on a “pay-as-you-go” basis.

 

 

 

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PROSPECTUS

Class A Ordinary Shares

 

 

LOGO

Constellium N.V.

(Incorporated in the Netherlands)

 

 

Constellium N.V. may from time to time offer to sell shares of our Class A ordinary shares, nominal value €0.02 per share, which we refer to as the “shares,” the “Class A ordinary shares” or the “ordinary shares.” Our ordinary shares are listed on the New York Stock Exchange and Euronext in Paris under the symbol “CSTM.”

From the date of this prospectus, we may offer the ordinary shares from time to time in amounts, at prices and on terms determined by market conditions at the time of the offering. We may sell or otherwise transfer the ordinary shares directly or alternatively through underwriters, broker-dealers or agents we select. If we use underwriters, broker-dealers or agents to sell or transfer the ordinary shares, we will name them and describe their compensation in a prospectus supplement. For more information regarding the sales or transfers of ordinary shares pursuant to this prospectus, please read “Plan of Distribution.”

Neither the U.S. Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

 

 

Investing in our ordinary shares involves risks. Please carefully consider the “Risk Factors” in “Item 3. Key Information—Risk Factors” of our most recent Annual Report on Form 20-F incorporated by reference in this prospectus and the “ Risk Factors ” section in any applicable prospectus supplement, for a discussion of the factors you should consider carefully before deciding to purchase these securities.

 

 

 

 

The date of this prospectus is October 30, 2017.

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TABLE OF CONTENTS

 

MARKET AND INDUSTRY DATA

     1  

TRADEMARKS

     1  

THE COMPANY

     1  

THE OFFERING AND THIS PROSPECTUS

     2  

RISK FACTORS

     2  

IMPORTANT INFORMATION AND CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

     2  

USE OF PROCEEDS

     5  

DESCRIPTION OF CAPITAL STOCK

     6  

PLAN OF DISTRIBUTION

     27  

EXPENSES

     30  

LEGAL MATTERS

     31  

EXPERTS

     31  

ENFORCEMENTS OF JUDGMENTS

     32  

WHERE YOU CAN FIND ADDITIONAL INFORMATION

     33  

INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

     34  

This prospectus is part of a shelf registration statement that we have filed with the U.S. Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under this shelf registration process, we may, from time to time, offer and sell or otherwise transfer the ordinary shares described in this prospectus and in an accompanying prospectus supplement, if required, in one or more offerings.

This prospectus provides you with a general description of the ordinary shares we may offer. Each time we sell our ordinary shares using this prospectus, if and to the extent necessary, we will provide a prospectus supplement that will contain specific information about the terms of that offering, including the number or amount of shares being offered, the manner of distribution, the identity of any underwriters or other counterparties and other specific material terms related to the offering. Such prospectus supplement may also add, update or change information contained in this prospectus. To the extent that any statement made in an accompanying prospectus supplement is inconsistent with statements made in this prospectus, the statements made in this prospectus will be deemed modified or superseded by those made in the accompanying prospectus supplement. You should read both this prospectus and any prospectus supplement together.

We have not authorized anyone to provide any information other than that contained in this prospectus or in any free writing prospectus prepared by or on behalf of us or to which we may have referred you. We do not take any responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We have not authorized any other person to provide you with different or additional information and are not making an offer to sell or transfer the ordinary shares in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus is accurate only as of the date on the front cover of this prospectus, regardless of the time of delivery of the prospectus or any sale of the ordinary shares. Our business, financial condition, results of operations and prospects may have changed since the date on the front cover of this prospectus.

For investors outside of the United States, we have not done anything that would permit the offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. You are required to inform yourselves about and to observe any restrictions relating to the offering and the distribution of this prospectus outside of the United States.

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MARKET AND INDUSTRY DATA

This registration statement includes estimates of market share and industry data and forecasts that we have obtained from industry publications, surveys and forecasts, as well as from internal company sources. Industry publications, surveys and forecasts generally state that the information contained therein has been obtained from sources believed to be reliable. However, we have not independently verified any of the data from third-party sources, nor have we ascertained the underlying economic assumptions relied upon therein. In addition, this registration statement includes market share and industry data that we have prepared primarily based on our knowledge of the industry in which we operate. Statements as to our market position relative to our competitors are based on volume (by metric tons) for the twelve months ended December 31, 2016, and unless otherwise noted, internal analysis and estimates may not have been verified by independent sources. We do not believe that our market position relative to our competitors in 2017 is considerably different from 2016. Our estimates, forecasts, and projections, in particular as they relate to market share and our general expectations, are subject to various assumptions, which may prove to be inaccurate, involve risks and uncertainties, and are subject to change based on various factors, including those discussed in “Item 3. Key Information—Risk Factors” of our most recent Annual Report on Form 20-F incorporated by reference in this prospectus.

All information regarding our market and industry is based on the latest data currently available to us, which in some cases may be several years old. In addition, some of the data and forecasts that we have obtained from industry publications and surveys and/or internal company sources are provided in foreign currencies.

TRADEMARKS

We have proprietary rights to trademarks used in the information incorporated by references into this prospectus, which are important to our business, many of which are registered under applicable intellectual property laws. Solely for convenience, trademarks and trade names referred to in the information incorporated by reference in this prospectus may appear without the “ ® ” or “ ™ ” symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent possible under applicable law, our rights or the rights of the applicable licensor to these trademarks and trade names. We do not intend our use or display of other companies’ trade names, trademarks or service marks to imply a relationship with, or endorsement or sponsorship of us by, any other companies. Each trademark, trade name or service mark of any other company appearing in this prospectus is the property of its respective holder.

THE COMPANY

Constellium Holdco B.V. (formerly known as Omega Holdco B.V.) was incorporated as a Dutch private limited liability company on May 14, 2010. Constellium Holdco B.V. was formed to serve as the holding company for various entities comprising the Alcan Engineered Aluminum Products business unit (the “AEP Business”), which Constellium acquired from affiliates of Rio Tinto on January 4, 2011 (the “Acquisition”). On May 21, 2013, Constellium Holdco B.V. was converted into a Dutch public limited liability company and renamed Constellium N.V. Any references to Dutch law and the Amended and Restated Articles of Association are references to Dutch law and the articles of association of the Company as applicable following the conversion. On May 29, 2013, we completed our initial public offering. The articles of association of the Company were last amended and restated on August 18, 2015.

References to the Wise Acquisition refer to our January 5, 2015 acquisition of Wise Metals Intermediate Holdings LLC and its subsidiaries, which companies we refer to collectively as “Wise.”

The business address (head office) of Constellium N.V. is Tupolevlaan 41-61, 1119 NW Schiphol-Rijk, the Netherlands, and our telephone number is +31 20 654 97 80. The address for our agent for service of process in the United States is Corporation Service Company, 80 State Street, Albany, NY 12207-2543, and its telephone number is (518) 433-4740.

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THE OFFERING AND THIS PROSPECTUS

Under this prospectus, we may offer and sell to the public ordinary shares in one or more series or issuances from time to time. This prospectus is part of a registration statement that we filed with the SEC utilizing a “shelf” registration process. Under this shelf process, we may sell from time to time any combination of the ordinary shares described in this prospectus in one or more offerings. This prospectus provides you with a general description of the ordinary shares we may offer. When we sell ordinary shares, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under the heading “Where You Can Find Additional Information” and “Incorporation Of Certain Documents By Reference.”

RISK FACTORS

Before making a decision to invest in our ordinary shares, you should carefully consider the risks described under “Risk Factors” in any prospectus supplement, if required, and in our most recent Annual Report on Form 20-F, and in any updates to those risk factors in our reports on Form 6-K incorporated herein or in any prospectus supplement, together with all of the other information appearing or incorporated by reference in this prospectus and any prospectus supplement, in light of your particular investment objectives and financial circumstances.

IMPORTANT INFORMATION AND CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

This prospectus and the documents incorporated in it by reference contain “forward-looking statements” with respect to our business, results of operations and financial condition, and our expectations or beliefs concerning future events and conditions. You can identify certain forward-looking statements because they contain words such as, but not limited to, “believes,” “expects,” “may,” “should,” “approximately,” “anticipates,” “estimates,” “intends,” “plans,” “targets,” “likely,” “will,” “would,” “could” and similar expressions (or the negative of these terminologies or expressions). All forward-looking statements involve risks and uncertainties. Many risks and uncertainties are inherent in our industry and markets. Others are more specific to our business and operations. The occurrence of the events described and the achievement of the expected results depend on many events, some or all of which are not predictable or within our control. Actual results may differ materially from the forward-looking statements contained in this prospectus and the documents incorporated in it by reference.

Important factors that could cause actual results to differ materially from those expressed or implied by the forward-looking statements are disclosed under “Item 3. Key Information—D. Risk Factors” of our most recent Annual Report on Form 20-F incorporated by reference in this prospectus, including, without limitation, with respect to our estimated and projected earnings, income, equity, assets, ratios and other estimated financial results. All forward-looking statements in this prospectus and the documents incorporated in it by reference, and subsequent written and oral forward-looking statements attributable to us, or persons acting on our behalf, are expressly qualified in their entirety by the cautionary statements. Some of the factors that we believe could materially affect our results include:

 

  •   the highly competitive nature of the metals industry and the risk that aluminium will become less competitive compared to alternative materials;

 

  •   the substantial capital investment requirements of our business;

 

  •   unplanned business interruptions and equipment failure;

 

  •   our ability to manage our labor costs and labor relations;

 

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  •   the risk associated with dependency on a limited number of customers for a substantial portion of our sales;

 

  •   the risk associated with consolidation among our customers;

 

  •   the risk associated with being dependent on a limited number of suppliers for a substantial portion of our aluminium supply;

 

  •   the volatility of aluminium prices;

 

  •   our inability to adequately mitigate the costs of price increases of our raw materials;

 

  •   the volatility of energy prices;

 

  •   adverse changes in currency exchange rates;

 

  •   our inability to execute an effective hedging policy;

 

  •   a deterioration in our financial position or a downgrade of our ratings by a credit rating agency, which could increase our borrowing costs, lead to our inability to access liquidity facilities, and adversely affect our business relationships;

 

  •   our indebtedness could materially adversely affect our ability to invest in or fund our operations, limit our ability to react to changes in the economy or our industry or force us to take alternative measures;

 

  •   our ability to attract and retain certain members of our management team;

 

  •   our ability to implement our business strategy, including our productivity and cost reduction initiatives;

 

  •   our susceptibility to cyclical fluctuations in the metals industry, our end-markets and our customers’ industries, and changes in general economic conditions;

 

  •   reduced customer demand in our can end-market resulting from higher consumer focus on obesity and other health concerns;

 

  •   insufficient or inflexible production capacity;

 

  •   risks associated with our resources and product and geographic diversity relative to those of our competitors;

 

  •   reductions in demand for our products;

 

  •   our joint venture with UACJ in Body-in-White/auto body sheet products in the United States may not generate the expected returns and we may be unable to execute on our strategy with respect to the joint venture;

 

  •   inability to develop or implement technology initiatives and other strategic investments in a timely manner;

 

  •   failures of our information systems or protection thereof;

 

  •   disruptive upgrades to our information technology infrastructure;

 

  •   the risks associated with renegotiation of labor contracts;

 

  •   the risks associated with any restructuring efforts;

 

  •   ongoing uncertainty in a deterioration of the global economy due to political, regulatory or other developments;

 

  •   the effects on our business of disruptions in European economies;

 

  •   the risks associated with our international operations;

 

  •   the impact of regulations with respect to carbon dioxide emissions on our business;

 

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  •   restrictive covenants and other terms of our indebtedness that could restrict our operations;

 

  •   our exposure to variable interest rate risk through our present or future indebtedness;

 

  •   losses or increased funding and expenses related to our pensions, other post-employment benefits and other long-term employee benefits plans;

 

  •   failure to adequately protect proprietary rights to our technology;

 

  •   risks associated with litigation involving our intellectual property;

 

  •   costs or liabilities associated with environmental, health and safety matters;

 

  •   the effects of potential changes in laws and government regulations;

 

  •   costs associated with product liability claims against us;

 

  •   unknown or unanticipated issues, expenses, and liabilities as a result of the Wise Acquisition;

 

  •   risks of injury or death in our business operations;

 

  •   risk of carrying inadequate insurance;

 

  •   changes in income tax rates, income tax laws and additional income tax liabilities;

 

  •   risk that historical financial information in this annual report is not representative of our future results;

 

  •   failure to adequately maintain our financial reporting and internal controls;

 

  •   risks associated with losing our status as a foreign private issuer; and

 

  •   the other factors presented under “Item 3. Key Information—D. Risk Factors” of our Annual Report on Form 20-F for the fiscal year ended December 31, 2016 as filed with the SEC on March 21, 2017.

We caution you that the foregoing list may not contain all of the factors that are important to you. In addition, in light of these risks and uncertainties, the matters referred to in the forward-looking statements contained in this prospectus and the documents incorporated in it by reference may not in fact occur. We undertake no obligation to publicly update or revise any forward-looking statement as a result of new information, future events or otherwise, except as required by law.

 

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USE OF PROCEEDS

Unless we state differently in the applicable prospectus supplement, we expect to use the net proceeds we receive from the sale of the ordinary shares offered by us pursuant to this prospectus and any applicable prospectus supplement for general corporate purposes. We will not receive proceeds from the sale of ordinary shares by persons other than us except as may otherwise be stated in any applicable prospectus supplement.

 

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DESCRIPTION OF CAPITAL STOCK

This section of the prospectus includes a description of the material terms of our Amended and Restated Articles of Association as of the date of this prospectus and of specific provisions of the Book 2 of the Dutch Civil Code (Boek 2 van het Nederlands Burgerlijk Wetboek), which governs the rights of holders of our Class A ordinary shares, which we refer to as the “Dutch Civil Code.” The following description is intended as a summary only and is qualified in its entirety by reference to the complete text of our Amended and Restated Articles of Association, which is attached as an exhibit our most recent Annual Report on Form 20-F, which is incorporated by reference in the registration statement of which this prospectus is a part. We urge you to read the full text of that exhibit.

Outstanding Capital Stock

Pursuant to our Amended and Restated Articles of Association, our authorized share capital amounts to €8,000,000 consisting of 400,000,000 Class A ordinary shares, each with a nominal value of €0.02.

As of October 1, 2017, the Company’s issued and paid-up share capital amounted to € 2,111,633.46 consisting of 105,735,623 Class A ordinary shares, each with a nominal value of €0.02.

Each of the Class A ordinary shares has one vote.

Our Amended and Restated Articles of Association and Dutch law provide that so long as shares are held by the Company, they will have no voting rights and no right to profits.

Pursuant to our Amended and Restated Articles of Association, upon liquidation of Constellium, the balance remaining after payment of the debts of the dissolved Company shall be transferred to the holders of Class A ordinary shares in proportion to the aggregate nominal value of the Class A ordinary shares held by each shareholder.

A shareholder, by reason only of its holdings in Constellium, will not become personally liable for legal acts (rechtshandelingen) performed in the name of Constellium and will not be obliged to contribute to losses of Constellium in excess of the amount which must be paid up on the shares issued to it.

Form of Shares

Pursuant to our Amended and Restated Articles of Association, our Class A ordinary shares are available in the form of an entry in the share register without issuance of a share certificate. All of our Class A ordinary shares are registered in a register maintained by us and on our behalf by our transfer agent. Our Class A ordinary shares are freely transferable except as otherwise restricted under U.S. or other applicable securities laws.

Issuance of Ordinary Shares

We may issue Class A ordinary shares subject to the maximum amounts prescribed by our authorized share capital contained in our Amended and Restated Articles of Association. Our board of directors has the power to issue Class A ordinary shares if and to the extent that the general meeting of shareholders has delegated such authority to the board of directors. A delegation of authority to the board of directors to issue Class A ordinary shares remains effective for the period specified by the general meeting of shareholders and may be up to five years from the date of delegation. The general meeting of shareholders may renew this delegation annually. Without this delegation, only our shareholders acting at a general meeting of shareholders have the power to authorize the issuance of Class A ordinary shares.

On May 22, 2013, the general meeting of shareholders adopted a resolution pursuant to which our board of directors is authorized to issue Class A ordinary shares for a period of five years from May 22, 2013 up to a maximum of the amount of shares included in the authorized share capital as it will read from time to time.

 

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Any increase in the number of authorized shares would require the approval of an amendment to our Amended and Restated Articles of Association in order to effectuate such increase. To be effective, any such amendment would need to be proposed by the board of directors and adopted by the shareholders at a general meeting by a majority vote.

During the three years prior to the date of this registration statement, we have made the following issuances of share capital:

 

  •   We have issued an aggregate of 816,677 Class A ordinary shares in connection with awards under our 2013 Equity Incentive Plan through September 30, 2017; and

 

  •   We adopted a new long-term incentive program under our 2013 Equity Incentive Plan effective as of July 31, 2017 pursuant to which we granted certain employees (1) restricted stock unit awards that generally vest on the third anniversary of the date of grant, subject to continued employment through such anniversary and to accelerated vesting in the event of the employee’s death, disability, or retirement or upon certain change of control transactions; and (2) performance share units awards that generally vest on the third anniversary of the date of grant, subject to the satisfaction of specified performance criteria related to relative total stockholder return metrics and continued employment through such anniversary, and to accelerated vesting in the event of the employee’s death, disability, or retirement, or upon certain change of control transactions. Since the adoption of the modified program, we have granted awards for up to 1.58 million ordinary shares (assuming applicable criteria are satisfied at the target level).

Preemptive Rights

Each holder of Class A ordinary shares has a preemptive right to subscribe for ordinary shares that we issue for cash, unless the general meeting of shareholders, or its delegate, limits or excludes this right. Furthermore, no preemptive rights exist with respect to Class A ordinary shares issued (i) for consideration other than cash, (ii) to our employees or the employees of our group of companies, or (iii) to a party exercising a previously obtained right to acquire shares.

The right of our shareholders to subscribe for shares pursuant to this preemptive right may be excluded or limited by the general meeting of shareholders. If the general meeting of shareholders delegates its authority to the board of directors for this purpose, then the board of directors will have the power to limit or exclude the preemptive rights of shareholders. Such a delegation requires the approval of at least two-thirds of the votes cast by shareholders at a general meeting of shareholders where less than half of the issued share capital is represented or a majority of the votes cast at the general meeting of shareholders where more than half of the share capital is represented. Designations of authority to the board of directors may remain in effect for up to five years and may be renewed for additional periods of up to five years.

On May 22, 2013, the general meeting of shareholders adopted a resolution pursuant to which our board of directors is authorized to limit or exclude the preemptive rights of holders of ordinary shares for a period of five years from the date of such resolution.

Repurchases of Our Shares

We may acquire our shares, subject to applicable provisions of Dutch law and our Amended and Restated Articles of Association, to the extent that:

 

  •   our shareholders’ equity, less the amount to be paid for the shares to be acquired, exceeds the sum of (i) our share capital account plus (ii) any reserves required to be maintained by Dutch law or our Amended and Restated Articles of Association; and

 

  •   after the acquisition of shares, we and our subsidiaries would not hold, or would not hold as pledgees, shares having an aggregate nominal value that exceeds 50% of our issued share capital.

 

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Our board of directors may repurchase shares only if our shareholders have authorized the board of directors to do so.

On June 15, 2017 the general meeting of shareholders adopted a resolution pursuant to which our Board is authorized until December 15, 2018 to repurchase shares in the capital of the Company by agreement, including private transactions and transactions effected through a stock exchange for a maximum of 10% of the issued share capital at a share price of:

 

  i) at least the nominal value; and

 

  ii) at a maximum equal to the greater of 110% of the market price of the shares on the NYSE and 110% of the market price of the shares on Euronext Paris with the market price deemed to be the average of: the closing price on each of the five consecutive days of trading preceding the three trading days prior to the date of repurchase.

As of September 30, 2017, the Company held 35,189 Class A ordinary shares in its own capital.

Capital Reductions; Cancellation

Upon a proposal of the board of directors, at a general meeting, our shareholders may vote to reduce our issued share capital by (i) cancelling shares or (ii) by reducing the nominal value of the shares by amendment to our Amended and Restated Articles of Association. In either case, this reduction would be subject to applicable statutory provisions. A resolution to cancel shares can only relate to shares held in treasury by the company. In order to be approved, a resolution to reduce the capital requires approval of a majority of the votes cast at a general meeting of shareholders if at least half the issued capital is represented at the meeting or at least two-thirds of the votes cast at the general meeting of shareholders if less than half of the issued capital is represented at the general meeting of shareholders.

A reduction in the number of shares without repayment and without release from the obligation to pay up the shares must be effectuated proportionally on all shares. A resolution to reduce capital requires notice to our creditors, who have a right to object to a reduction in capital under specified circumstances.

General Meetings of Shareholders

Each shareholder has a right to attend general meetings, either in person or by proxy, and to exercise voting rights in accordance with the provisions of our Amended and Restated Articles of Association. We must hold at least one general meeting of shareholders each year. This meeting must be convened at one of four specified locations in the Netherlands (Amsterdam, Rotterdam, the Hague and Haarlemmermeer (Schiphol)) within six months after the end of our fiscal year. Our board of directors may convene additional general meetings of shareholders as often as they deem necessary. Pursuant to Dutch law, one or more shareholders representing at least 10 percent of our issued share capital may request the Dutch courts to order that a general meeting of shareholders be held if our board of directors has not met the request of such shareholders to convene a general meeting of shareholders. Dutch law does not restrict the rights of holders of Class A ordinary shares who do not reside in the Netherlands from holding or voting their shares.

We will give notice of each meeting of shareholders by publication on our website and in any other manner that we may be required to follow in order to comply with applicable stock exchange and SEC requirements. We will give notice at least 42 calendar days prior to a general meeting of shareholders and we are required to publish the following information on our website, and leave such information available on our website for a period of at least one year: (i) the notice convening the general meeting of shareholders, including the place and time of the meeting, the agenda for the meeting and the right to attend the meeting, (ii) any documents to be submitted to the general meeting of shareholders, (iii) any proposals with respect to resolutions to be adopted by the general meeting of shareholders or, if no proposal will be submitted to the general meeting of shareholders,

 

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an explanation by the board with respect to the items on the agenda, (iv) to the extent applicable, any draft resolutions with respect to items on the agenda proposed by a shareholder, (v) to the extent applicable, a format proxy statement and a form to exercise voting rights in writing and (vi) the total number of outstanding shares and voting rights in our capital on the date of the notice convening the general meeting of shareholders.

Pursuant to Dutch law, shareholders representing at least 3% of the issued share capital have the right to request the inclusion of additional items on the agenda of shareholder meetings, provided that such request is received by us no later than 60 days before the day the relevant shareholder meeting is held and such request is not contrary to a significant interest of ours. Our board of directors may decide that shareholders are entitled to participate in, to address and to vote in the general meeting of shareholders by way of an electronic means of communication, in person or by proxy, provided the shareholder may by the electronic means of communication be identified, directly take notice of the discussion in the meeting and participate in the deliberations. Our board of directors may adopt a resolution containing conditions for the use of electronic means of communication in writing. If our board of directors has adopted such regulations, they will be disclosed with the notice of the meeting as provided to shareholders.

The board shall determine a record date ( registratiedatum ) of 28 calendar days prior to a general meeting of shareholders to establish which shareholders are entitled to attend and vote in the general meeting of shareholders. If and to the extent that the total number of outstanding shares and voting rights in our capital are changed on the record date, we have to publish on our website on the first business day following the record date such total number of outstanding shares and voting rights on the record date.

At least within 15 calendar days after the general meeting of shareholders we are required to publish the established voting results for each resolution on our website.

Voting Rights

Each share is entitled to one vote. Voting rights may be exercised by registered shareholders or by a duly appointed proxy of a registered shareholder, which proxy need not be a shareholder. Our Amended and Restated Articles of Association do not limit the number of registered shares that may be voted by a single shareholder. Treasury shares, whether owned by us or one of our majority-owned subsidiaries, will not be entitled to a vote at general meetings of shareholders. Resolutions of the general meeting of shareholders are adopted by a simple majority of votes cast, except where Dutch law or our Amended and Restated Articles of Association provide for a special majority. No shareholder has the right of cumulative voting under Dutch law or our Amended and Restated Articles of Association.

Our Amended and Restated Articles of Association and Dutch law provide that decisions of our board of directors involving a significant change in our identity or character are subject to the approval of the general meeting of shareholders. Such changes include:

 

  •   the transfer of all or substantially all of our business to a third party;

 

  •   the entry into or termination of a longstanding joint venture by us or by any of our subsidiaries with another legal entity or company, or of our position as a fully liable partner in a limited partnership or a general partnership if the joint venture is of a major significance to us; or

 

  •   the acquisition or disposal, by us or any of our subsidiaries, of a participating interest in the capital of a company valued at one-third or more of our assets according to our most recently adopted consolidated annual balance sheet with explanatory notes thereto.

Matters requiring a majority of at least two-thirds of the votes cast, which majority votes also represent more than 50% of our issued share capital include, among others:

 

  •   a resolution to cancel a binding nomination for the appointment of members of the board of directors;

 

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  •   a resolution to appoint members of the board of directors, if the board of directors fails to exercise its right to submit a binding nomination, or if the binding nomination is set aside; and

 

  •   a resolution to dismiss or suspend members of the board of directors other than pursuant to a proposal by the board of directors.

Matters requiring a majority of at least two-thirds of the votes cast, if less than 50% of our issued share capital is represented include, among others:

 

  •   a resolution of the general meeting of shareholders regarding restricting and excluding preemptive rights, or decisions to designate the board of directors as the body authorized to exclude or restrict pre-emptive rights; and

 

  •   a resolution of the general meeting of shareholders to reduce our outstanding share capital.

Anti-takeover Provisions

Under Dutch law, protective measures against takeovers are possible and permissible, within the boundaries set by Dutch law and Dutch case law. See “Risk Factors—Provisions of our organizational documents and applicable law may impede or discourage a takeover, which could deprive our investors of the opportunity to receive a premium for their Class A ordinary shares or to make changes in our board of directors.”

Adoption of Annual Accounts and Discharge of Management Liability

We are required to publish our annual accounts within four months after the end of each financial year and our half-yearly figures within three months after the end of the first six months of each financial year. Within five calendar days after adoption of our annual accounts, we are required to submit our adopted annual accounts to the Netherlands Authority for the Financial Markets, or AFM.

The annual accounts must be accompanied by an auditor’s certificate, an annual report and certain other mandatory information and must be made available for inspection by our shareholders at our offices within the same period. Under Dutch law, our shareholders must approve the appointment and removal of our independent auditors, as referred to in Article 2:393 Dutch Civil Code, to audit the annual accounts. The annual accounts are adopted by our shareholders at the general meeting of shareholders and will be prepared in accordance with Part 9 of Book 2 of the Netherlands Civil Code.

The adoption of the annual accounts by our shareholders does not release the members of our board of directors from liability for acts reflected in those documents. Any such release from liability requires a separate shareholders’ resolution.

Our financial reporting is subject to the supervision of the AFM. The AFM will review the content of the financial reports and has the authority to approach us with requests for information in case on the basis of publicly available information it has reasonable doubts as to the integrity of our financial reporting.

Management Indemnification

Our Amended and Restated Articles of Association provide that we will indemnify our directors against all adverse financial effects incurred by such person in connection with any action, suit or proceeding if such person acted in good faith and in a manner he or she reasonably could believe to be in or not opposed to our best interests. In addition, we enter into indemnification agreements with our directors and officers.

Dividends

Our Amended and Restated Articles of Association provide that dividends may only be paid out of profit as shown in the adopted annual accounts. We will have the ability to make distributions to shareholders and other

 

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persons entitled to distributable profits only to the extent that our equity exceeds the sum of the paid and called-up portion of the ordinary share capital and the reserves that must be maintained in accordance with provisions of Dutch law or our Amended and Restated Articles of Association. The profits must first be used to set up and maintain reserves required by law and must then be set off against certain financial losses. Interim dividends may be declared by our board of directors as provided in the articles of association and may be distributed to the extent that the shareholders’ equity exceeds the amount of the issued and paid-up capital plus required legal reserves as described herein before as apparent from an (interim) financial statement. Interim dividends should be regarded as advances on the final dividend to be declared with respect to the financial year in which the interim dividends have been declared. Should it be determined after adoption of the annual accounts with respect to the relevant financial year that the distribution was not permissible, the Company may reclaim the paid interim dividends as unduly paid. Further, our board of directors may resolve to make a distribution at the expense of any reserve of the Company. Distributions in cash that have not been collected within five years and one day after they have become due and payable will revert to us. We may not make any distribution of profits on shares that we hold. Our board of directors will determine whether and how much of the remaining profit they will reserve and the manner and date of such distribution and will notify shareholders thereof.

All calculations to determine the amounts available for dividends will be based on our annual accounts, which may be different from our consolidated financial statements, such as those included in this prospectus. Our statutory accounts have to date been prepared under EU IFRS and are deposited with the trade register of the Chamber of Commerce in the Netherlands.

Liquidation Rights and Dissolution

Under our Amended and Restated Articles of Association, we may be dissolved by a resolution of the general meeting of shareholders, subject to a proposal by the board of directors.

In the event of a dissolution and liquidation, the assets remaining after payment of all debts and liquidation expenses are to be distributed to shareholders in proportion to the aggregate nominal amount of shares held by each shareholder. All distributions referred to in this paragraph will be made in accordance with the relevant provisions of the laws of the Netherlands.

Limitations on Non-residents and Exchange Controls

There are no limits under the laws of the Netherlands or in our Amended and Restated Articles of Association on non-residents of the Netherlands holding or voting our ordinary shares. Currently, there are no exchange controls under the laws of the Netherlands on the conduct of our operations or affecting the remittance of dividends.

Netherlands Squeeze-Out Proceedings

Pursuant to Section 2:92a of the Dutch Civil Code, a shareholder who for its own account holds at least 95% of our issued capital may institute proceedings against our other shareholders jointly for the transfer of their shares to the claimant. The proceedings are held before the Enterprise Chamber of the Amsterdam Court of Appeal ( Ondernemingskamer ) and can be instituted by means of a writ of summons served upon each of the minority shareholders in accordance with the provisions of the Dutch Code of Civil Procedure ( Wetboek van Burgerlijke Rechtsvordering ). The Enterprise Chamber may grant the claim for squeeze-out in relation to all minority shareholders and will determine the price to be paid for the shares, if necessary after appointment of one or three experts who will offer an opinion to the Enterprise Chamber on the value to be paid for the shares of the minority shareholders. Once the order to transfer by the Enterprise Chamber of the Amsterdam Court of Appeal becomes irrevocable, the person acquiring the shares will give written notice of the date and place of payment and the price to the holders of the shares to be acquired whose addresses are known to him. Unless the addresses of all of them are known to him, he will also publish the same in a newspaper with a national circulation.

 

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Registrar and Transfer Agent

A register of holders of the ordinary shares is maintained by us at our offices in the Netherlands, and a branch register is maintained in the United States by Computershare Trust Company, N.A., which is serving as branch registrar and transfer agent.

Dutch Corporate Governance Code

Since we are a public company and listed our ordinary shares on Euronext Paris, a regulated market, we are subject to the Dutch Corporate Governance Code (the “Dutch Code”). The Dutch Code, as amended, became effective on January 1, 2017, and applies to all Dutch companies listed on any government-recognized stock exchange , whether in the Netherlands or elsewhere.

The Dutch Code is based on a “comply or explain” principle. Accordingly, companies are required to disclose in their annual report filed in the Netherlands whether or not they are complying with the various rules of the Dutch Code that are addressed to the board of directors or, if any, the supervisory board of the company and, if they do not apply those provisions, to give the reasons for such non-application. The Dutch Code contains principles and best practice provisions for managing boards, supervisory boards, shareholders and general meetings of shareholders, financial reporting, auditors, disclosure, compliance and enforcement standards.

We acknowledge the importance of good corporate governance. The Board agrees with the general approach and with the majority of the provisions of the Dutch Code. However, considering our interests and the interest of our stakeholders, at this stage, there are a limited number of best practice provisions we do not apply either because such provisions conflict with or are inconsistent with the corporate governance rules of the NYSE and U.S. securities laws that apply to us, or because such provisions do not reflect best practices of global companies listed on the NYSE.

The best practice provisions we do not apply include the following:

Remuneration (Principles 3.1 up to 3.4 and associated best practice provisions).

We believe that our remuneration policy is clear and understandable and helps to focus directors, officers and other employees and consultants on business performance that creates long-term value for the Company and its affiliated business, to encourage innovative approaches to the business of the Company and to encourage ownership of our shares by directors, officers and other employees and consultants. Certain aspects of our remuneration policy may deviate from the Dutch Code to comply with applicable NYSE and SEC rules.

Conflicts of interest and related party transactions (Principle 2.7 and associated best practice provisions).

We have a policy on conflicts of interests and related party transactions. The policy provides that the determination of whether a conflict of interest exists will be made in accordance with Dutch law and on a case-by-case basis. We believe that it is not in the interest of the Company to provide for deemed conflicts of interests.

The chairman of the board may not also be or have been an executive board member (Best practice provision 5.1.3).

Mr. Evans has served as our Chairman since December 2012. Mr. Evans also served as our interim chief executive officer from December 2011 until the appointment of our former CEO Mr. Pierre Vareille in March 2012. We believe the deviation from the Dutch Code is justified considering the short interim period during which Mr. Evans acted as Executive Director.

 

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The vice-chairman of the board shall deputize for the chairman when the occasion arises. By way of addition to best practice provision 2.2.6 and 2.2.7, the vice-chairman shall act as contact for individual board members concerning the functioning of the chairman of the board (Best practice provisions 2.3.7 and 2.4.3).

We intend to comply with certain corporate governance requirements of the NYSE in lieu of the Dutch Code. Under the corporate governance requirements of the NYSE, we are not required to appoint a Vice-Chairman. If the chairman of our Board is absent, the directors that are present will elect a Non-Executive Director to chair the meeting.

The terms of reference of the board shall contain rules on dealing with conflicts of interest and potential conflicts of interest between board members and the external auditor on the one hand and the company on the other. The terms of reference shall also stipulate which transactions require the approval of the non-executive board members. The company shall draw up regulations governing ownership of and transactions in securities by board members, other than securities issued by their “own” company (Best practice provision 2.7.2).

We believe that directors should not be further limited by internal regulations in addition to the rules and restrictions under applicable securities laws.

The company shall formulate an “outline policy on bilateral contacts,” as described in the Dutch Code, with the shareholders and publish this policy on its website (Best practice provision 4.2.2).

We will not formulate an “outline policy on bilateral contacts” with the shareholders. We will comply with applicable NYSE and SEC rules and the relevant provisions of applicable law with respect to contacts with our shareholders. We believe that all contacts with our shareholders should be assessed on a case-by-case basis.

A person may be appointed as non-executive member of the board for a period of four years and may then be reappointed once for another four-year period. The non-executive board member may then subsequently be reappointed again for a period of two years, which appointment may be extended by at most two years. In the event of a reappointment after an eight-year period, reasons should be given in the report of the board. In any appointment or reappointment, the profile referred to in best practice provision 2.1.1 should be observed (Best practice provision 2.2.2).

Messrs. Guy Maugis and Werner Paschke were each re-appointed as Non-Executive Directors for a period of two (2) years, effective from June 15, 2017.

Mr. Michiel Brandjes, Mr. Philippe Guillemot, Mr. John Ormerod, Ms. Lori Walker, and Ms. Brooks were each reappointed as Non-Executive Directors for a period of one (1) year, effective from June 15, 2017.

Mr. Nicolas Manardo was appointed as a Non-Executive Board Member for a period of one (1) year, effective from June 15, 2017.

This deviation gives the shareholders the possibility to already vote on a possible re-appointment after one or two years, respectively. Since we are a relatively recent public company the maximum term is not an issue at this point.

 

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Pursuant to best practice provision 2.2.4 , the board should ensure that the company has a sound plan in place for the succession of board members that is aimed at retaining the balance in the requisite expertise, experience and diversity. Due regard should be given to the profile referred to in best practice provision 2.1.1 in drawing up the plan for non-executive board members. The non-executive board members should also draw up a retirement schedule in order to avoid, as much as possible, non-executive board members retiring simultaneously. The retirement schedule should be published on the company’s website.

As we are a relatively recent public company and (most) of our Non-Executive Directors are (re-) appointed for one year, we currently do not have a retirement schedule. Although there is no plan in place for the succession of members of the Board, the Company shall determine each year how the balance in the requisite expertise, experience and diversity can be retained.

Pursuant to best practice provision 4.3.3, a general meeting of shareholders may pass a resolution to cancel the binding nature of a nomination for the appointment of a member of the management board or the supervisory board and/or a resolution to dismiss a member of the management board or of the supervisory board by an absolute majority of the votes cast. It may be provided that this majority should represent a given proportion of the issued capital, which proportion may not exceed one-third. If this proportion of the capital is not represented at the meeting, but an absolute majority of the votes cast is in favor of a resolution to cancel the binding nature of the nomination, or to dismiss a board member, a new meeting may be convened at which the resolution may be passed by an absolute majority of the votes cast, regardless of the proportion of the capital represented at the meeting.

Our Amended and Restated Articles of Association currently provide that the General Meeting may at all times overrule a binding nomination pursuant to a resolution adopted by at least a two-thirds majority of the votes cast, if such majority represents at least half of the issued share capital.

A resolution of the General Meeting to dismiss a member of the Board other than pursuant to a proposal by the Board shall require a majority of two thirds of the votes cast, representing at least half of the issued capital.

Although this constitutes a deviation from provision 4.3.3 of the Dutch Code, we hold the view that these provisions will enhance the continuity of our management and policies.

Best practice provision 4.2.3 recommends that we should enable the shareholders to follow in real time all meetings with analysts, investors and press conferences.

We believe that enabling shareholders to follow in real time all the meetings with analysts, presentations to analysts, and presentations to investors as referred to in best practice provision 4.2.3 of the Dutch Code would create an excessive burden on our resources. We will ensure that analyst presentations are posted on our website after meetings with analysts. In addition, we hold quarterly earnings calls where we report our financial results to which all our investors are invited to attend via web conference.

Obligations of Shareholders to Make a Public Offer

The European Directive on Takeover Bids (2004/25/EC) has been implemented in Dutch legislation in the Dutch Financial Supervision Act. Pursuant to the Dutch Financial Supervision Act a shareholder who directly or indirectly has acquired 30% of the shares in the company or the voting rights attached to the shares has the obligation to launch a public offering for all shares in the company. The legislation also applies to persons acting in concert who jointly acquire 30% of the shares in the company or the voting rights attached to the shares.

Differences in Corporate Law

We are incorporated under the laws of the Netherlands. The following discussion summarizes material differences between the rights of holders of our ordinary shares and the rights of holders of the common stock of

 

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a typical corporation incorporated under the laws of the state of Delaware, which result from differences in governing documents and the laws of the Netherlands and Delaware.

This discussion does not purport to be a complete statement of the rights of holders of our ordinary shares under applicable Dutch law and our Amended and Restated Articles of Association or the rights of holders of the common stock of a typical corporation under applicable Delaware law and a typical certificate of incorporation and bylaws.

 

Delaware

  

The Netherlands

Duties of directors

The board of directors of a Delaware corporation bears the ultimate responsibility for managing the business and affairs of a corporation. There is generally only one board of directors.

 

In discharging this function, directors of a Delaware corporation owe fiduciary duties of care and loyalty to the corporation and to its shareholders. The duty of care generally requires that a director act in good faith, with the care that an ordinarily prudent person would exercise under similar circumstances. Under this duty, a director must inform himself of all material information reasonably available regarding a significant transaction. The duty of loyalty requires that a director act in a manner he reasonably believes to be in the best interests of the corporation. He must not use his corporate position for personal gain or advantage. In general, but subject to certain exceptions, actions of a director are presumed to have been made on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the corporation. However, this presumption may be rebutted by evidence of a breach of one of the fiduciary duties. Delaware courts have also imposed a heightened standard of conduct upon directors of a Delaware corporation who take any action designed to defeat a threatened change in control of the corporation.

 

In addition, under Delaware law, when the board of directors of a Delaware corporation approves the sale or break-up of a corporation, the board of directors may, in certain circumstances, have a duty to obtain the highest value reasonably available to the shareholders.

  

In the Netherlands, a listed company typically has a two-tier board structure with a management board comprising the executive directors and a supervisory board comprising the non-executive directors. It is, however, also possible to have a single-tier board, comprising both executive directors and non-executive directors. We have a single-tier board.

 

Under Dutch law the board of directors is collectively responsible for the policy and day-to-day management of the company. The non-executive directors will be assigned the task of supervising the executive directors and providing them with advice. Each director has a duty towards the company to properly perform the duties assigned to him. Furthermore, each board member has a duty to act in the corporate interest of the company.

 

Unlike under Delaware law, under Dutch law the corporate interest extends to the interests of all corporate stakeholders, such as shareholders, creditors, employees, customers and suppliers. The duty to act in the corporate interest of the company also applies in the event of a proposed sale or break-up of the company, whereby the circumstances generally dictate how such duty is to be applied. Any board resolution regarding a significant change in the identity or character of the company requires shareholders’ approval. The board of directors may decide in its sole discretion, within the confines of Dutch law and our Amended and Restated Articles of Association, to incur additional indebtedness subject to any contractual restrictions pursuant to our existing financing arrangements.

 

Our Amended and Restated Articles of Association do not impose any obligation on the members of the board of directors to hold shares in Constellium.

Director terms
The Delaware General Corporation Law generally provides for a one-year term for directors, but permits directorships to be divided into up to three classes with up to three-year terms, with the years for each class    In contrast to Delaware law, under Dutch law a director of a listed company is generally appointed for a maximum term of four years. There is no statutory limit to the number of terms a director may

 

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Delaware

  

The Netherlands

expiring in different years, if permitted by the certificate of incorporation, an initial bylaw or a bylaw adopted by the shareholders. A director elected to serve a term on a “classified” board may not be removed by shareholders without cause. There is no limit to the number of terms a director may serve.    serve. A director may be removed at any time, with or without cause, by the shareholders’ meeting. Our Amended and Restated Articles of Association do not include any provisions regarding the mandatory retirement age of a member of the board of directors.
Director vacancies
The Delaware General Corporation Law provides that vacancies and newly created directorships may be filled by a majority of the directors then in office (even though less than a quorum) or by a sole remaining director unless (a) otherwise provided in the certificate of incorporation or by-laws of the corporation or (b) the certificate of incorporation directs that a particular class of stock is to elect such director, in which case a majority of the other directors elected by such class, or a sole remaining director elected by such class, will fill such vacancy.    Under Dutch law, new members of the board of directors of a company such as ours are appointed by the general meeting, rather than appointed by the board of directors as is typical for a Delaware corporation. Our Amended and Restated Articles of Association provide that such appointment occurs from a binding nomination by the board of directors, in which case the general meeting may override the binding nature of such nomination by a resolution of two-thirds of the votes cast, which votes also represent more than 50% of the issued share capital.
Conflict of interest transactions
Under the Delaware General Corporation Law, transactions with directors must be approved by disinterested directors or by the shareholders, or otherwise proven to be fair to the company as of the time it is approved. Such transaction may be void or voidable, unless (1) the material facts of any interested directors’ interests are disclosed or are known to the board of directors and the board in good faith authorizes the contract or transaction by an affirmative votes of a majority of the disinterested directors, even though the disinterested directors constitute less than a quorum; (2) the material facts of any interested directors’ interests are disclosed or are known to the shareholders entitled to vote thereon, and the transaction is specifically approved in good faith by vote of the shareholders; or (3) the transaction is fair to the company as of the time it is approved. Interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or of a committee which authorizes the contract or transaction.   

Under Dutch law, a board member with a conflicting interest must abstain from participating in the decision-making process with respect to the relevant matter. If, however, it becomes apparent that such member was indeed involved in the decision-making process, then such decision may be nullified. Only if all board members have a conflicting interest with the company will the board nonetheless have the authority to decide on the matter.

 

Executive board members with a conflict of interest remain authorized to represent the company. However, the relevant executive board members may under certain circumstances be held personally liable for any damage suffered by the company as a consequence of the transaction.

 

Agreements entered into with third parties contrary to the rules on decision-making in the case of a conflict of interest, may as a rule not be annulled. Only under special circumstances will a company be able to annul an agreement or claim damages if a third party misuses a conflict of interest situation.

Under our Amended and Restated Articles of Association, a board member may not participate in internal discussions and decision-making on a subject or a transaction in relation to which he or she has a direct or indirect personal conflict of interest with Constellium. In case all board members have a conflict of interest, the board and all of its conflicted

 

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Delaware

  

The Netherlands

   board members will retain decision-making authority. Whether or not a potential conflict of interest exists must initially be assessed by that board member. Each board member will immediately disclose any (potential) conflict of interests to the chairman and the other members of the board. The board member with a possible conflict of interest must provide the chairman and the board all information relevant to assessing whether a conflict of interest exists. The non-executive board members will determine—without the potentially conflicted board member taking part in such discussions and decision—whether a disclosed (potential) conflict situation qualifies as a conflict of interest. If the non-executive board members determine that the potential conflict situation of such board member does not qualify as a conflict of interest, such board member will remain authorized to participate in the discussions and decision-making on the matter that gave rise to the potential conflict situation. If the non-executive board members determine that the potential conflict situation of a board member does qualify as a conflict of interest, such board member may not participate in the discussions and decision-making on the subject. If the conflicted board member is prevented from participating in the decision-making as a result of a conflict of interest, our Amended and Restated Articles of Association provide that the conflicted board member may temporarily designate an entrusted independent individual (who does not as such have a conflict of interests) to replace him in the decision-making for the matter at hand.
Proxy voting by directors
A director of a Delaware corporation may not issue a proxy representing the director’s voting rights as a director.    An absent director may issue a proxy for a specific board meeting but only in writing to another director.
Voting rights
Under the Delaware General Corporation Law, each shareholder is entitled to one vote per share of stock, unless the certificate of incorporation provides otherwise. Cumulative voting for elections of directors is not permitted unless the corporation’s certificate of incorporation specifically provides for it. Either the certificate of incorporation or the bylaws may specify the number of shares or the amount of other securities that must be represented at a meeting in order to constitute a quorum, but in no event will a quorum consist of less than one-third of the shares entitled to    Under Dutch law, shares have one vote per share, provided such shares have the same nominal value. Certain exceptions may be provided in the Amended and Restated Articles of Association of a company (which is currently not the case in our Amended and Restated Articles of Association). All shareholder resolutions are taken by an absolute majority of the votes cast, unless the articles of association or Dutch law prescribe otherwise. Dutch law does not provide for cumulative voting.

 

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Delaware

  

The Netherlands

vote at a meeting, except that, where a separate vote by a class or series or classes or series is required, a quorum will consist of no less than 1/3 of the shares of such class or series or classes or series. Shareholders as of the record date for the meeting are entitled to vote at the meeting, and the board of directors may fix a record date that is no more than 60 days nor less than 10 days before the date of the meeting, and if no record date is set then the record date is the close of business on the day next preceding the day on which the meeting is held. The determination of the shareholders of record entitled to notice or to vote at a meeting of shareholders shall apply to any adjournment of the meeting, but the board of directors may fix a new record date for the adjourned meeting.    Shareholders as of the record date for a shareholders’ meeting are entitled to vote at that meeting, which date will be the 28th day before the meeting. There is no specific provision in Dutch law for adjournments.
Shareholder proposals

Delaware law does not provide shareholders an express right to put any proposal before a meeting of shareholders, but it provides that a corporation’s bylaws may provide that if the corporation solicits proxies with respect to the election of directors, it may be required to include in its proxy solicitation materials one or more individuals nominated by a shareholder. In keeping with common law, Delaware corporations generally afford shareholders an opportunity to make proposals and nominations, provided that they comply with the notice provisions in the certificate of incorporation or bylaws.

 

Additionally, if a Delaware corporation is subject to the SEC’s proxy rules, a stockholder who owns at least $2,000 in market value or 1% of the corporation’s securities entitled to vote for a continuous period of one year as of the date he submits a proposal, may propose a matter for a vote at an annual or special meeting in accordance with those rules.

  

Pursuant to our Amended and Restated Articles of Association, extraordinary shareholders’ meetings will be held as often as the board of directors deem such necessary. Pursuant to Dutch law and our Amended and Restated Articles of Association, one or more shareholders representing at least 10% of the issued share capital may request the Dutch Courts to order that a general meeting be held.

 

The agenda for a meeting of shareholders must contain such items as the board of directors or the person or persons convening the meeting decide. Pursuant to Dutch law, unlike under Delaware law, the agenda will also include such other items as one or more shareholders, representing at least 3% of the issued share capital may request of the board of directors in writing, at least 60 days before the date of the meeting.

Action by written consent
Unless otherwise provided in the corporation’s certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of shareholders of a corporation may be taken without a meeting, without prior notice and without a vote, if one or more consents in writing, setting forth the action to be so taken, are signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.    Under Dutch law, shareholders’ resolutions may be adopted in writing without holding a meeting of shareholders, provided (a) the articles of association expressly so allow, (b) no bearer shares or depositary receipts are issued, (c) there are no persons entitled to the same rights as holders of depositary receipts, (d) the board of directors has been given the opportunity to give its advice on the resolution, and (e) the resolution is adopted unanimously by all shareholders that are entitled to vote. The requirement of unanimity therefore renders the adoption of shareholder resolutions without holding a meeting not feasible. Our Amended and Restated Articles of Association do not provide for the adoption of shareholder resolutions without holding a meeting.

 

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Delaware

  

The Netherlands

Shareholder suits
Under the Delaware General Corporation Law, a shareholder may bring a derivative action on behalf of the corporation to enforce the rights of the corporation. An individual also may commence a class action suit on behalf of himself and other similarly situated shareholders where the requirements for maintaining a class action under Delaware law have been met. A person may institute and maintain such a suit only if that person was a shareholder at the time of the transaction which is the subject of the suit. In addition, under Delaware case law, the plaintiff normally must be a shareholder not only at the time of the transaction that is the subject of the suit, but also throughout the duration of the derivative suit. Delaware law also requires that the derivative plaintiff make a demand on the directors of the corporation to assert the corporate claim before the suit may be prosecuted by the derivative plaintiff in court, unless such a demand would be futile.    Unlike under Delaware law, in the event a third party is liable to a Dutch company, only the company itself can bring a civil action against that party. Individual shareholders do not have the right to bring an action on behalf of the company. Only in the event that the cause for the liability of a third party to the company also constitutes a tortious act directly against a shareholder does that shareholder have an individual right of action against such third party in its own name. The Dutch Civil Code provides for the possibility to initiate such actions collectively. A foundation or an association whose objective is to protect the rights of a group of persons having similar interests can institute a collective action. The collective action itself cannot result in an order for payment of monetary damages but may only result in a declaratory judgment ( verklaring voor recht ). In order to obtain compensation for damages, the foundation or association and the defendant may reach—often on the basis of such declaratory judgment—a settlement. A Dutch court may declare the settlement agreement binding upon all the injured parties with an opt-out choice for an individual injured party. An individual injured party may also itself institute a civil claim for damages.
Repurchase of shares
Under the Delaware General Corporation Law, a corporation may purchase or redeem its own shares unless the capital of the corporation is impaired or the purchase or redemption would cause an impairment of the capital of the corporation. A Delaware corporation may, however, purchase or redeem out of capital any of its preferred shares or, if no preferred shares are outstanding, any of its own shares if such shares will be retired upon acquisition and the capital of the corporation will be reduced in accordance with specified limitations.    Under Dutch law, a company such as ours may not subscribe for newly issued shares in its own capital. Such company may, however, repurchase its existing and outstanding shares or depositary receipts if permitted under its articles of association. We may acquire our own shares either without paying any consideration, or, in the event any consideration must be paid, only if the following requirements are met: (a) the shareholders’ equity less the payment required to make the acquisition is not less than the sum of called and paid-up capital and any reserve required by Dutch law and our Amended and Restated Articles of Association, (b) we and our subsidiaries would not thereafter hold or hold as a pledgee shares with an aggregate nominal value exceeding 50% of the nominal value of our issued share capital, (c) our Amended and Restated Articles of Association permit such acquisition, which currently is the case, and (d) the general meeting has authorized the board of directors to do so, which authorization has been granted for the maximum period allowed under Dutch law and our Amended and Restated Articles of Association, that period being 18 months.

 

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Delaware

  

The Netherlands

Anti-takeover provisions

In addition to other aspects of Delaware law governing fiduciary duties of directors during a potential takeover, the Delaware General Corporation Law also contains a business combination statute that protects Delaware companies from hostile takeovers and from actions following the takeover by prohibiting some transactions once an acquirer has gained a significant holding in the corporation.

 

Section 203 of the Delaware General Corporation Law prohibits “business combinations,” including mergers, sales and leases of assets, issuances of securities and similar transactions by a corporation or a subsidiary with an interested shareholder that beneficially owns 15% or more of a corporation’s voting stock (or which is an affiliate or associate of the corporation and owned 15% or more of the corporation’s outstanding voting stock within the past three years), within three years after the person becomes an interested shareholder, unless:

 

•     the transaction that will cause the person to become an interested shareholder is approved by the board of directors of the target prior to the transactions;

 

•     after the completion of the transaction in which the person becomes an interested shareholder, the interested shareholder holds at least 85% of the voting stock of the corporation not including shares owned by persons who are directors and also officers of interested shareholders and shares owned by specified employee benefit plans; or

 

•     after the person becomes an interested shareholder, the business combination is approved by the board of directors of the corporation and holders of at least 66.67% of the outstanding voting stock, excluding shares held by the interested shareholder.

 

A Delaware corporation may elect not to be governed by Section 203 by a provision contained in the original certificate of incorporation of the corporation or an amendment to the original certificate of incorporation or to the bylaws of the company, which amendment must be approved by a majority of the shares entitled to vote and may not be further amended by the board of directors of the corporation. Such an amendment is not effective until twelve months following its adoption.

  

Several provisions of our Amended and Restated Articles of Association and the laws of the Netherlands could make it difficult for our shareholders to change the composition of our board of directors, thereby preventing them from changing the composition of our management. In addition, the same provisions may discourage, delay or prevent a merger, consolidation or acquisition that shareholders may consider favorable. Provisions of our Amended and Restated Articles of Association impose various procedural and other requirements, which could make it more difficult for shareholders to effect certain corporate actions. These anti-takeover provisions could substantially impede the ability of our shareholders to benefit from a change in control and, as a result, may materially adversely affect the market price of our ordinary shares and your ability to realize any potential change of control premium.

 

Our general meeting of shareholders has empowered our board of directors to issue shares and restrict or exclude preemptive rights on those shares for a period of five years. Accordingly, an issue of new shares may make it more difficult for a shareholder to obtain control over our general meeting of shareholders.

Inspection of books and records
Under the Delaware General Corporation Law, any shareholder may inspect for any proper purpose the corporation’s stock ledger, a list of its shareholders and    The board of directors provides all information desired by the shareholders’ meeting, but not to individual shareholders, unless a significant interest

 

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Delaware

  

The Netherlands

its other books and records during the corporation’s usual hours of business.    of the company dictates otherwise. Our shareholders’ register is available for inspection by the shareholders, although such does not apply to the part of our shareholders’ register that is kept in the United States pursuant to U.S. listing requirements.
Removal of directors
Under the Delaware General Corporation Law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except (a) unless the certificate of incorporation provides otherwise, in the case of a corporation whose board is classified, shareholders may effect such removal only for cause, or (b) in the case of a corporation having cumulative voting, if less than the entire board is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire board of directors, or, if there are classes of directors, at an election of the class of directors of which he is a part.   

Pursuant to our Amended and Restated Articles of Association, the general meeting has the authority to suspend or remove members of the board of directors at any time by adopting either: (a) a resolution, approved by an absolute majority of the votes cast at a meeting, if such suspension or removal is made pursuant to a proposal by the board of directors or (b) a resolution, approved by two-thirds of the votes cast at a meeting representing more than half of our issued capital, if such suspension or removal is not pursuant to a proposal by the board of directors.

 

An executive director can at all times be suspended by the board of directors.

Preemptive rights
Under the Delaware General Corporation Law, shareholders have no preemptive rights to subscribe to additional issues of stock or to any security convertible into such stock unless, and except to the extent that, such rights are expressly provided for in the certificate of incorporation.   

Under Dutch law, in the event of an issuance of ordinary shares, each shareholder will have a pro rata preemptive right to the number of ordinary shares held by such shareholder (with the exception of shares to be issued to employees or shares issued against a contribution other than in cash). Pre-emptive rights in respect of newly issued ordinary shares may be limited or excluded by the general meeting or by the board of directors if designated thereto by the general meeting or by the articles of association for a period not exceeding five years.

 

Our Amended and Restated Articles of Association conform to Dutch law and authorize the general meeting or the board of directors, if so designated by a resolution of the general meeting or by amended articles of association, to limit or exclude pre-emptive rights for holders of our shares for a period not exceeding five years. In order for such a resolution to be adopted, a majority of at least two-thirds of the votes cast in a meeting of shareholders is required, if less than half of the issued share capital is present or represented or a majority of the votes cast at a general meeting where more than half of the share capital is represented. The authority to limit or exclude preemptive rights relating to issues of our shares was delegated to our board of directors for a period of five years.

 

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Delaware

  

The Netherlands

Dividends
Under the Delaware General Corporation Law, a Delaware corporation may, subject to any restrictions contained in its certificate of incorporation, pay dividends out of its surplus (the excess of net assets over capital), or in case there is no surplus, out of its net profits for the fiscal year in which the dividend is declared or the preceding fiscal year ( provided that the amount of the capital of the corporation is not less than the aggregate amount of the capital represented by the issued and outstanding stock of all classes having a preference upon the distribution of assets). In determining the amount of surplus of a Delaware corporation, the assets of the corporation, including stock of subsidiaries owned by the corporation, must be valued at their fair market value as determined by the board of directors, without regard to their historical book value. Dividends may be paid in the form of ordinary shares, property or cash.    Dutch law provides that dividends may only be distributed after adoption of the annual accounts by the general meeting from which it appears that such dividend distribution is allowed. Moreover, dividends may be distributed only to the extent the shareholders’ equity exceeds the sum of the amount of issued and paid-up capital and increased by reserves that must be maintained under the law or the articles of association. Interim dividends may be declared as provided in the articles of association and may be distributed to the extent that the shareholders’ equity exceeds the amount of the issued and paid-up capital plus required legal reserves as described herein before as apparent from an (interim) financial statement. Interim dividends should be regarded as advances on the final dividend to be declared with respect to the financial year in which the interim dividends have been declared. Should it be determined after adoption of the annual accounts with respect to the relevant financial year that the distribution was not permissible, the Company may reclaim the paid interim dividends as unduly paid. Under Dutch law, the articles of association may prescribe that the board of directors decide what portion of the profits are to be held as reserves. Pursuant to our Amended and Restated Articles of Association, our board of directors may reserve a portion of our annual profits. The portion of our annual profits that remains unreserved will be distributed to holders of our Class A ordinary shares in accordance with the provisions of our Amended and Restated Articles of Association. Our board of directors may resolve to make distributions out of our general share premium account or out of any other reserves available for distributions under Dutch law, not being a reserve that must be maintained under Dutch law or pursuant to our Amended and Restated Articles of Association, subject to the approval of the shareholders’ meeting. Dividends may be paid in the form of shares as well as in cash.
Shareholder vote on certain reorganizations

Under the Delaware General Corporation Law, the vote of a majority of the outstanding shares of capital stock entitled to vote thereon generally is necessary to approve a merger or consolidation or the sale of substantially all of the assets of a corporation. The Delaware General Corporation Law permits a corporation to include in its certificate of incorporation a provision requiring for any corporate action the vote of a larger portion of the stock or of any class or series of stock than would otherwise be required.

 

  

Under our Amended and Restated Articles of Association, the general meeting may resolve, upon a proposal of the board of directors, that we conclude a legal merger ( juridische fusie ) or a demerger ( splitsing ). In addition, the general meeting must approve resolutions of the board of directors concerning an important change in the identity or character of us or our business, in any event including:

 

the transfer of the enterprise or a substantial part thereof to a third party;

 

 

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Delaware

  

The Netherlands

Under the Delaware General Corporation Law, no vote of the shareholders of a surviving corporation to a merger is needed; however, unless required by the certificate of incorporation, if (a) the agreement of merger does not amend in any respect the certificate of incorporation of the surviving corporation, (b) the shares of stock of the surviving corporation are not changed in the merger and (c) the number of ordinary shares of the surviving corporation into which any other shares, securities or obligations to be issued in the merger may be converted does not exceed 20% of the surviving corporation’s common shares outstanding immediately prior to the effective date of the merger. In addition, shareholders may not be entitled to vote in certain mergers with other corporations that own 90% or more of the outstanding shares of each class of stock of such corporation, but the shareholders will be entitled to appraisal rights.   

the entering into or ending of a long-lasting co-operation of the company or a subsidiary with a third party, if this co-operation or the ending thereof is of far-reaching significance for the company; and

 

the acquiring or disposing of an interest in the share capital of a company with a value of at least one-third of the company’s assets according to the most recent annual accounts, by the company or a subsidiary.

 

Under Dutch law, a shareholder who owns at least 95% of the company’s issued capital may institute proceedings against the company’s other shareholders jointly for the transfer of their shares to that shareholder. The proceedings are held before the Enterprise Chamber ( Ondernemingskamer ), which may grant the claim for squeeze—out in relation to all minority shareholders and will determine the price to be paid for the shares, if necessary after appointment of one or three experts who will offer an opinion to the Enterprise Chamber on the value of the shares.

Compensation of board of directors
Under the Delaware General Corporation Law, the shareholders do not generally have the right to approve the compensation policy for the board of directors or the senior management of the corporation, although certain aspects of the compensation policy may be subject to shareholder vote due to the provisions of federal securities and tax law, as well as stock exchange requirements.   

In contrast to Delaware law, under Dutch law the shareholders must adopt the compensation policy for the board of directors, which includes the outlines of the compensation of any members who serve on our board of directors.

 

Pursuant to our Amended and Restated Articles of Association, the general meeting will determine the remuneration of non-executive board members. The non-executive board members will determine the level and structure of the remuneration of the executive board members.

Market Abuse

The (i) EU Market Abuse Regulation no 596/2014, or MAR, (ii) the Dutch Financial Supervision Act ( Wet op het financieel toezicht ), or the FSA and (iii) the French monetary and financial code and the general regulation of the French Autorité des marchés financiers , implementing the EU Market Abuse Regulation no 596/2014 and the Market Abuse Directive 2014/57/EU, provide for specific rules that intend to prevent market abuse, such as the prohibitions on insider trading, divulging inside information and tipping, and market manipulation (the “EU Market Abuse Rules”).

We are subject to the EU Market Abuse Rules and non-compliance with these rules may lead to criminal fines, administrative fines, imprisonment or other sanctions. The EU Market Abuse Rules on insider dealing and market manipulation may restrict our ability to buy back our shares. In certain circumstances, our investors can also be subject to the EU Market Abuse Rules.

 

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Pursuant to the MAR, members of our board of directors and any other person who has (co)managerial responsibilities in respect of us or who has the authority to make decisions affecting our future developments and business prospects and who may have regular access to inside information relating, directly or indirectly, to us, must notify the AFM of all transactions with respect to the shares, or debt instruments, or derivatives or other financial instruments linked thereto, conducted for its own account.

In addition, certain persons closely associated with members of our board of directors or any of the other persons as described above and designated by the MAR, must also notify the AFM of any transactions conducted for their own account relating to the shares, or debt instruments, or derivatives or other financial instruments linked thereto. The MAR determines the following categories of persons: (i) the spouse or any partner considered by national law as equivalent to the spouse, (ii) dependent children, (iii) other relatives who have shared the same household for at least one year at the relevant transaction date and (iv) any legal person, trust or partnership whose managerial responsibilities are discharged by a person discharging managerial responsibilities or by a person referred to under (i), (ii) or (iii) above, which is directly or indirectly controlled by such a person, which is set up for the benefit of such a person, or the economic interests of which are substantially equivalent to those of such a person.

These notifications to the AFM must be made no later than on the third business day following the transaction date and by means of a standard form. The notification may be postponed until the moment that the value of the transactions performed for that person’s own account, reaches or exceeds an amount of €5,000 in the calendar year in question.

The AFM keeps a public register of all notifications under the MAR. Third parties can request to be notified automatically by e-mail of changes to the public register. Pursuant to the MAR, we will maintain a list of our insiders and adopt an internal code of conduct relating to the possession of and transactions by members of our board of directors and employees in the shares or debt instruments, or derivatives or other financial instruments linked thereto, which will be available on our website.

Obligations of Shareholders and Members of the Board to Disclose Holdings and other Notification Requirements

Shareholders may be subject to notification obligations under the Dutch Financial Supervision Act. The Dutch Financial Supervision Act came into force on January 1, 2007 and implements several provisions of Directive 2013/50/EU amending Directive 2004/109/EC on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market, Directive 2003/71/EC on the prospectus to be published when securities are offered to the public or admitted to trading and Directive 2007/14/EC laying down detailed rules for the implementation of certain provision of Directive 2004/109/EC. The following description summarizes those obligations. Pursuant to chapter 5.3 of the FSA, any person who, directly or indirectly, acquires or disposes of an actual or potential capital interest and/or voting rights in the Company must immediately give written notice to the AFM of such acquisition or disposal by means of a standard form if, as a result of such acquisition or disposal, the percentage of capital interest and/or voting rights held by such person reaches, exceeds or falls below the following thresholds: 3%, 5%, 10%, 15%, 20%, 25%, 30%, 40%, 50%, 60%, 75% and 95%. For the purpose of calculating the percentage of capital interest or voting rights, the following interests must, inter alia , be taken into account: (i) shares and/or voting rights directly held (or acquired or disposed of) by any person, (ii) shares and/or voting rights held (or acquired or disposed of) by such person’s controlled entities or by a third party for such person’s account, (iii) voting rights held (or acquired or disposed of) by a third party with whom such person has concluded an oral or written voting agreement, (iv) voting rights acquired pursuant to an agreement providing for a temporary transfer of voting rights in consideration for a payment and (v) shares and/or voting rights which such person, or any controlled entity or third party referred to above, may acquire pursuant to any option or other right to acquire shares and/or the attached voting rights. Furthermore, a person is also considered to be in possession of shares if (i) such person holds a financial instrument the value of which is (in part) determined by the value of the shares or any

 

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distributions associated therewith and which does not entitle such person to acquire any shares; (ii) such person may be obliged to purchase shares on the basis of an option; or (iii) such person has concluded another contract whereby such person acquires an economic interest comparable to that of holding a share.

Controlled entities (within the meaning of the FSA) do not themselves have notification obligations under the FSA as their direct and indirect interests are attributed to their (ultimate) parent. If a person who has a 3% or larger interest in the Company’s share capital or voting rights ceases to be a controlled entity it must immediately notify the AFM and all notification obligations under the FSA will become applicable to such former controlled entity.

Special rules apply to the attribution of shares and/or voting rights which are part of the property of a partnership or other form of joint ownership. A holder of a pledge or right of usufruct in respect of shares can also be subject to notification obligations, if such person has, or can acquire, the right to vote on the shares. The acquisition of (conditional) voting rights by a pledgee or beneficial owner may also trigger notification obligations as if the pledgee or beneficial owner were the legal holder of the shares and/or voting rights. We are required to notify the AFM promptly of any change of 1% or more in our issued and outstanding share capital or voting rights since the previous notification. The AFM must be notified of other changes in our issued and outstanding share capital or voting rights within eight days after the end of the quarter in which the change occurred. The AFM will publish all our notifications relating to our issued and outstanding share capital and voting rights in a public register. If a person’s capital interest and/or voting rights reach, exceed or fall below the above-mentioned thresholds as a result of a change in our issued and outstanding share capital or voting rights, such person is required to make a notification no later than on the fourth trading day after the AFM has published our notification as described above. Furthermore, any person whose capital interest or voting composition reaches, exceeds or falls below one of the above-mentioned thresholds due to a change in the composition of its capital interest or voting rights as a result of (i) exercising any option or other right to acquire shares or exchanging shares in depositary receipts for shares; and/or (ii) exercising any right to acquire voting rights, should notify the AFM no later than the fourth trading day after the date on which this person became aware, or should have become aware, of reaching, exceeding or falling below the above-mentioned thresholds.

Furthermore, each member of the board must notify the AFM (a) within two weeks after the appointment as member of the board of the number of shares he/she holds and the number of votes he/she is entitled to cast in respect of the Company’s issued and outstanding share capital, and (b) subsequently of each change in the number of shares he/she holds and of each change in the number of votes he/she is entitled to cast in respect of the Company’s issued and outstanding share capital, immediately after the relevant change.

In addition, the Netherlands introduced on July 1, 2013 an obligation for anyone to notify gross short positions in the capital of a Dutch public company ( naamloze vennootschap ) whose shares are admitted to trading on a regulated market, or a legal entity for whom the Netherlands is the host member state within the meaning of the EU Transparency Directive and whose shares are only admitted to trading on a regulated market in the Netherlands, or a legal entity incorporated under the laws of a state that is not a EU Member State whose shares are admitted to trading on a regulated market in the Netherlands. The thresholds applicable to the notification of long positions apply equally to the notification of short positions (these thresholds are: 3%, 5%, 10%, 15%, 20%, 25%, 30%, 40%, 50%, 60%, 75% and 95%).

An obligation to disclose short positions is set out not only in Netherlands law but also in the EU Regulation on Short Selling (236/2012) (the “Short Selling Regulation”). This Short Selling Regulation has direct effect in the European Union (EU). The disclosure rules under the Short Selling Regulation differ from those under the Netherlands national law. Firstly, the Short Selling Regulation relates to net short positions (as opposed to gross short positions). Secondly, different thresholds apply. The disclosure obligations will not apply if it is established that the principal trading venue is not in the EU, but in a third country. Under the Short Selling Regulation, the obligation to disclose net short positions in companies whose shares have been admitted to trading on a regulated market or multilateral trading facility in the EU is as follows: net short positions as from 0.2% of the issued share

 

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capital of the relevant company and each 0.1% above must be notified to the competent regulatory authority in the relevant EU Member State. Such notifications remain confidential; notifications as from 0.5% of the issued share capital of the relevant company and each 0.1% above are included in the register of the competent regulatory authority in the relevant EU Member State and are therefore public.

The AFM keeps a public register of all notifications made pursuant to these disclosure obligations and publishes any notification received.

Non-compliance with these disclosure obligations is an economic offense and may lead to criminal prosecution. The AFM may impose administrative penalties for non-compliance, and publish its decision to impose such administrative penalty. In addition, a civil court can impose measures against any person who fails to notify or incorrectly notifies the AFM of matters required to be notified. A claim requiring that such measures be imposed may be instituted by the Company, and/or by one or more shareholders who alone or together with others represent at least 3% of the issued and outstanding share capital of the Company or are able to exercise at least 3% of the voting rights and/or one or more shareholders with special statutory voting rights. The measures that the civil court may impose include:

 

  •   an order requiring the person with a duty to disclose to make the appropriate disclosure;

 

  •   suspension of the right to exercise the voting rights by the person with a duty to disclose for a period of up to three years as determined by the court;

 

  •   voiding a resolution adopted by the general meeting of shareholders, if the court determines that the resolution would not have been adopted but for the exercise of the voting rights of the person with a duty to disclose, or suspension of a resolution adopted by the general meeting of shareholders until the court makes a decision about such voiding; and

 

  •   an order to the person with a duty to disclose to refrain, during a period of up to five years as determined by the court, from acquiring shares and/or voting rights in the Company.

Shareholders are advised to consult with their own legal advisers to determine whether the disclosure obligations apply to them.

Transparency Directive

The Company is a public limited liability company ( naamloze vennootschap ) incorporated and existing under the laws of the Netherlands. The Netherlands is the home member state of the Company for the purposes of Directive 2004/109/EC (as amended by Directive 2013/50/EU, the “Transparency Directive”) as a consequence of which the Company is subject to certain on-going transparency and disclosure obligations under the FSA and the Dutch Financial Reporting Supervision Act ( Wet toezicht financiële verslaggeving).

Dutch Financial Reporting Supervision Act

The Dutch Financial Reporting Supervision Act ( Wet toezicht financiële verslaggeving ) (the “FRSA”) applies to financial years starting from January 1, 2006. On the basis of the FRSA, the AFM supervises the application of financial reporting standards by, among others, companies whose corporate seat is in the Netherlands and whose securities are listed on a regulated Dutch or foreign stock exchange.

Pursuant to the FRSA, the AFM has an independent right to (i) request an explanation from us regarding our application of the applicable financial reporting standards and (ii) recommend us to make available further explanations. If we do not comply with such a request or recommendation, the AFM may request that the Enterprise Chamber order us to (i) make available further explanations as recommended by the AFM, (ii) provide an explanation of the way we have applied the applicable financial reporting standards to our financial reports or (iii) prepare our financial reports in accordance with the Enterprise Chamber’s instructions.

 

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PLAN OF DISTRIBUTION

We may, from time to time, sell, transfer or otherwise dispose of Class A ordinary shares or interests in Class A ordinary shares on any stock exchange, market or trading facility on which the ordinary shares are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices.

The ordinary shares being offered by this prospectus may be sold:

 

  •   through agents;

 

  •   to or through one or more underwriters on a firm commitment or agency basis;

 

  •   through put or call option transactions relating to the ordinary shares;

 

  •   through broker-dealers (acting as agent or principal);

 

  •   directly to purchasers, through a specific bidding or auction process, on a negotiated basis or otherwise;

 

  •   through any other method permitted pursuant to applicable law; or

 

  •   through a combination of any such methods of sale.

At any time a particular offer of the ordinary shares ordinary shares covered by this prospectus is made, a revised prospectus or prospectus supplement, if required, will be distributed which will set forth the aggregate amount of ordinary shares covered by this prospectus being offered and the terms of the offering, including the name or names of any underwriters, dealers, brokers or agents, any discounts, commissions, concessions and other items constituting compensation from us and any discounts, commissions or concessions allowed or reallowed or paid to dealers. Such prospectus supplement, if required, and, if necessary, a post-effective amendment to the registration statement of which this prospectus is a part, will be filed with the SEC to reflect the disclosure of additional information with respect to the distribution of the ordinary shares covered by this prospectus. In order to comply with the ordinary shares laws of certain states, if applicable, the ordinary shares sold under this prospectus may only be sold through registered or licensed broker-dealers. In addition, in some states the ordinary shares may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from registration or qualification requirements is available and is complied with.

Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.

The distribution of ordinary shares may be effected from time to time in one or more transactions, including block transactions and transactions on the New York Stock Exchange or any other organized market where the ordinary shares may be traded. The ordinary shares may be sold at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices relating to the prevailing market prices or at negotiated prices. The consideration may be cash or another form negotiated by the parties. Agents, underwriters or broker-dealers may be paid compensation for offering and selling the ordinary shares. That compensation may be in the form of discounts, concessions or commissions to be received from us or the purchasers of the ordinary shares. Any dealers and agents participating in the distribution of the ordinary shares may be deemed to be underwriters, and compensation received by them on resale of the ordinary shares may be deemed to be underwriting discounts. If any such dealers or agents were deemed to be underwriters, they may be subject to statutory liabilities under the Securities Act of 1933, as amended (the “Securities Act”).

Agents may from time to time solicit offers to purchase the ordinary shares. If required, we will name in the applicable prospectus supplement any agent involved in the offer or sale of the ordinary shares and set forth any compensation payable to the agent. Unless otherwise indicated in a prospectus supplement, any agent will be

 

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acting on a best efforts basis for the period of its appointment. Any agent selling the ordinary shares covered by this prospectus may be deemed to be an underwriter, as that term is defined in the Securities Act, of the ordinary shares.

If underwriters are used in a sale, ordinary shares will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale, or other contractual commitments. Ordinary shares may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. If an underwriter or underwriters are used in the sale of ordinary shares, an underwriting agreement will be executed with the underwriter or underwriters, as well as any other underwriter or underwriters, with respect to a particular underwritten offering of ordinary shares, and will set forth the terms of the transactions, including compensation of the underwriters and dealers and the public offering price, if applicable. The prospectus and, if required, prospectus supplement will be used by the underwriters to resell the ordinary shares.

If a dealer is used in any sale of the ordinary shares, we or an underwriter will sell the ordinary shares to the dealer, as principal. The dealer may then resell the ordinary shares to the public at varying prices to be determined by the dealer at the time of resale. To the extent required, we will set forth in a prospectus supplement the name of the dealer and the terms of the transactions.

We may directly solicit offers to purchase the ordinary shares and may make sales of ordinary shares directly to institutional investors or others. These persons may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of the ordinary shares. To the extent required, a prospectus supplement will describe the terms of any such sales, including the terms of any bidding or auction process, if used.

Agents, underwriters and dealers may be entitled under agreements which may be entered into with us to indemnification by us against specified liabilities, including liabilities incurred under the Securities Act, or to contribution by us to payments they may be required to make in respect of such liabilities. If required, a prospectus supplement will describe the terms and conditions of the indemnification or contribution. Some of the agents, underwriters or dealers, or their affiliates may be customers of, engage in transactions with or perform services for us or our subsidiaries.

Any person participating in the distribution of ordinary shares registered under the registration statement that includes this prospectus will be subject to applicable provisions of the Exchange Act and the applicable SEC rules and regulations, including, among others, Regulation M, which may limit the timing of purchases and sales of any of our ordinary shares by that person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of our ordinary shares to engage in market-making activities with respect to our ordinary shares. These restrictions may affect the marketability of our ordinary shares and the ability of any person or entity to engage in market-making activities with respect to our ordinary shares.

Certain persons participating in an offering may engage in over-allotment, stabilizing transactions, short-covering transactions and penalty bids that stabilize, maintain or otherwise affect the price of the offered ordinary shares. These activities may maintain the price of the offered ordinary shares at levels above those that might otherwise prevail in the open market, including by entering stabilizing bids, effecting syndicate covering transactions or imposing penalty bids, each of which is described below.

 

  •   A stabilizing bid means the placing of any bid, or the effecting of any purchase, for the purpose of pegging, fixing or maintaining the price of a security.

 

  •   A syndicate covering transaction means the placing of any bid on behalf of the underwriting syndicate or the effecting of any purchase to reduce a short position created in connection with the offering.

 

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  •   A penalty bid means an arrangement that permits the managing underwriter to reclaim a selling concession from a syndicate member in connection with the offering when offered ordinary shares originally sold by the syndicate member are purchased in syndicate covering transactions.

These transactions may be effected on an exchange, if the ordinary shares are listed on that exchange, or in the over-the-counter market or otherwise.

Any underwriters to whom offered ordinary shares are sold for public offering and sale may make a market in such offered ordinary shares, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice.

Any ordinary shares that qualify for sale pursuant to Rule 144 or Regulation S under the Securities Act, may be sold under Rule 144 or Regulation S rather than pursuant to this prospectus.

To the extent that we make sales to or through one or more underwriters or agents in at-the-market offerings, we will do so pursuant to the terms of a distribution agreement between us and the underwriters or agents. If we engage in at-the-market sales pursuant to a distribution agreement, we will sell our ordinary shares to or through one or more underwriters or agents, which may act on an agency basis or on a principal basis. During the term of any such agreement, we may sell ordinary shares on a daily basis in exchange transactions or otherwise as we agree with the underwriters or agents. The distribution agreement will provide that any ordinary shares sold will be sold at prices related to the then prevailing market prices for our ordinary shares. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined at this time and will be described in a prospectus supplement. Pursuant to the terms of the distribution agreement, we also may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase, blocks of our ordinary shares. The terms of each such distribution agreement will be set forth in more detail in a prospectus supplement to this prospectus.

In the event that any underwriter or agent acts as principal, or broker-dealer acts as underwriter, it may engage in certain transactions that stabilize, maintain or otherwise affect the price of our ordinary shares. We will describe any such activities in the prospectus supplement relating to the transaction.

We may enter into derivative transactions with third parties or sell ordinary shares not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, such third parties (or affiliates of such third parties) may sell ordinary shares covered by this prospectus and the applicable prospectus supplement, including in short-sale transactions. If so, such third parties (or affiliates of such third parties) may use ordinary shares pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of shares, and may use ordinary shares received from the us in settlement of those derivatives to close out any related open borrowings of shares. The third parties (or affiliates of such third parties) in such sale transactions will be underwriters and, if not identified in this prospectus, will be identified in a prospectus supplement (or a post-effective amendment), if required.

We may loan or pledge ordinary shares to a financial institution or other third party that in turn may sell or transfer the ordinary shares using this prospectus. Such financial institution or third party may transfer its short position to investors in our ordinary shares or in connection with a simultaneous offering of other ordinary shares offered by this prospectus or in connection with a simultaneous offering of other ordinary shares offered by this prospectus.

 

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EXPENSES

The following table sets forth the expenses (other than underwriting discounts and commissions or agency fees and other items constituting underwriters’ or agents’ compensation, if any) expected to be incurred by us in connection with a possible offering of the ordinary shares registered under this registration statement. All amounts other than the SEC registration fee and FINRA filing fee are estimates.

 

Expenses

   Amount  

U.S. Securities and Exchange Commission registration fee

   $              * 

FINRA filing fee

   $              ** 

Printing and engraving expenses

   $              ** 

Legal and accounting fees and expenses

   $              ** 

Blue sky fees and expenses

   $              ** 

Transfer agent fees and expenses

   $              ** 

Miscellaneous costs

   $              ** 
  

 

 

 

Total

   $              ** 
  

 

 

 

 

* To be deferred pursuant to Rule 456(b) under the Securities Act and calculated in connection with an offering of ordinary shares under this registration statement pursuant to Rule 457(r) under the Securities Act.
** Estimated fees and expenses are not presently known. If required, to be provided by a prospectus supplement or as an exhibit to a Report on Form 6-K that is incorporated by reference into this prospectus.

 

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LEGAL MATTERS

Unless otherwise specified in a prospectus supplement accompanying this prospectus, certain legal matters in connection with the offerings pursuant to this prospectus relating to U.S. law will be passed upon for us by Wachtell, Lipton, Rosen & Katz, New York, New York. The validity of the ordinary shares offered by this prospectus and other legal matters concerning offerings pursuant to this prospectus relating to Dutch law will be passed upon for us by Stibbe, Amsterdam, the Netherlands.

EXPERTS

The financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 20-F for the year ended December 31, 2016 have been so incorporated in reliance on the report of PricewaterhouseCoopers Audit, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.

 

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ENFORCEMENTS OF JUDGMENTS

The ability of our shareholders in certain countries other than the Netherlands to bring an action against us may be limited under applicable law. In connection with the initial public offering we converted from a private limited liability company ( besloten vennootschap met beperkte aansprakelijkheid ) to a public limited liability company ( naamloze vennootschap ) incorporated under the laws of the Netherlands. Most of our executive officers and members of our board of directors, and a substantial number of our employees, are citizens or residents of countries other than the United States. All or a substantial portion of the assets of such persons and a substantial portion of our assets are located outside the United States. As a result, it may not be possible for investors to effect service of process within the United States upon such persons or upon us, or to enforce judgments obtained in U.S. courts, including judgments predicated upon civil liabilities under the securities laws of the United States or any state or territory within the United States. In addition, there is substantial doubt as to the enforceability, in the Netherlands, of original actions or actions for enforcement based on the federal securities laws of the United States or judgments of U.S. courts, including judgments predicated upon the civil liability provisions of the securities laws of the United States.

The United States and the Netherlands do not currently have a treaty providing for reciprocal recognition and enforcement of judgments, other than arbitration awards, in civil and commercial matters. Accordingly, a final judgment for the payment of money rendered by U.S. courts based on civil liability, whether or not predicated solely upon the U.S. federal securities laws, would not be directly enforceable in the Netherlands. However, if the party in whose favor such final judgment is rendered brings a new suit in a competent court in the Netherlands, that party may submit to the Dutch court the final judgment that has been rendered in the United States. A judgment by a federal or state court in the United States against us will neither be recognized nor enforced by a Dutch court but such judgment may serve as evidence in a similar action in a Dutch court. Additionally, under current practice, a Dutch court will generally grant the same judgment without a review of the merits of the underlying claim if (i) that judgment resulted from legal proceedings compatible with Dutch notions of due process, (ii) that judgment does not contravene public policy of the Netherlands, (iii) the jurisdiction of the United States federal or state court has been based on internationally accepted principles of private international law and (iv) the judgement is not incompatible with (a) a prior judgment of a Dutch court rendered in a dispute between the same parties, or (b) a prior judgment of a foreign court rendered in a dispute between the same parties, concerning the same subject matter and based on the same cause of action.

Subject to the foregoing and service of process in accordance with applicable treaties, investors may be able to enforce in the Netherlands judgments in civil and commercial matters obtained from U.S. federal or state courts. We believe that U.S. investors may originate actions in a Dutch court. There is doubt as to whether a Dutch court would impose civil liability on us, the members of our board of directors, our officers or certain experts named herein in an original action predicated solely upon the U.S. federal securities laws brought in a court of competent jurisdiction in the Netherlands against us or such members, officers or experts, respectively.

 

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WHERE YOU CAN FIND ADDITIONAL INFORMATION

We have filed with the SEC a registration statement on Form F-3 under the Securities Act, with respect to the ordinary shares offered by this prospectus. However, as is permitted by the rules and regulations of the SEC, this prospectus, which is part of our registration statement on Form F-3, omits certain non-material information, exhibits, schedules and undertakings set forth in the registration statement. For further information about us, and the ordinary shares offered by this prospectus, please refer to the registration statement.

We are subject to the reporting requirements of the Exchange Act that are applicable to a foreign private issuer. In accordance with the Exchange Act, we file reports, including annual reports on Form 20-F by April 30 of each year. We also furnish to the SEC under cover of Form 6-K material information required to be made public in the Netherlands, filed with and made public by any stock exchange or distributed by us to our shareholders.

The registration statement on Form F-3 of which this prospectus forms a part, including the exhibits and schedules thereto, and reports and other information filed by us with the SEC may be inspected without charge and copied at prescribed rates at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Copies of this material are also available by mail from the Public Reference Section of the SEC, at 100 F. Street, N.E., Washington D.C. 20549, at prescribed rates. The public may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers, such as us, that file electronically with the SEC (http://www.sec.gov).

As a foreign private issuer, we are exempt from the rules under the Exchange Act prescribing the furnishing and content of proxy statements to shareholders and our officers, directors and principal shareholders are exempt from the “short-swing profits” reporting and liability provisions contained in Section 16 of the Exchange Act and related Exchange Act rules. In addition, we are not required under the Exchange Act to file periodic reports and financial statements as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act.

 

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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

We file annual and special reports and other information with the SEC. These filings contain important information that does not appear in this prospectus. The SEC allows us to “incorporate by reference” information into this prospectus, which means that we can disclose important information to you by referring you to other documents which we have filed or will file with the SEC. We are incorporating by reference in this prospectus the documents listed below and all amendments or supplements we may file to such documents, as well as any future filings we may make with the SEC on Form 20-F or any future reports on Form 6-K that we may file that indicate that they are incorporated by reference into this registration statement under the Exchange Act before the time that all of the ordinary shares offered by this prospectus have been sold or de-registered.

 

  •   Our annual report on Form 20-F for the fiscal year ended December 31, 2016;

 

  •   the description of our ordinary shares found in Form 8-A, as filed with the SEC on May 17, 2013 (Commission File No. 001-35931), under the heading “Description of Securities to be Registered” including any subsequent amendment or any report filed for the purpose of updating such description; and

 

  •   our reports on Form 6-K and, unless otherwise noted herein or therein, the exhibits thereto, furnished to the SEC on June 21, 2017 (Commission File No. 001-35931) and on October 30, 2017 the information contained in Exhibit 99.1 under the headings “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Index to Financial Statements: As of September 30, 2017 and for the three and nine months ended September 30, 2017 and 2016” only).

Notwithstanding any reference in our reports on Form 6-K filed with the SEC to any such reports being incorporated by reference into any registration statement, no report on Form 6-K, other than as specifically mentioned above, shall be incorporated by reference herein.

In addition, all subsequent annual reports on Form 20-F filed after the effective date of this registration statement and prior to the termination of this offering and any reports on Form 6-K subsequently submitted to the SEC or portions thereof that we specifically identify in such forms as being incorporated by reference into the registration statement of which this prospectus forms a part, shall be considered to be incorporated into this prospectus by reference and shall be considered a part of this prospectus from the date of filing or submission of such documents.

Certain statements in and portions of this prospectus update and replace information in the above-listed documents incorporated by reference. Likewise, statements in or portions of a future document incorporated by reference in this prospectus may update and replace statements in and portions of this prospectus or the above-listed documents. We will provide you without charge, upon your written or oral request to Ryan M. Wentling, Investor Relations North America, by phone at (212) 675-5450 or e-mail at investor-relations@constellium.com, a copy of any of the documents incorporated by reference in this prospectus, other than exhibits to such documents, which are not specifically incorporated by reference into such documents.

 

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PART II

INFORMATION NOT REQUIRED IN THE PROSPECTUS

 

Item 8. Indemnification of Directors and Officers

Our Amended and Restated Articles of Association provide that we will indemnify our directors against all adverse financial effects incurred by such person in connection with any action, suit or proceeding if such person acted in good faith and in a manner he or she reasonably could believe to be in or not opposed to our best interests. In addition, we may enter into indemnification agreements with our directors and officers. We also purchase and maintain insurance on behalf of our directors and officers to insure them against such liabilities, expenses and claims.

Agents, underwriters and dealers may be entitled under agreements which may be entered into with us to indemnification by us against specified liabilities, including liabilities incurred under the Securities Act, or to contribution by us to payments they may be required to make in respect of such liabilities. If required, a prospectus supplement will describe the terms and conditions of the indemnification or contribution.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that, in the opinion of the SEC, indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

Item 9. Exhibits

The index to exhibits appears below on the page immediately following the signature pages of this Registration Statement.

 

Item 10. Undertakings

 

(1) The undersigned registrant hereby undertakes:

 

  (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

  (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, or the Securities Act;

 

  (ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

  (iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in this Registration Statement;

provided, however , that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, or

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the Exchange Act that are incorporated by reference in this Registration Statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the Registration Statement.

 

  (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

  (c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

  (d) To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (1)(d) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.

 

  (e) That, for the purpose of determining any liability under the Securities Act to any purchaser:

 

  (i) each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be a part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

 

  (ii) each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

 

  (f) That, for the purpose of determining liability of a registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

 

  (i) any preliminary prospectus or prospectus of the undersigned registrant to the offering required to be filed pursuant to Rule 424;

 

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  (ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by an undersigned registrant;

 

  (iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

 

  (iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

 

(2) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

(4) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective.

 

(5) The undersigned registrant hereby undertakes that, for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

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EXHIBIT INDEX

The following documents are filed as part of this registration statement:

 

  1.1    Form of Underwriting Agreement*
  5.1    Opinion of Stibbe, Dutch counsel to Constellium N.V., as to the validity of the Class A ordinary shares
10.1    Credit Agreement, by and among Wise Alloys LLC and Constellium Rolled Products Ravenswood, LLC, as Borrowers, Wise Metals Group LLC and Constellium US Holdings I, LLC, as Loan Parties, Constellium Holdco II B.V., as Parent Guarantor, the lenders party thereto, Wells Fargo Bank, N.A., as Administrative Agent and Collateral Agent, the Joint Lead Arrangers and Joint Bookrunners party thereto, and the Co-Syndication Agents party thereto, dated as of June 21, 2017,
10.2    Amendment to the Facility Agreement, by and among Constellium Issoire and Constellium Neuf Brisach, as Borrowers, Constellium Holdco II B.V., as Parent Company, the lenders party thereto, and Factofrance, as Arranger and Agent, dated as of June 13, 2017
10.3    Facility Agreement, by and among Constellium Issoire and Constellium Neuf Brisach, as Borrowers, Constellium Holdco II B.V., as Parent Company, the lenders party thereto, and Factofrance, as Arranger and Agent, dated as of April 21, 2017
10.4    First Omnibus Amendment, by and among Wise Alloys LLC, as seller/servicer, Wise Alloys Funding II LLC, as purchaser/seller, Hitachi Capital America Corp., as purchaser and Greensill Capital Inc., as purchaser agent, dated June 28, 2016
10.5    Third Omnibus Amendment, by and among Wise Alloys LLC, as seller/servicer, Wise Alloys Funding II LLC, as purchaser/seller, Hitachi Capital America Corp., as purchaser, Intesa Sanpaolo S.P.A., New York Branch, as purchaser, and Greensill Capital Inc., as purchaser agent, dated May 12, 2017
10.6    Amendment and Restatement Agreement, by and among Constellium lssoire, Constellium Neuf Brisach and Constellium Extrusions France, as Sellers, Constellium Holdco II BV, as Parent Company, Constellium Switzerland AG, as Sellers’ Agent, and FactoFrance S.A.S., as Factor, dated as of April 19, 2017
10.7    Long-Term Incentive Award Agreement, effective as of July 31, 2017
10.8    Form of 2017 Long-Term Incentive Award Agreement Award Letter
23.1    Consent of PricewaterhouseCoopers Audit, Independent Registered Public Accounting Firm
23.2    Form of Consent of Stibbe (included in Exhibit 5.1)
24.1    Powers of attorney (included on signature page to the registration statement)

 

* To be filed, if necessary, as an exhibit to a post-effective amendment to this registration statement or as an exhibit to a Form 6-K to be filed by the registrant in connection with a specific offering, and incorporated herein by reference.

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Zurich, Switzerland, on October 30, 2017.

 

Constellium N.V.

By:    

 

/s/ Jean-Marc Germain

  Name: Jean-Marc Germain
  Title:   Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitute and appoint Jean-Marc Germain, Peter R. Matt, Jeremy Leach and Rina Teran, and, each of them, individually, in each case as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead in any and all capacities, in connection with this registration statement, including to sign in the name and on behalf of the undersigned, this registration statement and any and all amendments thereto, including post-effective amendments and registration statements filed pursuant to Rule 462 under the U.S. Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the U.S. Securities and Exchange Commission, granting unto such attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or her substitute, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, the registration statement has been executed as a deed by the following persons as of October 30, 2017 in the capacities indicated:

 

Name

  

Title

/s/ Jean-Marc Germain

Jean-Marc Germain

   Chief Executive Officer (Principal Executive Officer) and Executive Director

/s/ Peter R. Matt

Peter R. Matt

   Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)

/s/ Richard B. Evans

Richard B. Evans

   Chairman

/s/ Guy Maugis

Guy Maugis

   Director

/s/ Philippe Guillemot

Philippe Guillemot

   Director

/s/ Werner P. Paschke

Werner P. Paschke

   Director

 

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Name

  

Title

/s/ Michiel Brandjes

Michiel Brandjes

   Director

/s/ Peter F. Hartman

Peter F. Hartman

   Director

/s/ John Ormerod

John Ormerod

   Director

/s/ Lori A. Walker

Lori A. Walker

   Director

/s/ Martha Brooks

Martha Brooks

   Director

/s/ Nicolas A. Manardo

Nicolas A. Manardo

   Director

 

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AUTHORIZED REPRESENTATIVE

Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has caused the amendment to this Registration Statement to be signed solely in the capacity as the duly authorized representative of Constellium N.V. in the United States on October 30, 2017.

 

Constellium U.S. Holdings I, LLC

By:    

 

/s/ Rina Teran

 

Name: Rina Teran

 

Title:   Vice President & Secretary

 

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Exhibit 5.1

 

LOGO

 

Constellium N.V.

Tupolevlaan 41-61

1119 NW Schiphol-Rijk

The Netherlands

  

Stibbe London B.V.

 

53 New Broad Street

London EC2M 1JJ

United Kingdom

T +44 20 7151 09 21

www.stibbe.com

 

Date

30 October 2017

Constellium N.V. – Form F-3 Registration Statement – Exhibit 5.1 opinion

Ladies and Gentlemen,

 

(1) We have acted as counsel as to matters of the laws of the Netherlands to Constellium N.V. (the “ Issuer ”) in connection with the filing under the Securities Act of 1933, as amended (the “ Securities Act ”), of a registration statement on Form F-3, dated the date hereof (the “ Registration Statement ”). The Registration Statement is filed by the Issuer for the registration of the offer and sale, from time to time, of class A ordinary shares (the “ Shares ”) described in the Registration Statement and, from time to time, prospectus supplements thereto (each such offering, an “ Offering ”).

This opinion is furnished to you in order to be filed as an exhibit to the Registration Statement filed by you with the United States Securities and Exchange Commission (the “ SEC ”).

 

(2) For the purpose of this opinion, we have exclusively examined and relied upon photocopies or copies received by fax or by electronic means, or originals if so expressly stated, of the following documents:

 

  (a) the Registration Statement;

 

  (b) the deed of incorporation of the Issuer dated 14 May 2010 and its articles of association ( statuten ) as amended on 18 August 2015, which according to the Extract referred to below are the articles of association of the Issuer as currently in force; and

Stibbe London B.V. is a Dutch law firm registered with the Registrar of Companies for England and Wales under numbers FC025331 and BR007672 and with the Dutch Chamber of Commerce under number 34206454. Stibbe London B.V. is not regulated by the Solicitors Regulation Authority. Stibbe London B.V.’s attorneys, civil law notaries (including candidate and assigned civil law notaries) and tax advisers are registered with and bound by the professional rules and codes of conduct of their respective professional organisations in the Netherlands. Stibbe London B.V.’s attorneys who are registered with the Solicitors Regulation Authority as Registered European Lawyers are also bound by its professional rules and codes of conduct to the extent that they apply to Registered European Lawyers practising through an Exempt European Practice (as defined in the SRA Handbook 2011). Any services performed are carried out under an agreement for services (‘overeenkomst van opdracht’) with Stibbe London B.V. This agreement is governed exclusively by Dutch law, with the exception of rules of Dutch private international law. All disputes shall be decided exclusively by the competent court in Amsterdam, the Netherlands, without prejudice to the right to appeal. The general conditions of Stibbe London B.V., which include a limitation of liability, apply and are available on www.stibbe.com/generalconditions or upon request. The compulsory insurance scheme of the Solicitors Regulation Authority does not apply to Stibbe London B.V. The attorneys, civil law notaries and tax advisers of Stibbe London B.V. are insured in accordance with the rules of their respective professional organisations under professional indemnity policies with a worldwide coverage. Hans Witteveen was admitted as a lawyer (‘advocaat’) in the Netherlands in 1994 and is a partner of Stibbe London B.V. He is regulated by the Solicitors Regulation Authority as a Registered European Lawyer.

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  (c) an extract from the Trade Register of the Chamber of Commerce ( Kamer van Koophandel, afdeling Handelsregister) relating to the Issuer dated the date hereof (the “ Extract ”).

 

(3) References to the Civil Code, the Bankruptcy Act, the Code of Civil Procedure, the Financial Supervision Act and any other Codes or Acts are references to the Burgerlijk Wetboek , the Faillissementswet , the Wetboek van Burgerlijke Rechtsvordering , the Wet op het financieel toezicht and such other Codes or Acts of the Netherlands, as amended. In this opinion, “ the Netherlands ” refers to the European part of the Kingdom of the Netherlands and “ EU ” refers to the European Union.

 

(4) In rendering this opinion we have assumed:

 

  (a) the genuineness of all signatures on, and the authenticity and completeness of all documents submitted to us as copies of drafts, originals or execution copies and the exact conformity to the originals of all documents submitted to us as photocopies or copies transmitted by facsimile or by electronic means and that all documents were at their date, and will have remained, accurate and in full force and effect without modification;

 

  (b) that the Issuer has not been and will not have been declared bankrupt ( failliet verklaard ), granted suspension of payments ( surseance van betaling verleend ) or dissolved ( ontbonden ), nor will have ceased to exist due to merger ( fusie ) or demerger ( splitsing ); although not constituting conclusive evidence, this assumption is supported by the contents of the Extract and by our online search of the Central Insolvency Register of the courts in the Netherlands ( Centraal Insolventieregister ) on the date hereof, which did not reveal any information which would render this assumption to be untrue as at the date hereof;

 

  (c) that each time Shares will be issued, the Issuer’s authorized share capital will be sufficient to allow for such issuance;

 

  (d) that (i) all corporate and other action required to be taken by the Issuer to authorize the Offering and the issuance of Shares has been, or will have been, duly and validly taken, will not have been annulled, revoked or rescinded and will be in full force and effect (ii) each time Shares have been or will be issued, offered, sold, or otherwise transferred such Shares will have been duly accepted and paid in full by the subscribers thereof in accordance with any applicable law (including, without limitation, the laws of the Netherlands) and the Issuer’s articles of association;

 

(2)

LOGO

 

  (e) that any and all authorisations and consents of, or other filings with or notifications to, any public authority or other relevant body or person in or of any jurisdiction which may be required (including, without limitation, the laws of the Netherlands) in respect of the Offering have been or will be duly obtained or made, as the case may be;

 

  (f) that the information set forth in the Extract is on the date hereof complete and accurate and consistent with the information contained in the files kept by the Trade Register with respect to the Issuer; and

 

  (g) that none of the insolvency proceedings listed in Annex A, as amended, to Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings has been or will have been declared applicable to the Issuer by a court in one of the member states of the EU (with the exception of Denmark), other than the Netherlands; although not constituting conclusive evidence, this assumption is supported by our online search of the section on EU Registrations of the Central Insolvency Register ( Centraal Insolventieregister ) on the date hereof, which did not reveal any information which would render this assumption to be untrue as at the date hereof.

 

(5) We have not investigated the laws of any jurisdiction other than the Netherlands. This opinion is limited to matters of the laws of the Netherlands as they presently stand. We do not express any opinion with respect to (i) any public international law or the rules of or promulgated under any treaty or by any treaty organisation, other than any provisions of EU law having direct effect, (ii) matters of competition law, and (iii) matters of taxation.

 

(6) Based upon and subject to the foregoing and to the further qualifications, limitations and exceptions set forth herein, and subject to any factual matters not disclosed to us and inconsistent with the information revealed by the documents reviewed by us in the course of our examination referred to above, we are as at the date hereof of the following opinion:

 

  (a) the Issuer has been duly incorporated and is validly existing under the laws of the Netherlands as a public limited company ( naamloze vennootschap ); and

 

  (b) upon (i) adoption of all corporate and other action required to be taken by the Issuer to issue Shares and (ii) payment in full of the Shares in accordance with the provisions of the articles of association of the Issuer, such Shares will have been duly authorized, validly issued and fully paid up and will be non-assessable.

 

(3)

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(7) This opinion is subject to the following qualifications:

 

  (a) we express no opinion as to the accuracy of any representations given by the Issuer or any other party (express or implied) under or by virtue of the Registration Statement;

 

  (b) the opinions expressed above are limited by any applicable bankruptcy ( faillissement ), suspension of payments ( surseance van betaling ), insolvency, moratorium, reorganisation, liquidation, fraudulent conveyance, or similar laws affecting the enforceability of rights of creditors generally (including rights of set-off) in any relevant jurisdiction including but not limited to section 3:45 of the Civil Code and section 42 of the Bankruptcy Act concerning fraudulent conveyance, as well as by any sanctions or measures under the Sanctions Act 1977 ( Sanctiewet 1977 ) or by EU or other international sanctions; and

 

  (c) the term “non-assessable” as used in this opinion is not a recognized legal term under Dutch law; in this opinion, the term “non-assessable” means that the Issuer does not have a statutory right to require the holder of a Share to pay to the Issuer any amount on such Share (by reason only of being a holder of such Share) in addition to the amount required to be paid for such Share to be fully paid, without prejudice – for the avoidance of doubt – to claims based on contract or tort.

 

(8) In this opinion, Netherlands legal concepts are expressed in English terms and not in their original Dutch terms. The concepts concerned may not be identical to the concepts described by the same English terms as they exist under the laws of other jurisdictions. This opinion is given by Stibbe London B.V. (“ Stibbe ”) and may only be relied upon under the express condition that (i) any issues of interpretation or liability arising hereunder will be governed by the laws of the Netherlands and will be brought exclusively before a court of the Netherlands, and (ii) such liability, if any, shall be limited to Stibbe only, to the exclusion of any of its directors, partners, employees, shareholders and advisors or its or their affiliates and to the aggregate of the amount paid under Stibbe’s professional insurance in the particular instance and any applicable deductible payable thereunder.

 

(9) We assume no obligation to update this opinion or to inform any person of any changes of law or other matters coming to our knowledge occurring after the date hereof which may affect this opinion in any respect. This opinion is given for the purposes of the Registration Statement only and may not be disclosed or quoted other than as an exhibit to (and therefore together with) the Registration Statement, without our prior written consent.

 

(4)

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(10) This opinion is addressed to you and given for the sole purpose of the registration of the Shares with the SEC. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, to the reference to our firm under the caption “Legal Matters” in the prospectus forming a part thereof and to the incorporation by reference of this opinion and consent as exhibits to any registration statement filed in accordance with Rule 462(e) under the Securities Act relating to any Offering. In giving such consent, we do not thereby concede that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC thereunder.

Yours faithfully,

Stibbe London B.V.

/s/ Hans Witteveen

Hans Witteveen

 

(5)

Exhibit 10.1

EXECUTION VERSION

CREDIT AGREEMENT

dated as of June 21, 2017

among

CONSTELLIUM HOLDCO II B.V.,

as the Parent Guarantor,

WISE ALLOYS LLC,

as a Borrower,

CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC,

as a Borrower,

WISE METALS GROUP LLC,

as a Loan Party,

CONSTELLIUM US HOLDINGS I, LLC,

as a Loan Party,

THE LENDERS FROM TIME TO TIME PARTY HERETO,

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent and Collateral Agent

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

JPMORGAN CHASE BANK, N.A.,

MERRILL LYNCH, PIERCE, FENNER & SMITH, INCORPORATED, and

DEUTSCHE BANK SECURITIES INC.,

as Joint Lead Arrangers and Joint Bookrunners,

and

JPMORGAN CHASE BANK, N.A., BANK OF AMERICA, N.A., and

DEUTSCHE BANK SECURITIES INC.,

as Co-Syndication Agents

TABLE OF CONTENTS

 

         Page  

ARTICLE I

DEFINITIONS

 

 

Section 1.01  

Defined Terms

     1  
Section 1.02  

Terms Generally

     53  
Section 1.03  

Effectuation of Transactions

     53  
Section 1.04  

Letter of Credit Amounts

     53  

ARTICLE II

THE CREDITS

 

 

Section 2.01  

Commitments

     53  
Section 2.02  

Loans and Borrowings

     54  
Section 2.03  

Requests for Borrowings

     54  
Section 2.04  

Swing Line Loans

     55  
Section 2.05  

Letters of Credit

     58  
Section 2.06  

Funding of Borrowings

     66  
Section 2.07  

Interest Elections

     67  
Section 2.08  

Termination and Reduction of Commitments

     68  
Section 2.09  

Agreement to Repay Loans; Evidence of Debt

     68  
Section 2.10  

Repayment of Loans

     69  
Section 2.11  

Prepayment of Loans

     69  
Section 2.12  

Fees

     70  
Section 2.13  

Interest

     71  
Section 2.14  

Payments Generally; Pro Rata Treatment; Sharing of Setoffs

     72  
Section 2.15  

Incremental Commitments

     74  
Section 2.16  

Cash Collateral

     75  
Section 2.17  

Defaulting Lenders

     76  
Section 2.18  

Agent Advances

     78  
Section 2.19  

Settlement

     78  
ARTICLE III  
TAXES, YIELD PROTECTION AND ILLEGALITY  
Section 3.01  

Taxes

     80  
Section 3.02  

Illegality

     85  
Section 3.03  

Inability to Determine Rates

     85  
Section 3.04  

Increased Costs

     86  
Section 3.05  

Compensation for Losses

     87  
Section 3.06  

Mitigation Obligations; Replacement of Lenders

     88  
Section 3.07  

Survival

     88  

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

 

 

Section 4.01  

Organization; Powers

     88  
Section 4.02  

Authorization

     88  
Section 4.03  

Enforceability

     89  
Section 4.04  

Governmental Approvals

     89  

 

- i -

Table of Contents (cont.)

 

         Page  
Section 4.05  

Financial Statements

     89  
Section 4.06  

No Material Adverse Effect

     90  
Section 4.07  

Title to Properties; Possession Under Leases

     90  
Section 4.08  

Subsidiaries

     90  
Section 4.09  

Litigation; Compliance with Laws

     90  
Section 4.10  

Federal Reserve Regulations

     91  
Section 4.11  

Investment Company Act

     91  
Section 4.12  

Use of Proceeds

     91  
Section 4.13  

Taxes

     91  
Section 4.14  

No Material Misstatements

     92  
Section 4.15  

Employee Benefit Plans

     92  
Section 4.16  

Environmental Matters

     93  
Section 4.17  

Security Documents

     93  
Section 4.18  

Location of Real Property and Leased Premises

     94  
Section 4.19  

Solvency

     94  
Section 4.20  

Labor Matters

     95  
Section 4.21  

Insurance

     95  
Section 4.22  

No Default

     95  
Section 4.23  

Intellectual Property; Licenses, Etc.

     95  
Section 4.24  

Senior Debt

     95  
Section 4.25  

Anti-Money Laundering and Economic Sanction Laws

     96  
Section 4.26  

Anti-Corruption Laws

     96  
Section 4.27  

Borrowing Base Matters

     97  
Section 4.28  

EEA Financial Institution

     97  

ARTICLE V

CONDITIONS OF LENDING

 

 

Section 5.01  

All Credit Events

     97  
Section 5.02  

First Credit Event

     97  

ARTICLE VI

AFFIRMATIVE COVENANTS

 

 

Section 6.01  

Existence; Businesses and Properties

     100  
Section 6.02  

Insurance

     101  
Section 6.03  

Taxes

     102  
Section 6.04  

Financial Statements, Reports, etc.

     102  
Section 6.05  

Litigation and Other Notices

     104  
Section 6.06  

Compliance with Laws

     105  
Section 6.07  

Maintaining Records; Access to Properties and Inspections

     105  
Section 6.08  

Use of Proceeds

     105  
Section 6.09  

Compliance with Environmental Laws

     105  
Section 6.10  

Further Assurances; Additional Security

     106  
Section 6.11  

Appraisals and Field Examinations

     108  
Section 6.12  

Collection of Accounts; Payments

     109  
Section 6.13  

Collateral Reporting

     109  

ARTICLE VII

NEGATIVE COVENANTS

 

 

 

- ii -

Table of Contents (cont.)

 

         Page  
Section 7.01  

Indebtedness

     110  
Section 7.02  

Liens

     112  
Section 7.03  

Sale and Lease Back Transactions

     115  
Section 7.04  

Investments, Loans and Advances

     116  
Section 7.05  

Mergers, Consolidations, Sales of Assets and Acquisitions

     118  
Section 7.06  

Dividends and Distributions

     121  
Section 7.07  

Transactions with Affiliates

     122  
Section 7.08  

Business of the Borrowers and their respective Subsidiaries

     124  
Section 7.09  

Limitation on Modifications of Indebtedness; Modifications of Certificate of Incorporation, By Laws and Certain Other Agreements; etc.

     124  
Section 7.10  

Margin Stock; Use of Proceeds

     126  
Section 7.11  

Holdcos Covenants

     126  
Section 7.12  

Financial Covenants

     127  

ARTICLE VIII

EVENTS OF DEFAULT

 

 

Section 8.01  

Events of Default

     127  
Section 8.02  

Exclusion of Immaterial Subsidiaries

     130  
Section 8.03  

Application of Funds

     130  

ARTICLE IX

THE AGENCY PROVISIONS

 

 

Section 9.01  

Appointment and Authority

     131  
Section 9.02  

Rights as a Lender

     132  
Section 9.03  

Exculpatory Provisions

     132  
Section 9.04  

Reliance by Administrative Agent

     133  
Section 9.05  

Delegation of Duties

     133  
Section 9.06  

Resignation of Administrative Agent

     134  
Section 9.07  

Non-Reliance on Administrative Agent and Other Lenders

     135  
Section 9.08  

No Other Duties, Etc.

     135  
Section 9.09  

Administrative Agent May File Proofs of Claim

     135  
Section 9.10  

Collateral and Guaranty Matters

     136  
Section 9.11  

Secured Hedge Agreements and Secured Cash Management Agreements

     137  

ARTICLE X

MISCELLANEOUS

 

 

Section 10.01  

Amendments, Etc.

     138  
Section 10.02  

Notices; Effectiveness; Electronic Communication

     141  
Section 10.03  

No Waiver; Cumulative Remedies; Enforcement

     142  
Section 10.04  

Expenses; Indemnity; Damage Waiver

     143  
Section 10.05  

Payments Set Aside

     146  
Section 10.06  

Successors and Assigns

     146  
Section 10.07  

Treatment of Certain Information; Confidentiality

     151  
Section 10.08  

Platform; Borrower Materials

     151  
Section 10.09  

Right of Setoff

     151  
Section 10.10  

Interest Rate Limitation

     152  
Section 10.11  

Counterparts; Integration; Effectiveness

     152  

 

- iii -

Table of Contents (cont.)

 

         Page  
Section 10.12  

Survival of Representations and Warranties

     152  
Section 10.13  

Severability

     153  
Section 10.14  

Replacement of Lenders

     153  
Section 10.15  

Governing Law; Jurisdiction Etc.

     154  
Section 10.16  

Waiver of Jury Trial

     155  
Section 10.17  

No Advisory or Fiduciary Responsibility

     155  
Section 10.18  

Electronic Execution of Assignments and Certain Other Documents

     155  
Section 10.19  

USA Patriot Act Notice

     156  
Section 10.20  

Intercreditor Agreements

     156  
Section 10.21  

Field Audit and Examination Reports; Disclaimer by Lenders

     157  
Section 10.22  

Release of Liens and Guarantees

     157  
Section 10.23  

Headings

     158  
Section 10.24  

Acknowledgement and Consent to Bail-In of EEA Financial Institutions

     158  
Section 10.25  

Power of Attorney

     158  

 

- iv -

Table of Contents (cont.)

 

              Page
Exhibits:        

Exhibit A

  –    Form of Assignment and Assumption   

Exhibit B-1

  –    Form of Solvency Certificate   

Exhibit B-2

  –    Form of Borrowing Base Certificate   

Exhibit C-1

  –    Form of Borrowing Request   

Exhibit C-2

  –    Form of Swing Line Loan Notice   

Exhibit C-3

     Form of Letter of Credit Request   

Exhibit D-1

  –    U.S. Tax Compliance Certificate   

Exhibit D-2

  –    U.S. Tax Compliance Certificate   

Exhibit D-3

  –    U.S. Tax Compliance Certificate   

Exhibit D-4

  –    U.S. Tax Compliance Certificate   
Schedules:        

Schedule 1.01(a)

  –    Certain U.S. Subsidiaries   

Schedule 1.01(b)

  –    Mortgaged Properties   

Schedule 1.01(c)

  –    Immaterial Subsidiaries   

Schedule 1.01(d)

  –    Qualified Receivables   

Schedule 1.01(e)

  –    Unrestricted Subsidiaries   

Schedule 1.01(f)

  –    Acceptable Appraisers   

Schedule 1.01(g)

     Existing Letters of Credit   

Schedule 1.01(h)

     Account Debtor Restrictions   

Schedule 2.01

  –    Commitments   

Schedule 2.15

     Incremental Revolving Facility Commitments   

Schedule 4.01

  –    Organization and Good Standing   

Schedule 4.04

  –    Governmental Approvals   

Schedule 4.07(b)

  –    Leased Properties   

Schedule 4.08(a)

  –    Subsidiaries   

Schedule 4.08(b)

  –    Subscriptions   

Schedule 4.13

  –    Taxes   

Schedule 4.16

  –    Environmental Matters   

Schedule 4.21

  –    Insurance   

Schedule 4.23

  –    Intellectual Property   

Schedule 5.02(b)

  –    Local Counsel   

Schedule 6.10

  –    Post-Closing Deliveries   

Schedule 6.13

  –    Collateral Reporting Information   

Schedule 7.01

  –    Indebtedness   

Schedule 7.02(a)

  –    Liens   

Schedule 7.04

  –    Investments   

Schedule 10.02

  –    Notice Information   

 

- v -

This CREDIT AGREEMENT, dated as of June 21, 2017 (this “ Agreement ”), is entered into by and among WISE ALLOYS LLC, a Delaware limited liability company (“ Wise ”), CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC, a Delaware limited liability company (“ Ravenswood ”), WISE METALS GROUP LLC, a Delaware limited liability company (“ Wise Holdings ”), CONSTELLIUM US HOLDINGS I, LLC, a Delaware limited liability company (“ Ravenswood Holdings ”), CONSTELLIUM HOLDCO II B.V., a private limited liability company ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under Dutch law, having its corporate seat ( statutaire zetel ) in Amsterdam, The Netherlands and having its registered office address at 1119 NW Schiphol Rijk, Tupolevlaan 41, The Netherlands, registered with the register of the chamber of commerce in Amsterdam, The Netherlands under number 34393946 (“ Parent Guarantor ”), the LENDERS party hereto from time to time, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent and collateral agent (in such capacities, the “ Administrative Agent ”) for the Lenders.

WHEREAS, each Borrower (as defined below) has requested that the Lenders extend credit in the form of Revolving Facility Loans (as defined below) and Letters of Credit (as defined below) from time to time during the Availability Period (as defined below), in an aggregate principal amount not in excess of $300,000,000 or, subject to the occurrence of the Incremental Facility Effective Date, in an aggregate principal amount not in excess of $500,000,000, to be used by the Borrowers for general corporate purposes and to effect the Refinancing (as defined below); and

NOW, THEREFORE, the Lenders (as defined below) and L/C Issuers (as defined below) are willing to extend such credit to the Borrowers on the terms and subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01     Defined Terms . As used in this Agreement, the following terms have the meanings specified below:

“ AB Receivables ” means, collectively, Accounts for which the related Account Debtor is Anheuser-Busch and/or its Affiliates (other than Envases y Tapas Modelo, S. de R.L. de C.V.).

“ AB Receivables Financing ” means any transaction or series of transactions that may be entered into by any of Wise or its Subsidiaries pursuant to which Wise or such Subsidiary (any such Subsidiary, the “ AB Receivables Subsidiary ”) may sell, convey or otherwise transfer to any other Person (other than the Administrative Agent pursuant to the Loan Documents), or may grant a security interest in, any AB Receivables (whether now existing or arising in the future) of the AB Receivables Subsidiary, including all collateral securing such AB Receivables, all contracts and all guarantees or other obligations in respect of such AB Receivables, proceeds of such AB Receivables and other assets, in each case, which are customarily transferred in or in respect of which security interests are customarily granted in connection with asset securitization transactions or factoring transactions involving accounts receivable.

“ AB Receivables Subsidiary ” has the meaning set forth in the definition of “AB Receivables Financing”.

“ ABL Credit Obligations ” means, with respect to each Loan Party and the Parent Guarantor, without duplication:

(i)     in the case of each Borrower, all principal of, premium, if any, and interest (including, without limitation, any interest which accrues after the commencement of any

proceeding under any Debtor Relief Law with respect to such Borrower, whether or not allowed or allowable as a claim in any such proceeding) on, any Loan or L/C Obligation under, or any Note issued pursuant to, this Agreement or any other Loan Document;

(ii)     all fees, expenses, indemnification obligations and other amounts of whatever nature now or hereafter payable by such Loan Party or Parent Guarantor (including, without limitation, any amounts which accrue after the commencement of any proceeding under any Debtor Relief Law with respect to such Loan Party, whether or not allowed or allowable as a claim in any such proceeding) pursuant to this Agreement or any other Loan Document;

(iii)     all expenses of the Administrative Agent as to which the Administrative Agent has a right to reimbursement by such Loan Party or Parent Guarantor under Section 10.04(a) of this Agreement or under any other similar provision of any other Loan Document, including, without limitation, any and all sums advanced by the Collateral Agent to preserve the Collateral or preserve its security interests in the Collateral to the extent permitted under any Loan Document or applicable Law;

(iv)     all amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement by such Loan Party or Parent Guarantor under Section 10.04(b) of this Agreement or under any other similar provision of any other Loan Document; and

(v)     in the case of the Holdcos, each Borrower and each Subsidiary Loan Party, all amounts now or hereafter payable by the Holdcos, such Borrower or such Subsidiary Loan Party and all other obligations or liabilities now existing or hereafter arising or incurred (including, without limitation, any amounts which accrue after the commencement of any proceeding under any Debtor Relief Law with respect to any Borrower, the Holdcos or such Subsidiary Loan Party, whether or not allowed or allowable as a claim in any such proceeding) on the part of the Holdcos, such Borrower or such Subsidiary Loan Party pursuant to this Agreement, the Guaranty or any other Loan Document;

together in each case with all renewals, modifications, consolidations or extensions thereof.

“ ABL Finance Obligations ” means, at any date, (i) all ABL Credit Obligations and (ii) all Swap Obligations of any Borrower or any Material Subsidiary then owing under any Secured Hedge Agreement to any Hedge Bank and (iii) all obligations of any Borrower or any Material Subsidiary then owing under any Secured Cash Management Agreement to any Cash Management Bank.

“ ABL Priority Collateral ” has the meaning given to the term in the Intercreditor Agreement.

“ Acceptable Appraiser ” means (a) any Person listed on Schedule 1.01(f) or (b) any other experienced and reputable appraiser reasonably acceptable to the Administrative Agent.

“ Accepting Lenders ” has the meaning assigned to such term in Section 10.01 .

“ Account ” has the meaning assigned to such term in the Collateral Agreement.

“ Account Debtor ” has the meaning assigned to such term in the Collateral Agreement.

“ Accounts Availability Triggering Event ” shall occur at any time that (a) Availability is less than 12.5% of the Maximum Credit for a period of five (5) consecutive Business Days or (b) an

 

- 2 -

Event of Default shall have occurred and be continuing. Once occurred, an Accounts Availability Triggering Event shall be deemed to be continuing until such time as either (x) Availability exceeds 12.5% of the Maximum Credit for a period of at least 30 consecutive days or (y) such Event of Default has been cured or waived in accordance with the terms hereof, as applicable.

“ Additional Mortgage ” has the meaning assigned to such term in Section 6.10(c) .

“ Adjusted Eurodollar Rate ” means the quotient obtained (expressed as a decimal, carried out to five decimal places) by dividing (A) the applicable Eurodollar Base Rate by (B) 1.00 minus the Eurodollar Reserve Percentage (rounded upwards, if necessary, to the next 1/100 of 1%).

“ Administrative Agent ” has the meaning assigned to such term in the preamble to this Agreement.

“ Administrative Agent Fees ” has the meaning assigned to such term in Section 2.12(c) .

“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as the Administrative Agent may from time to time notify the Borrowers and the Lenders.

“ Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

“ Advance Agreement ” means the Advance Extension Agreement, dated as of August 21, 2012, between Wise and Rexam, as amended by the Amendment to Advance Extension Agreement dated as of December 11, 2013 and as may be further amended, restated, supplemented, otherwise modified, extended, renewed, or replaced from time to time.

“ Affected Facility ” has the meaning assigned to such term in Section 10.01 .

“ Affiliate ” means, when used with respect to a specified person, another person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the person specified.

“ Agent Advance ” shall have the meaning assigned to such term in Section 2.18 .

“ Agreement ” means, on any date, this Agreement as originally in effect on the Effective Date and as thereafter amended, supplemented, amended and restated or otherwise modified from time to time and in effect on such date.

“ Airbus ” means Airbus Group SE and its successors and assigns.

“ Anheuser-Busch ” means Anheuser-Busch, LLC and its successors and assigns.

“ Anti-Money Laundering Laws ” means any and all laws, judgments, orders, executive orders, decrees, ordinances, rules, regulations, statutes, case law or treaties applicable to a Loan Party, its subsidiaries or Affiliates related to terrorism financing or money laundering, including any applicable provision of Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001 (Title III of Pub. L. 107-56) and The Currency and Foreign Transactions Reporting Act (also known as the “ Bank Secrecy Act ”, 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).

 

- 3 -

“ Applicable Accounting Rules ” means GAAP or IFRS, as applicable to the applicable Person in the applicable context.

“ Applicable Margin ” means, with respect to Revolving Facility Loans, Agent Advances and Swing Line Loans, a percentage per annum equal to the rate set forth below opposite the then-applicable Average Quarterly Excess Availability for the calendar quarter immediately preceding the calendar quarter in which the date of determination falls:

 

 

Applicable Margin

 

Pricing Level   

Average Quarterly

Excess Availability

  

Eurodollar Rate

Loans and Letter

of Credit Fees

   Base Rate Loans
I   

> 66.67% of the

Maximum Credit

   1.50%    0.50%
II   

£ 66.67% of the

Maximum Credit but

³ 33.33% of the

Maximum Credit

   1.75%    0.75%
III   

< 33.33% of the

Maximum Credit

   2.00%    1.00%

For the avoidance of doubt, (a) Agent Advances and Swing Line Loans shall bear interest as Base Rate Loans, and (b) changes in the Applicable Margin resulting from a change in the Average Quarterly Excess Availability, as calculated in a compliance certificate delivered pursuant to Section 6.04(c) , for any calendar quarter shall become effective as to all applicable Revolving Facility Loans and Letter of Credit Fees on the first day of the next calendar quarter following delivery of such compliance certificate except in the case of compliance certificates that are delivered pursuant to Section 6.04(c) for any calendar quarter that ends on the last day of a fiscal year, in which case such change shall become effective on the first day of the calendar quarter in which such compliance certificate is required to be delivered; provided , however , that if a compliance certificate is not delivered when due in accordance with such Section 6.04(c) , then Pricing Level III shall apply from the first day of the next calendar quarter following the date on which such compliance certificate was due through the date on which such compliance certificate is delivered, after which the pricing level corresponding to the Average Quarterly Excess Availability set forth in such Compliance Certificate shall apply; provided , further , that, until the first day of the calendar quarter following the delivery of the compliance certificate for the calendar quarter ending on September 30, 2017, Pricing Level II shall apply. Notwithstanding the calculation of the Applicable Margin for any period as set forth above, if, as a result of any error in the calculation of the Average Quarterly Excess Availability for any quarter or for any other reason, the Borrowers or the Lenders determine that (i) the Average Quarterly Excess Availability as calculated for such quarter was inaccurate and (ii) a proper calculation of the Average Quarterly Excess Availability for such quarter would have resulted in higher pricing for such period, the Borrowers shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the L/C Issuers, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent, any Lender or any L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph

 

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shall not limit the rights of the Administrative Agent, any Lender or any L/C Issuer, as the case may be, under Section 2.13(c) or 2.05(h) or under Article VIII .

“ Approved Fund ” means any Fund that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a Lender.

“ Asset Sale ” means any loss, damage, destruction or condemnation of, or any sale, transfer or other disposition (including any sale and leaseback of assets and any mortgage or lease of Real Property) to any person of any asset or assets of any Borrower or any Subsidiary.

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an assignee, and accepted by the Administrative Agent, the L/C Issuers, the Swing Line Lender and the Borrowers (in each case, if required by such assignment and acceptance), in the form of Exhibit A or such other form as shall be approved by the Administrative Agent, the L/C Issuers, the Swing Line Lender and the Borrowers (such approval not to be unreasonably withheld or delayed).

“ Auto-Extension Letter of Credit ” shall have the meaning specified in Section 2.05(b)(iii) .

“ Auto-Reinstatement Letter of Credit ” shall have the meaning specified in Section 2.05(b)(iv) .

“ Availability ” means, at any time, (a) the lesser of the Maximum Credit and the Borrowing Base in effect at such time minus (b) the aggregate Outstanding Amounts under the Revolving Facility.

“ Availability Period ” shall mean the period from and including the Closing Date to but excluding the earlier of (x) the Facility Maturity Date and (y) the date of termination of the Revolving Facility Commitments.

“ Availability Triggering Event ” shall occur at any time that (a) Availability is less than 12.5% of the Maximum Credit or (b) a Default or an Event of Default shall have occurred and be continuing. Once occurred, an Availability Triggering Event shall be deemed to be continuing until such time as (A) in the case of an Availability Triggering Event described in clause (a), Availability exceeds 12.5% of the Maximum Credit for 30 consecutive days or (B) in the case of an Availability Triggering Event described in clause (b), the applicable Default or Event of Default has been cured or waived in accordance with the terms hereof, as applicable.

“ Average Quarterly Excess Availability ” means, at any time, an amount (expressed as a percentage) equal to the quotient of (A) the average daily Availability during the immediately preceding quarter divided by (B) the average daily Maximum Credit for the immediately preceding quarter.

“ Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“ Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

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“ Base Rate ” means, for any day, the greater of (a) zero (0.00%) per annum and (b) a rate per annum equal to the highest of (i) the Prime Rate for such day, (ii) the sum of 0.50% plus the Federal Funds Rate for such day and (iii) the sum of the Eurodollar Base Rate for a one-month interest period (which rate shall be determined on a daily basis) plus 1.00%.

“ Base Rate Borrowing ” means a Borrowing comprised of Base Rate Loans.

“ Base Rate Loan ” means a Loan that bears interest based on the Base Rate.

“ Board ” means the Board of Governors of the Federal Reserve System of the United States of America.

“ Board of Directors ” means, as to any person, the board of directors or other governing body of such person, or if such person is owned or managed by a single entity, the board of directors or other governing body of such entity.

“ Borrowers ” means, collectively, Ravenswood and Wise. Unless the context otherwise requires, “ Borrower ” shall mean one or all of the foregoing Persons, jointly, severally, and collectively.

“ Borrower Materials ” has the meaning assigned to such term in Section 10.08 .

“ Borrowing ” means a group of Loans of a single Type under the Revolving Facility and made on a single date and, in the case of Eurodollar Rate Loans, as to which a single Interest Period is in effect.

“ Borrowing Base ” means, at any time, an amount equal to:

the result of

 

 

(x)

the sum of:

 

 

(i)

85.0% of the Net Amount of Eligible Accounts, plus

 

 

(ii)

the lesser of:

(A)     80.0% of the lesser of the original cost or market value of Eligible Inventory (valued at any date based on average cost method of accounting), and

(B)     85.0% of the Orderly Liquidation Value of Eligible Inventory,

minus

 

 

(y)

all Reserves which the Administrative Agent deems necessary in the exercise of its Permitted Discretion to maintain with respect to any Loan Party, including Reserves for any amounts which the Administrative Agent or any Lender may be obligated to pay in the future for the account of any Loan Party, including, without limitation, any Payoff Letter Charges.

 

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The specified percentages set forth in this definition will not (except as otherwise specified herein) be reduced without the consent of each Borrower (not to be unreasonably withheld or delayed). Any determination by the Administrative Agent in respect of the Borrowing Base shall be based on the Administrative Agent’s Permitted Discretion. The parties understand that the exclusionary criteria in the definitions of Eligible Accounts and Eligible Inventory, any Reserves that may be imposed as provided herein, any deductions or other adjustments to determine “lesser of cost or market value” and Net Amount of Eligible Accounts and factors considered in the calculation of Orderly Liquidation Value of Eligible Inventory have the effect of reducing the Borrowing Base, and, accordingly, whether or not any provisions hereof so state, all of the foregoing shall be determined without duplication so as not to result in multiple reductions in the Borrowing Base for the same facts or circumstances.

“ Borrowing Base Certificate ” means a certificate by a Responsible Officer of the Borrowers, substantially in the form of Exhibit B-2 (or another form acceptable to the Administrative Agent) setting forth the calculation of the Borrowing Base, including a calculation of each component thereof (including, to the extent any Borrower has received notice of any such Reserve from the Administrative Agent, any of the Reserves included in such calculation pursuant to clause (y)  of the definition of the Borrowing Base), all in such detail as shall be reasonably satisfactory to the Administrative Agent. All calculations of the Borrowing Base in connection with the preparation of any Borrowing Base Certificate shall be made by the Borrowers and certified to the Administrative Agent.

“ Borrowing Minimum ” means $1,000,000, except in the case of Swing Line Loans, in which case it means $250,000.

“ Borrowing Multiple ” means $250,000.

“ Borrowing Request ” means a request by a Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit C-1 or otherwise in form and substance satisfactory to the Administrative Agent.

“ Budget ” has the meaning assigned to such term in Section 6.04(e) .

“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located, except that if such day relates to any Eurodollar Rate Loan, such day shall also be a London Banking Day.

“ Capital Expenditures ” means, for any person in respect of any period, the aggregate of all expenditures incurred by such person during such period that, in accordance with Applicable Accounting Rules, are or should be included in “additions to property, plant or equipment” or similar items reflected in the statement of cash flows of such person; provided , however , that Capital Expenditures for the Ultimate Parent and its Subsidiaries shall not include:

(i)      expenditures to the extent they are made with proceeds of the issuance of Equity Interests of the Ultimate Parent after the Closing Date or funds that would have constituted any Net Proceeds under the definition of the term “Net Proceeds” (but for the application of the first proviso thereof);

(ii)     expenditures with proceeds of insurance settlements, condemnation awards and other settlements in respect of lost, destroyed, damaged or condemned assets, equipment or other property to the extent such expenditures are made to replace or repair such lost, destroyed, damaged or condemned assets, equipment or other property or otherwise to

 

- 7 -

acquire, maintain, develop, construct, improve, upgrade or repair assets or properties useful in the business of the Ultimate Parent and its Subsidiaries within 15 months of receipt of such proceeds (or, if not made within such period of 15 months, are committed to be made during such period);

(iii)     interest capitalized during such period;

(iv)     expenditures that are accounted for as capital expenditures of such person and that actually are paid for by a third party (excluding the Ultimate Parent or any Subsidiary thereof) and for which neither the Ultimate Parent nor any Subsidiary thereof has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other person (whether before, during or after such period);

(v)     the book value of any asset owned by such person prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of such person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period; provided that (A) any expenditure necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the period that such expenditure actually is made and (B) such book value shall have been included in Capital Expenditures when such asset was originally acquired;

(vi)     the purchase price of equipment purchased during such period to the extent the consideration therefor consists of any combination of (A) used or surplus equipment traded in at the time of such purchase and (B) the proceeds of a concurrent sale of used or surplus equipment, in each case, in the ordinary course of business;

(vii)     Investments in respect of a Permitted Business Acquisition; or

(viii)   the purchase of property, plant or equipment made or contractually committed to be made within 15 months of the sale of any asset (other than inventory) to the extent purchased with the proceeds of such sale.

“ Capital Lease Obligations ” of any person means the obligations of such person to pay rent or other amounts under any lease of (or other similar arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such person under Applicable Accounting Rules and, for purposes hereof, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with Applicable Accounting Rules.

“ Cash Collateralize ” means to deposit in a Controlled Account or to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuers or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and the applicable L/C Issuers shall agree in their sole discretion, other credit support, or to provide a customary back-to-back letter of credit in support of, in each case pursuant to customary documentation in form and substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuers. “ Cash Collateral ” and “ Cash Collateralized ” have meanings correlative to the foregoing, and shall include the proceeds of such cash collateral and other credit support.

“ Cash Management Agreement ” means any agreement to provide an overdraft line or other cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer, automated clearinghouse transactions and other cash management arrangements.

 

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“ Cash Management Bank ” means any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement.

“ CFC ” means a “controlled foreign corporation” as defined in Section 957 of the Code.

“ Change in Control ” shall be deemed to occur if:

(i)     at any time (A) Ultimate Parent shall fail to own, directly or indirectly, beneficially and of record, 100% of the issued and outstanding Equity Interests of any Holdco, (B) a majority of the seats (other than vacant seats) on the Board of Directors of Ultimate Parent shall at any time be occupied by persons who were neither (i) nominated by the Board of Directors of Ultimate Parent nor (ii) appointed by directors so nominated, (C) except as permitted pursuant to Section 7.11(y), Ravenswood Holdings shall fail to own, directly or indirectly, beneficially and of record, 100% of the issued and outstanding Equity Interests of Ravenswood, (D) except as permitted pursuant to Section 7.11(y), Wise Holdings shall fail to own, directly or indirectly, beneficially and of record, 100% of the issued and outstanding Equity Interests of Wise, (E) a majority of the seats (other than vacant seats) on the Board of Directors of any Holdco shall at any time be occupied by persons who were neither (i) nominated by the Board of Directors of such Holdco nor (ii) appointed by directors so nominated, or (E) a “ change of control ” (or similar event) shall occur under any Material Indebtedness; or

(ii)     any person or “ group ” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date) (other than in the case of any Holdco’s Equity Interests, Ultimate Parent or any Subsidiary thereof) shall have acquired beneficial ownership of 50% or more on a fully diluted basis of the voting interest in Ultimate Parent’s Equity Interests or any Holdco’s Equity Interests.

“ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (i) the adoption or taking effect of any law, rule, regulation or treaty, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (iii) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“ Closing Date ” means the first date on or after the Effective Date when all the conditions precedent in Section 5.02 are satisfied or waived in accordance with Section 10.01 .

“ Coca-Cola ” means Coca-Cola Bottlers’ Sales and Services Company LLC, a Delaware limited liability company, and its successors and assigns.

“ Code ” means the Internal Revenue Code of 1986, as amended from time to time.

“ Collateral ” means all the “ Collateral ” as defined in any Security Document and shall also include the Mortgaged Properties and all other property that is subject to any Lien in favor of the Collateral Agent or any Subagent for the benefit of the Lenders pursuant to any Security Document.

 

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“ Collateral Agent ” means the party acting as collateral agent for the Secured Parties under the Security Documents. On the Closing Date, the Collateral Agent is the same person as the Administrative Agent. Unless the context otherwise requires, the term “ Administrative Agent ” as used herein shall include the Collateral Agent, notwithstanding various specific references to the Collateral Agent herein.

“ Collateral Agreement ” means the Guarantee and Collateral Agreement, dated as of the Closing Date, by and among the Borrowers, the Guarantors, the Parent Guarantor and the Administrative Agent.

“ Collateral and Guarantee Requirement ” means the requirement, subject to the Intercreditor Agreements, that:

(i)     on the Closing Date, the Collateral Agent shall have received (A) from each Borrower and each Guarantor, a counterpart of the Collateral Agreement duly executed and delivered on behalf of such person and (B) an Acknowledgment and Consent in the form attached to the Collateral Agreement, executed and delivered by each issuer of Pledged Collateral (as defined in the Collateral Agreement), if any, that is a Subsidiary of any Borrower (other than any Receivables Subsidiary) but is not a Loan Party;

(ii)     on the Closing Date, (A) the Collateral Agent shall have received a pledge of all the issued and outstanding Equity Interests of each Borrower and (B) the Collateral Agent shall have received all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank;

(iii)     (A) all Indebtedness of each Borrower and each Subsidiary (other than (i) intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Holdcos and their Subsidiaries or (ii) to the extent that a pledge of such promissory note or instrument would violate applicable law) that is owing to any Loan Party (other than the Parent Guarantor) shall have been pledged pursuant to the Collateral Agreement (or other applicable Security Document as reasonably required by the Collateral Agent), and (B) the Collateral Agent shall, if any such Indebtedness is evidenced by a promissory note or an instrument, have received all such promissory notes or instruments, together with note powers or other instruments of transfer with respect thereto endorsed in blank;

(iv)     in the case of any person that becomes a Subsidiary Loan Party after the Closing Date, the Collateral Agent shall have received a supplement to the Collateral Agreement, in the form specified therein, duly executed and delivered on behalf of such Subsidiary Loan Party;

(v)     after the Closing Date, (A) all the outstanding Equity Interests of (i) any person that becomes a Subsidiary Loan Party after the Closing Date (and which are owned by a Borrower) and (ii) subject to Section 6.10(g) , any other Person that is acquired by a Borrower after the Closing Date (other than to the extent that a pledge of such Equity Interest would violate applicable law or regulation) shall have been pledged pursuant to the Collateral Agreement; provided that (x) in no event shall more than 65% of the issued and outstanding voting Equity Interests of any FSHCO or “ first tier ” Foreign Subsidiary that is a CFC (other than a “first tier” Foreign Subsidiary of a FSHCO) be pledged to secure ABL Credit Obligations, (y) in no event shall any of the issued and outstanding Equity Interests of any direct or indirect Subsidiary of a FSHCO or a Foreign Subsidiary that is a CFC be pledged to secure ABL Credit Obligations and

 

- 10 -

(z) in no event shall the Equity Interests of any Receivables Subsidiary be pledged, and (B) the Collateral Agent shall have received all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank;

(vi)     except as otherwise contemplated by any Security Document and subject to Section 5.02(d) , all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Documents (in each case, including any supplements thereto) and perfect such Liens to the extent required by, and with the priority required by, the Security Documents, shall have been filed, registered or recorded or delivered to the Collateral Agent for filing, registration or the recording concurrently with, or promptly following, the execution and delivery of each such Security Document, and all taxes, fees, charges and costs in connection with the filing and recording of such Security Documents shall be incurred by the Borrowers;

(vii)    (1) the Collateral Agent shall have received (A) counterparts of each Mortgage to be entered into with respect to each Mortgaged Property set forth on Schedule 1.01(b) duly executed and delivered by the record owner of such Mortgaged Property and suitable for recording or filing and, if such Mortgaged Property is an improved Real Property, no later than 15 days prior to the execution and delivery of such Mortgage (or such later date as the Collateral Agent shall determine in its sole discretion), address and other identifying information with respect to such Mortgaged Property reasonably satisfactory to the Collateral Agent and (i) if any improvements on such Mortgaged Property are located within any area designated by the Director of the Federal Emergency Management Agency as a “special flood hazard” area (as may be established by a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such Mortgaged Property), no later than 5 days prior to the execution and delivery of such Mortgage (or such later date as the Collateral Agent shall determine in its sole discretion), evidence of a flood insurance policy (if such insurance is required by Law and commercially reasonably available) from a company and in an amount satisfactory to the Collateral Agent for the applicable portion of the premises, naming the Collateral Agent, for the benefit of the Lenders, as mortgagee, or (ii) a certification from a registered engineer or land surveyor in a form reasonably satisfactory to the Collateral Agent or other evidence reasonably satisfactory to the Collateral Agent that none of the improvements on such Mortgaged Property is located within any area designated by the Director of the Federal Emergency Management Agency as a “special flood hazard” area and (B) such other documents that the Collateral Agent may reasonably request, in form and substance reasonably satisfactory to the Collateral Agent, including, but not limited to, any consents, agreements, opinions and confirmations of third parties, surveys, insurance policies, and appraisals (but without duplication of the documents described in clause (viii) below), as the Collateral Agent may reasonably request with respect to any such Mortgage or Mortgaged Property and (2) for the avoidance of doubt, no Real Property shall be taken as Collateral unless each Lender confirms to the Administrative Agent and the Collateral Agent that it has completed all flood due diligence, received copies of all flood insurance documentation and confirmed flood insurance compliance as required by the Flood Laws or as otherwise satisfactory to such Lender; provided , however , that the provisions of this paragraph (vii)  shall not apply with respect to Real Property if the Collateral Agent shall reasonably determine that the costs of obtaining or perfecting such a security interest or adhering to the provisions of this paragraph (vii) are excessive in relation to the value of the security to be afforded thereby;

 

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(viii)     the Collateral Agent shall have received an American Land Title Association Lender’s Extend Coverage policy or policies or marked-up unconditional binder of title insurance, as applicable, paid for by the applicable Borrower, each policy in an amount not less than 100% or lesser percentage of the fair market value of the applicable Mortgaged Property as reasonably determined by the Collateral Agent, issued by a nationally recognized title insurance company approved by the Collateral Agent, insuring the Lien of each Mortgage in respect of the Mortgaged Property set forth on Schedule 1.01(b) as a valid Lien on the Mortgaged Property described therein, free of any Liens and other title defects except Permitted Liens, together with such customary endorsements (including zoning endorsements where reasonably appropriate and available), coinsurance and reinsurance as the Collateral Agent may reasonably request, including with respect to any such property located in a state in which a zoning endorsement is not available, a zoning compliance letter from the applicable municipality in a form reasonably acceptable to the Collateral Agent;

(ix)     upon or prior to the delivery of the Mortgages, the Collateral Agent shall have received evidence of the insurance required by the terms of the Mortgages;

(x)     except as otherwise contemplated by any Security Document, each Loan Party shall have obtained all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder; and

(xi)     except as otherwise approved in writing by the Administrative Agent, (i) each Subsidiary of either Borrower (other than any Receivables Subsidiary) that incurs Guarantees to support any Indebtedness for borrowed money in an amount in excess of $15,000,000 of any Loan Party or any Affiliate of any Loan Party shall, within 30 days (or such longer time as the Administrative Agent may agree) after incurring such Guarantees, guaranty the ABL Finance Obligations and (ii) each such Person that grants Liens to support any Indebtedness for borrowed money in an amount in excess of $15,000,000 of any Loan Party or any Affiliate of any Loan Party (including to secure Guarantees of such Person that support such Indebtedness) to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in, subject to the limitations set forth herein and in the Collateral Documents, all of such Person’s property to secure the ABL Finance Obligations within 30 days (or such longer time as the Administrative Agent may agree) after granting such Liens;

(xii)     after the Closing Date, the Collateral Agent shall have received (A) such other Security Documents as may be required to be delivered pursuant to Section 6.10 , and (B) upon reasonable request by the Collateral Agent, evidence of compliance with any other requirements of Section 6.10 .

Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to the term “Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Security Documents. The Administrative Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Effective Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Effective Date) where it reasonably determines that either (i) such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents or (ii) such extension of time

 

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is otherwise reasonable, necessary or appropriate, and each Lender hereby consents to any such extensions of time. Without limitation of the foregoing, (a) the Borrowers shall not be required to comply with clauses (vii)  through (ix) above with respect to the plant owned by Ravenswood located in Ravenswood, West Virginia or any property owned by Wise prior to the date that is 90 days after the Closing Date, or such later date as the Administrative Agent may agree in its sole discretion and (b) in no event shall a Mortgage with respect to the Specified Mill Assets be required.

“ Commitments ” means (a) with respect to any Lender, such Lender’s Revolving Facility Commitment (including any Incremental Revolving Facility Commitment) and (b) with respect to the Swing Line Lender, its Swing Line Commitment.

“ Commitment Fee ” has the meaning assigned to such term in Section 2.12(a) .

“ Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“ Consolidated Interest Expense ” means, with respect to any Person for any period, the sum, without duplication, of:

(1)     consolidated interest expense of such Person and its Subsidiaries for such period, to the extent such expense was deducted in computing Consolidated Net Income (including amortization of original issue discount, noncash interest payments, the interest component of Capital Lease Obligations, and net payments and receipts (if any) pursuant to interest rate Swap Obligations (but excluding unrealized mark-to-market gains and losses attributable to such Swap Obligations, amortization of deferred financing fees and expensing of any bridge or other financing fees), and excluding interest expense attributable to the Factoring Facilities or any Qualified Receivables Financing or other factoring arrangements (to the extent accounted for as interest expense under Applicable Accounting Rules), amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses and expensing of any bridge commitment or other financing fees); plus

(2)     consolidated capitalized interest of such Person and its Subsidiaries for such period, whether paid or accrued; plus

(3)     preferred stock dividends paid in cash in respect of Disqualified Stock of the Ultimate Parent held by persons other than the Ultimate Parent or a Subsidiary; plus

(4)     Commissions based on draws, discounts and yield (but excluding other fees and charges, including commitment fees) incurred in connection with any Receivables Financing which are payable to Persons other than the Ultimate Parent and its Subsidiaries; minus

(5)     interest income for such period.

  For purposes of this definition, interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Ultimate Parent to be the rate of interest implicit in such Capital Lease Obligation in accordance with Applicable Accounting Rules.

“ Consolidated Net Income ” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Subsidiaries for such period, on a consolidated basis; provided , however , that:

 

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(1)     any net after-tax extraordinary, nonrecurring or unusual gains or losses or income, expenses or charges, in each case, other than those which could be categorized under clause (4) of the definition of “EBITDA” (less all fees and expenses relating thereto), including, without limitation, any expenses related to any reconstruction of fixed assets and any fees, expenses or charges related to any equity offering, Investment permitted hereunder, acquisition, disposition, receivables financing, recapitalization or issuance, repayment, incurrence, refinancing, amendment or modification of Indebtedness permitted to be incurred by this Agreement (in each case, whether or not successful), in each case, shall be excluded;

(2)     any increase in amortization or depreciation or any non-cash charges, in each case resulting from purchase accounting in connection with any acquisition that is consummated after the Closing Date shall be excluded;

(3)     the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period;

(4)     any net after-tax income or loss from disposed, abandoned, transferred, closed or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned, transferred, closed or discontinued operations shall be excluded;

(5)     any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to business dispositions or asset dispositions other than in the ordinary course of business (as determined in good faith by the Borrowers) shall be excluded;

(6)     any net after-tax gains or losses (less all fees and expenses or charges relating thereto) attributable to the early extinguishment of Indebtedness or Swap Obligations or other derivative instruments shall be excluded;

(7)     the Net Income for such period of any Person that is not a Subsidiary of such Person, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be included only to the extent of the amount of dividends or distributions or other payments paid in cash (or to the extent converted into cash) to the referent Person or a Subsidiary thereof in respect of such period;

(8)     [Reserved];

(9)     any non-cash impairment charges or asset write-offs resulting from the application of Applicable Accounting Rules and the amortization of intangibles arising pursuant to Applicable Accounting Rules shall be excluded;

(10)     any non-cash expense realized or resulting from stock option plans, employee benefit plans or post-employment benefit plans, grants and sales of stock, stock appreciation or similar rights, stock options or other rights of such Person or any of its Subsidiaries shall be excluded;

(11)     any (a) severance or relocation costs or expenses, (b) one-time non-cash compensation charges, (c) the costs and expenses related to employment of terminated employees, (d) [Reserved] or (e) costs or expenses realized in connection with or resulting from stock appreciation or similar rights, stock options or other rights existing

 

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on the Closing Date of officers, directors and employees, in each case of such Person or any of its Subsidiaries, shall be excluded;

(12)     accruals and reserves that are established or adjusted in accordance with Applicable Accounting Rules or changes as a result of the adoption or modification of accounting policies shall be excluded;

(13)     (a)(i) the non-cash portion of “straight line” rent expense shall be excluded and (ii) the cash portion of “straight line” rent expense which exceeds the amount expensed in respect of such rent expense shall be included and (b) non-cash gains, losses, income and expenses resulting from fair value accounting shall be excluded;

(14)     unrealized gains and losses relating to hedging transactions and mark-to-market of Indebtedness denominated in foreign currencies shall be excluded;

(15)     solely for the purpose of calculating Restricted Payments, the difference, if positive, of the Consolidated Taxes of the Ultimate Parent calculated in accordance with Applicable Accounting Rules and the actual Consolidated Taxes paid in cash by the Ultimate Parent during any reference period shall be included;

(16)     non-cash charges for deferred tax asset valuation allowances shall be excluded;

(17)     an adjustment (which may be a negative number) shall be made to the extent that Net Income was calculated on an average cost basis with respect to inventory, in order to reflect the additional Net Income (or the reduction to Net Income) which would have been recognized using an approximation of last in first out inventory accounting; and

(18)     any loss on sale of receivables and related assets in a Factoring Facility or other Qualified Receivables Financing shall be excluded.

“ Consolidated Non-cash Charges ” means, with respect to any Person for any period, the aggregate depreciation, amortization, accretion and other non-cash expenses of such Person and its Subsidiaries reducing Consolidated Net Income of such Person for such period on a consolidated basis and otherwise determined in accordance with Applicable Accounting Rules, but excluding any such charge which consists of or requires an accrual of, or cash reserve for, anticipated cash charges for any future period.

“ Consolidated Taxes ” means provision for taxes based on income, profits or capital, including, without limitation, state, franchise and similar taxes.

“ Consolidated Total Assets ” means, as of any date, the total assets of the Borrowers and their consolidated Subsidiaries, determined in accordance with the Applicable Accounting Rules, as set forth on the consolidated balance sheet of the Borrowers as of such date.

“ Constellium Entities ” means, collectively, Ultimate Parent and its Subsidiaries other than the Holdcos and the Borrowers.

 

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“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person, whether through the ownership of voting securities, by contract or otherwise, and “ Controlling ” and “ Controlled ” have meanings correlative thereto.

“ Controlled Account ” means each Deposit Account that is subject to a Deposit Account Control Agreement in form and substance satisfactory to the Administrative Agent and, in the event that such Deposit Account holds Cash Collateral, the L/C Issuers.

“ Co-Syndication Agents ” means each of JPMorgan Chase Bank, N.A., Bank of America, N.A., and Deutsche Bank Securities Inc., in its capacity as a co-syndication agent.

“ Credit Event ” has the meaning assigned to such term in Article V .

“ Crown ” means Crown Holdings, Inc., a Pennsylvania corporation, and its successors and assigns.

“ Debtor Relief Laws ” means the U.S. Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

“ Default ” means any event or condition that upon notice, lapse of time or both would constitute an Event of Default.

“ Default Rate ” has the meaning assigned to such term in Section 2.13(c) .

“ Defaulting Lender ” means any Lender that (i) has failed (A) to fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender has notified the Administrative Agent and the Borrowers in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (B) to pay to the Administrative Agent, an L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans or Agent Advances) within two Business Days of the date when due, (ii) has notified the applicable Borrower, the Administrative Agent, an L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s good faith determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (iii) has generally defaulted on its funding obligations under other loan agreements or credit agreements or other similar financing agreements, (iv) has failed, within three Business Days after written request by the Administrative Agent or the applicable Borrower, to confirm in writing to the Administrative Agent and such Borrower that it will comply with its prospective funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (iv) upon receipt of such written confirmation by the Administrative Agent and such Borrower), or (v) has, or has a direct or indirect parent company that has, (A) become insolvent, or become generally unable to pay its debts as they become due, or admitted in writing its inability to pay its debts as they become due, or made a general assignment for the benefit of its creditors, (B) become the subject of a proceeding under any Debtor Relief Law, (C) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization

 

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or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (D) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (i)  through (v)  above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrowers and, to the extent permitted by law, each L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination.

“ Deposit Account ” means a “ deposit account ” (as defined in the Uniform Commercial Code) and also means and includes all demand, time, savings, passbook or similar accounts maintained by a Loan Party with a bank or other financial institution, whether or not evidenced by an instrument, all cash and other funds held therein and all passbooks related thereto and all certificates and instruments, if any, from time to time representing, evidencing or deposited into such deposit accounts.

“ Deposit Account Control Agreement ” means a deposit account control agreement among the Collateral Agent, any Borrower or other Loan Party maintaining a Deposit Account at any bank or financial institution (an “ Account Bank ”) and such Account Bank, which agreement shall be on terms reasonably satisfactory to the Administrative Agent, as the same may be amended, supplemented or otherwise modified from time to time.

“ Designated Non-Cash Consideration ” means the fair market value (as determined in good faith by the applicable Borrower) of non-cash consideration received by such Borrower or one of its Subsidiaries in connection with an Asset Sale that is so designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer, setting forth the basis of such valuation, less the amount of cash or cash equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.

“ Disqualified Stock ” means, with respect to any person, any Equity Interests of such person that, by their terms (or by the terms of any security or other Equity Interests into which such Equity Interests are convertible or for which they are redeemable or exchangeable), or upon the happening of any event or condition (i) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other ABL Credit Obligations that are accrued and payable and the termination of the Commitments), (ii) are redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (iii) provide for the scheduled payments of dividends in cash, or (iv) are or become convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Stock, in each case, prior to the date that is ninety-one (91) days after the earlier of (x) the Facility Maturity Date and (y) the date on which the Loans and all other ABL Credit Obligations that are accrued and payable are repaid in full and the Commitments are terminated; provided , however , that only the portion of the Equity Interests that so mature or are mandatorily redeemable, are so convertible or exchangeable or are so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided , further , however, that if such Equity Interests are issued to any

 

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employee or to any plan for the benefit of employees of the Borrowers or their respective Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Stock solely because they may be required to be repurchased by the applicable Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided , further , however , that any class of Equity Interests of such person that by its terms authorizes such person to satisfy its obligations by delivery of Equity Interests that are not Disqualified Stock shall not be deemed to be Disqualified Stock.

“ Dollars ” or “ $ ” means the lawful currency of the United States of America.

“ Domestic Subsidiary ” means any Subsidiary that is not a Foreign Subsidiary or a subsidiary listed on Schedule 1.01(a) .

“ EBITDA ” means, with respect to any Person for any period, the Consolidated Net Income of such Person and its Subsidiaries for such period plus, without duplication, to the extent the same was deducted in calculating Consolidated Net Income:

(1) Consolidated Taxes; plus

(2) Consolidated Interest Expense; plus

(3) Consolidated Non-cash Charges; plus

(4) business optimization expenses and other restructuring charges or expenses (which, for the avoidance of doubt, shall include, without limitation, the effect of inventory optimization programs, plant closures, facility consolidations, retention, severance, systems establishment costs, contract termination costs, future lease commitments and excess pension charges); provided that the aggregate amount of business optimization expenses and other restructuring charges or expenses added pursuant to this clause (4) shall not exceed the greater of (i) €20.0 million and (ii) 10% of EBITDA for such period;

less, without duplication,

(5) non-cash items increasing Consolidated Net Income for such period (excluding the recognition of deferred revenue or any items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period and any items for which cash was received in a prior period).

“ EEA Financial Institution ” means (a) any institution established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“ EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“ EEA Resolution Authority ” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

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“ Effective Date ” means the date this Agreement becomes effective in accordance with Section 10.11 .

“ Eligible Accounts ” means all Accounts of each Borrower reflected in the most recent Borrowing Base Certificate (but, with respect to each such Account, solely to the extent of the unpaid portion of the obligations stated on the respective Account invoices issued to a customer of such Borrower with respect to inventory sold and shipped or services performed in the ordinary course of business, in each case net of any credits, rebates or offsets owed by such Borrower to the respective customer, and any unapplied cash), except any Account with respect to which any of the exclusionary criteria set forth below applies:

(a)     Accounts of Account Debtors set forth on Schedule 1.01(h);

(b)     with respect to which any of the representations, warranties, covenants, and agreements contained in Section 4.05 of the Collateral Agreement are not or have ceased to be correct or have been breached;

(c)     with respect to which Account (or any other Account due from such Account Debtor), in whole or in part, a check, promissory note, draft, trade acceptance, or other instrument for the payment of money has been received, presented for payment, and returned uncollected for any reason;

(d)     (i) as to which such Borrower is not able to bring suit or otherwise enforce its remedies against the Account Debtor through judicial process or (ii) which represents a progress billing; provided that for the purposes hereof, “progress billing” means any invoice for goods sold or leased or services rendered under a contract or agreement pursuant to which the Account Debtor’s obligation to pay such invoice is conditioned upon completion of any further performance under the contract or agreement or is subject to the equitable lien of a surety bond issuer;

(e)     with respect to which any one or more of the following events has occurred to the Account Debtor on such Account: (i) death or judicial declaration of incompetency of an Account Debtor who is an individual; (ii) the filing by or against the Account Debtor of a request or petition for liquidation, reorganization, arrangement, adjustment of debts, adjudication as a bankrupt, winding-up, or other relief under any Debtor Relief Law; (iii) the making of any general assignment by the Account Debtor for the benefit of creditors; (iv) the appointment of a receiver or trustee for the Account Debtor or for any of the assets of the Account Debtor, including, without limitation, the appointment of or taking possession by a “custodian”, as defined in the U.S. Bankruptcy Code; (v) the institution by or against the Account Debtor of any other type of insolvency proceeding (under the U.S. Bankruptcy Code, another Debtor Relief Law or otherwise) or of any formal or informal proceeding for the dissolution or liquidation of, settlement of claims against, or winding up of affairs of, the Account Debtor; (vi) the sale, assignment, or transfer of all or substantially all of the assets of the Account Debtor; (vii) the nonpayment generally by the Account Debtor of its debts as they become due; or (viii) the cessation of the business of the Account Debtor as a going concern;

(f)     if fifty percent (50.0%) or more of the aggregate Dollar amount of outstanding Accounts owed at such time by the Account Debtor thereon is classified as ineligible under clause (a) preceding;

 

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(g)     owed by an Account Debtor which: (i) does not maintain its chief executive office in the United States or Canada; (ii) is not organized under the laws of the United States or Canada or any political subdivision, state, or province thereof; or (iii) is the government of any foreign country or sovereign state, or of any state, province, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof; except to the extent that (x) such Account is insured by the Export-Import Bank of the United States or other credit insurer acceptable to the Administrative Agent or secured or payable by a letter of credit satisfactory to the Administrative Agent as to form, amount and issuer in its reasonable discretion or (y) such Account is an Eligible Foreign Account; provided that to the extent the aggregate amount of such Eligible Foreign Accounts exceeds $30,000,000 at any time, such excess shall be excluded;

(h)     Intercompany Accounts or other Accounts owed by an Account Debtor which is an Affiliate (other than Constellium-UACJ ABS LLC) or employee of any Borrower or Subsidiary;

(i)     except as agreed by the Administrative Agent as provided in clause (g)  preceding or clause (l) following regarding political subdivisions of the United States of America but not the U.S. federal government, with respect to which either the perfection, enforceability, or validity of the Collateral Agent’s Lien in such Account, or the Collateral Agent’s right or ability to obtain direct payment to the Collateral Agent of the proceeds of such Account, is governed by any federal, state, or local statutory requirements other than those of the UCC;

(j)     owed by an Account Debtor to which a Loan Party or any of their respective Subsidiaries is indebted in any way, or which is subject to any right of set-off or recoupment by the Account Debtor, unless the Account Debtor has entered into an agreement that the Collateral Agent has accepted in writing in its reasonable discretion to waive set-off rights; or if the Account Debtor thereon has disputed liability or made any claim with respect to any other Account due from such Account Debtor; but in each such case only to the extent of such indebtedness, set-off, recoupment, dispute, or claim;

(k)     with respect to which such Borrower at the time of determination deems such Account as uncollectible;

(l)     owed by the United States of America, any state or county thereof or any municipality or other political subdivision, department, agency, public corporation or other instrumentality of any of the foregoing (unless such Borrower complies with any applicable assignment of claims act restricting the assignment thereof with respect to such obligation if the Collateral Agent reasonably determines that its Lien therein is not or cannot be otherwise perfected);

(m)     which represents a sale on a bill-and-hold, guaranteed sale, sale and return, sale on approval, consignment, or other repurchase or return basis or other terms by reason of which the payment by the Account Debtor is conditional;

(n)     which is evidenced by a promissory note or other instrument, by judgment or by chattel paper;

(o)     (i) at any time that the senior, unsecured, non-credit enhanced long term Indebtedness of Anheuser-Busch InBev SA/NV receives a rating less than BBB- from S&P, less than BBB- from Fitch or less than Baa3 from Moody’s, with respect to the AB Receivables, such

 

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Accounts exceed a percentage of the aggregate Eligible Accounts determined by the Administrative Agent in its Permitted Discretion and (ii) when aggregated with all other Accounts (other than AB Receivables) owing by an Account Debtor, such Accounts exceed 25% of the aggregate Eligible Accounts;

(p)     in the Administrative Agent’s Permitted Discretion upon thirty (30) days’ prior notice to the Borrowers, with respect to which the Account Debtor is located in any state requiring the filing of a “Notice of Business Activities Report” or similar report in order to permit the applicable Borrower to seek judicial enforcement in such state of payment of such Account, unless such Borrower has qualified to do business in such state or has filed a “Notice of Business Activities Report” or equivalent report for the then current year;

(q)     which arises out of a sale of goods or performance of services not made in the ordinary course of such Borrower’s business, including sales of equipment and bulk sales;

(r)     with respect to which the goods giving rise to such Account have not been shipped and delivered to, or have been rejected or objected to, by the Account Debtor or the services giving rise to such Account have not been performed by such Borrower, and, if applicable, accepted by the Account Debtor, or the Account Debtor revokes its acceptance of such goods or services, but, in each case, only to the extent of the portion of such Account applicable to goods or services in question;

(s)     which arises out of an enforceable contract or order which, by its terms, validly forbids, restricts, or makes void or unenforceable the granting of a Lien by such Borrower to the Collateral Agent with respect to such Account;

(t)     which is not subject to a first priority and perfected security interest in favor of the Collateral Agent, for the benefit of the Secured Parties, or which is subject to any other Lien other than (i) Liens securing Indebtedness that is permitted to be incurred and secured pursuant to the terms of this Agreement and that are subject to the Intercreditor Agreements (or any additional intercreditor agreements, reasonably satisfactory to the Administrative Agent), providing that such Liens are subordinated in right of priority to the Liens securing the ABL Finance Obligations and (ii) Permitted Liens arising by operation of law as described in clauses (d) , (e)  and (k) of the definition thereof;

(u)     which is an Account owed to a Borrower acquired in a Permitted Business Acquisition under this Agreement, unless either (i) the Administrative Agent has been given the opportunity for a reasonable period (which shall not be required to be longer than thirty (30) days and which shall, at the request of such Borrower, be completed prior to the consummation of such Permitted Business Acquisition; provided that the Administrative Agent shall have been given, for a period of at least thirty (30) days prior to such consummation, all information and access to the properties, records, files and books of account of such Borrower as the Administrative Agent reasonably deems necessary) to complete such due diligence as the Administrative Agent deems, in the exercise of Permitted Discretion, to be necessary in the circumstances, or (ii) at the time of such Permitted Business Acquisition, the sum of the Eligible Accounts and Eligible Inventory of such Borrower then being acquired is less than $5,000,000;

(v)     prior to the Incremental Facility Effective Date, any AB Receivables (other than AB Receivables for which an Eligible Foreign Account Debtor is the Account Debtor);

 

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(w)     any Qualified Receivables subject to a Qualified Receivables Financing;

(x)     with respect to which an invoice has not been sent to the applicable Account Debtor;

(y)     that arise with respect to goods that are sold on a cash-on-delivery basis;

(z)     that are payable in any currency other than Dollars; and

(aa)    that are not true and correct statements of bona fide indebtedness incurred in the amount of such Account for merchandise sold to or services rendered and accepted by the applicable Account Debtor.

If any Account at any time ceases to be an Eligible Account, then such Account shall promptly be excluded from the calculation of the Borrowing Base; provided , however , that if any Account ceases to be an Eligible Account because of the adjustment of or imposition of new exclusionary criteria pursuant to the succeeding paragraph, the Administrative Agent will not require exclusion of such Account from the Borrowing Base until fifteen (15) days following the date on which the Administrative Agent gives notice to the Borrowers of such ineligibility, except for calculations of the Borrowing Base for purposes of Section 5.01(c)(ii)(B), in which case such exclusion shall be immediate.

The Administrative Agent reserves the right, at any time and from time to time after the Closing Date, to adjust any of the exclusionary criteria set forth above and to establish new criteria, in its Permitted Discretion (based on an analysis of material facts or events first occurring, or first discovered by the Administrative Agent, after the Closing Date), subject to the approval of Supermajority Lenders in the case of adjustments or new criteria which have the effect of making more credit available than would have been available based upon the criteria in effect on the Closing Date.

“ Eligible Foreign Account ” means an Account of any Borrower with respect to which an Eligible Foreign Account Debtor is the Account Debtor and that would constitute an Eligible Account but for clause (g) of the definition of “Eligible Accounts”, so long as such Account satisfies each of the following criteria: (i) such Account is at all times billed and payable in Dollars, (ii) all payments in respect of such Account are made by such Eligible Foreign Account Debtor to the applicable Borrower in the United States or to an account located in the United States that is subject to a Deposit Account Control Agreement (subject to the post-closing timing requirement specified in Section 6.10(h) of this Agreement) and (iii) such Account is subject to a first priority valid and perfected security interest of the Administrative Agent in the United States; provided that such Borrower shall, promptly upon request of the Administrative Agent, execute and deliver, or cause to be executed and delivered to the Administrative Agent such agreements, documents and instruments as may be required by the Administrative Agent to perfect the security interest of the Administrative Agent in such Account in accordance with the applicable laws of the jurisdiction of formation of such Eligible Account Debtor and take, or cause to be taken, such other and further actions as the Administrative Agent may request to enable the Administrative Agent, as secured party with respect thereto, to collect such Account under the applicable laws of such jurisdiction of formation.

“ Eligible Foreign Account Debtors ” means Persons designated by the Administrative Agent as “Eligible Foreign Account Debtors” from time to time in its Permitted Discretion, which Persons shall initially be (i) the foreign Affiliates of Coca-Cola, (ii) the foreign Affiliates of Rexam and Ball Corporation, (iii) the foreign Affiliates of Crown (including NAFCEL), (iv) Anheuser-Busch and its foreign Affiliates that are not subject to an AB Receivables Financing and (v) Airbus and its foreign Affiliates for so long as the senior, unsecured, non-credit enhanced long term Indebtedness of Airbus

 

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receives a rating greater than or equal to BBB- from S&P, greater than or equal to BBB- from Fitch and greater than or equal to Baa3 from Moody’s. For purposes of clarity, the Administrative Agent may from time to time in its Permitted Discretion remove such designation with respect to any Person that was previously designated as an “Eligible Foreign Account Debtor,” after which time such Person shall no longer constitute an “Eligible Foreign Account Debtor” (unless the Administrative Agent subsequently redesignates such Person as an “Eligible Foreign Account Debtor” in its Permitted Discretion).

“ Eligible Inventory ” means all Inventory of each Borrower reflected in the most recent Borrowing Base Certificate, except any Inventory with respect to which any of the exclusionary criteria set forth below applies:

(a)     Inventory that is not owned by any Borrower;

(b)     Inventory that is not subject to the Collateral Agent’s Liens, or is subject to any other Lien, other than (i) Liens securing Indebtedness that is permitted to be incurred and secured pursuant to the terms of this Agreement and that are subject to the Intercreditor Agreement (or an additional intercreditor agreement, reasonably satisfactory to the Administrative Agent) providing that such Liens are subordinated in right of priority to the Liens securing the ABL Finance Obligations and (ii) Permitted Liens arising by operation of law as described in clauses (d) , (e) , (k)  and (r)  of the definition thereof; provided that, unless such Permitted Liens (A) are junior in priority to the Collateral Agent’s Liens (other than statutory landlord’s Liens to the extent provided otherwise by a requirement of applicable Law) and (B) do not impair directly or indirectly the ability of the Collateral Agent to realize on or obtain the full benefit of the Collateral, the Administrative Agent may, in the exercise of Permitted Discretion, establish a Reserve against Availability with respect to any Inventory subject to such Permitted Liens in an amount not to exceed (on an aggregate basis for all Inventory from time to time subject to such Permitted Liens) (1) in the case of Inventory subject to Liens described in clause (e)  of the definition of Permitted Liens, the greater of (x) an amount equal to the amount which would have to be paid to such Lien claimant in order to obtain a release of such Liens, and (y) with respect to landlords’ liens, an amount equal to sixty (60) days’ rent for the properties or facilities on or at which the applicable Inventory is located, (2) in the case of Inventory subject to Liens described in clause (d)  or (r)  of the definition of Permitted Liens, the amount of such Taxes, fees, assessments, duties or other charges, and (3) in the case of Inventory subject to Liens described in clause (k)  of the definition of Permitted Liens, the amount specified in such judgments or notices;

(c)     Inventory that does not consist of finished goods or raw materials (except that “work-in-process” shall constitute Eligible Inventory, other than any cost relating to a conversion of “work-in-process” to finished Inventory);

(d)     Inventory that consists of chemicals, supplies, spare parts, packing and shipping materials, or advertising or marketing materials (including samples), other than coatings and lubricants which shall constitute Eligible Inventory;

(e)     Inventory that is not in good condition, is unmerchantable or fails to meet all material standards imposed by any Governmental Authority having regulatory authority over such goods, its use, or sale;

(f)     Inventory that is not currently either usable or salable in the normal course of any Borrower’s business;

 

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(g)     Inventory that is not located within the United States, other than (x) Eligible In-Transit Inventory not exceeding $25,000,000, and (y) Inventory in which the Collateral Agent’s Liens are continuously perfected pursuant to documentation reasonably acceptable to the Collateral Agent;

(h)     if such Inventory is located in a public warehouse or in possession of a bailee or in a facility leased by such Borrower; provided that such Inventory will be Eligible Inventory if the warehouseman, the bailee, or the lessor has delivered to the Collateral Agent, if requested by the Collateral Agent, a subordination agreement in form and substance reasonably satisfactory to the Collateral Agent (or if such Borrower is unable to obtain any such subordination or such Borrower has notified the Administrative Agent of such warehouse, bailment or lease and such subordination has not been requested, such Inventory shall be Eligible Inventory but the Administrative Agent may, in the exercise of Permitted Discretion, establish a Reserve with respect to any Inventory so located or possessed in an amount not to exceed (on an aggregate basis for all Inventory from time to time so located or possessed) (A) in the case of Inventory located in a public warehouse or leased facility, the greater of (x) an amount equal to the amount which would have to be paid to such claimant in order to obtain a release of any Permitted Lien held by such claimant, or (y) an amount equal to sixty (60) days’ rent or storage fee for the warehouses or facilities on or at which the applicable Inventory is located and (B) in the case of Inventory otherwise in the possession of a bailee, the amount necessary to complete any work being performed on such Inventory and/or to obtain a surrender of the Inventory to the possession of such Borrower or the Collateral Agent);

(i)     if such Inventory contains or bears any Intellectual Property Rights licensed to such Borrower by any third party, the Collateral Agent shall not be reasonably satisfied that it may sell or otherwise dispose of such Inventory in accordance with Article VIII without infringing the rights of the licensor of such Intellectual Property Rights or violating any contract with such licensor (and without payment of any royalties other than any royalties due with respect to the sale or disposition of such Inventory pursuant to the existing license agreement), and, if the Collateral Agent deems it necessary, such Borrower shall deliver to the Collateral Agent a consent or sublicense agreement from such licensor in form and substance reasonably acceptable to the Collateral Agent;

(j)     Inventory that is owned by a Borrower acquired in a Permitted Business Acquisition under this Agreement, unless either (i) the Administrative Agent has been given the opportunity for a reasonable period (which shall not be required to be longer than thirty (30) days and which shall, at the request of such Borrower, be completed prior to the consummation of such Permitted Business Acquisition provided that the Administrative Agent shall have been given, for a period of at least thirty (30) days prior to such consummation, all information and access to the properties, records, files, and books of account of such Borrower as the Administrative Agent reasonably deems necessary for such completion) to complete such due diligence as it deems, in the exercise of Permitted Discretion, to be necessary in the circumstances, or (ii) at the time of such Permitted Business Acquisition, the sum of the Eligible Accounts and Eligible Inventory of such Borrower then being acquired is less than $5,000,000;

(k)     Inventory that is unsalable, but solely to the extent the book value of such Inventory exceeds its scrap value;

(l)     Inventory is located at any site if the aggregate book value of Inventory at any such location is less than $100,000;

 

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(m)     Inventory subject to any licensing, trademark, trade name or copyright agreements with any third parties which would require any consent of any third party for the sale or disposition of that Inventory (which consent has not been obtained) or the payment of any monies to any third party upon such sale or other disposition (to the extent of such monies);

(n)     Inventory that consists of packing or shipping materials, or manufacturing supplies;

(o)     Inventory that consists of tooling or replacement parts;

(p)     Inventory that consists of display items;

(q)     Inventory that consists of goods which have been returned by the buyer; provided that, Inventory shall not be excluded from Eligible Inventory pursuant to this clause if such Inventory has been inspected and re-valued by the applicable Borrower upon return and is able to be resold or reused in the ordinary course of business;

(r)     Inventory that consists of Hazardous Materials or goods that can be transported or sold only with licenses that are not readily available; or

(s)     Inventory that is not covered by casualty insurance reasonably acceptable to the Administrative Agent.

If any Inventory at any time ceases to be Eligible Inventory, such Inventory shall promptly be excluded from the calculation of the Borrowing Base; provided that if any Inventory ceases to be Eligible Inventory because of the adjustment of or imposition of new exclusionary criteria pursuant to the succeeding paragraph, the Administrative Agent will not require exclusion of such Inventory from the Borrowing Base until fifteen (15) days following the date on which an Agent gives notice to the Borrowers of such ineligibility, except for calculations of the Borrowing Base for purposes of Section 5.01(c)(ii)(B), in which case such exclusion shall be immediate.

The Administrative Agent reserves the right, at any time and from time to time after the Closing Date, to adjust any of the exclusionary criteria set forth above and to establish new criteria, in its Permitted Discretion (based on an analysis of material facts or events first occurring, or first discovered by the Administrative Agent, after the Closing Date), subject to the approval of the Supermajority Lenders in the case of adjustments or new criteria which have the effect of making more credit available than would be available based upon the criteria in effect on the Closing Date.

“ Eligible In-Transit Inventory ” means all raw materials and finished goods Inventory owned by a Borrower, which Inventory is in transit to the United States or to an Eligible Foreign Account Debtor and (a) for which title and risk of loss has been transferred to or remains with such Borrower, (b) is fully insured as required by Section 6.02, (c) is subject to a first priority perfected security interest in and lien upon such goods in favor of the Collateral Agent (except for any possessory lien upon such goods in the possession of a freight carrier or shipping company securing only the freight charges for the transportation of such goods) pursuant to documentation reasonably acceptable to the Collateral Agent and (d) is evidenced or deliverable pursuant to documents that have been delivered to the Collateral Agent, as reasonably requested by the Collateral Agent from time to time.

“ Embargoed Person ” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by any Governmental Authority of the United States of America, including without limitation, OFAC or the U.S. Department of State, or by Her Majesty’s Treasury or the

 

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European Union, (b) any Person located, operating, organized or resident in a Sanctioned Country, (c) the government or an agency of the government of a Sanctioned Country or (d) any Person owned or Controlled by any Persons or agencies described in any of the preceding clauses (a) through (c).

“ Engagement Letter ” means that certain Engagement Letter dated as of May 15, 2017 by and among Wells Fargo Capital Finance, LLC, Ravenswood and Wise.

“ environment ” means ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural resources such as flora and fauna, the workplace or as otherwise defined in any Environmental Law.

“ Environmental Laws ” means all applicable laws (including common law), rules, regulations, codes, ordinances, orders, decrees or judgments, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the generation, management, Release or threatened Release of, or exposure to, any Hazardous Material or to occupational health and safety matters (to the extent relating to the environment or Hazardous Materials).

“ Environmental Liabilities ” means all Liabilities (including costs of natural resource damages and costs and expenses of investigation and feasibility studies, including the cost of environmental consultants and the cost of attorney’s fees) that may be imposed on, incurred by or asserted against any Loan Party or any Subsidiary of any Loan Party as a result of, or related to, any claim, suit, action, investigation, proceeding or demand by any Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law or otherwise, arising under any Environmental Law or in connection with any environmental, health or safety condition or with any Release and resulting from the ownership, lease, sublease or other operation or occupation of property by any Loan Party or any Subsidiary of any Loan Party, whether on, prior or after the date hereof.

“ Equity Interests ” of any person means any and all shares, interests, rights to purchase or otherwise acquire, warrants, options, participations or other equivalents of or interests in (however designated) equity or ownership of such person, including any preferred stock, any limited or general partnership interest and any limited liability company membership interest, and any securities or other rights or interests convertible into or exchangeable for any of the foregoing.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time and any final regulations promulgated and the rulings issued thereunder.

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with the Holdcos, the Borrowers or a Subsidiary, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

“ ERISA Event ” means (i) any Reportable Event or the requirements of Section 4043(b) of ERISA apply with respect to a Plan, other than in respect of an event for which advance notice is waived under applicable regulations; (ii) the failure to meet the minimum funding standards of Sections 412 and 430 of the Code and Sections 302 and 303 of ERISA; (iii) a determination that any Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA); (iv) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (v) the incurrence by the Holdcos, a Borrower, a

 

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Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA; (vi) the receipt by the Holdcos, a Borrower, a Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan under Section 4042 of ERISA; (vii) a determination that any Multiemployer Plan is, or is reasonably expected to be, in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA; (viii) the incurrence by the Holdcos, a Borrower, a Subsidiary or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (ix) the receipt by the Holdcos, a Borrower, a Subsidiary or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Holdcos, a Borrower, a Subsidiary or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Title IV of ERISA; or (x) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan.

“ EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“ Eurodollar Base Rate ” means the rate per annum as published by ICE Benchmark Administration Limited (or any successor page or, if unavailable, other commercially available source as the Administrative Agent may designate from time to time) as of 11:00 a.m., London time, two Business Days prior to the commencement of the requested Interest Period, for a term, and in an amount, comparable to the Interest Period and the amount of the Eurodollar Rate Loan requested (whether as an initial Eurodollar Rate Loan or as a continuation of a Eurodollar Rate Loan or as a conversion of a Base Rate Loan to a Eurodollar Rate Loan) by a Borrower in accordance with this Agreement (and, if any such published rate is below zero, then the rate determined pursuant to this clause (b) shall be deemed to be zero). Each determination of the Eurodollar Base Rate shall be made by the Administrative Agent and shall be conclusive in the absence of manifest error.

“ Eurodollar Rate Borrowing ” means a Borrowing comprised of Eurodollar Rate Loans.

“ Eurodollar Rate Loan ” means at any date a Loan which bears interest at a rate based on the Adjusted Eurodollar Rate.

“ Eurodollar Reserve Percentage ” means for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any other entity succeeding to the functions currently performed thereby) for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to “Eurocurrency liabilities”). The Adjusted Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically on and as of the effective date of any change in the Eurodollar Reserve Percentage.

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

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

“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient: (i) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (A) imposed as a result of such Recipient being organized under the laws of, or having its principal office

 

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or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (B) that are Other Connection Taxes, (ii) U.S. withholding Taxes imposed on amounts payable to or for the account of any Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (A) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrowers under Section 10.14) or (B) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii) or Section 3.01(c) , amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (iii) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) or Section 3.06(a) and (iv) any U.S. federal withholding Taxes imposed pursuant to FATCA.

“ Exempt Deposit Accounts ” means (i) Deposit Accounts the balance of which consists exclusively of (A) withheld income taxes and federal, state or local employment taxes in such amounts as are required in the reasonable judgment of the applicable Borrower to be paid to the Internal Revenue Service or state or local government agencies with respect to employees of any of the Loan Parties; or (B) amounts required to be paid over to an employee benefit plan pursuant to DOL Reg. Sec. 2510.3-102 on behalf of or for the benefit of employees of one or more Loan Parties, (ii) all segregated Deposit Accounts constituting (and the balance of which consists solely of funds set aside in connection with) taxes accounts, payroll accounts, trust or similar accounts and (iii) other non-concentration accounts containing less than $1,000,000 individually and in the aggregate for all such other non-concentration accounts.

“ Existing Agent ” means, collectively or individually as the context may require, the Existing Ravenswood Agent and the Existing Wise Agent.

“ Existing Credit Agreement ” means, collectively or individually as the context may require, the Existing Ravenswood Credit Agreement and the Existing Wise Credit Agreement.

“ Existing Letters of Credit ” means, collectively or individually as the context may require, the letters of credit set forth on Schedule 1.01(g).

“ Existing Ravenswood Agent ” means Deutsche Bank Trust Company Americas, in its capacity as administrative agent and collateral agent under the Existing Ravenswood Credit Agreement.

“ Existing Ravenswood Credit Agreement ” means that certain ABL Credit Agreement, dated as of May 25, 2012, among Parent Guarantor, Ravenswood Holdings, Ravenswood, the lenders from time to time party thereto and the Existing Ravenswood Agent.

“ Existing Wise Agent ” means Wells Fargo, in its capacity as administrative agent under the Existing Wise Credit Agreement.

“ Existing Wise Credit Agreement ” means that certain Credit Agreement, dated as of December 11, 2013, by and among Wise, the other persons party thereto from time to time designated as credit parties, the financial institutions party thereto from time to time, and the Existing Wise Agent.

“ Facility Maturity Date ” means the earlier of (i) June 21, 2022 and (ii) 90 days prior to the maturity date of the Secured Notes Obligations; provided , that the foregoing clause (ii) shall not be applicable in the event that the Secured Notes Obligations are repaid in full, the maturity date is extended to a date that is at least 90 days after the date set forth in clause (i) of this definition or the outstanding principal balance thereof has been permanently reduced prior to such 90th day to an amount which does not exceed $50,000,000.

 

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“ Facility Termination Date ” means the date on which (A) the Commitments have terminated, (B) all ABL Credit Obligations (other than contingent indemnification obligations) have been paid in full, (C) all ABL Finance Obligations arising under Secured Cash Management Agreements and Secured Rate Contracts that the Administrative Agent has theretofore been notified in writing by the holder of such Obligation are then due and payable, have been paid in full in cash and (D) all Letters of Credit have expired or terminated (other than Letters of Credit as to which other arrangements, including cash collateralization or backstopping, reasonably satisfactory to the Administrative Agent and the L/C Issuers shall have been made).

“ Factoring Facilities ” means the receivables purchase facilities granted to certain Subsidiaries of Ultimate Parent pursuant to (a) the agreement dated as of December 3, 2015 between GE Factofrance S.A.S. as purchaser, Constellium Issoire S.A.S., Constellium Neuf Brisach S.A.S. and Constellium Extrusions France S.A.S. as sellers, Parent Guarantor and Constellium Switzerland AG, (b) the agreement dated as of May 27, 2016 between GE Capital Bank AG as purchaser and Constellium Rolled Products Singen GmbH as seller, (c) the agreement dated as of March 26, 2014 between GE Capital Bank AG as purchaser and Constellium Singen GmbH as seller, (d) the agreement dated as of December 16, 2010 between GE Capital Bank AG as purchaser and Constellium Extrusions Deutschland GmbH as seller, (e) the agreement dated as of December 16, 2010 between GE Capital Bank AG as purchaser and Constellium Valais AG as seller, (f) the agreement dated as of June 26, 2015 between GE Capital Bank AG as purchaser and Constellium Extrusions Decin S.R.O. as seller, (g) the agreement dated as of December 15, 2015 between Deutsche Bank Trust Company Americas as purchaser and Constellium Automotive USA, LLC as seller, in each case, as such agreement may be amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original parties or otherwise), restructured, or otherwise modified from time to time. On July 20, 2016, the Banque Fédérative du Crédit Mutuel purchased the Equipment Finance and Receivable Finance businesses of GE. Pursuant to this transaction, GE Factofrance S.A.S. was renamed Factofrance and GE Capital Bank AG was renamed Targo Commercial Financing AG.

“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities entered into in connection with the implementation of the foregoing.

“ FCPA ” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.

“ Federal Funds Rate ” means, for any day, the greater of (a) zero (0.00%) per annum and (b) the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that, (i) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and, (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Wells Fargo on such day on such transactions as determined by the Administrative Agent.

“ Fees ” means, collectively, the Commitment Fees, the Incremental Facility Commitment Fees, the Incremental Facility Exercise Fees, the Letter of Credit Fees, the L/C Issuer Fees and the Administrative Agent Fees.

 

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“ Financial Covenant Triggering Event ” shall occur at any time that Availability is less than 10% of the Maximum Credit; provided that if such Availability shortfall is the result of a contraction of the Borrowing Base (as opposed to an increase of the Revolving Facility Credit Exposure), no Event of Default shall be deemed to have occurred with respect to Section 7.12 unless such Availability shortfall continues for a period of five (5) consecutive Business Days (and, for the avoidance of doubt, no Credit Event shall be permitted during such 5-Business Day period); provided further that a Default will occur immediately upon the occurrence of any such Availability shortfall and shall continue during such 5 Business Day-period unless waived or cured during such period.

“ Financial Officer ” of any person means the Chief Financial Officer, Treasurer, or Controller of such person.

“ Fitch ” means Fitch Ratings, Inc.

“ Fixed Charge Coverage Ratio ” means the ratio of (i) EBITDA of the Ultimate Parent and its Subsidiaries for the most recent period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Sections 6.04(a) or (b) hereof minus the income taxes paid in cash by the Ultimate Parent and its Subsidiaries and included in the determination of Consolidated Net Income for such period minus Unfinanced Capital Expenditures of the Ultimate Parent and its Subsidiaries during such period to (ii) the sum of (A) scheduled principal payments required to be made during such period in respect of Indebtedness for borrowed money of the Ultimate Parent and its Subsidiaries plus (B) the Consolidated Interest Expense (excluding amortization of any original issue discount, interest paid in kind or added to principal and other noncash interest) of the Ultimate Parent and its Subsidiaries, in each case to the extent paid in cash for such period.

“ Flood Laws ” means the National Flood Insurance Act of 1968, Flood Disaster Protection Act of 1973, and related laws, rules and regulations, including any amendments or successor provisions.

“ Foreign Lender ” means a Lender or L/C Issuer that is not a U.S. Person.

“ Foreign Subsidiary ” means any Subsidiary that is incorporated or organized under the laws of any jurisdiction other than the United States of America, any State thereof or the District of Columbia.

“ Fronting Exposure ” means, at any time there is a Defaulting Lender, (i) with respect to any L/C Issuer, such Defaulting Lender’s Revolving Facility Percentage of the outstanding L/C Obligations arising in respect of Letters of Credit issued by such L/C Issuer other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (ii) with respect to the Swing Line Lender, such Defaulting Lender’s Revolving Facility Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.

“ FSHCO ” means any Subsidiary of the Borrowers all or substantially all of the assets of which are Equity Interests (or Equity Interests and Indebtedness) in one or more CFCs, so long as such Subsidiary (i) does not conduct any material amount of business or activity other than the ownership of such Equity Interests or Indebtedness and (ii) does not incur, and is not otherwise liable for, any Indebtedness or other liabilities.

 

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“ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect on the Closing Date. For purposes herein, the term “consolidated” means such Person consolidated with the Subsidiaries and shall not include any Unrestricted Subsidiary, but the interest of such Person in an Unrestricted Subsidiary will be accounted for as an Investment.

“ Governmental Authority ” means any federal, state, provincial, territorial, municipal, local or foreign court or governmental agency, authority, instrumentality or regulatory or legislative body, including any supra-national bodies such as the European Union or the European Central Bank.

“ Guarantee ” of or by any person (the “ guarantor ”) means (i) any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (A) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to take-or-pay or otherwise) or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness or other obligation, (B) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (C) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, (D) entered into for the purpose of assuring in any other manner the holders of such Indebtedness or other obligation of the payment thereof or to protect such holders against loss in respect thereof (in whole or in part) or (E) as an account party in respect of any letter of credit, bank guarantee or other letter of guaranty issued to support such Indebtedness or other obligation, or (ii) any Lien on any assets of the guarantor securing any Indebtedness (or any existing right, contingent or otherwise, of the holder of Indebtedness to be secured by such a Lien) of any other person, whether or not such Indebtedness or other obligation is assumed by the guarantor; provided , however , the term “Guarantee” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted by this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such person is required to perform thereunder) as determined by such person in good faith.

“ guarantor ” has the meaning assigned to such term in the definition of the term “Guarantee.”

“ Guarantor ” means any of the Borrowers, the Holdcos and the Subsidiary Loan Parties, and “ Guarantors ” means two or more of them, collectively.

“ Guaranty ” means, collectively, the guaranty made by the Guarantors under the Collateral Agreement in favor of the Secured Parties, together with each other guaranty and guaranty supplement delivered pursuant to Section 6.10 .

 

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“ Hazardous Materials ” means all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, including, without limitation, explosive or radioactive substances or petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls or radon gas, of any nature subject to regulation or which can give rise to liability under any Environmental Law.

“ Hedge Bank ” means any Person that, at the time it enters into a Swap Contract permitted under Article VII , is a Lender or an Affiliate of a Lender, in its capacity as a party to such Swap Contract.

“ Holdcos ” means, collectively or individually as the context may require, (a) the Parent Guarantor, (b) with respect to Ravenswood, Ravenswood Holdings and (c) with respect to Wise, Wise Holdings.

“ Honor Date ” has the meaning specified in Section 2.05(c)(i) .

“ IFRS ” means the accounting and financial reporting standards issued by the International Accounting Standards Board.

“ Immaterial Subsidiary ” means any Subsidiary that, as of the last day of the fiscal quarter of the Borrowers most recently ended, (i) did not have assets with a value in excess of 2.5% of the Consolidated Total Assets or revenues representing in excess of 2.5% of total revenues of the Borrowers and their Subsidiaries on a consolidated basis as of such date and (ii) when taken together with all other Immaterial Subsidiaries as of such date, did not have assets with a value in excess of 5.0% of the Consolidated Total Assets or revenues representing in excess of 5.0% of total revenues of the Borrowers and their Subsidiaries on a consolidated basis as of such date. Each Immaterial Subsidiary as of the Closing Date shall be set forth in Schedule 1.01(c) .

“ Incremental Amount ” means $200,000,000.

“ Incremental Facility Commitment Fee ” has the meaning assigned to such term in Section 2.12(d).

“ Incremental Facility Effective Date ” has the meaning assigned to such term in Section 2.15 .

“ Incremental Facility Exercise Fee ” has the meaning assigned to such term in Section 2.15 .

“ Incremental Revolving Facility ” means the Incremental Revolving Facility Commitments and the extensions of credit made hereunder by the Incremental Revolving Facility Lenders.

“ Incremental Revolving Facility Lender ” means a Lender with an Incremental Revolving Facility Commitment.

“ Incremental Revolving Facility Commitment ” means, with respect to each Revolving Facility Lender, the commitment of such Revolving Facility Lender to increase its Revolving Facility Commitment pursuant to Section 2.15 . The amount of each Lender’s Incremental Revolving Facility Commitment is set forth on Part I of Schedule 2.15 and the amount of each Lender’s Revolving Facility Commitment on and after the Incremental Facility Effective Date is set forth on Part II of Schedule 2.15 , or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Revolving

 

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Facility Commitment, as applicable. The aggregate amount of the Lenders’ Incremental Revolving Facility Commitments on the Closing Date is $200,000,000.

“ Incremental Revolving Facility Percentage ” means, with respect to any Incremental Revolving Facility Lender, the percentage of the total Incremental Revolving Facility Commitments represented by such Lender’s Incremental Revolving Facility Commitment.

“ Indebtedness ” of any person means, without duplication, (i) all obligations of such person for borrowed money, (ii) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (iii) all obligations of such person under conditional sale or other title retention agreements relating to property or assets purchased by such person, (iv) all obligations of such person issued or assumed as the deferred purchase price of property or services, to the extent that the same would be required to be shown as a long term liability on a balance sheet prepared in accordance with the Applicable Accounting Rules, (v) all Capital Lease Obligations of such person, (vi) all net payments that such person would have to make in the event of an early termination, on the date Indebtedness of such person is being determined, in respect of outstanding Swap Contracts, (vii) the principal component of all obligations, contingent or otherwise, of such person as an account party in respect of letters of credit and bank guarantees, (viii) the principal component of all obligations of such person in respect of bankers’ acceptances, (ix) all Guarantees by such person of Indebtedness described in clauses (i)  through (viii)  above and (x) the amount of all obligations of such person with respect to the redemption, repayment or other repurchase of any Disqualified Stock (excluding accrued dividends that have not increased the liquidation preference of such Disqualified Stock); provided that Indebtedness shall not include (A) trade payables, accrued expenses and intercompany liabilities arising in the ordinary course of business, (B) prepaid or deferred revenue arising in the ordinary course of business, (C) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy unperformed obligations of the seller of such asset or (D) earn-out obligations, except to the extent such obligations constitute a liability on the balance sheet of such person in accordance with the Applicable Accounting Rules. The Indebtedness of any person shall include the Indebtedness of any partnership in which such person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such person in respect thereof.

“ Indemnified Taxes ” means (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (ii) to the extent not otherwise described in clause (i) above, Other Taxes.

“ Indemnitee ” has the meaning assigned to such term in Section 10.04(b) .

“ Information ” has the meaning assigned to such term in Section 10.07.

“ Information Memorandum ” means the Confidential Information Memorandum dated May 2017, as modified or supplemented prior to the Closing Date.

“ Intellectual Property Rights ” has the meaning assigned to such term in Section 4.23.

“ Intercompany Accounts ” means all obligations and liabilities, however arising, which are due to any Loan Party from, which are due from any Loan Party to, or which otherwise arise from any transaction by any Loan Party with, any Affiliate of such Loan Party.

“ Intercreditor Agreement ” means, collectively or individually as the context may require, the PBGC Intercreditor Agreement, the Wise Intercreditor Agreement and the Ravenswood Intercreditor Agreement.

 

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“ Interest Election Request ” means a request by a Borrower to convert or continue a Revolving Facility Borrowing in accordance with Section 2.07 .

“ Interest Payment Date ” means (i) with respect to any Eurodollar Rate Loan, the last day of each Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Rate Borrowing with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing and, in addition, the date of any refinancing or conversion of such Borrowing with or to a Borrowing of a different Type and (ii) with respect to any Base Rate Loan, the first day of each April, July, October and January.

“ Interest Period ” means, as to any Eurodollar Rate Borrowing, the period commencing on the date of such Borrowing or on the last day of the immediately preceding Interest Period applicable to such Borrowing, as applicable, and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6 months thereafter (or 12 months, if at the time of the relevant Borrowing, all relevant Lenders consent to such interest period), as a Borrower may elect, or the date any Eurodollar Rate Borrowing is converted to a Base Rate Borrowing in accordance with Section 2.07 or repaid or prepaid in accordance with Section 2.09 , 2.10 or 2.11 ; provided , however , that if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.

“ Inventory ” has the meaning assigned to such term in the Collateral Agreement.

“ Investment ” has the meaning assigned to such term in Section 7.04 .

“ ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

“ Issuer Documents ” means with respect to any Letter of Credit, the Letter of Credit Request, and any other document, agreement and instrument entered into by the applicable L/C Issuer and the applicable Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.

“ Joint Bookrunners ” means Wells Fargo, JPMorgan Chase Bank, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Deutsche Bank Securities Inc., in their capacities as joint bookrunners.

“ Joint Lead Arrangers ” means Wells Fargo, JPMorgan Chase Bank, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Deutsche Bank Securities Inc., in their capacities as joint lead arrangers.

“ Junior Financing ” has the meaning assigned to such term in Section 7.09(b)(i) .

“ L/C Advance ” means, with respect to each Revolving Facility Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Revolving Facility Percentage.

 

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“ L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Facility Borrowing.

“ L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

“ L/C Issuer ” means (i) Wells Fargo in its capacity as issuer of Letters of Credit under Section 2.05(b) and its successor or successors in such capacity and (ii) any other Lender which the Borrowers shall have designated (with such Lender’s consent) as an “L/C Issuer” by notice to the Administrative Agent (including any Lender designated as such as a replacement for any L/C Issuer who is at the time of such appointment a Defaulting Lender) that is reasonably acceptable to the Administrative Agent.

“ L/C Issuer Fees ” has the meaning specified in Section 2.05(i) .

“ L/C Obligations ” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.04 . For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“ Laws ” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directives, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of Law.

“ Lender ” means each financial institution listed on Schedule 2.01 (other than any such person that ceased to be a party hereto pursuant to an Assignment and Assumption in accordance with Section 10.06) , as well as any person that becomes a “Lender” hereunder pursuant to Section 10.06 ; and shall include, as the context may require, the Swing Line Lender in such capacity.

“ Lending Office ” means with respect to any Lender and for each Type of Loan, the “Lending Office” of such Lender (or of an Affiliate of such Lender) designated for such Type of Loan in such Lender’s Administrative Questionnaire or in any applicable Assignment and Assumption pursuant to which such Lender became a Lender hereunder or such other office of such Lender (or of an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrowers as the office by which its Loans of such Type are to be made and maintained.

“ Letter of Credit ” means any letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder, including, for the avoidance of doubt, any Existing Letter of Credit. A Letter of Credit may be a commercial letter of credit (including a trade letter of credit in support of trade obligations of a Borrower and its Subsidiaries) or a standby letter of credit.

“ Letter of Credit Request ” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.

 

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“ Letter of Credit Expiration Date ” means the day that is five days prior to the Facility Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

“ Letter of Credit Fee ” has the meaning specified in Section 2.05(h) .

“ Letter of Credit Sublimit ” means an amount equal to $30,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Facility.

“ Lien ” means, with respect to any asset, (i) any mortgage, deed of trust, lien, hypothecation, pledge, charge, security interest or similar encumbrance in or on such asset or (ii) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset, provided that in no event shall an operating lease or an agreement to sell be deemed to constitute a Lien.

“ Loan Documents ” means this Agreement, the Letters of Credit, the Security Documents, the Intercreditor Agreements, and any Note issued under Section 2.09(e) , and solely for the purposes of Sections 5.02 and 8.01 hereof, the Engagement Letter.

“ Loan Modification Agreement ” has the meaning assigned to such term in Section 10.01 .

“ Loan Modification Offer ” has the meaning assigned to such term in Section 10.01 .

“ Loan Parties ” means, collectively or individually as the context may require, the Holdcos (other than the Parent Guarantor), the Borrowers and the Subsidiary Loan Parties.

“ Loans ” means the Revolving Facility Loans and the Swing Line Loans.

“ Local Time ” means New York City time.

“ London Banking Day ” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

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

“ Material Adverse Effect ” means a material adverse effect on the business, property, operations or condition of the Borrowers and their respective Subsidiaries, taken as a whole, or the validity or enforceability of any of the material Loan Documents or the rights and remedies of the Administrative Agent and the Lenders thereunder.

“ Material Indebtedness ” means Indebtedness (other than Loans) of any one or more of (i) Ultimate Parent or any Subsidiary thereof (other than the Borrowers and their Subsidiaries) in an aggregate principal amount exceeding $50,000,000 and (ii) any Borrower and its Subsidiaries in an aggregate amount exceeding $15,000,000.

“ Material Subsidiary ” means any Subsidiary other than an Immaterial Subsidiary.

“ Maximum Credit ” means, at any time, the total Revolving Facility Commitments in effect at such time. For the avoidance of doubt, the total Incremental Facility Revolving Commitments shall not be included in the Maximum Credit unless and until the Incremental Facility is exercised and becomes effective in accordance with Section 2.15 .

 

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“ Maximum Rate ” has the meaning assigned to such term in Section 10.10 .

“ Minimum Borrower EBITDA Contribution ” means, for any period, the ratio (expressed as a percentage) of (x) the combined EBITDA of the Borrowers and their Subsidiaries for such period to (y) the consolidated EBITDA of the Ultimate Parent and its Subsidiaries for such period.

“ Minimum Collateral Amount ” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 103% of the Fronting Exposure of an L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (ii) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.16(a)(i) , (a)(ii) or (a)(iii) , an amount equal to 103% of the Outstanding Amount of all L/C Obligations, and (iii) otherwise, an amount determined by the Administrative Agent and the applicable L/C Issuer in their sole discretion.

“ Moody’s ” means Moody’s Investors Service, Inc.

“ Mortgaged Properties ” means the Real Properties owned in fee simple by the Loan Parties and encumbered by a Mortgage that are set forth on Schedule 1.01(b) and each additional Real Property encumbered by a Mortgage pursuant to Section 6.10 .

“ Mortgages ” means, collectively, the mortgages, trust deeds, deeds of trust, deeds to secure debt, assignments of leases and rents, and other security documents delivered with respect to Mortgaged Properties, each in a form reasonably acceptable to the Administrative Agent, as amended, supplemented or otherwise modified from time to time.

“ Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which any Borrower, the Holdcos or any Subsidiary or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding six plan years made or accrued an obligation to make contributions, or otherwise has any outstanding liability.

“ NAFCEL ” means National Factory for Can Ends Ltd., a limited liability company formed under the laws of Saudi Arabia.

“ Net Amount of Eligible Accounts ” means, at any time, the gross amount of Eligible Accounts less sales, excise, or similar taxes, and less returns, discounts, claims, credits, and allowances of any nature at any time issued, owing, granted, outstanding, available, or claimed (in each case without duplication, whether of the exclusionary criteria set forth in the definition of Eligible Accounts, of any Reserve, or otherwise).

“ Net Income ” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with the Applicable Accounting Rules and before any reduction in respect of preferred stock dividends.

“ Net Proceeds ” means 100% of the cash proceeds actually received by any Borrower or any Subsidiary Loan Party (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and including casualty insurance settlements and condemnation awards, but only as and when received) from any Asset Sale (other than those pursuant to Section 7.05(a) , (b) , (c) , (d) , (e) , (f) , (h) , (i) , (j) , (m) , (n)  or (o) ), net of (A) attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer Taxes, deed or mortgage recording Taxes,

 

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required debt payments and required payments of other obligations relating to the applicable asset to the extent such debt or obligations are secured by a Lien permitted hereunder (other than pursuant to the Loan Documents) on such asset, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith, (B) Taxes paid or payable as a result thereof, and (C) the amount of any reasonable reserve established in accordance with the Applicable Accounting Rules against any adjustment to the sale price or any liabilities (other than any Taxes deducted pursuant to clause (A)  above) (x) related to any of the applicable assets and (y) retained by any Borrower or any of its Subsidiaries including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (however, the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Proceeds of such Asset Sale occurring on the date of such reduction); provided that, if no Event of Default exists and the applicable Borrower shall deliver a certificate of a Responsible Officer of such Borrower to the Administrative Agent promptly following receipt of any such proceeds setting forth such Borrower’s intention to use any portion of such proceeds, to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of such Borrower and its Subsidiaries or to make investments in Permitted Business Acquisitions, in each case within 15 months of such receipt, such portion of such proceeds shall not constitute Net Proceeds except to the extent not, within 15 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds are not so used within such 15-month period but within such 15-month period are contractually committed to be used, then, upon the termination of such contract, such remaining portion shall constitute Net Proceeds as of the date of such termination or expiry without giving effect to this proviso); provided , further , that (x) no proceeds realized in a single transaction or series of related transactions shall constitute Net Proceeds unless such proceeds shall exceed $5,000,000, and (y) no proceeds shall constitute Net Proceeds in any fiscal year until the aggregate amount of all such proceeds in such fiscal year shall exceed $10,000,000.

For purposes of calculating the amount of Net Proceeds, fees, commissions and other costs and expenses payable to a Borrower or any Affiliate of a Borrower shall be disregarded.

“ Non-Consenting Lender ” has the meaning assigned to such term in Section 10.01 .

“ Non-Defaulting Lender ” means, at any time, each Lender that is not a Defaulting Lender at such time.

“ Non-Extension Notice Date ” has the meaning specified in Section 2.05(b)(iii) .

“ Non-Reinstatement Deadline ” has the meaning specified in Section 2.05(b)(iv) .

“ Note ” has the meaning assigned to such term in Section 2.09(e) .

“ OFAC ” means, the U.S. Treasury Department’s Office of Foreign Assets Control.

“ Orderly Liquidation Value ” means an amount equal to the most recently determined Orderly Liquidation Value Factor multiplied by the book value of all Eligible Inventory of the Borrowers.

“ Orderly Liquidation Value Factor ” means, with respect to Eligible Inventory of the Borrowers, the net orderly liquidation value thereof (expressed as a percentage of book value) as determined by an Acceptable Appraiser in accordance with Section 6.11 , net of all associated costs and expenses of such liquidation.

 

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“ Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of such Recipient engaging or having engaged in a trade or business in the jurisdiction imposing such Tax or any other present or former connection between such Recipient and such jurisdiction; provided that no such Recipient shall be deemed to be engaged in a trade or business in, or to have any other connection with, any jurisdiction solely as a result of such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document pursuant to an assignment request by the Borrowers under Section 10.14 .

“ Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06) . Other Taxes shall not include any Taxes imposed on, or measured by reference to, gross income, net income or gain.

“ Outstanding Amount ” means, (i) with respect to Revolving Facility Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Facility Loans and Swing Line Loans, as the case may be, occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the applicable Borrower of Unreimbursed Amounts or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.

“ Parent Entity ” means any direct or indirect parent of Parent Guarantor.

“ Parent Guarantor ” has the meaning assigned to such term in the preamble hereto.

“ Participant ” has the meaning assigned to such term in Section 10.06(d) .

“ Participant Register ” has the meaning assigned to such term in Section 10.06(d) .

“ Payment Conditions ” means, with respect to and after giving effect to any proposed Payment Event on a Pro Forma Basis, (1) prior to the Incremental Facility Effective Date, either (a) (i) Availability is not less than 15% of the Maximum Credit and (ii) the Fixed Charge Coverage Ratio is not less than 1.0 to 1.0 or (b) Availability is not less than 20% of the Maximum Credit and (2) on and after the Incremental Facility Effective Date, either (a) (i) Availability is not less than 12.5% of the Maximum Credit and (ii) the Fixed Charge Coverage Ratio is not less than 1.0 to 1.0 or (b) Availability is not less than 15% of the Maximum Credit, and, in each case, to the extent that Availability is less than 5% more than the minimum Availability required under the relevant preceding clause, the applicable Borrower shall have given prior written notice of such Payment Event to the Administrative Agent (for example, in the case of the preceding clause (1)(a)(i), prior written notice shall be required if Availability is less than 20% of the Maximum Credit).

“ Payment Event ” means a Permitted Business Acquisition, a designation of a Subsidiary or a Subsidiary Redesignation pursuant to the definition of “Unrestricted Subsidiary”, any Liens permitted pursuant to Section 7.02(u), any Investment permitted pursuant to Section 7.04(i), any

 

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Restricted Payment permitted pursuant to Section 7.06(f), or any prepayment of Indebtedness permitted pursuant to Section 7.09(b)(i)(E).

“ Payoff Letter ” means, collectively or individually as the context may require, (a) that certain Pay-Off Letter, dated as of the date hereof, from the Existing Ravenswood Agent and accepted and agreed to by Ravenswood, Parent Guarantor, Ravenswood Holdings and the Administrative Agent and (b) that certain Termination Agreement, dated as of the date hereof, from the Existing Wise Agent and accepted and agreed to by Wise and the Administrative Agent.

“ Payoff Letter Charges ” means “Charges,” as such term is defined in the Payoff Letter.

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

“ PBGC Intercreditor Agreement ” means that certain Intercreditor Agreement dated as of October 16, 2012 among PBGC, Wells Fargo, as successor in interest to Deutsche Bank Trust Company Americas, in its capacity thereunder as ABL collateral agent, and acknowledged and agreed to by Ravenswood.

“ PBGC Lien ” means the Lien granted by Ravenswood to the PBGC pursuant to that certain Settlement Agreement, dated as of January 26, 2001, by and between the PBGC and Ravenswood, as in effect on the date hereof.

“ Perfection Certificate ” means the Perfection Certificate with respect to the Borrowers and the other Loan Parties in a form reasonably satisfactory to the Administrative Agent.

“ Permitted Amendment ” has the meaning assigned to such term in Section 10.01 .

“ Permitted Business Acquisition ” means any acquisition of all or substantially all the assets of, or all or substantially all the Equity Interests (other than directors’ qualifying shares) in (or that results in a Borrower or its Subsidiaries owning all or substantially all the Equity Interests in), or merger, consolidation or amalgamation with, a person or division or line of business of a person (or any subsequent investment made in a person, division or line of business previously acquired in a Permitted Business Acquisition), but only if: (i) no Event of Default shall have occurred and be continuing or would result therefrom; (ii) all transactions related thereto shall be consummated in accordance with applicable laws; (iii) with respect to any such acquisition or investment with a fair market value (as determined in good faith by the applicable Borrower) in excess of $10,000,000, the Payment Conditions shall have been satisfied; (iv) any acquired or newly formed Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by Section 7.01 ; and (v) to the extent required by Section 6.10 , any person acquired in such acquisition, if acquired by a Borrower or a Domestic Subsidiary, shall be merged into such Borrower or a Subsidiary Loan Party or become upon consummation of such acquisition a Subsidiary Loan Party.

“ Permitted Discretion ” means the reasonable credit judgment of the Administrative Agent exercised in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment, and, as it relates to the establishment of Reserves or the adjustment or imposition of exclusionary criteria, is based upon its consideration of any factor, including, without limitation, any factor that (a) it reasonably believes could adversely affect the quantity, quality, mix or value of Collateral (including any applicable Laws that may inhibit collection of an Account), the enforceability or priority of the Liens on the Collateral or the amount that the Administrative Agent and the Lenders could receive in liquidation of any Collateral; (b) suggests that any collateral report or

 

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financial information delivered by any Loan Party or the Parent Guarantor is incomplete, inaccurate or misleading in any material respect; (c) materially increases the likelihood of any bankruptcy or insolvency proceeding involving a Loan Party or the Parent Guarantor; or (d) creates or could reasonably be expected to result in a Default or Event of Default. In exercising such judgment, the Administrative Agent may consider any factors that could increase the credit risk of lending to any Borrower on the security of the Collateral.

“ Permitted Investments ” means:

(i)      direct obligations of the United States of America or any member of the European Union or any agency thereof or obligations guaranteed by the United States of America or any member of the European Union or any agency thereof, in each case with maturities not exceeding two years;

(ii)      bank deposits, checking accounts, time deposit accounts, certificates of deposit and money market deposits maturing within 180 days of the date of acquisition thereof issued by a bank or trust company that is organized under the laws of the United States of America, any state thereof or any foreign country recognized by the United States of America having capital, surplus and undivided profits in excess of $250,000,000 and whose long term debt, or whose parent holding company’s long term debt, is rated A (or such similar equivalent rating or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act));

(iii)    repurchase obligations with a term of not more than 180 days for underlying securities of the types described in clause (i)  above entered into with a bank meeting the qualifications described in clause (ii)  above;

(iv)     commercial paper, maturing not more than one year after the date of acquisition, issued by a corporation (other than an Affiliate of any Borrower) organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America 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;

(v)     securities with maturities of two years or less from the date of acquisition issued or fully guaranteed by any State, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least A by S&P or A by Moody’s;

(vi)     shares of mutual funds whose investment guidelines restrict 95% of such funds’ investments to those satisfying the provisions of clauses (i)  through (v)  above;

(vii)     money market funds that (A) comply with the criteria set forth in Rule 2a-7 under the Investment Company Act of 1940, (B) are rated AAA by S&P and Aaa by Moody’s and (C) have portfolio assets of at least $5,000,000,000;

(viii)    time deposit accounts, certificates of deposit and money market deposits (in each case with or from a bank meeting the qualifications described in clause (ii)  above) in an aggregate face amount not in excess of 0.50% of the total assets of the Borrowers and their Subsidiaries, on a consolidated basis, as of the end of the Borrowers’ most recently completed fiscal year; and

 

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(ix)     instruments equivalent to those referred to in clauses (i)  through (viii) above denominated in any foreign currency comparable in credit quality and tenor to those referred to above and commonly used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction.

“ Permitted Liens ” has the meaning assigned to such term in Section 7.02 .

“ Permitted Refinancing Indebtedness ” means any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, to “ Refinance ”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided that (i) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses), (ii) the weighted average life to maturity of such Permitted Refinancing Indebtedness is greater than or equal to the earlier of (x) the weighted average life to maturity of the Indebtedness being Refinanced and (y) 90 days after the Facility Maturity Date, (iii) if the Indebtedness being Refinanced is subordinated in right of payment to the ABL Credit Obligations, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to such ABL Credit Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced, (iv) no Permitted Refinancing Indebtedness shall have different obligors (other than entities that are not the Borrowers or Subsidiaries thereof), or greater guarantees or security (other than from entities that are not the Borrowers or Subsidiaries thereof), than the Indebtedness being Refinanced ( provided that (x) Indebtedness (A) of any Loan Party may be Refinanced to add or substitute as an obligor another Loan Party that is reasonably satisfactory to the Administrative Agent and (B) of any Subsidiary that is not a Loan Party may be Refinanced to add or substitute as an obligor another Subsidiary that is not a Loan Party and is reasonably satisfactory to the Administrative Agent and (y) other guarantees and security may be added to the extent then independently permitted under Article VII ) and (v) if the Indebtedness being Refinanced is secured by any collateral owned by Ravenswood Holdings, Wise Holdings, the Borrowers or a Subsidiary of the Borrowers (whether equally and ratably with, or junior to, the Secured Parties or otherwise), such Permitted Refinancing Indebtedness may be secured by such collateral (including in respect of working capital facilities of Foreign Subsidiaries otherwise permitted under this Agreement only, any collateral pursuant to after acquired property clauses to the extent any such collateral secured the Indebtedness being Refinanced) on terms no less favorable to the Secured Parties than those contained in the documentation governing the Indebtedness being Refinanced; provided , further , that, with respect to a Refinancing of subordinated Indebtedness permitted to be incurred herein, such Permitted Refinancing Indebtedness shall (x) be subordinated to the guarantee by the Holdcos and the Subsidiary Loan Parties of the Revolving Facility, and (y) be otherwise on terms not materially less favorable to the Lenders than those contained in the documentation governing the Indebtedness being refinanced.

“ Person ” and “ person ” mean any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company or government, individual or family trusts, or any agency or political subdivision thereof.

“ Plan ” shall mean any employee pension benefit plan, as such term is defined in Section 3(2) of ERISA (other than a Multiemployer Plan) (i) subject to the provisions of Title IV of ERISA, (ii) sponsored or maintained (at the time of determination or at any time within the five years prior thereto) by the Holdcos, any Borrower or any ERISA Affiliate, or (iii) in respect of which the Holdcos, any

 

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Borrower, any Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“ Platform ” has the meaning assigned to such term in Section 10.08 .

“ Pledged Collateral ” has the meaning assigned to such term in the Collateral Agreement.

“ Primary Payment Accounts ” has the meaning ascribed to it in Section 6.12 .

“ Prime Rate ” means, for any day, the rate of interest in effect for such day as publicly announced from time to time within Wells Fargo at its principal office in San Francisco as its “prime rate”, with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate (and, if any such announced rate is below zero, then the Prime Rate shall be deemed to be zero)

“ Pro Forma Basis ” means, for purposes of making any computation hereunder, Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and discontinued operations (as determined in accordance with Applicable Accounting Rules), in each case with respect to an operating unit of a business, and any operational changes that the Ultimate Parent or any of its Subsidiaries has determined to make and/or made during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the applicable calculation date (each, for purposes of this definition, a “pro forma event”) shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations, discontinued operations and operational changes (and the change of any associated fixed charge obligations and the change in EBITDA resulting therefrom) had occurred on the first day of the four-quarter reference period. If since the beginning of such period any Person that subsequently became a Subsidiary or was merged with or into the Borrowers or any Subsidiary since the beginning of such period shall have made any Investment, acquisition, disposition, merger, amalgamation, consolidation, discontinued operation or operational change, in each case with respect to an operating unit of a business, that would have required adjustment pursuant to this definition, then the applicable computation shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, is continued operation, merger, amalgamation, consolidation or operational change had occurred at the beginning of the applicable four-quarter period.

Pro forma calculations made pursuant to the definition of this term “Pro Forma Basis” shall be determined in good faith by a Responsible Officer of the Borrowers. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of the Borrowers, to reflect operating expense reductions, other operating improvements, synergies or such operational changes or restructurings described above reasonably expected to result from the applicable pro forma event in the 18-month period following the consummation of the pro forma event.

If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the applicable calculation date had been the applicable rate for the entire period (taking into account any Swap Obligations applicable to such Indebtedness if such Swap Obligation has a remaining term in excess of 12 months). Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a Responsible Officer of the Borrowers to be the rate of interest implicit in such Capital Lease Obligation in accordance with Applicable Accounting Rules. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma

 

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basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrowers may designate.

“ Pro Rata Share ” means, with respect to a Lender, a fraction (expressed as a percentage), the numerator of which is the sum of the amounts of such Lender’s Revolving Facility Commitment and Incremental Revolving Facility Commitment, if any (whether or not exercised or effective pursuant to Section 2.15) and the denominator of which is the sum of the amounts of all of the Lenders’ Revolving Facility Commitments and Incremental Revolving Facility Commitments, or if no Commitments are outstanding, a fraction (expressed as a percentage), the numerator of which is the principal amount of ABL Credit Obligations owed to such Lender and the denominator of which is the aggregate principal amount of the ABL Credit Obligations owed to the Lenders, in each case giving effect to a Lender’s participation in Letters of Credit, Swing Line Loans and Agent Advances.

“ Projections ” means the projections of the Holdcos, the Borrowers and their respective Subsidiaries included in the Information Memorandum and any other projections and any forward looking statements (including statements with respect to booked business) of such entities furnished to the Lenders or the Administrative Agent by or on behalf of the Holdcos, the Borrowers or any of their respective Subsidiaries prior to the Closing Date.

“ Qualified Equity Interests ” means any Equity Interests other than Disqualified Stock.

“ Qualified Receivables ” means, collectively, Accounts for which the related Account Debtor is the entity set forth on Schedule 1.01(d) and/or its Affiliates; provided that, solely for purposes of Sections 7.02(ee) and 7.05(o) , “Qualified Receivables” shall include related assets that are customarily transferred in or in respect of which security interests are customarily granted in connection with asset securitization transactions or factoring transactions involving accounts receivable.

“ Qualified Receivables Financing ” means (A) the Receivables Financing pursuant to the Factoring Facilities (including any increase in the amount thereof); (B) prior to the Incremental Facility Effective Date, the AB Receivables Financing and (C) any Receivables Financing that meets the following conditions:

(1) the Ultimate Parent or the applicable Subsidiary thereof shall have determined in good faith that such Receivables Financing (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Ultimate Parent or the applicable Subsidiary thereof in question;

(2) all sales of accounts receivable and related assets are made at fair market value;

(3) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Ultimate Parent or the applicable Subsidiary thereof) and may include Standard Undertakings;

(4) if requested by the Administrative Agent, the lender or purchaser in connection with such Qualified Receivables Financing shall have entered into an intercreditor agreement with the Administrative Agent, in form and substance reasonably acceptable to the Administrative Agent, relating to payments received in respect of the Qualified Receivables; and

 

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(5) payments received in respect of Qualified Receivables that constitute Collateral shall be deposited in accounts and otherwise handled in a manner reasonably acceptable to the Administrative Agent.

“ Ravenswood Holdings ” has the meaning assigned to such term in the preamble hereto.

“ Ravenswood Intercreditor Agreement ” means that certain Intercreditor Agreement dated as of the Closing Date among Ravenswood, Ravenswood Holdings, Wells Fargo, in its capacity thereunder as ABL agent, and the Secured Notes Collateral Agent.

“ Real Property ” means, collectively, all right, title and interest (including any leasehold estate) in and to any and all parcels of or interests in real property owned in fee or leased by any Loan Party, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures incidental to the ownership or lease thereof.

“ Receivables Financing ” means any transaction or series of transactions that may be entered into by the Ultimate Parent or its respective Subsidiaries pursuant to which Ultimate Parent or any such Subsidiary may sell, convey or otherwise transfer to any other Person, or may grant a security interest in, any accounts receivable (whether now existing or arising in the future) of such Subsidiary, and any assets related thereto including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets, in each case, which are customarily transferred in or in respect of which security interests are customarily granted in connection with asset securitization transactions or factoring transactions involving accounts receivable.

“ Receivables Subsidiary ” means the AB Receivables Subsidiary and any Specified Receivables Subsidiary.

“ Recipient ” means the Administrative Agent, any Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.

“ Refinance ” has the meaning assigned to such term in the definition of the term “Permitted Refinancing Indebtedness,” and “ Refinanced ” has a meaning correlative thereto.

“ Refinancing ” means the refinancing of loans outstanding under the Existing Credit Agreements to occur on the Closing Date in accordance with the terms of this Agreement.

“ Register ” has the meaning assigned to such term in Section 10.06(c) .

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

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

“ Related Documents ” means any documents effectuating the Refinancing.

“ Related Parties ” means, with respect to any specified person, such person’s Affiliates and the respective directors, trustees, officers, representatives, employees, agents and advisors of such person and such person’s Affiliates.

 

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“ Release ” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, emanating or migrating in, into, onto or through the environment. “ Released ” has a meaning correlative to the foregoing.

“ Remaining Present Value ” means, as of any date with respect to any lease, the present value as of such date of the scheduled future lease payments with respect to such lease, determined with a discount rate equal to a market rate of interest for such lease reasonably determined at the time such lease was entered into.

“ Report ” has the meaning assigned to such term in Section 10.21 .

“ Reportable Event ” means any reportable event as defined in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events as to which the 30 day notice period referred to in Section 4043(a) of ERISA has been waived under applicable regulations, with respect to a Plan.

“ Required Lenders ” means, at any time, (1) at any time that there are three or more Lenders under this Agreement, at least two Lenders that are not Affiliates of each other and (2) Lenders having (i) Loans (other than Swing Line Loans) outstanding, (ii) L/C Obligations outstanding (with the aggregate amount of each Lender’s risk participation and funded participation in funded L/C Obligations being deemed “held” by such Lender), (iii) Swing Line Loans outstanding (with the aggregate amount of each Lender’s risk participation and funded participation in funded Swing Line Loans being deemed “held” by such Lender), and (iv) Revolving Facility Commitments, that taken together, represent more than 50% of the sum of all (A) Loans (other than Swing Line Loans) outstanding, (B) L/C Obligations outstanding, (C) Swing Line Loans outstanding, and (D) Revolving Facility Commitments at such time. The Loans of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.

“ Reserves ” means all reserves against the Borrowing Base that the Administrative Agent has, in the exercise of its Permitted Discretion, established from time to time upon written notice to the Borrowers.

“ Responsible Officer ” of any person means any executive officer or Financial Officer of such person and any other officer or similar official thereof responsible for the administration of the obligations of such person in respect of this Agreement.

“ Restricted Payments ” has the meaning assigned to such term in Section 7.06 .

“ Revolving Facility ” means the Revolving Facility Commitments (including any Incremental Revolving Facility Commitments) and the extensions of credit made hereunder by the Revolving Facility Lenders.

“ Revolving Facility Borrowing ” means a Borrowing comprised of Revolving Facility Loans.

“ Revolving Facility Commitment ” means, with respect to each Revolving Facility Lender, the commitment of such Revolving Facility Lender to make Revolving Facility Loans pursuant to Section 2.01 , expressed as an amount representing the maximum aggregate permitted amount of such Revolving Facility Lender’s Revolving Facility Credit Exposure hereunder, as such commitment may be (i) reduced from time to time pursuant to Section 2.08 , (ii) reduced or increased from time to time pursuant to assignments by or to such Lender under Section 10.06 , and (iii) increased as provided under Section 2.15 and set forth on Schedule 2.15 . The initial amount of each Lender’s Revolving Facility Commitment is set forth on Schedule 2.01 , or in the Assignment and Assumption pursuant to which such

 

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Lender shall have assumed its Revolving Facility Commitment, as applicable. The aggregate amount of the Lenders’ Revolving Facility Commitments on the Closing Date is $300,000,000.

“ Revolving Facility Credit Exposure ” means, at any time, the sum of (a) the aggregate principal amount of the Revolving Facility Loans outstanding at such time, (b) the aggregate principal amount of the Swing Line Loans outstanding at such time and (c) the aggregate principal amount of L/C Obligations outstanding at such time. The Revolving Facility Credit Exposure of any Revolving Facility Lender at any time shall be the product of (x) such Revolving Facility Lender’s Revolving Facility Percentage and (y) the aggregate Revolving Facility Credit Exposure of all Revolving Facility Lenders, collectively, at such time.

“ Revolving Facility Lender ” means a Lender (including an Incremental Revolving Facility Lender) with a Revolving Facility Commitment or with outstanding Revolving Facility Loans.

“ Revolving Facility Loan ” means a Loan made by a Revolving Facility Lender pursuant to Section 2.01 .

“ Revolving Facility Percentage ” means, with respect to any Revolving Facility Lender, the percentage of the total Revolving Facility Commitments represented by such Lender’s Revolving Facility Commitment, subject to adjustment as provided in Section 2.15 and Section 2.17 . If the Revolving Facility Commitments have terminated or expired, the Revolving Facility Percentages shall be determined based upon the Revolving Facility Commitments most recently in effect, giving effect to any subsequent assignments pursuant to Section 10.06 .

“ Rexam ” means Rexam Beverage Can Company, a Delaware corporation, and its successors and assigns.

“ Rexam Financing Documents ” means, collectively, the Advance Agreement, the “Security Agreement” (as defined in the Advance Agreement) and all other agreements, documents and instruments executed and/or delivered by any Loan Party or any of their respective Affiliates in connection therewith or related thereto.

“ S&P ” means Standard & Poor’s Ratings Group, Inc.

“ Sanction ” has the meaning assigned to such term in Section 4.25(b) .

“ Sanctioned Country ” means, at any time, a country, territory or region which is, or whose government is, the subject or target of any Sanctions.

“ Sale and Lease Back Transaction ” has the meaning assigned to such term in Section 7.03 .

“ Secured Cash Management Agreement ” means any Cash Management Agreement that is entered into by and between any Borrower or any Subsidiary of a Borrower that is a Loan Party and any Cash Management Bank.

“ Secured Hedge Agreement ” means any Swap Contract that is entered into by and between any Borrower or any Subsidiary of a Borrower that is a Loan Party and any Hedge Bank.

“ Secured Notes Collateral Agent ” means Deutsche Bank Trust Company Americas, in its capacity (a) with respect to the Ravenswood Intercreditor Agreement, as notes collateral agent under the

 

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Ravenswood Intercreditor Agreement and (b) with respect to the Wise Intercreditor Agreement, as successor noteholder collateral agent under the Wise Intercreditor Agreement.

“ Secured Notes Documents ” means, collectively, the “Notes Documents” as defined in the Ravenswood Intercreditor Agreement and the “Noteholder Documents” as defined in the Wise Intercreditor Agreement.

“ Secured Notes Intercreditor Agreement ” means, collectively, the Ravenswood Intercreditor Agreement and the Wise Intercreditor Agreement.

“ Secured Notes Obligations ” means, collectively, the “Notes Obligations” as defined in the Ravenswood Intercreditor Agreement and the “Noteholder Obligations” as defined in the Wise Intercreditor Agreement.

“ Secured Notes Priority Collateral ” means, collectively, the “Notes Priority Collateral” as defined in the Ravenswood Intercreditor Agreement and the “Noteholder Priority Collateral” as defined in the Wise Intercreditor Agreement.

“ Secured Notes Secured Parties ” means, collectively, the “Notes Secured Parties” as defined in the Ravenswood Intercreditor Agreement and the “Noteholder Secured Parties” as defined in the Wise Intercreditor Agreement.

“ Secured Parties ” means the “ Secured Parties ” as defined in the Collateral Agreement.

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

“ Secured Debt Intercreditor Agreement ” has the meaning assigned to such term in Section 10.20 .

“ Security Documents ” means the Mortgages, the Collateral Agreement and each of the security agreements and other instruments and documents executed and delivered pursuant to any of the foregoing or pursuant to Section 6.10 .

“ Specified Mill Assets ” has the meaning set forth in the Collateral Agreement.

“ Specified Person ” has the meaning assigned to such term in Section 4.25(b) .

“ Specified Receivables Subsidiary ” means a Wholly Owned Subsidiary of any Borrower which engages in no activities other than in connection with the financing or sale of such Qualified Receivables of such Borrower and its Subsidiaries, all proceeds thereof and all rights (contractual or other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and which is designated by the applicable Borrower as a Specified Receivables Subsidiary and:

(a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Borrowers or any other Subsidiary of a Borrower (excluding guarantees of obligations (other than the principal of and interest on, Indebtedness) pursuant to Standard Undertakings), (ii) is recourse to or obligates the Borrowers or any other Subsidiary of a Borrower in any way other than pursuant to Standard Undertakings, or (iii) subjects any property or asset of the Borrowers or any other Subsidiary of a Borrower, directly or indirectly,

 

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contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Undertakings;

(b) with which neither the Borrowers nor any other Subsidiary of a Borrower has any material contract, agreement, arrangement or understanding other than on terms which the applicable Borrower reasonably believes to be no less favorable to the Borrowers or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the applicable Borrower; and

(c) to which neither the Borrowers nor any other Subsidiary of a Borrower has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.

“ Standard Undertakings ” means representations, warranties, covenants, indemnities and guarantees of performance entered into by the Borrowers or any Subsidiary of a Borrower that are determined by the Borrowers in good faith to be customary for a Receivables Financing, including, without limitation, those relating to the servicing of assets of a Subsidiary.

“ subsidiary ” means, with respect to any person (herein referred to as the “parent”), any corporation, partnership, association or other business entity (i) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, directly or indirectly, owned, controlled or held, or (ii) that is, at the time any determination is made, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

“ Subsidiary ” means, unless the context otherwise requires, a subsidiary of a Borrower, provided that (except for purposes of Sections 4.09 , 4.13 , 4.15 , 4.16 , 6.03 , 6.09 and 8.01(k) , and the definition of Unrestricted Subsidiary contained herein) an Unrestricted Subsidiary shall be deemed not to be a Subsidiary of a Borrower or any of its Subsidiaries for purposes of this Agreement.

“ Subsidiary Loan Party ” means (i) each Wholly Owned Domestic Subsidiary of any Borrower (which itself is not a Borrower), whether existing on the Closing Date or formed or acquired thereafter that, in each case, guarantees any other Indebtedness for borrowed money in excess of $15,000,000 of any Loan Party or any Affiliate of any Loan Party, and (ii) each other Subsidiary of any Borrower (which itself is not a Borrower) that, in the sole discretion of such Borrower, becomes a party to the Collateral Agreement (or a comparable agreement mutually agreed, each in their sole discretion, by such Borrower and the Administrative Agent) after the Closing Date; provided, however , that in no event shall a Receivables Subsidiary be a Subsidiary Loan Party.

“ Subsidiary Redesignation ” has the meaning provided in the definition of “Unrestricted Subsidiary” contained in this Section 1.01 .

“ Supermajority Lenders ” means, at any time, (1) at any time that there are three or more Lenders under this Agreement, at least two Lenders that are not Affiliates of each other and (2) Lenders having (i) Loans (other than Swing Line Loans) outstanding, (ii) L/C Obligations outstanding (with the aggregate amount of each Lender’s risk participation and funded participation in funded L/C Obligations being deemed “held” by such Lender), (iii) Swing Line Loans outstanding (with the aggregate amount of each Lender’s risk participation and funded participation in funded Swing Line Loans being deemed “held” by such Lender), and (iv) Revolving Facility Commitments, that taken together, represent more than 66.67% of the sum of all (A) Loans (other than Swing Line Loans) outstanding, (B) L/C Obligations

 

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outstanding, (C) Swing Line Loans outstanding, and (D) Revolving Facility Commitments at such time. The Loans of any Defaulting Lender shall be disregarded in determining Supermajority Lenders at any time.

“ Swap Contract ” means (i) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (ii) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement; provided that (i) no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Holdcos, the Borrowers or any of their respective Subsidiaries, and (ii) no contract for the purchase of natural gas of which any Loan Party intends to take delivery from a counterparty in the business of supplying natural gas, shall be a Swap Contract.

“ Swap Obligations ” of any Person means all obligations (including, without limitation, any amounts which accrue after the commencement of any bankruptcy or insolvency proceeding with respect to such Person, whether or not allowed or allowable as a claim under any proceeding under any Debtor Relief Law) of such Person in respect of any Swap Contract.

“ Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (i) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (ii) for any date prior to the date referenced in clause (i) , the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

“ Swing Line Borrowing ” means a borrowing of a Swing Line Loan pursuant to Section 2.04 .

“ Swing Line Commitment ” means the commitment of any Lender, established pursuant to Section 2.04 , to make Swing Line Loans to the Borrowers.

“ Swing Line Lender ” means Wells Fargo in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

“ Swing Line Loan ” has the meaning specified in Section 2.04(a) .

“ Swing Line Loan Notice ” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b) , which, if in writing, shall be substantially in the form of Exhibit C-2 .

 

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“ Swing Line Sublimit ” means $30,000,000. The Swing Line Sublimit is part of, and not in addition to, the Revolving Facility.

“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“ Transaction Documents ” means the Related Documents and the Loan Documents.

“ Transactions ” means, collectively, the transactions to occur pursuant to the Transaction Documents, including (i) the execution and delivery of the Loan Documents, the creation of the Liens pursuant to the Security Documents, and the initial borrowings hereunder; (ii) the refinancing (or discharge) of Indebtedness under the Existing Credit Agreements; and (iii) the payment of all fees and expenses to be paid on or prior to the Closing Date and owing in connection with the foregoing.

“ Type ” means, when used in respect of any Loan or Borrowing, the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes hereof, the term “ Rate ” shall include the Adjusted Eurodollar Rate and the Base Rate.

“ UCP ” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ ICC ”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).

“ Ultimate Parent ” means Constellium N.V.

“ Unfinanced Capital Expenditures ” means Capital Expenditures not paid with the proceeds of Indebtedness (other than with the proceeds of Revolving Facility Loans) or with the proceeds of the sale of Equity Interests of Ultimate Parent.

“ Unfunded Pension Liability ” means the amount by which the present value of a Plan’s obligations (based on the assumptions used for purposes of the Applicable Accounting Rules), as of the date of the most recent financial statements reflecting such amounts, exceeds the fair market value of the Plan’s assets.

“ Uniform Commercial Code or UCC ” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.

“ Unreimbursed Amount ” has the meaning specified in Section 2.05(c)(i) .

“ Unrestricted Subsidiary ” means (i) any subsidiary of a Borrower identified on Schedule 1.01(e ) and (ii) any subsidiary of a Borrower that is acquired or created after the Closing Date and designated by such Borrower as an Unrestricted Subsidiary hereunder by written notice to the Administrative Agent; provided that a Borrower shall only be permitted to so designate a new Unrestricted Subsidiary after the Closing Date and so long as (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) immediately after giving effect to such designation (as well as all other such designations theretofore consummated after the first day of such reference period), the Payment Conditions shall have been satisfied, (C) such Unrestricted Subsidiary shall be capitalized (to the extent capitalized by a Borrower or any of its Subsidiaries) through Investments as permitted by, and in compliance with, Section 7.04(i) , and any prior or concurrent

 

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Investments in such Subsidiary by such Borrower or any of its Subsidiaries shall be deemed to have been made under Section 7.04(i) , (D) without duplication of clause (C)  above, any assets owned by such Unrestricted Subsidiary at the time of the initial designation thereof shall be treated as Investments pursuant to Section 7.04(i) , and (E) such Subsidiary shall have been designated an “unrestricted subsidiary” (or otherwise not be subject to the covenants and defaults) under any applicable Indebtedness permitted to be incurred hereby and all applicable Permitted Refinancing Indebtedness in respect of any of the foregoing and all applicable Disqualified Stock. A Borrower may designate any Unrestricted Subsidiary to be a Subsidiary for purposes of this Agreement (each, a “ Subsidiary Redesignation ”); provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) immediately after giving effect to such Subsidiary Redesignation (as well as all other Subsidiary Redesignations theretofore consummated after the first day of such reference period), the Payment Conditions shall have been satisfied, and (iii) the applicable Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by a Responsible Officer of such Borrower, certifying to the best of such officer’s knowledge, compliance with the requirements of preceding clauses (i)  and (ii) , inclusive, and containing the calculations and information demonstrating compliance with the preceding clause (i) .

“ Unutilized Commitments ” means, at any time, the Maximum Credit at such time minus the sum of (a) the aggregate principal amount of Revolving Facility Loans outstanding at such time and (b) the aggregate principal amount of L/C Obligations outstanding at such time.

“ U.S. Bankruptcy Code ” means Title 11 of the United States Code, as amended, or any similar federal or state law for the relief of debtors.

“ U.S. Person ” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.

“ U.S. Tax Compliance Certificate ” has the meaning specified in Section 3.01(e)(ii)(B)(3) .

“ Wells Fargo ” means Wells Fargo Bank, National Association and its successors and assigns.

“ Wholly Owned Domestic Subsidiary ” of any person means a subsidiary of such person that is both a Domestic Subsidiary and a Wholly Owned Subsidiary.

“ Wholly Owned Foreign Subsidiary ” of any person means a subsidiary of such person that is both a Foreign Subsidiary and a Wholly Owned Subsidiary.

“ Wholly Owned Subsidiary ” of any person means a subsidiary of such person, all of the Equity Interests of which (other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) are owned by such person or another Wholly Owned Subsidiary of such person.

“ Wise Holdings ” has the meaning assigned to such term in the preamble hereto.

“ Wise Intercreditor Agreement ” means that certain Intercreditor Agreement dated as of December 11, 2013 among Wells Fargo, in its capacity thereunder as ABL agent, the Secured Notes Collateral Agent, and Rexam, and acknowledged and agreed to by Wise and the other grantors from time to time party thereto.

 

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“ Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part 1 of Subtitle E of Title IV of ERISA.

“ Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

Section 1.02     Terms Generally . The definitions set forth or referred to in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Except as otherwise expressly provided herein, any reference in this Agreement to any Loan Document shall mean such document as amended, restated, supplemented or otherwise modified from time to time in accordance with the requirements hereof and thereof. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with the Applicable Accounting Rules, as in effect from time to time; provided that, if the Borrowers notify the Administrative Agent that the Borrowers request, or the Administrative Agent requests or the Required Lenders request, an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in the Applicable Accounting Rules or in the application thereof on the operation of such provision, regardless of whether any such notice is given before or after such change in the Applicable Accounting Rules or in the application thereof, then such provision shall be interpreted on the basis of the Applicable Accounting Rules as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

Section 1.03     Effectuation of Transactions . Each of the representations and warranties of the Holdcos and the Borrowers contained in this Agreement (and all corresponding definitions) are made after giving effect to the Transactions, unless the context otherwise requires.

Section 1.04     Letter of Credit Amounts . Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar stated amount of such Letter of Credit at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

ARTICLE II

THE CREDITS

Section 2.01     Commitments . Subject to the terms and conditions set forth herein each Revolving Facility Lender severally and not jointly agrees to make Revolving Facility Loans to the Borrowers in Dollars from time to time on any Business Day during the Availability Period in an aggregate principal amount not to exceed at any time outstanding the amount of such Lender’s Revolving Facility Commitment; provided , however , that, after giving effect to any Revolving Facility Borrowing, (i) the Revolving Facility Credit Exposure shall not exceed the lesser of the Maximum Credit and the Borrowing Base and (ii) the Revolving Facility Credit Exposure of any Revolving Facility Lender shall

 

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not exceed such Lender’s Revolving Facility Commitment. Within the limits of each Lender’s Revolving Facility Commitment, and subject to the other terms and conditions hereof, each Borrower may borrow under this Section 2.01 , prepay under Section 2.11 and reborrow under this Section 2.01 . Revolving Facility Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

Section 2.02     Loans and Borrowings . (a) Each Loan shall be made as part of a Borrowing consisting of Loans under the Revolving Facility and of the same Type made by the Lenders ratably in accordance with their respective Commitments under the Revolving Facility (or in the case of Swing Line Loans, in accordance with their respective Swing Line Commitments); provided , however , that Revolving Facility Loans shall be made by Revolving Facility Lenders ratably in accordance with their respective Revolving Facility Percentages on the date such Loans are made hereunder. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

(b)      Subject to Section 3.03 , each Borrowing shall be comprised entirely of Base Rate Loans or Eurodollar Rate Loans as a Borrower may request in accordance herewith. Each Swing Line Borrowing shall be a Base Rate Borrowing. Each Lender at its option may make any Base Rate Loan or Eurodollar Rate Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of such Borrower to repay such Loan in accordance with the terms of this Agreement and such Lender shall not be entitled to any amounts payable under Section 3.01 or 3.04 solely in respect of increased costs resulting from such exercise and existing at the time of such exercise.

(c)      At the commencement of each Interest Period for any Eurodollar Rate Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum. At the time that each Base Rate Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided that a Base Rate Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Revolving Facility Commitments or that is required to finance the reimbursement in respect of Letters of Credit as contemplated by Section 2.05(c) . Each Swing Line Borrowing shall be in an amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum. Borrowings of more than one Type may be outstanding at the same time; provided that there shall not at any time be more than a total of 15 Eurodollar Rate Borrowings outstanding under the Revolving Facility.

(d)      Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Facility Maturity Date.

Section 2.03     Requests for Borrowings . To request a Revolving Facility Borrowing, the applicable Borrower shall notify the Administrative Agent of such request in writing by delivery of a Borrowing Request (which may be electronic) (a) in the case of a Eurodollar Rate Borrowing, not later than 12:00 p.m., Local Time, three Business Days before the date of the proposed Borrowing or (b) in the case of a Base Rate Borrowing, not later than 11:00 a.m., Local Time, on the date of the proposed Borrowing; provided that any such notice of a Base Rate Borrowing to finance the reimbursement in respect of a Letter of Credit as contemplated by Section 2.05(c) may be given not later than 10:00 a.m., Local Time, on the date of the proposed Borrowing. Each such Borrowing Request shall be irrevocable and shall specify the following information in compliance with Section 2.02 :

(i)     the name of the applicable Borrower;

 

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(ii)     the aggregate amount of (A) the requested Borrowing and (B) the Revolving Facility Credit Exposure (after giving effect to the requested Borrowing);

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

(iv)      whether such Borrowing is to be a Base Rate Borrowing or a Eurodollar Rate Borrowing;

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

(vi)      the location and number of such Borrower’s account to which funds are to be disbursed.

If such Borrower fails to specify a Type of Revolving Facility Loan in a Borrowing Request or if such Borrower fails to give a timely notice requesting a conversion or continuation, then the Revolving Facility Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If no Interest Period is specified with respect to any requested Eurodollar Rate Borrowing, then such Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

Section 2.04     Swing Line Loans .

(a)     The Swing Line . Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04 , may make loans (each such loan, a “ Swing Line Loan ”) to a Borrower in Dollars from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit; provided , however , that, (x) after giving effect to any Swing Line Loan, (i) the Revolving Facility Credit Exposure shall not exceed the lesser of the Maximum Credit and the Borrowing Base at such time, and (ii) the Revolving Facility Credit Exposure of any Lender (including the Swing Line Lender) shall not exceed such Lender’s Revolving Facility Commitment, (y) the applicable Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan and (z) the Swing Line Lender may choose not to make any Swing Line Loan if it has, or by making of such Swing Line Loan may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, each Borrower may borrow under this Section 2.04 , prepay under Section 2.11 , and reborrow under this Section 2.04 . Each Swing Line Loan shall bear interest only at the Base Rate plus the Applicable Margin for Base Rate Loans. Immediately upon the making of a Swing Line Loan, each Revolving Facility Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Revolving Facility Percentage multiplied by the principal amount of such Swing Line Loan.

(b)     Borrowing Procedures . Each Swing Line Borrowing shall be made upon the applicable Borrower’s irrevocable written notice to the Swing Line Lender and the Administrative Agent, which may be delivered electronically. Each such notice must be in the form of a Swing Line Loan Notice and be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m., Local Time, on the requested borrowing date or such later time on the requested borrowing date as may be

 

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approved by the Swing Line Lender in its sole discretion, and shall specify (i) the amount to be borrowed, which shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum, and (ii) the requested borrowing date, which shall be a Business Day. Promptly after receipt by the Swing Line Lender of any Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent of the contents thereof. Unless the Swing Line Lender has received notice from the Administrative Agent (including at the request of any Revolving Facility Lender) prior to 2:00 p.m., Local Time, on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.04(a) , or (B) that one or more of the applicable conditions specified in Article V is not then satisfied or waived (and one or more such conditions are not in fact satisfied or waived), then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m., Local Time, on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to such Borrower in immediately available funds either by (i) crediting the account of such Borrower on the books of the Swing Line Lender with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to the Swing Line Lender by such Borrower.

(c)     Refinancing of Swing Line Loans.

(i)     The Swing Line Lender at any time in its sole discretion may request, on behalf of any Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Revolving Facility Lender make a Base Rate Loan in an amount equal to such Lender’s Revolving Facility Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Borrowing Request for purposes hereof) and in accordance with the requirements of Section 2.02 and 2.03 , without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to sufficient Availability, the unutilized portion of the Revolving Facility and the conditions set forth in Section 5.01 . The Swing Line Lender shall furnish such Borrower with a copy of the applicable Borrowing Request promptly after delivering such notice to the Administrative Agent. Each Revolving Facility Lender shall make an amount equal to its Revolving Facility Percentage of the amount specified in such Borrowing Request available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m., Local Time, on the day specified in such Borrowing Request, whereupon, subject to Section 2.04(c)(ii) , each Revolving Facility Lender that so makes funds available shall be deemed to have made a Base Rate Loan to such Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.

(ii)     If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Facility Borrowing in accordance with Section 2.04(c)(i) , the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Revolving Facility Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Facility Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.

(iii)     If any Revolving Facility Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified

 

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in Section 2.04(c)(i) , the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Facility Loan included in the relevant Revolving Facility Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii)  shall be conclusive absent manifest error.

(iv)     Each Revolving Facility Lender’s obligation to make Revolving Facility Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, any Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Revolving Facility Lender’s obligation to make Revolving Facility Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 5.01 .

(d)     Repayment of Participations.

(i)     At any time after any Revolving Facility Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving Facility Lender its Revolving Facility Percentage thereof in the same funds as those received by the Swing Line Lender.

(ii)     If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Revolving Facility Lender shall pay to the Swing Line Lender its Revolving Facility Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the ABL Credit Obligations and the termination of this Agreement.

(e)     Interest for Account of Swing Line Lender . The Swing Line Lender shall be responsible for invoicing the applicable Borrower for interest on the Swing Line Loans. Until each Revolving Facility Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Revolving Facility Lender’s Revolving Facility Percentage of any Swing Line Loan, interest in respect of such Revolving Facility Percentage shall be solely for the account of the Swing Line Lender.

(f)     Payments Directly to Swing Line Lender . The applicable Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.

 

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(g)     Defaulting Lenders . Notwithstanding anything to the contrary contained in this Section 2.04 , the Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when any Revolving Facility Lender is a Defaulting Lender, unless the Swing Line Lender has entered into arrangements satisfactory to it to eliminate its Fronting Exposure (after giving effect to Section 2.16) with respect to any Defaulting Lender’s risk participations in, and all other obligations in respect of, Swing Line Loans, including by cash collateralizing such Defaulting Lender’s Revolving Facility Percentage of all Swing Line Loans outstanding or to be outstanding hereunder.

Section 2.05     Letters of Credit .

(a)     The Letter of Credit Commitment.

(i)     Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Facility Lenders set forth in this Section 2.05 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of any Borrower or its Subsidiaries, and to amend or (solely in the case of standby Letters of Credit) extend Letters of Credit previously issued by it, in accordance with subsection (b)  below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Facility Lenders severally and not jointly agree to participate in Letters of Credit issued for the account of any Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Revolving Facility Credit Exposure shall not exceed the lesser of the Maximum Credit and the Borrowing Base at such time, (y) the Revolving Facility Credit Exposure of any Lender shall not exceed such Lender’s Revolving Facility Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by a Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by such Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly any Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. As of the Closing Date, the Existing Letters of Credit shall be deemed to have been issued under (and shall be governed by the terms of ) this Agreement.

(ii)     No L/C Issuer shall issue any Letter of Credit if:

(A)     subject to Section 2.05(b)(iii) , the expiry date of the requested Letter of Credit would occur, (1) with respect to each standby Letter of Credit, more than twelve months after the date of issuance or last extension or, (2) with respect to each commercial Letter of Credit, more than 180 days after the date of issuance, unless, in each case, the Required Lenders have approved such expiry date; or

(B)     unless such L/C Issuer has otherwise agreed, the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date; provided that if any such Letter of Credit is outstanding on the Letter of Credit Expiration Date, the applicable Borrower shall Cash Collateralize the Outstanding Amount of all L/C Obligations with respect to such Letter of Credit.

 

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(iii)     No L/C Issuer shall be under any obligation to issue any Letter of Credit if:

(A)     any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;

(B)     the issuance of the Letter of Credit would violate in any material respect one or more policies of the L/C Issuer applicable to letters of credit generally and customary for other issuers of letters of credit;

(C)     except as otherwise agreed by the Administrative Agent and the L/C Issuer, the Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;

(D)     the Letter of Credit is to be denominated in a currency other than Dollars; or

(E)     any Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the applicable Borrower or such Lender to eliminate the L/C Issuer’s actual or reasonably determined potential Fronting Exposure (after giving effect to Section 2.16(a)(iv) ) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or reasonably determined potential Fronting Exposure.

(iv)     The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.

(v)     The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.

(vi)     Each L/C Issuer shall act on behalf of the Revolving Facility Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and such L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in

 

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Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.

(vii)     It is agreed that, in the case of the issuance of any commercial or trade Letter of Credit, such Letter of Credit shall in no event provide for time drafts or bankers’ acceptances, unless a proper Reserve has been established with respect thereto.

(b)     Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.

(i)     Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the applicable Borrower delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Request, appropriately completed and signed by a Responsible Officer of such Borrower. Such Letter of Credit Request may be sent by fax, by United States mail, by overnight courier, by electronic transmission using the system provided by the applicable L/C Issuer, by personal delivery or by any other means acceptable to such L/C Issuer. Such Letter of Credit Request must be received by the L/C Issuer and the Administrative Agent not later than 2:00 p.m., Local Time, at least two Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Request shall specify in form and detail reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other customary matters as the L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Request shall specify in form and detail reasonably satisfactory to the L/C Issuer: (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other customary matters as the L/C Issuer may reasonably require. Additionally, such Borrower shall furnish to the L/C Issuer and the Administrative Agent such other customary documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably require.

(ii)     Promptly after receipt of any Letter of Credit Request, the L/C Issuer will confirm with the Administrative Agent that the Administrative Agent has received a copy of such Letter of Credit Request from the applicable Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless one or more applicable conditions contained in Article V shall not then be satisfied or waived, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of such Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving Facility Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Revolving Facility Percentage times the amount of such Letter of Credit.

 

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(iii)     If any Borrower so requests in any applicable standby Letter of Credit Request, the L/C Issuer may, in its sole and absolute discretion, agree to issue a standby Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that (x) any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued and (y) such prior notice shall be deemed to have been given by the L/C Issuer on the effective date of its resignation as L/C Issuer in accordance with Section 10.06(f) . Unless otherwise directed by the applicable L/C Issuer, the applicable Borrower shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Facility Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date (unless the applicable L/C Issuer has otherwise agreed, in which case such expiry date may be later than the Letter of Credit Expiration Date, and if any such Letter of Credit is outstanding on the Letter of Credit Expiration Date, such Borrower shall Cash Collateralize the Outstanding Amount of all L/C Obligations with respect to such Letter of Credit); provided , however , that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii)  or (iii)  of Section 2.05(a) or otherwise), or (B) one or more of the applicable conditions specified in Section 5.01 is not then satisfied or waived.

(iv)     If any Borrower so requests in any applicable Letter of Credit Request, the L/C Issuer may, in its sole and absolute discretion, agree to issue a standby Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “ Auto-Reinstatement Letter of Credit ”). Unless otherwise directed by the L/C Issuer, such Borrower shall not be required to make a specific request to the L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Revolving Facility Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “ Non-Reinstatement Deadline ”), the L/C Issuer shall not permit such reinstatement if it has received a notice on or before the day that is seven Business Days before the Non-Reinstatement Deadline (A) that the Administrative Agent has reasonably determined not to permit such reinstatement or (B) from the Administrative Agent, any Lender or such Borrower that one or more of the applicable conditions specified in Section 5.01 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing the L/C Issuer not to permit such reinstatement.

(v)     Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the applicable Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

(c)     Drawings and Reimbursements; Funding of Participations.

 

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(i)     Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the applicable Borrower and the Administrative Agent thereof. Not later than 2:00 p.m., Local Time, on the Business Day (each such date, an “ Honor Date ”) following the date upon which such Borrower receives such notice from the L/C Issuer of a payment by the L/C Issuer under a Letter of Credit, such Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing. If such Borrower fails to so reimburse the L/C Issuer by such time, the L/C Issuer shall notify the Administrative Agent who shall promptly notify each Revolving Facility Lender of the Honor Date, the amount of the unreimbursed drawing (the “ Unreimbursed Amount ”), and the amount of such Revolving Facility Lender’s Revolving Facility Percentage thereof. In such event, such Borrower shall be deemed to have requested a Revolving Facility Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.01 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Revolving Facility Commitments and the conditions set forth in Section 5.01 (other than the delivery of a Borrowing Request).

(ii)     Each Revolving Facility Lender shall, upon any notice pursuant to Section 2.05(c)(i) , make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the L/C Issuer at the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders, in an amount equal to its Revolving Facility Percentage of the Unreimbursed Amount not later than 1:00 p.m., Local Time, on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.05(c)(iii) , each Revolving Facility Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer.

(iii)     With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Facility Borrowing of Base Rate Loans because the conditions set forth in Section 5.01 cannot be satisfied or for any other reason, the applicable Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving Facility Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.05(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.05 .

(iv)     Until each Revolving Facility Lender funds its Revolving Facility Loan or L/C Advance pursuant to this Section 2.05(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Revolving Facility Percentage of such amount shall be solely for the account of the L/C Issuer.

(v)     Each Revolving Facility Lender’s obligation to make Revolving Facility Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.05(c) , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, any Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however ,

 

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that each Revolving Facility Lender’s obligation to make Revolving Facility Loans pursuant to this Section 2.05(c) is subject to the conditions set forth in Article V (other than delivery by a Borrower of a Borrowing Request). No such making of an L/C Advance shall relieve or otherwise impair the obligation of any Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.

(vi)     If any Revolving Facility Lender fails to make available to the Administrative Agent for the account of any L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.05(c) by the time specified in Section 2.05(c)(ii) , then, without limiting the other provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Facility Loan included in the relevant Revolving Facility Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Revolving Facility Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.05(c)(vi) shall be conclusive absent manifest error.

(d)     Repayment of Participations.

(i)     At any time after an L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Facility Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.05(c) , if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the applicable Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Revolving Facility Percentage thereof in the same funds as those received by the Administrative Agent.

(ii)     If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.05(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Facility Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Revolving Facility Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the ABL Credit Obligations and the termination of this Agreement.

(e)     Obligations Absolute . The obligation of each Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

(i)     any lack of validity or enforceability of such Letter of Credit, this Agreement, any Issuer Document or any other Loan Document;

 

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(ii)     the existence of any claim, counterclaim, setoff, defense or other right that any Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

(iii)     any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

(iv)     any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or

(v)     any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Borrower or any of its Subsidiaries.

(f)     Role of L/C Issuer . Each Lender and each Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties or any correspondent, participant or assignee of the applicable L/C Issuer shall be liable to any Lender for: (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Facility Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. Each Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , however , that this assumption is not intended to, and shall not, preclude such Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable or responsible for any of the matters described in clauses (i)  through (v)  of Section 2.05(e) ; provided , however , that anything in such clauses to the contrary notwithstanding, the applicable Borrower may have a claim against an L/C Issuer, and such L/C Issuer may be liable to such Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by such Borrower which such Borrower proves were caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of such Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument

 

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transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.

(g)     Applicability of ISP and UCP . Unless otherwise expressly agreed by the L/C Issuer and the applicable Borrower when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit. Notwithstanding the foregoing, the L/C Issuer shall not be responsible to any Borrower for, and the L/C Issuer’s rights and remedies against any Borrower shall not be impaired by, any action or inaction of the L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

(h)     Letter of Credit Fees . Each Borrower shall pay to the Administrative Agent for the account of each Revolving Facility Lender, in accordance with its Revolving Facility Percentage, a Letter of Credit fee (the “ Letter of Credit Fee ”) (i) for each commercial Letter of Credit issued at the request of such Borrower equal to the Applicable Margin for Eurodollar Rate Borrowings effective for each day during any quarter times the daily amount available to be drawn under such Letter of Credit and (ii) for each standby Letter of Credit issued at the request of such Borrower equal to the Applicable Margin for Eurodollar Rate Borrowings effective for each day during any quarter times the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.04 . Letter of Credit Fees shall be (i) due and payable on the first Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand, (ii) computed on a quarterly basis in arrears on the basis of a year of 360 days and (iii) payable for the actual number of days elapsed (including the first day but excluding the last day). If there is any change in the Applicable Margin during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Margin separately for each period during such quarter that such Applicable Margin was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.

(i)     Fronting Fee and Documentary and Processing Charges to L/C Issuers . Each Borrower shall pay directly to each L/C Issuer for its own account a fronting fee (i) with respect to each commercial Letter of Credit issued at the request of such Borrower, at the rate of 0.125% per annum (or such lesser amount to any respective L/C Issuer as such Borrower may agree in writing with such L/C Issuer), computed on the amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit issued at the request of such Borrower, at a rate separately agreed between such Borrower and the L/C Issuer, computed on the amount of such increase, and payable upon the effectiveness of such amendment, and (iii) with respect to each standby Letter of Credit issued at the request of such Borrower, at the rate of 0.125%  per annum (or such lesser amount to any respective L/C Issuer as such Borrower may agree in writing with such L/C Issuer), computed on the daily amount available to be drawn under such Letter of Credit, and payable upon each Credit Event with respect thereto. In addition, each Borrower shall pay

 

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directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit requested by such Borrower as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable. The fees in this paragraph are referred to collectively as “ L/C Issuer Fees ”.

(j)     Conflict with Issuer Documents . In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

(k)     Letters of Credit Issued for Subsidiaries . Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the applicable Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit in accordance with the terms hereof. Each Borrower hereby acknowledges that the issuance of Letters of Credit for the account of its Subsidiaries inures to the benefit of such Borrower, and that such Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

(l)     Reporting . Each L/C Issuer will report in writing to the Administrative Agent (i) on the first Business Day of each week, the aggregate face amount of Letters of Credit issued by it and outstanding as of the last Business Day of the preceding week, (ii) on or prior to each Business Day on which such L/C Issuer expects to issue, amend, renew or extend any Letter of Credit, the date of such issuance, amendment, renewal or extension and the aggregate face amount of Letters of Credit to be issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and such L/C Issuer shall advise the Administrative Agent on such Business Day whether such issuance, amendment, renewal or extension occurred and whether the amount thereof changed), (iii) on each Business Day on which such L/C Issuer makes any L/C Borrowing, the date and amount of such L/C Borrowing and (iv) on any Business Day on which the applicable Borrower fails to reimburse an L/C Borrowing required to be reimbursed to such L/C Issuer on such day, the date and amount of such failure.

Section 2.06     Funding of Borrowings . (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 p.m., Local Time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders; provided that Swing Line Loans shall be made as provided in Section 2.04 . The Administrative Agent will make such Loans available to the applicable Borrower by promptly crediting the amounts so received, in like funds, to an account of such Borrower as specified in the Borrowing Request; provided that Base Rate Revolving Facility Loans and Swing Line Borrowings made to finance the reimbursement in respect of Letters of Credit and Swing Line Loans shall be remitted by the Administrative Agent to the applicable L/C Issuer or the Swing Line Lender, as applicable.

(b)     Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a)  of this Section 2.06 and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and such Borrower severally and not jointly agree to pay to the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of (A) the Federal Funds Rate and (B) a rate determined by the Administrative Agent

 

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in accordance with banking industry rules on interbank compensation or (ii) in the case of such Borrower, the interest rate applicable to Base Rate Loans at such time. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing. In the event such Borrower pays such amount to the Administrative Agent, then such amount shall reduce the principal amount of such Borrowing (but exclusive of any accrued and unpaid interest thereon).

Section 2.07     Interest Elections . (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Rate Borrowing, shall have an initial Interest Period as specified in such Borrowing Request or, if no Interest Period is specified in such Borrowing Request, an initial Interest Period of one month’s duration. Thereafter, the applicable Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Rate Borrowing, may elect Interest Periods therefor, all as provided in this Section. The applicable Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Swing Line Borrowings which may not be converted or continued.

(b)     To make an election pursuant to this Section, the applicable Borrower shall notify the Administrative Agent of such election in writing (which may be delivered electronically) by the time that a Borrowing Request would be required under Section 2.03 if such Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such Interest Election Request shall be irrevocable.

(c)     Each Interest Election Request shall be irrevocable and shall specify the following information in compliance with Section 2.02 :

(i)     the name of the applicable Borrower and the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii)  and (iv)  below shall be specified for each resulting Borrowing);

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

(iii)     whether the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar Rate Borrowing; and

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

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

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

 

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(e)     If the applicable Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Rate Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to a Base Rate Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the written request (including a request through electronic means) of the Required Lenders, so notifies the Borrowers, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Rate Borrowing and (ii) unless repaid, each Eurodollar Rate Borrowing shall be converted to a Base Rate Borrowing at the end of the Interest Period applicable thereto.

Section 2.08     Termination and Reduction of Commitments . (a) Unless previously terminated, the Revolving Facility Commitments shall terminate on the Facility Maturity Date.

(b)     The Borrowers may at any time terminate, or from time to time permanently reduce, the Revolving Facility Commitments and/or the Incremental Revolving Facility Commitments; provided that (i) each reduction of the Revolving Facility Commitments and/or the Incremental Revolving Facility Commitments shall be in an amount that is an integral multiple of $5,000,000 and not less than $10,000,000 (or, if less, the remaining amount of the Revolving Facility Commitments and/or the Incremental Revolving Facility Commitments) and (ii) the Borrowers shall not terminate or reduce the Revolving Facility Commitments and/or the Incremental Revolving Facility Commitments if, after giving effect to any concurrent prepayment of the Revolving Facility Loans in accordance with Section 2.11 , the Revolving Facility Credit Exposure would exceed the Maximum Credit.

(c)     The Borrowers shall notify the Administrative Agent of any election to terminate or permanently reduce the Revolving Facility Commitments and/or the Incremental Revolving Facility Commitments under paragraph (b)  of this Section 2.08 at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrowers pursuant to this Section shall be irrevocable; provided that a notice of termination of the Revolving Facility Commitments and/or the Incremental Revolving Facility Commitments delivered by the Borrowers may state that such notice is conditioned upon one or more events, including, without limitation, the effectiveness of other credit facilities, receivables financing facilities or the consummation of a Change in Control, in which case such notice may be revoked by the Borrowers (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of the Commitments shall be made ratably among the Lenders in accordance with their respective Commitments.

Section 2.09     Agreement to Repay Loans; Evidence of Debt . (a) The Borrowers hereby unconditionally promise to pay (i) to the Administrative Agent for the account of each Revolving Facility Lender the then unpaid principal amount of each Revolving Facility Loan of such Lender on the Facility Maturity Date and (ii) to the Swing Line Lender the then unpaid principal amount of each Swing Line Loan on the Facility Maturity Date. The Borrowers are jointly and severally liable for all ABL Credit Obligations.

(b)     Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of each Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

 

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(c)     The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Type thereof and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from each Borrower to each Lender hereunder and (iii) any amount received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

(d)     The entries made in the accounts maintained pursuant to paragraph (b)  or (c)  of this Section 2.09 shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of any Borrower to repay the Loans in accordance with the terms of this Agreement.

(e)     Any Lender may request that Loans made by it be evidenced by a promissory note (a “ Note ”). In such event, each Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) in a form approved by the Administrative Agent and reasonably acceptable to such Borrower. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 10.06) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

Section 2.10     Repayment of Loans . (a) To the extent not previously paid, outstanding Revolving Facility Loans shall be due and payable on the Facility Maturity Date.

(b)     Prior to any repayment of any Revolving Facility Loans, the Borrowers shall select the Borrowing or Borrowings under the Revolving Facility to be repaid and shall notify the Administrative Agent in writing (which may be delivered electronically) of such selection not later than 1:00 p.m., Local Time, (i) in the case of a Base Rate Borrowing, one Business Day before the scheduled date of such repayment and (ii) in the case of a Eurodollar Rate Borrowing, three Business Days before the scheduled date of such repayment. Each repayment of a Borrowing shall be applied to the Revolving Facility Loans included in the repaid Borrowing such that each Revolving Facility Lender receives its ratable share of such repayment (based upon the respective Revolving Facility Credit Exposures of the Revolving Facility Lenders at the time of such repayment). Notwithstanding anything to the contrary in the immediately preceding sentence, prior to any repayment of a Swing Line Loan hereunder, the Borrowers shall select the Borrowing or Borrowings to be repaid and shall notify the Administrative Agent in writing (which may be delivered electronically) of such selection not later than 1:00 p.m., Local Time, on the scheduled date of such repayment. Repayments of Eurodollar Rate Borrowings shall be accompanied by accrued interest on the amount repaid, together with any additional amounts required pursuant to Section 3.05 .

Section 2.11     Prepayment of Loans . (a) The Borrowers shall have the right at any time and from time to time to prepay any Loan in whole or in part, without premium or penalty (but subject to Section 3.05) , in an aggregate principal amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum or, if less, the amount outstanding, subject to prior notice in accordance with Section 2.10(b) , which notice shall be irrevocable except to the extent conditioned on the occurrence of one or more events, including, without limitation, a change of control or a refinancing of all or any portion of the Revolving Facility.

(b)     In the event and on each occasion that the total Revolving Facility Credit Exposure exceeds the lesser of (i) the Maximum Credit and (ii) the Borrowing Base in effect at such time (including any reduction of the Borrowing Base as a result of the receipt of Net Proceeds from a sale or

 

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other disposition of inventory or receivables outside the ordinary course of business as specified in clause (iii)  of the last paragraph of Section 7.05) , the Borrowers shall immediately prepay Revolving Facility Borrowings or Swing Line Borrowings (or, if no such Borrowings are outstanding, deposit Cash Collateral pursuant to Section 2.16 ) in an aggregate amount equal to such excess.

(c)     In the event and on each occasion that the L/C Obligations exceed (i) the Letter of Credit Sublimit or (ii) the lesser of the Maximum Credit and the Borrowing Base in effect at such time (including any reduction of the Borrowing Base as a result of the receipt of Net Proceeds from a sale or other disposition of inventory or receivables outside the ordinary course of business as specified in clause (iii)  of the last paragraph of Section 7.05) , the Borrowers shall immediately deposit Cash Collateral pursuant to Section 2.16 in an amount equal to such excess.

(d)     In the event and on each occasion that the Swing Line Loans exceed (i) the Swing Line Sublimit or (ii) the lesser of the Maximum Credit and the Borrowing Base in effect at such time (including any reduction of the Borrowing Base as a result of the receipt of Net Proceeds from a sale or other disposition of inventory or receivables outside the ordinary course of business as specified in clause (iii)  of the last paragraph of Section 7.05 ), the Borrowers shall immediately prepay Swing Line Borrowings in an aggregate amount equal to such excess.

Section 2.12     Fees . (a) The Borrowers shall pay to the Administrative Agent for the account of each Revolving Facility Lender (other than Defaulting Lenders), in accordance with each such Lender’s Revolving Facility Percentage, a quarterly commitment fee (the “ Commitment Fee ”) equal to the product of (i) the average daily Unutilized Commitments during each calendar quarter (or, with respect to the following clause (ii)(B)(1), during the period specified therein), multiplied by (ii) (A) 0.25%  per annum (with respect to each such period during which (x) the average daily Unutilized Commitments during such period divided by (y) the average daily Revolving Credit Commitments for such period is less than 50%) or (B) 0.375%  per annum (with respect to (1) the period beginning on the Effective Date and ending on the last day of the first full fiscal quarter after the Closing Date and (2) thereafter, each such period during which (x) the average daily Unutilized Commitments during such period divided by (y) the average daily Revolving Credit Commitments for such period is greater than or equal to 50%), in each case subject to adjustment as provided in Section 2.17 . For the avoidance of doubt, the Outstanding Amount of Swing Line Loans shall not be counted towards or considered usage of the aggregate Commitments for purposes of determining the Commitment Fee. The Commitment Fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article V is not met, and shall be due and payable quarterly in arrears on the first Business Day of each April, July, October and January, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period. The Commitment Fee shall be calculated quarterly in arrears, shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

(b)     The Borrowers from time to time agree to pay such Letter of Credit Fees and L/C Issuer Fees as specified in Section 2.05 .

(c)     The Borrowers agree to pay to the Administrative Agent, for the account of the Administrative Agent, the agency fees set forth in the Engagement Letter, as amended, restated, supplemented or otherwise modified from time to time, at the times specified therein (the “ Administrative Agent Fees ”).

(d)     The Borrowers shall pay to the Administrative Agent for the account of each Revolving Facility Lender (other than Defaulting Lenders) having commitments in respect of the Incremental Facility, in accordance with each such Lender’s Incremental Revolving Facility Percentage, a

 

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quarterly commitment fee (the “ Incremental Facility Commitment Fee ”) equal to the product of (i) the total Incremental Revolving Facility Commitments multiplied by (ii) 0.25%  per annum . The Incremental Facility Commitment Fee shall accrue at all times prior to the effectiveness of the Incremental Facility, including at any time during which one or more of the conditions in Article V is not met, and shall be due and payable quarterly in arrears on the first Business Day of each April, July, October and January commencing with the first such date to occur after the Closing Date, and on the effective date of the Incremental Facility. The Incremental Facility Commitment Fee shall be calculated quarterly in arrears, shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

(e)     The Borrowers agree to pay such Incremental Facility Exercise Fees as specified in Section 2.15 , at the time specified therein.

(f)     All Fees shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, if and as applicable, among the Lenders, except that L/C Issuer Fees shall be paid directly to the applicable L/C Issuers. Once paid, none of the Fees shall be refundable under any circumstances.

Section 2.13     Interest . (a) The Loans comprising each Base Rate Borrowing (including each Swing Line Loan) shall bear interest at the Base Rate plus the Applicable Margin for Base Rate Loans.

(b)     The Loans comprising each Eurodollar Rate Borrowing shall bear interest at the Adjusted Eurodollar Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin for Eurodollar Rate Loans.

(c)     Notwithstanding the foregoing, if any principal of or interest on any Loan or any Fees or other amount payable by any Borrower hereunder has not been paid when due, whether at stated maturity, upon acceleration or otherwise, such amount shall bear interest, after as well as before judgment, at a rate (the “ Default Rate ”) per annum equal to (i) in the case of overdue principal of any Loan, 2.0% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section 2.13 or (ii) in the case of any other amount, 2.0% plus the rate applicable to Base Rate Loans as provided in paragraph (a)  of this Section; provided that this paragraph (c)  shall not apply to any Event of Default that has been waived by the Lenders pursuant to Section 10.01 .

(d)     Accrued interest on each Loan shall be payable in arrears (i) on each Interest Payment Date for such Loan, (ii) upon termination of the Revolving Facility Commitments and (iii) on the Facility Maturity Date; provided that (i) interest accrued pursuant to paragraph (c)  of this Section 2.13 shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of a Base Rate Revolving Loan or a Swing Line Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Rate Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

(e)     All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Base Rate (including Base Rate Loans determined by reference to the Adjusted Eurodollar Rate) shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Base Rate, Adjusted Eurodollar Rate or

 

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Eurodollar Base Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

Section 2.14     Payments Generally; Pro Rata Treatment; Sharing of Setoffs . (a) Unless otherwise specified, the applicable Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of L/C Obligations, or of amounts payable under Section 3.01 , 3.04 or 3.05 , or otherwise) prior to 2:00 p.m., Local Time, on the date when due, in immediately available funds, without condition or deduction for any defense, recoupment, set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to the applicable account designated to such Borrower by the Administrative Agent, except payments to be made directly to the applicable L/C Issuer or the Swing Line Lender as expressly provided herein and except that payments pursuant to Sections 3.01 , 3.04 , 3.05 and 10.04 may be made directly to the persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments under the Loan Documents shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.

(b)     If at any time insufficient funds are received by and available to the Administrative Agent from any Borrower to pay fully all amounts of principal, unreimbursed L/C Obligations, interest and fees then due from such Borrower hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due from such Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, (ii) second, towards payment of principal of Swing Line Loans and unreimbursed L/C Obligations then due from such Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed L/C Obligations then due to such parties and (iii) third, towards payment of principal of Revolving Loans then due from such Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.

(c)     If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (i) ABL Credit Obligations due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (x) the amount of such ABL Credit Obligations due and payable to such Lender at such time to (y) the aggregate amount of the ABL Credit Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the ABL Credit Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time or (ii) ABL Credit Obligations owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (x) the amount of such ABL Credit Obligations owing (but not due and payable) to such Lender at such time to (y) the aggregate amount of the ABL Credit Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Parties at such time) of payment on account of the ABL Credit Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time, then the Lender receiving such greater proportion shall (A) notify the Administrative Agent of such fact, and (B) purchase (for cash at face value) participations in the Loans and sub-participations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other

 

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adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of ABL Credit Obligations then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided that:

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

(ii)     the provisions of this Section shall not be construed to apply to (A) any payment made by or on behalf of any Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (B) the application of Cash Collateral provided for in Section 2.16 or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or sub-participations in L/C Obligations or Swing Line Loans to any assignee or participant.

Each Borrower consents to this Section 2.14(c) and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.

(d)     Unless the Administrative Agent shall have received notice from the applicable Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if such Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

(e)     Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon, Local Time, on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02 ) and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and such Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by such Borrower, the interest rate

 

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applicable to Base Rate Loans. If such Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of such interest paid by such Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by a Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

Section 2.15     Incremental Commitments . Upon the satisfaction of the following conditions (such date of satisfaction, the “ Incremental Facility Effective Date ”), the total Revolving Facility Commitments shall be increased by an amount equal to the Incremental Amount:

(i)     no Default or Event of Default shall have occurred and be continuing or shall result after giving effect to the Incremental Facility;

(ii)     the Borrowers shall have paid to the Administrative Agent for the account of each Incremental Revolving Facility Lender (other than Defaulting Lenders) having Incremental Revolving Facility Commitments, ratably in accordance with each such Lender’s Incremental Revolving Facility Percentage, an accordion fee (the “ Incremental Facility Exercise Fee ”) equal to the product of (i) the total Incremental Revolving Facility Commitments multiplied by (ii) 0.125%  per annum ;

(iii)     the termination of the AB Receivables Financing and the payment in full or provision for payment in full of all obligations owing to the purchasers under the AB Receivables Financing, in each case in a manner reasonably acceptable to the Administrative Agent;

(iv)     the Administrative Agent shall maintain a senior perfected security interest in substantially all of the AB Receivables owned by Wise; and

(v)     the Administrative Agent shall have received a written notice signed by a Responsible Officer of each Borrower, notifying the Administrative Agent of the Borrowers’ election to exercise the Incremental Facility and certifying as to the matters set forth in this Section 2.15.

On the Incremental Facility Effective Date, (i) each relevant Incremental Revolving Facility Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Facility Loans of all the Lenders to equal its Pro Rata Share of such outstanding Revolving Facility Loans, and (ii) the Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Facility Loans as of the Incremental Facility Effective Date (with such reborrowing to consist of the Types of Revolving Facility Loans, with related Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, in accordance with the requirements of Section 2.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurodollar Rate Loan, shall be subject to indemnification by the applicable Borrower pursuant to the provisions of Section 3.05 if the deemed payment occurs other than on the last day of the related Interest Periods. Notwithstanding any provision herein or in any other Loan Document to the contrary, no Revolving Facility Loans, other Credit Events or any other financial accommodations advanced in excess of the total Revolving Facility Commitments as in effect immediately prior to the

 

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Incremental Facility Effective Date shall be secured by any Real Property unless and until the flood diligence required by Sections 6.02 and 10.01 has been completed in a manner satisfactory to each Lender, as confirmed by written notice from each such Lender to the Administrative Agent and the Borrowers after the Incremental Facility Effective Date.

Section 2.16     Cash Collateral .

(a)     Certain Credit Support Events . If (i) an L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, (iii) the Borrowers shall be required to provide Cash Collateral pursuant to Section 8.01 , or (iv) there shall exist a Defaulting Lender, the Borrowers shall immediately (in the case of clause (iii)  above) or within one Business Day (in all other cases) following any request by the Administrative Agent or the L/C Issuer, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv)  above, after giving effect to Section 2.17(a)(iv) and any Cash Collateral provided by the Defaulting Lender).

(b)     Grant of Security Interest . Each Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuers and the Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to subsection (c)  below. If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or an L/C Issuer as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrowers will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in one or more Controlled Accounts held with Wells Fargo. The Borrowers shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.

(c)     Application . Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.16 or Sections 2.04 , 2.05 , 2.17 or Section 8.01 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

(d)     Release . Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 10.06(b)(vi)) ) or (ii) the determination by the Administrative Agent and the applicable L/C Issuer that there exists excess Cash Collateral; provided , however , (x) any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and (y) the Person providing Cash Collateral and the applicable L/C

 

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Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.

Section 2.17     Defaulting Lenders .

(a)     Adjustments . Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

(i)     Waivers and Amendments . Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 10.01 .

(ii)     Defaulting Lender Waterfall . Any payment of principal, interest, fees, indemnity payments or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.09 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any L/C Issuer or Swing Line Lender hereunder; third , to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.16 ; fourth , as the Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth , if so determined by the Administrative Agent and the Borrowers, to be held in a deposit account and released pro-rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.16 ; sixth , to the payment of any amounts owing to the Lenders, the L/C Issuers or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any L/C Issuer or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh , so long as no Default or Event of Default exists, to the payment of any amounts owing to any Borrower as a result of any final, non-appealable judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 5.01 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro-rata in accordance with the Commitments hereunder without giving effect to Section 2.17(a)(iv) . Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.17(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

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(iii)     Certain Fees .

(A)     No Defaulting Lender shall be entitled to receive any Commitment Fee or any Incremental Facility Commitment Fee for any period during which that Lender is a Defaulting Lender (and no Borrower shall be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

(B)     Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Revolving Facility Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.16 .

(C)     With respect to any fee payable under Section 2.12(a) or any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A)  or (B)  above, the applicable Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv)  below, (y) pay to the applicable L/C Issuers and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuers’ or Swing Line Lender’s Fronting Exposure to such Defaulting Lender and (z) not be required to pay the remaining amount of any such fee.

(iv)     Reallocation of Revolving Facility Percentages to Reduce Fronting Exposure . All or any part of such Defaulting Lender’s participation in L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving Facility Percentages (calculated without regard to such Defaulting Lender’s Revolving Facility Commitment) but only to the extent that (x) the conditions set forth in Section 5.01 are satisfied at the time of such reallocation (and, unless the applicable Borrower shall have otherwise notified the Administrative Agent at such time, such Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Facility Credit Exposure of any Non- Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Facility Commitment. Subject to Section 10.24, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(v)     Cash Collateral, Repayment of Swing Line Loans . If the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected, the applicable Borrower shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, (x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lender’s Fronting Exposure and (y) second, Cash Collateralize the L/C Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 2.16 .

(b)     Defaulting Lender Cure . If each Borrower, the Administrative Agent, the Swing Line Lender and one or more applicable L/C Issuers, in their sole discretion, agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent

 

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applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro-rata basis by the Lenders in accordance with their Revolving Facility Percentages (carried out to the ninth decimal place) (without giving effect to Section 2.17(a)(iv) , whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Borrower while that Lender was a Defaulting Lender; provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

Section 2.18     Agent Advances .

(a)     Subject to the limitations set forth in the provisos contained in this Section 2.18 , the Administrative Agent is hereby authorized by the Borrowers and the Lenders, from time to time in the Administrative Agent’s sole discretion, (A) after the occurrence of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Article V have not been satisfied, to make Revolving Facility Loans to the Borrowers on behalf of the Lenders which the Administrative Agent, (1) in its Permitted Discretion, deems necessary or desirable to preserve or protect the Collateral, or any portion thereof, (2) in its Permitted Discretion, deems necessary or desirable to enhance the likelihood of, or maximize the amount of, repayment of the Revolving Facility Loans and other ABL Credit Obligations, or (3) in its reasonable business judgment, deems necessary or desirable to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement, including costs, fees, and expenses as described in Section 10.04 (any of the advances described in the foregoing clauses (1) and (2) being hereinafter referred to as “ Protective Advances ”; any of the advances described in the foregoing clause (3) being hereinafter referred to as “ Overadvances ”, and such Overadvances together with any Protective Advances, collectively, “ Agent Advances ”); provided that (x) the Revolving Facility Credit Exposure after giving effect to any Agent Advance shall not exceed the Maximum Credit and (y) Agent Advances outstanding and unpaid at no time will exceed 10% of the Borrowing Base then in effect in the aggregate; provided , further , that the Required Lenders may revoke the Administrative Agent’s authorization contained in this Section 2.18 to make additional Overadvances at any time after any Overadvances have been outstanding for thirty (30) consecutive days, any such revocation to be in writing and to become effective upon the Administrative Agent’s receipt thereof provided further that no Protective Advances shall be revocable.

(b)     The Agent Advances shall be repayable on demand and secured by the Collateral Agent’s Liens in and to the Collateral, shall constitute Revolving Facility Loans and ABL Credit Obligations hereunder, and shall bear interest at the rate applicable to Base Rate Loans from time to time. The Administrative Agent shall notify each Lender in writing of each Agent Advance; provided that any delay or failure of the Administrative Agent in providing any such notice to any Lender shall not result in any liability or constitute the breach of any duty or obligation of the Administrative Agent hereunder.

Section 2.19     Settlement . Except as may be specifically provided otherwise herein, it is agreed that each Lender’s funded portion of the Revolving Facility Loans is intended by the Lenders to be equal at all times to such Lender’s applicable Pro Rata Share of the outstanding Revolving Facility Loans of such Type. Notwithstanding such agreement, the Administrative Agent, the Swing Line Lender, and the Lenders agree (which agreement shall not be for the benefit of or enforceable by any Borrower) that in order to facilitate the administration of this Agreement and the other Loan Documents, settlement among them as to the Revolving Facility Loans, including the Swing Line Loans and the Agent Advances, shall take place on a periodic basis in accordance with the following provisions:

 

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(i)     The Administrative Agent shall request settlement (a “ Settlement ”) with the Lenders on at least a weekly basis, or on a more frequent basis if so determined by the Administrative Agent, (A) on behalf of the Swing Line Lender, with respect to each outstanding Swing Line Loan, (B) for itself, with respect to each Agent Advance, and (C) with respect to collections received, in each case, by notifying the Lenders of such requested Settlement by fax, telephone, or other means of written electronic communication, no later than 12:00 noon, Local Time, on the date of such requested Settlement (the “ Settlement Date ”). Each Revolving Facility Lender (other than the Swing Line Lender, in the case of Swing Line Loans, and the Administrative Agent, in the case of Agent Advances) shall make the amount of such Lender’s Pro Rata Share of the outstanding principal amount of the Swing Line Loans and Agent Advances with respect to which Settlement is requested available to the Administrative Agent at the Administrative Agent’s Office not later than 3:00 p.m., Local Time, on the Settlement Date applicable thereto, which may occur before or after the occurrence or during the continuation of a Default or an Event of Default and whether or not the applicable conditions precedent set forth in Article V have then been satisfied. Such amounts made available to the Administrative Agent shall be applied against the amounts of the applicable Swing Line Loan or Agent Advance and, together with the portion of such Swing Line Loan or Agent Advance representing the Swing Line Lender’s Pro Rata Share thereof, shall constitute Revolving Facility Loans of the Lenders, respectively. If any such amount is not made available to the Administrative Agent by any Lender on the Settlement Date applicable thereto, the Administrative Agent shall, on behalf of the Swing Line Lender with respect to each outstanding Swing Line Loan and for itself with respect to each Agent Advance, be entitled to recover such amount on demand from such Lender together with interest thereon at the Federal Funds Rate for the first three (3) days from and after the Settlement Date and thereafter at the interest rate then applicable to Revolving Facility Loans that are Base Rate Loans.

(ii)     Notwithstanding the foregoing, not more than one (1) Business Day after demand is made by the Administrative Agent (whether before or after the occurrence of a Default or an Event of Default and regardless of whether the Administrative Agent has requested a Settlement with respect to a Swing Line Loan or Agent Advance), each Lender (A) shall irrevocably and unconditionally purchase and receive from the Swing Line Lender or the Administrative Agent, as applicable, without recourse or warranty, an undivided interest and participation in such Swing Line Loan or Agent Advance equal to such Lender’s Pro Rata Share of such Swing Line Loan or Agent Advance and (B) if Settlement has not previously occurred with respect to such Swing Line Loans or Agent Advances, upon demand by the Swing Line Lender or the Administrative Agent, as applicable, shall pay to the Swing Line Lender or the Administrative Agent, as applicable, as the purchase price of such participation an amount equal to one-hundred percent (100%) of such Lender’s Pro Rata Share of such Swing Line Loans or Agent Advances. If such amount is not in fact made available to the Administrative Agent by any Lender, the Administrative Agent shall be entitled to recover such amount on demand from such Lender together with interest thereon at the Federal Funds Rate for the first three (3) days from and after such demand and thereafter at the interest rate then applicable to Base Rate Loans.

(iii)     From and after the date, if any, on which any Lender purchases an undivided interest and participation in any Swing Line Loan or Agent Advance pursuant to clause (ii)  preceding, the Administrative Agent shall promptly distribute to such Lender such Lender’s Pro Rata Share of all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Swing Line Loan or Agent Advance.

(iv)     Between Settlement Dates, to the extent no Agent Advances are outstanding, the Administrative Agent may pay over to the Swing Line Lender any payments

 

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received by the Administrative Agent, which in accordance with the terms of this Agreement would be applied to the reduction of the Revolving Facility Loans, for application to the Swing Line Lender’s Revolving Facility Loans including Swing Line Loans. If, as of any Settlement Date, collections received since the then immediately preceding Settlement Date have been applied to the Swing Line Lender’s Revolving Facility Loans (other than to Swing Line Loans or Agent Advances in which a Lender has not yet funded its purchase of a participation, as provided for in the previous sentence), the Swing Line Lender shall pay to the Administrative Agent for the accounts of the Lenders, to be applied to the outstanding Revolving Facility Loans of such Lenders, an amount such that each Lender shall, upon receipt of such amount, have, as of such Settlement Date, its Pro Rata Share of the Revolving Facility Loans. During the period between Settlement Dates, the Swing Line Lender with respect to Swing Line Loans, the Administrative Agent with respect to Agent Advances, and each Lender with respect to the Revolving Facility Loans other than Swing Line Loans and Agent Advances, shall be entitled to interest at the applicable rate or rates payable under this Agreement on the actual average daily amount of funds employed by the Swing Line Lender, the Administrative Agent, and the Lenders.

(v)     Unless the Administrative Agent has received written notice from a Lender to the contrary, the Administrative Agent may assume that the applicable conditions precedent set forth in Article V have been satisfied and the requested Borrowing will not exceed Availability on any date for funding a Revolving Facility Loan or Swing Line Loan. If any Lender makes available to the Administrative Agent funds for any Revolving Facility Loan to be made by such Lender as provided in the provisions of this Article II , and such funds are not made available to the applicable Borrower by the Administrative Agent because the conditions set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY

Section 3.01     Taxes .

(a)     Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.

(i)     Any and all payments by or on account of any obligation of any Loan Party or the Parent Guarantor under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion of the Administrative Agent, Loan Party or the Parent Guarantor) require the deduction or withholding of any Tax from any such payment by the Administrative Agent, a Loan Party or the Parent Guarantor, then the Administrative Agent, such Loan Party or the Parent Guarantor shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to subsection (e)  below.

(ii)     If any Loan Party, the Parent Guarantor or the Administrative Agent shall be required by any applicable Laws to withhold or deduct any Taxes from any payment under any Loan Documents, then (A) such Loan Party, the Parent Guarantor or the Administrative Agent shall withhold or make such deductions as are determined by such Loan Party, the Parent Guarantor or the Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (e)  below, (B) such Loan Party, the Parent Guarantor or the Administrative Agent shall timely pay the full amount withheld

 

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or deducted to the relevant Governmental Authority in accordance with the applicable Law and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party or the Parent Guarantor shall be increased as necessary so that after any required withholding or the making of all required deductions for Indemnified Taxes (including deductions for Indemnified Taxes applicable to additional sums payable under this Section 3.01(ii) ) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction of Indemnified Taxes been made.

(b)     Payment of Other Taxes by the Loan Parties . Without limiting the provisions of subsection (a)  above, the Loan Parties or the Parent Guarantor shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(c)     Tax Indemnifications.

(i)     Without duplication of any additional amounts paid pursuant to Section 3.01(a) or (b) , each of the Loan Parties and the Parent Guarantor shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereof within 10 Business Days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrowers by a Lender or an L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall be conclusive absent manifest error.

(ii)     Each Lender and L/C Issuer shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days after demand therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to such Lender or L/C Issuer (but only to the extent that any Loan Party or the Parent Guarantor has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties or the Parent Guarantor to do so), (y) the Administrative Agent against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d) relating to the maintenance of a Participant Register and (z) the Administrative Agent against any Excluded Taxes attributable to such Lender or L/C Issuer, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender or L/C Issuer by the Administrative Agent shall be conclusive absent manifest error. Each Lender and L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii) .

(d)     Evidence of Payments . Upon request by a Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by any Loan Party, the Parent Guarantor or the Administrative Agent to a Governmental Authority as provided in this Section 3.01 , such Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to such Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority

 

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evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to such Borrower or the Administrative Agent, as the case may be.

(e)     Status of Lenders; Tax Documentation.

(i)       Each Lender and L/C Issuer that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, each Lender and L/C Issuer, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender or L/C Issuer is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A) , (ii)(B) , (ii)(C) and (ii)(D) below) shall not be required if in the Lender’s, L/C Issuer’s or Swing Line Lender’s reasonable judgment such completion, execution or submission would subject such Lender or L/C Issuer to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender or L/C Issuer.

(ii)       Without limiting the generality of the foregoing:

(A)     each Lender or L/C Issuer that is a U.S. Person (or, if such Lender or L/C Issuer is disregarded as an entity separate from its owner for U.S. federal income tax purposes, is owned by a U.S. Person) shall deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Lender or L/C Issuer becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), duly completed and executed originals of IRS Form W-9 certifying that such Lender or L/C Issuer or such U.S. Person, as applicable, is exempt from U.S. federal backup withholding Tax;

(B)     any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:

(1)     in the case of a Foreign Lender (or, if such Foreign Lender is disregarded as an entity separate from its owner for U.S. federal income tax purposes, the Person treated as its owner for U.S. federal income tax purposes) relying on the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, duly completed and executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty

 

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and (y) with respect to any other applicable payments under any Loan Document, duly completed and executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2)     duly completed and executed originals of IRS Form W-8ECI with respect to such Foreign Lender (or, if such Foreign Lender is disregarded as an entity separate from its owner for U.S. federal income tax purposes, with respect to the Person treated as its owner for U.S. federal income tax purposes);

(3)     in the case of a Foreign Lender (or, if such Foreign Lender is disregarded as an entity separate from its owner for U.S. federal income tax purposes, the Person treated as its owner for U.S. federal income tax purposes) relying on the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit D-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) duly completed and executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or

(4)     to the extent a Foreign Lender (or, if such Foreign Lender is disregarded as an entity separate from its owner for U.S. federal income tax purposes, the Person treated as its owner for U.S. federal income tax purposes) is not the beneficial owner, duly completed and executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2 or Exhibit D-3 , IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender (or, if such Foreign Lender is disregarded as an entity separate from its owner for U.S. federal income tax purposes, the Person treated as its owner for U.S. federal income tax purposes) is a partnership and one or more direct or indirect partners of such Foreign Lender (or owner) are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-4 on behalf of each such direct and indirect partner;

provided that, for the absence of doubt, in the event a Foreign Lender is eligible for more than one benefit or exemption described in the above clauses, such Foreign Lender shall deliver to the Borrowers and the Administrative Agent properly completed and executed documentation described in whichever of the clause above would establish an exemption from or the greatest reduction of withholding Tax with respect to payments made under any Loan Document;

(C)     any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a party to this Agreement (and from time to time thereafter upon the reasonable

 

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request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and

(D)     if a payment made to any Lender or L/C Issuer under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender or L/C Issuer were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender or L/C Issuer shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by applicable Law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender or L/C Issuer has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D) , “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(iii)     Each Lender or L/C Issuer agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall promptly (x) update such form or certification or (y) notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.

(iv)     Each Lender, L/C Issuer and Swing Line Lender shall promptly (A) notify the Borrowers, the Holdcos and the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender or L/C Issuer, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Laws of any jurisdiction that the Borrowers, the Holdcos or the Administrative Agent make any withholding or deduction for Taxes from amounts payable to such Lender or L/C Issuer.

(f)     If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01) , it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (f) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional

 

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amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(g)     FATCA . For purposes of determining withholding Taxes imposed under FATCA, from and after the Closing Date, each Borrower and the Administrative Agent shall treat (and the Lenders and the L/C Issuer hereby authorize the Administrative Agent to treat) the obligations under the Loan Documents as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

(h)     Survival . Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender or an L/C Issuer, the termination of the Commitments and the repayment, satisfaction or discharge of all other ABL Credit Obligations.

Section 3.02     Illegality . If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Base Rate, or to determine or charge interest rates based upon the Eurodollar Base Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrowers through the Administrative Agent, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Base Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Base Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Base Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Base Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Base Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Base Rate. Each Lender agrees to notify the Administrative Agent and the Borrowers in writing promptly upon becoming aware that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Base Rate. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.

Section 3.03     Inability to Determine Rates . If the Required Lenders advise the Administrative Agent prior to a Eurodollar Rate Borrowing or a conversion of a Base Rate Loan to a Eurodollar Rate Loan or a continuation of a Eurodollar Rate Loan that (i) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (ii) adequate and reasonable means do not exist for determining the

 

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Eurodollar Base Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan or (iii) the Eurodollar Base Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will as promptly as practicable so notify the applicable Borrower (by telephone and/or fax) and each Lender. Thereafter, (x) any Interest Election Request that requests the conversion of any Base Rate Loan to a Eurodollar Rate Loan or the continuation of a Eurodollar Rate Loan shall be ineffective, (y) if any Borrowing Request requests a Eurodollar Rate Borrowing, then such Borrowing shall be made as a Base Rate Borrowing and (z) in the event of a determination described in the preceding sentence with respect to the Eurodollar Base Rate component of the Base Rate, the utilization of the Eurodollar Base Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Notwithstanding anything to the contrary herein, upon receipt of such notice, such Borrower may revoke any pending request for a Eurodollar Rate Borrowing, conversion of a Base Rate Loan to a Eurodollar Rate Loan or a continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.

Section 3.04     Increased Costs .

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

(i)     impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement, including any compulsory loan, insurance charge or similar requirement against assets held by, deposits with or for the account of, or credit extended or participated in by, any Lender (or its applicable Lending Office) (except any reserve requirement which is reflected in the determination of the Adjusted Eurodollar Rate hereunder) or any L/C Issuer;

(ii)     subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii)     impose on any Lender (or its applicable Lending Office) or L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient (or its applicable Lending Office) of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender, any L/C Issuer or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, L/C Issuer or such other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, L/C Issuer or such other Recipient, the applicable Borrower will pay to such Lender, L/C Issuer or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, L/C Issuer or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

(b)     Capital Requirements . If any Lender or an L/C Issuer determines that any Change in Law affecting such Lender or an L/C Issuer or its applicable Lending Office or such Lender’s or an L/C Issuer’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s or an L/C Issuer’s capital or on the capital of such

 

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Lender’s or an L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or L/C Issuer or such Lender’s or L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or L/C Issuer’s policies and the policies of such Lender’s or L/C Issuer’s holding company with respect to capital adequacy and liquidity requirements), then from time to time the Borrowers will pay to such Lender or L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or L/C Issuer or such Lender’s or L/C Issuer’s holding company for any such reduction suffered.

(c)     Certificates for Reimbursement . A certificate of a Lender or L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or L/C Issuer or its holding company, as the case may be, as specified in subsection (a)  or (b)  of this Section and delivered to the Borrowers shall be conclusive absent manifest error. The Borrowers shall pay such Lender or L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.

(d)     Delays in Requests . Failure or delay on the part of any Lender or L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s or L/C Issuer’s right to demand such compensation; provided that the Borrowers shall not be required to compensate a Lender or L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender or L/C Issuer, as the case may be, notifies the Borrowers of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof).

Section 3.05     Compensation for Losses . Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the applicable Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

(i)     any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);

(ii)     any failure by such Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by such Borrower pursuant to this Agreement; or

(iii)     any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by such Borrower pursuant to Section 2.15 or Section 10.14 ;

including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. Such Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.

For purposes of calculating amounts payable by the Borrowers to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Base Rate for such Loan by a matching deposit or, other borrowing in the London interbank

 

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eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.

Section 3.06     Mitigation Obligations; Replacement of Lenders .

(a)     Designation of a Different Lending Office . If any Lender requests compensation under Section 3.04, or if any Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender, any L/C Issuer or any Governmental Authority for the account of any Lender or L/C Issuer pursuant to Section 3.01 , or if any event gives rise to the operation of Section 3.02 , such Lender or L/C Issuer shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender or L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04 , as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02 , as applicable, and (ii) would not subject such Lender or L/C Issuer to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or L/C Issuer, as the case may be, in any material respect. The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender or L/C Issuer in connection with any such designation or assignment.

(b)     Replacement of Lenders . If any Lender requests compensation under Section 3.04 , or if any Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender or L/C Issuer pursuant to Section 3.01 and, in each case, such Lender or L/C Issuer has declined or is unable to designate a different Lending Office in accordance with Section 3.06(a) , such Borrower may replace such Lender or L/C Issuer in accordance with Section 10.14 .

Section 3.07     Survival . All of each Borrower’s obligations under this Article III shall survive repayment of all other ABL Credit Obligations hereunder and resignation of the Administrative Agent.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

On the date of each Credit Event as provided in Section 5.01 , each Holdco and each Borrower represents and warrants to each of the Lenders that:

Section 4.01     Organization; Powers . Except as set forth on Schedule 4.01 , each Holdco, each Borrower and each of the Material Subsidiaries (a) is a partnership, limited liability company or corporation duly organized, validly existing and in good standing (or, if applicable in a foreign jurisdiction, enjoys the equivalent status under the laws of any jurisdiction of organization outside the United States) under the laws of the jurisdiction of its organization, (b) has all requisite power and authority to own its property and assets and to carry on its business as now conducted, (c) is qualified to do business in each jurisdiction where such qualification is required, except where the failure so to qualify would not reasonably be expected to have a Material Adverse Effect, and (d) has the power and authority to execute, deliver and perform its obligations under each of the Loan Documents and each other agreement or instrument contemplated thereby to which it is or will be a party and, in the case of each Borrower, to borrow and otherwise obtain credit hereunder.

Section 4.02     Authorization . The execution, delivery and performance by the Holdcos, each Borrower and each of the Subsidiary Loan Parties of each of the Loan Documents to which it is a party, and the borrowings hereunder and the transactions forming a part of the Transactions (a) have

 

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been duly authorized by all corporate, stockholder, partnership or limited liability company action required to be obtained by the Holdcos, such Borrower and such Subsidiary Loan Parties and (b) will not (i) violate (A) any provision of law, statute, rule or regulation, or of the certificate or articles of incorporation or other constitutive documents (including any partnership, limited liability company or operating agreements) or bylaws of the Holdcos, any such Borrower or any such Subsidiary Loan Party, (B) any applicable order of any court or any rule, regulation or order of any Governmental Authority or (C) any provision of any indenture, certificate of designation for preferred stock, agreement or other instrument to which the Holdcos, any such Borrower or any such Subsidiary Loan Party is a party or by which any of them or any of their property is or may be bound, (ii) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, give rise to a right of or result in any cancellation or acceleration of any right or obligation (including any payment) or to a loss of a material benefit under any such indenture, certificate of designation for preferred stock, agreement or other instrument, where any such conflict, violation, breach or default referred to in clause (i)  or (ii)  of this Section 4.02(b) , would reasonably be expected to have, individually or in the aggregate a Material Adverse Effect, or (iii) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by any such Borrower or any such Subsidiary Loan Party, other than the Liens created by the Loan Documents and Permitted Liens.

Section 4.03     Enforceability . This Agreement has been duly executed and delivered by the Holdcos and each Borrower and constitutes, and each other Loan Document when executed and delivered by each Loan Party and the Parent Guarantor that is party thereto will constitute, a legal, valid and binding obligation of such Loan Party and the Parent Guarantor enforceable against each such Loan Party and the Parent Guarantor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing.

Section 4.04     Governmental Approvals . No action, consent, exemption or approval of, registration or filing with or any other action by, or notice to, any Governmental Authority is or will be required in connection with the Transactions, the perfection or maintenance of the Liens created under the Security Documents or the exercise by any Agent, any L/C Issuer or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral, except for (a) the filing of Uniform Commercial Code financing statements and equivalent filings, registrations or other notifications in foreign jurisdictions, (b) filings with the United States Patent and Trademark Office and the United States Copyright Office and comparable offices in foreign jurisdictions and equivalent filings in foreign jurisdictions, (c) recordation of the Mortgages, (d) such as have been made or obtained and are in full force and effect, (e) such actions, consents and approvals the failure of which to be obtained or made would not reasonably be expected to have a Material Adverse Effect and (f) filings or other actions listed on Schedule 4.04 .

Section 4.05     Financial Statements . The audited combined balance sheets of Ultimate Parent and its consolidated Subsidiaries as at the end of the 2015 and 2016 fiscal years, and the related audited combined statements of income, stockholders’ equity, and cash flows for such fiscal years, reported on by and accompanied by a report from the auditors thereof, copies of which have heretofore been furnished to each Lender, (i) present fairly in all material respects the combined financial position of Ultimate Parent and its consolidated Subsidiaries as at such date and the combined results of operations, stockholders’ equity, and cash flows of the Ultimate Parent and its Subsidiaries for the years then ended and (ii) were prepared in accordance with the Applicable Accounting Rules consistently applied throughout the respective periods covered thereby, except as otherwise expressly noted therein.

 

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Section 4.06     No Material Adverse Effect . Since December 31, 2016, there has been no event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect.

Section 4.07     Title to Properties; Possession Under Leases . (a) Each Borrower and each of its Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, or easements or other limited property interests in, all its Real Properties (including all Mortgaged Properties) and has good and valid title to its personal property and assets, in each case, except for Permitted Liens and except for defects in title that do not materially interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes and except where the failure to have such title would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. All such properties and assets are free and clear of Liens, other than Permitted Liens. As of the Closing Date, all material permits required to have been issued or appropriate to enable the Real Properties to be lawfully occupied and used for all of the purposes for which it is currently occupied and used have been lawfully issued and are in full force and effect.

(b)     Each Borrower and each of its Subsidiaries has complied with all obligations under all leases to which it is a party, except where the failure to comply would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and all such leases are in full force and effect, except leases in respect of which the failure to be in full force and effect would not reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 4.07(b) , each Borrower and each of its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, other than leases in respect of which the failure to enjoy peaceful and undisturbed possession would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(c)     As of the Closing Date, no Borrower nor any of their respective Subsidiaries has received any notice of any pending or contemplated condemnation proceeding affecting any material portion of the Mortgaged Properties or any sale or disposition thereof in lieu of condemnation that remains unresolved as of the Closing Date.

(d)     No Borrower nor any of their respective Subsidiaries is obligated on the Closing Date under any right of first refusal, option or other contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein, except as permitted by Section 7.02 or 7.05 .

Section 4.08     Subsidiaries . (a)  Schedule 4.08(a) sets forth as of the Closing Date the name and jurisdiction of incorporation, formation or organization of each direct and indirect subsidiary of the Holdcos (other than the Parent Guarantor) and, as to each such subsidiary, the percentage of each class of Equity Interests owned by Holdcos (other than the Parent Guarantor) or by any such subsidiary.

(b)     As of the Closing Date, there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options granted to employees or directors and directors’ qualifying shares) of any nature relating to any Equity Interests of any Borrower or any of its Subsidiaries, except as set forth on Schedule 4.08(b) .

Section 4.09     Litigation; Compliance with Laws . (a) There are no actions, suits or proceedings at law or in equity or, to the knowledge of any Borrower, investigations by or on behalf of any Governmental Authority or in arbitration now pending, or, to the knowledge of the Holdcos or any Borrower, threatened in writing against or affecting the Ultimate Parent, the Holdcos or the Borrowers or any of their respective Subsidiaries or any business, property or rights of any such person which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

 

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(b)     No Borrower nor any of their respective Subsidiaries and their respective properties or assets is in violation of (nor will the continued operation of their material properties and assets as currently conducted violate) any law, rule or regulation (including any zoning, building, ordinance, code or approval or any building permit, but excluding any Environmental Laws, which are subject to Section 4.16 ) or any restriction of record or agreement affecting any Mortgaged Property, or is in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(c)     No injunction, writ, temporary restraining order or any order of any nature has been issued by any court or other Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of this Agreement or any other Loan Document, or directing that the transactions provided for herein or therein not be consummated as herein or therein provided.

Section 4.10     Federal Reserve Regulations . (a) None of the Holdcos, the Borrowers or the Borrowers’ Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock.

(b)     No part of the proceeds of any Loan will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or to refund indebtedness originally incurred for such purpose, or (ii) for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board, including Regulation U or Regulation X.

Section 4.11     Investment Company Act . None of the Holdcos, the Borrowers and the Borrowers’ Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.

Section 4.12     Use of Proceeds . The Borrowers will use the proceeds of each Credit Event for general corporate purposes and to effect the Refinancing.

Section 4.13     Taxes . Except as set forth on Schedule 4.13 :

(i)     except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (x) each of the Holdcos, each Borrower and its Subsidiaries has filed or caused to be filed all federal, state, local and non-U.S. Tax returns required to have been filed by it and (y) each such Tax return is true and correct;

(ii)     each of the Holdcos, each Borrower and its Subsidiaries has timely paid or caused to be timely paid all Taxes shown to be due and payable by it on the returns referred to in clause (a)(i) above and all other Taxes or assessments (or made adequate provision (in accordance with the Applicable Accounting Rules) for the payment of all Taxes due) with respect to all periods or portions thereof ending on or before the Closing Date (except Taxes or assessments that are being contested in good faith by appropriate proceedings in accordance with Section 6.03 and for which the Holdcos, any Borrower or any of its Subsidiaries (as the case may be) has set aside on its books adequate reserves in accordance with the Applicable Accounting Rules), which Taxes, if not paid or adequately provided for, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and

 

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(iii)     other than as would not be, individually or in the aggregate, reasonably expected to have a Material Adverse Effect as of the Closing Date, with respect to each of the Holdcos, each Borrower and its Subsidiaries, there are no claims being asserted in writing by any Governmental Authority with respect to any Taxes.

Section 4.14     No Material Misstatements . (a) All written information (other than the Projections, estimates and information of a general economic nature or general industry nature) (the “ Information ”) concerning the Holdcos, the Borrowers, their respective Subsidiaries, the Transactions and any other transactions contemplated hereby included in the Information Memorandum or otherwise prepared by or on behalf of the foregoing or their representatives and made available to any Lenders or the Administrative Agent in connection with the Transactions or the other transactions contemplated hereby, when taken as a whole, was true and correct in all material respects, as of the date such Information was furnished to the Lenders and, if delivered prior to the Closing Date, as of the Closing Date and did not, taken as a whole, contain any untrue statement of a material fact as of any such date or omit to state a material fact necessary in order to make the statements contained therein, taken as a whole, not materially misleading in light of the circumstances under which such statements were made.

(b)     The Projections and estimates and information of a general economic nature prepared by or on behalf of any Borrower or any of its representatives and that have been made available to any Lenders or the Administrative Agent in connection with the Transactions or the other transactions contemplated hereby (i) have been prepared in good faith based upon assumptions believed by such Borrower to be reasonable as of the date thereof (it being understood that actual results may vary materially from the Projections), as of the date such Projections and estimates were furnished to the Lenders and as of the Closing Date, and (ii) as of the Closing Date, have not been modified in any material respect by such Borrower.

Section 4.15     Employee Benefit Plans . (a) Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect:(i) each Plan is in compliance in all respects with the applicable provisions of ERISA and the Code; (ii) no Reportable Event has occurred during the past five years; (iii) no Plan has any Unfunded Pension Liability; (iv) no ERISA Event has occurred or is reasonably expected to occur; and (v) none of the Holdcos, the Borrowers, their respective Subsidiaries and the ERISA Affiliates (A) has received any written notification that any Multiemployer Plan is insolvent or has been terminated within the meaning of Title IV of ERISA, or has knowledge that any Multiemployer Plan is reasonably expected to be insolvent or to be terminated or (B) has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.

(b)     Each of the Holdcos, the Borrowers and their respective Subsidiaries is in compliance (i) with all applicable provisions of law and all applicable regulations and published interpretations thereunder with respect to any employee pension benefit plan or other employee benefit plan governed by the laws of a jurisdiction other than the United States and (ii) with the terms of any such plan, except, in each case, for such noncompliance that would not reasonably be expected to have a Material Adverse Effect.

(c)     Within the last five years, no Plan of the Holdcos, Borrowers, any Subsidiaries or the ERISA Affiliates has been terminated, whether or not in a “standard termination” as that term is used in Section 4041(b)(1) of ERISA, that would reasonably be expected to result in liability to the Holdcos, Borrowers, any Subsidiaries or the ERISA Affiliates in excess of $1,000,000, nor has any Plan of the Holdcos, Borrowers, any Subsidiaries or the ERISA Affiliates (determined at any time within the past five years) with Unfunded Pension Liabilities been transferred outside of the “controlled group” (with the

 

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meaning of Section 4001(a)(14) of ERISA) of the Holdcos, Borrowers, any Subsidiaries or the ERISA Affiliates, in either case, that has or would reasonably be expected to result in a Material Adverse Effect.

Section 4.16     Environmental Matters . Except as set forth in Schedule 4.16 and except as to matters that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) no written notice, request for information, order, complaint or penalty has been received by any Borrower or any of its Subsidiaries, and there are no judicial, administrative or other actions, suits or proceedings pending or, to such Borrower’s knowledge, threatened, which allege a violation of or liability under any Environmental Laws, in each case relating to such Borrower or any of its Subsidiaries, (ii) each Borrower and each of its Subsidiaries has all environmental permits, licenses and other approvals necessary for its operations to comply with all applicable Environmental Laws and is, and during the term of all applicable statutes of limitation, has been, in compliance with the terms of such permits, licenses and other approvals and with all other applicable Environmental Laws, (iii) to any Borrower’s knowledge, no Hazardous Material is located at, on or under any property currently owned, operated or leased by such Borrower or any of its Subsidiaries that would reasonably be expected to give rise to any cost, liability or obligation of such Borrower or any of its Subsidiaries under any Environmental Laws, and no Hazardous Material has been generated, owned, treated, stored, handled or controlled by such Borrower or any of its Subsidiaries and transported to or Released at any location in a manner that would reasonably be expected to give rise to any cost, liability or obligation of such Borrower or any of its Subsidiaries under any Environmental Laws, (iv) there are no agreements in which any Borrower or any of its Subsidiaries has expressly assumed or undertaken responsibility for any known or reasonably likely liability or obligation of any other person arising under or relating to Environmental Laws, which in any such case has not been made available to the Administrative Agent prior to the date hereof and (v) no Lien in favor of any Governmental Authority securing, in whole or in part, Environmental Liabilities has attached to any Property of any Borrower or any Subsidiary of any Borrower and, to the knowledge of the Borrowers, no facts, circumstances or conditions exist that would reasonably be expected to result in any such Lien attaching to any such Property.

Section 4.17     Security Documents . (a) The Collateral Agreement is effective to create in favor of the Collateral Agent (for the benefit of the Secured Parties) a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. In the case of the Pledged Collateral described in the Collateral Agreement, when certificates or promissory notes, as applicable, representing such Pledged Collateral, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, are delivered to the Collateral Agent, and in the case of the other Collateral described in the Collateral Agreement (other than the Intellectual Property (as defined in the Collateral Agreement)), when financing statements and other filings specified in the Perfection Certificate are filed in the offices specified in the Perfection Certificate, the Collateral Agent (for the benefit of the Secured Parties) shall have a perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and, subject to Section 9-315 of the New York Uniform Commercial Code, the proceeds thereof, as security for the ABL Finance Obligations to the extent perfection can be obtained by filing Uniform Commercial Code financing statements, in each case prior and superior in right to any other Person (except for Permitted Liens and subject to the Intercreditor Agreements).

(b)     When the Collateral Agreement, a summary thereof or one or more intellectual property security agreements in form and substance satisfactory to the Administrative Agent is properly filed in the United States Patent and Trademark Office and the United States Copyright Office, and, with respect to Collateral in which a security interest cannot be perfected by such filings, upon the proper filing of the financing statements referred to in paragraph (a)  above, the Collateral Agent (for the benefit of the Secured Parties) shall have a perfected Lien on, and security interest in, all right, title and interest of the Loan Parties thereunder in all domestic Intellectual Property, in each case prior and superior in right to any other person (except Permitted Liens and subject to the Intercreditor Agreements), it being

 

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understood that subsequent recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to perfect a lien on registered trademarks and patents, trademark and patent applications and registered copyrights acquired by the Loan Parties after the Closing Date.

(c)     The Mortgages to be executed and delivered after the Closing Date pursuant to Section 6.10 shall be effective to create in favor of the Collateral Agent (for the benefit of the Secured Parties) a valid Lien on all of the Loan Parties’ right, title and interest in and to the Mortgaged Property thereunder and the proceeds thereof, and when such Mortgages are filed or recorded in the proper real estate filing or recording offices, the Collateral Agent (for the benefit of the Secured Parties) shall have a perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Mortgaged Property and, to the extent applicable, subject to Section 9-315 of the Uniform Commercial Code, the proceeds thereof, in each case prior and superior in right to any other person, subject to the Intercreditor Agreements and except with respect to the rights of a person pursuant to Permitted Liens.

(d)     Notwithstanding anything herein (including this Section 4.17) or in any other Loan Document to the contrary, neither any Borrower nor any other Loan Party makes any representation or warranty as to the effects of perfection or non-perfection, the priority or the enforceability of any pledge of or security interest in any Equity Interests of any Foreign Subsidiary that is not a Loan Party, or as to the rights and remedies of the Administrative Agent, the Collateral Agent or any Lender with respect thereto, under foreign law.

Section 4.18     Location of Real Property and Leased Premises . (a) The Perfection Certificate correctly sets forth and identifies, in all material respects, as of the Closing Date all material Real Property owned by the Holdcos (other than the Parent Guarantor), the Borrowers and the Subsidiary Loan Parties and the addresses thereof. As of the Closing Date, the Holdcos (other than the Parent Guarantor), the Borrowers and the Subsidiary Loan Parties own in fee simple all the Real Property set forth as being owned by them on the Perfection Certificate.

(b)     The Perfection Certificate completely and correctly sets forth and identifies, in all material respects, as of the Closing Date, all material Real Property leased by the Holdcos (other than the Parent Guarantor), the Borrowers and the Subsidiary Loan Parties and the addresses thereof and the leases pursuant to which the Real Property is leased.

Section 4.19     Solvency . (a) Immediately after giving effect to the Transactions on the Closing Date or prior to the date this representation and warranty is made or remade, (i) the fair value of the assets of each Borrower (individually) and the Holdcos, the Borrowers and their respective Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, unmatured, unliquidated, contingent or otherwise, of such Borrower (individually) and the Holdcos, the Borrowers and their respective Subsidiaries on a consolidated basis, respectively; (ii) the present fair saleable value of the property of each Borrower (individually) and the Holdcos, the Borrowers and their respective Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of such Borrower (individually) and the Holdcos, the Borrowers and their respective Subsidiaries on a consolidated basis, respectively, on their debts and other liabilities, direct, subordinated, unmatured, unliquidated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) each Borrower (individually) and the Holdcos, the Borrowers and their respective Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) each Borrower (individually) and the Holdcos, the Borrowers and their respective Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which

 

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they are engaged as such businesses are now conducted and are proposed to be conducted following the Closing Date.

(b)     On the Closing Date, neither the Holdcos nor any Borrower intends to, and neither the Holdcos nor any Borrower believes that it or any of its subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it or any such subsidiary and the timing and amounts of cash to be payable on or in respect of its Indebtedness or the Indebtedness of any such subsidiary.

Section 4.20     Labor Matters . Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes pending or threatened against any Holdco (other than the Parent Guarantor), any Borrower or any of their respective Subsidiaries; (b) the hours worked by and payments made to employees of each Holdco (other than the Parent Guarantor), each Borrower and their respective Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable law dealing with such matters; and (c) all payments due from any Holdco (other than the Parent Guarantor), any Borrower or any of their respective Subsidiaries or for which any claim may be made against any Holdco (other than the Parent Guarantor), any Borrower or any of their respective Subsidiaries, on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of such Holdco, such Borrower or such Subsidiary to the extent required by the Applicable Accounting Rules. Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, the consummation of the Transactions will not give rise to a right of termination or right of renegotiation on the part of any union under any material collective bargaining agreement to which any Holdco (other than the Parent Guarantor), any Borrower or any of their respective Subsidiaries (or any predecessor) is a party or by which any Holdco (other than the Parent Guarantor), any Borrower or any of their respective Subsidiaries (or any predecessor) is bound.

Section 4.21     Insurance . Schedule 4.21 sets forth a true, complete and correct description, in all material respects, of all material insurance maintained by or on behalf of the Holdcos (other than the Parent Guarantor), the Borrowers and their respective Subsidiaries as of the Closing Date. As of such date, such insurance is in full force and effect.

Section 4.22     No Default . No Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.

Section 4.23     Intellectual Property; Licenses, Etc . Except as would not reasonably be expected to have a Material Adverse Effect and as set forth in Schedule 4.23 , (a) each Borrower and each of its Subsidiaries owns, or possesses the right to use, all of the patents, patent rights, trademarks, service marks, trade names, copyrights, mask works, domain names, and any and all applications or registrations for any of the foregoing (collectively, “ Intellectual Property Rights ”) that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other person, (b) to the best knowledge of each Borrower, neither such Borrower nor its Subsidiaries nor any Intellectual Property Right, proprietary right, product, process, method, substance, part, or other material now employed, sold or offered by or contemplated to be employed, sold or offered by such Borrower or its Subsidiaries infringes upon Intellectual Property Rights of any other person, and (c) no claim or litigation regarding any of the foregoing is pending or, to the best knowledge of each Borrower, threatened.

Section 4.24     Senior Debt . The ABL Credit Obligations constitute “Senior Debt” (or the equivalent thereof) and “Designated Senior Debt” (or the equivalent thereof) under the documentation

 

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governing any outstanding Indebtedness, if any, permitted to be incurred hereunder constituting Indebtedness that, by its terms, is expressly subordinated in right of payment to the ABL Credit Obligations pursuant to written agreement.

Section 4.25     Anti-Money Laundering and Economic Sanction Laws .

(a)     Except as could not reasonably be expected to have a Material Adverse Effect, no Loan Party or any of its subsidiaries or its Affiliates and none of the respective officers, directors or agents of such Loan Party, subsidiary or Affiliate has violated or is in violation of any applicable Anti- Money Laundering Laws.

(b)     No Loan Party nor any of its subsidiaries or its Affiliates nor, to its knowledge, any director, officer, employee, agent, Affiliate or representative of such Loan Party or Subsidiary (each, a “ Specified Person ”) is an individual or entity that is, or is owned or controlled by individuals or entities that are currently the subject of any sanctions or trade embargoes imposed, administered or enforced by OFAC, the U.S. Department of State, or any other Governmental Authority of the United States of America, including without limitation, OFAC or the U.S. Department of State, or by Her Majesty’s Treasury, the United Kingdom or the European Union (collectively, “ Sanctions ”), nor is any Loan Party or any of its subsidiaries or its Affiliates or any individuals or entities that own or control such person located, organized or resident in a Sanctioned Country.

(c)     Except to the extent permitted for a Person required to comply with Sanctions, no Specified Person will, directly or indirectly, use any proceeds of the Loans or lend, contribute or otherwise make available such proceeds to any Person (i) for the purpose of financing the activities or business of or with any Person or in any country or territory that, at the time of financing, is an Embargoed Person or a Sanctioned Country or (ii) in any other manner that would result in a violation of Sanctions by any Loan Party.

(d)     Except to the extent conducted in accordance with applicable Law, no Loan Party, nor any of its subsidiaries and Affiliates and, to its knowledge, none of the respective officers, directors, brokers or agents of such Loan Party, such subsidiary or such Affiliate acting or benefiting in any capacity in connection with the Loans (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Embargoed Person, (ii) deals in, or otherwise engages in any transaction related to, any property or interests in property blocked pursuant to any Sanctions or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the applicable prohibitions set forth under Sanctions.

Section 4.26     Anti-Corruption Laws . None of the Holdcos, any Borrower or any of their respective Subsidiaries nor, to their knowledge, any director, officer, agent, employee or Affiliate of the Holdcos, any Borrower or any of their respective Subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA or any other applicable anti-corruption laws, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization or approval of the payment of any money, or other property, gift, promise to give or authorization of the giving of anything of value, directly or indirectly, to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office in contravention of the FCPA or any other applicable anti-corruption laws. Each Borrower, its Subsidiaries and their respective Affiliates have conducted their businesses in compliance with applicable anti-corruption laws and the FCPA and will maintain policies and procedures designed to

 

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promote and achieve compliance with such laws and with the representation and warranty contained herein.

Section 4.27     Borrowing Base Matters . The calculation by the Borrowers of the Borrowing Base in each Borrowing Base Certificate delivered hereunder is complete and accurate in all material respects as of the time such calculation was made. The Administrative Agent may rely, in determining which Accounts are Eligible Accounts, and which Inventory is Eligible Inventory, on all statements and representations by the Borrowers and their respective Subsidiaries with respect thereto, as contained in the Borrowing Base Certificate, and in any other Loan Document.

Section 4.28     EEA Financial Institution . None of the Holdcos or any Borrower is an EEA Financial Institution.

ARTICLE V

CONDITIONS OF LENDING

The obligations of (a) the Lenders to make Loans and (b) any L/C Issuer to issue Letters of Credit or increase the stated amounts of Letters of Credit hereunder (each, a “ Credit Event ”) are subject to the satisfaction or waiver (in accordance with Section 10.01 hereof) of the following conditions:

Section 5.01     All Credit Events . On the date of each Credit Event:

(a)     The Administrative Agent shall have received, in the case of a Borrowing, a Borrowing Request as required by Section 2.03 (or a Borrowing Request shall have been deemed given in accordance with the last paragraph of Section 2.03 or with Section 2.04(c)(i) ) or, in the case of the issuance of a Letter of Credit, the applicable L/C Issuer and the Administrative Agent shall have received a notice requesting the issuance of such Letter of Credit as required by Section 2.05 .

(b)     The representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, to the extent that any such representations and warranties are qualified by materiality, in all respects) as of such date (other than an amendment, extension or renewal of a Letter of Credit without any increase in the stated amount of such Letter of Credit), as applicable, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or, to the extent that any such representations and warranties are qualified by materiality, in all respects) as of such earlier date).

(c)     At the time of and immediately after such Borrowing or issuance, amendment, extension or renewal of a Letter of Credit (other than an amendment, extension or renewal of a Letter of Credit without any increase in the stated amount of such Letter of Credit), as applicable, (i) no Event of Default or Default shall have occurred and be continuing or would result therefrom and (ii) the Revolving Facility Credit Exposure shall not exceed the lesser of (A) the Maximum Credit and (B) Borrowing Base.

Each such Credit Event shall be deemed to constitute a representation and warranty by the Borrowers on the date of such Borrowing, issuance, amendment, extension or renewal, as applicable, as to the matters specified in paragraphs (b)  and (c)  of this Section 5.01 .

Section 5.02     First Credit Event . On or prior to the Closing Date.

(a)     The Administrative Agent (or its counsel) shall have received from each party thereto either (i) a counterpart of this Agreement and each other Loan Document to be executed on or

 

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prior to the Closing Date, signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and such other applicable Loan Documents.

(b)     The Administrative Agent shall have received, on behalf of itself, the Lenders and the L/C Issuer on the Closing Date, a favorable written opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP and other counsel set forth on Schedule 5.02(b) , in each case addressed to the Administrative Agent, the Lenders and the L/C Issuer, which shall be in form and substance reasonably satisfactory to the Administrative Agent and covering such matters as the Administrative Agent shall reasonably request.

(c)     The Administrative Agent shall have received in the case of each Loan Party and the Parent Guarantor each of the items referred to in clauses (i) , (ii) , (iii)  and (iv)  below, to the extent applicable:

(i)     a copy of the certificate or articles of incorporation, certificate of limited partnership or certificate of formation, as applicable, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official), a copy of the deed of incorporation of the Parent Guarantor and a recent extract from the Dutch Trade Register of the Chamber of Commerce ( Kamer van Koophandel, afdeling Handelsregister ) relating to the Parent Guarantor;

(ii)     a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party and the Parent Guarantor dated the Closing Date and certifying;

(A)     that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party and the articles of association of the Parent Guarantor as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below;

(B)     that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party and the Parent Guarantor (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of each Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date;

(C)     that the certificate or articles of incorporation, certificate of limited partnership or certificate of formation of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above;

(D)     as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party (other than the Parent Guarantor); and

 

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(E)     as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party and the Parent Guarantor or, to the knowledge of such person, threatening the existence of such Loan Party and the Parent Guarantor;

(iii)     a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii)  above (other than the certificate with respect to the Parent Guarantor); and

(iv)     such other documents as the Administrative Agent, the Lenders and any L/C Issuer on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).

(d)     The Administrative Agent shall have received evidence that the elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date have been satisfied and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or have been released.

(e)     The Administrative Agent and the Lenders shall have received a solvency certificate substantially in the form of Exhibit B-1 and signed by the Chief Financial Officer or Treasurer, as applicable, of each Borrower.

(f)     The Administrative Agent shall have received a certificate signed by a Responsible Officer of each Borrower certifying as to the matters set forth in Section 5.01 and Section 5.02(i) and (j) .

(g)     All amounts due or outstanding in respect of each Existing Credit Agreement shall have been (or substantially with the closing under this Agreement shall be) paid in full, all commitments in respect thereof terminated and all guarantees thereof discharged and released, and the Administrative Agent shall have received a “pay-off” letter in respect thereof other than the Existing Letters of Credit, which shall remain outstanding on the Effective Date and continue as Letters of Credit under (and shall be governed by the terms of) this Agreement.

(h)     The Administrative Agent and the Lenders shall have received the financial information (i) referred to in Section 4.05 , (ii) described in Section 6.04(e) , on a quarterly basis through the end of the 2018 fiscal year and on an annual basis through the end of the 2021 fiscal year and (iii) described in Section 6.04(b) for each quarterly period ended since the last period for which audited financial statements are available, in the case of the foregoing clauses (i) and (ii), the results and assumptions set forth therein in form and substance reasonably satisfactory to the Administrative Agent.

(i)     On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, (x) no Borrower shall have outstanding any Indebtedness and each Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the extensions of credit under this Agreement and (ii) other Indebtedness permitted pursuant to Section 7.01 , (y) the Holdcos (other than the Parent Guarantor) shall have no Indebtedness for borrowed money for which they are liable as primary obligor and (z) after giving effect to the issuance of any Letters of Credit hereunder to backstop or otherwise replace any letters of credit outstanding under any Existing Credit Agreement, the Borrowers shall have remaining Availability in an amount of not less than $100,000,000.

 

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(j)     Since December 31, 2016 there shall not have been any event, development or circumstance that, individually or in the aggregate, has, had or would reasonably be expected to have a Material Adverse Effect.

(k)     All fees and expenses due and payable on or prior to the Closing Date, pursuant to the Engagement Letter or as may otherwise be agreed between the Borrowers and the Joint Lead Arrangers shall have been paid (which amounts, at the option of the Borrowers, may be offset against the proceeds of the Revolving Facility), including, to the extent invoiced, reimbursement or payment of all reasonable out of pocket expenses (including reasonable fees, charges and disbursements of Sidley Austin LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.

(l)     The Administrative Agent shall have received all insurance certificates satisfying the requirements of Section 6.02 of this Agreement.

(m)     The Administrative Agent and each Lender shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act to the extent requested not less than seven (7) Business Days prior to the Closing Date.

(n)     Each Borrower shall have delivered, or cause to be delivered, to the Administrative Agent an inventory appraisal from an Acceptable Appraiser and a field examination for each Borrower, in each case that are reasonably satisfactory in form and substance to the Administrative Agent on or prior to the Closing Date, and the Administrative Agent shall have received a Borrowing Base Certificate effective as of the last day of the month immediately preceding the Closing Date.

For purposes of determining compliance with the conditions specified in this Section 5.02 , each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.

ARTICLE VI

AFFIRMATIVE COVENANTS

Each Borrower covenants and agrees with each Lender that unless and until (i) all Commitments shall have been terminated, (ii) all ABL Credit Obligations arising under the Loan Documents (other than contingent obligations for unasserted claims) shall have been repaid and (iii) all Letters of Credit have been canceled or have expired (or shall have been Cash Collateralized or backstopped on terms reasonably satisfactory to the Administrative Agent) and all amounts drawn or paid thereunder have been reimbursed in full, unless the Required Lenders shall otherwise consent in writing, each Borrower will, and will cause each of the Material Subsidiaries to:

Section 6.01     Existence; Businesses and Properties . (a) Do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence, except, in the case of a Subsidiary of a Borrower, where the failure to do so would not reasonably be expected to have a Material Adverse Effect, and except as otherwise expressly permitted under Section 7.05 , and except for the liquidation or dissolution of Subsidiaries if the assets of such Subsidiaries, to the extent they exceed estimated liabilities, are acquired by a Borrower or a Wholly Owned Subsidiary of a Borrower in such

 

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liquidation or dissolution; provided that Subsidiary Loan Parties may not be liquidated into Subsidiaries that are not Loan Parties and Domestic Subsidiaries may not be liquidated into Foreign Subsidiaries.

(b)     Except where the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, do or cause to be done all things necessary to (i) lawfully obtain, preserve, renew, extend and keep in full force and effect the rights, privileges, qualifications, permits, franchises, authorizations, patents, trademarks, service marks, trade names, copyrights, licenses and rights with respect thereto necessary in the normal conduct of its business, (ii) at all times maintain and preserve all property necessary in the normal conduct of its business and keep such property in good repair, working order and condition and from time to time make, or cause to be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto necessary in order that the business carried on in connection therewith, if any, may be properly conducted at all times, and (iii) conduct its business and affairs without infringement of or interference with any Intellectual Property Right of any other Person in any respect (in each case except as expressly permitted by this Agreement).

Section 6.02     Insurance . (a) Maintain, with financially sound and reputable insurance companies (that are not Affiliates of any Loan Party), insurance in such amounts, providing such coverage as is sufficient and against such risks as are customarily maintained by similarly situated companies engaged in the same or similar businesses operating in the same or similar locations and cause, subject to the time periods set forth in clause (ix)  of the definition of “Collateral and Guarantee Requirement” and Schedule 6.10 , if applicable, the Administrative Agent to be listed as a loss payee on property policies and as an additional insured on liability policies. All such policies of insurance will contain an endorsement, in form and substance acceptable to the Administrative Agent, showing loss payable to the Administrative Agent (Form CP 1218 or equivalent and naming the Administrative Agent as lenders loss payee as agent for the Lenders) and extra expense and business interruption endorsements. Such endorsement, or an independent instrument furnished to the Administrative Agent, will provide that the insurance companies will give the Administrative Agent at least 30 days’ prior written notice before any such policy or policies of insurance shall be altered or canceled and that no act or default of the Loan Parties or any other Person shall affect the right of the Administrative Agent to recover under such policy or policies of insurance in case of loss or damage. Each Loan Party shall direct all present and future insurers under its “All Risk” policies of property insurance to pay all proceeds payable thereunder directly to the Administrative Agent. Subject to the terms of the Intercreditor Agreements, if any insurance proceeds are paid by check, draft or other instrument payable to any Loan Party and the Administrative Agent jointly, the Administrative Agent may endorse such Loan Party’s name thereon and do such other things as the Administrative Agent may deem advisable to reduce the same to cash. The Administrative Agent reserves the right at any time, upon review of each Loan Party’s risk profile, to reasonably require additional forms and limits of insurance. All flood insurance on Mortgaged Properties (including all related diligence, documentation and coverage) shall comply with the Flood Laws, or otherwise shall be reasonably satisfactory to all Lenders.

(b)     With respect to any Mortgaged Properties, if at any time the area in which the Premises (as defined in the Mortgages) are located is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), maintain, subject to the time periods and other requirements regarding flood insurance set forth in clause (vii)  of the definition of “Collateral and Guarantee Requirement” to the extent commercially reasonably available, flood insurance from such providers, on such terms, and in amounts no less than that maintained by the Borrowers and the Material Subsidiaries as of the Closing Date or in such other total amount as the Administrative Agent may from time to time reasonably require or as otherwise required by the Lenders, and otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as it may be amended from time to time.

 

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(c)     In connection with the covenants set forth in this Section 6.02 , it is understood and agreed that:

(i)     none of the Administrative Agent, the Lenders and their respective agents or employees shall be liable for any loss or damage insured by the insurance policies required to be maintained under this Section 6.02 , it being understood that (A) the Loan Parties shall look solely to their insurance companies or any other parties other than the aforesaid parties for the recovery of such loss or damage and (B) such insurance companies shall have no rights of subrogation against the Administrative Agent, the Lenders or their agents or employees. If, however, the insurance policies, as a matter of the internal policy of such insurer, do not provide waiver of subrogation rights against such parties, as required above, then each of the Holdcos and the Borrowers, on behalf of itself and behalf of each of its Subsidiaries, hereby agrees, to the extent permitted by law, to waive, and further agrees to cause each of their Subsidiaries to waive, its right of recovery, if any, against the Administrative Agent, the Lenders and their agents and employees; and

(ii)     the designation of any form, type or amount of insurance coverage by the Administrative Agent under this Section 6.02 shall in no event be deemed a representation, warranty or advice by the Administrative Agent or the Lenders that such insurance is adequate for the purposes of the business of the Holdcos, the Borrowers and their respective Subsidiaries or the protection of their properties.

(d)     Unless the Loan Parties provide the Administrative Agent with evidence of the insurance coverage required by this Agreement (including, without limitation, flood insurance), the Administrative Agent may purchase insurance (including, without limitation, flood insurance) at the Loan Parties’ expense to protect the Administrative Agent’s and Lenders’ interests in the Loan Parties’ and their Subsidiaries’ properties with ten (10) days’ prior written notice to the Loan Parties. This insurance may, but need not, protect the Loan Parties’ and their Subsidiaries’ interests. The coverage that the Administrative Agent purchases may not pay any claim that any Loan Party or any Subsidiary of any Loan Party makes or any claim that is made against such Loan Party or any Subsidiary in connection with said Property. The Loan Parties may later cancel any insurance purchased by the Administrative Agent, but only after providing the Administrative Agent with evidence that there has been obtained insurance as required by this Agreement. If the Administrative Agent purchases insurance, the Loan Parties will be responsible for the costs of that insurance, including interest and any other charges the Administrative Agent may impose in connection with the placement of insurance, until the effective date of the cancellation or expiration of the insurance. The costs of the insurance shall be added to the ABL Credit Obligations. The costs of the insurance may be more than the cost of insurance the Loan Parties may be able to obtain on their own.

Section 6.03     Taxes . Pay and discharge promptly when due all Taxes imposed upon it or upon its income or profits or in respect of its property, before the same shall become delinquent or in default, as well as all lawful claims which, if unpaid, might give rise to a Lien (other than a Permitted Lien) upon such properties or any part thereof, except to the extent the validity or amount thereof shall be contested in good faith by appropriate proceedings, and the Holdcos, the Borrowers or the affected Subsidiary, as applicable, shall have set aside on its books reserves in accordance with the Applicable Accounting Rules with respect thereto and except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

Section 6.04     Financial Statements, Reports, etc . Furnish to the Administrative Agent (which will promptly furnish such information to the Lenders):

 

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(a)     Within 120 days after the end of each fiscal year, a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of the Ultimate Parent and its Subsidiaries as of the close of such fiscal year and the consolidated results of its operations during such year and setting forth in comparative form the corresponding figures for the prior fiscal year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by independent public accountants of recognized national (in the United States of America) or international standing and accompanied by an opinion of such accountants (which opinion shall not be qualified as to scope of audit or as to the status of the Ultimate Parent as a going concern) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Ultimate Parent and its Subsidiaries on a consolidated basis in accordance with the Applicable Accounting Rules;

(b)     within 65 days after the end of each of the first three fiscal quarters of each fiscal year beginning with the fiscal quarter ending June 30, 2017, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of the Ultimate Parent and its Subsidiaries as of the close of such fiscal quarter and the consolidated results of its operations during such fiscal quarter and the then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of the Ultimate Parent on behalf of the Ultimate Parent as fairly presenting, in all material respects, the financial position and results of operations of the Ultimate Parent and its Subsidiaries on a consolidated basis in accordance with the Applicable Accounting Rules (subject to normal year-end audit adjustments and the absence of footnotes);

(c)     within 35 days after the end of each fiscal month of each fiscal year (including the last fiscal month of each fiscal year) beginning with the fiscal month ending June 30, 2017, a consolidated balance sheet and related statements of operations and cash flows showing the financial position of each Borrower and its Subsidiaries as of the close of such fiscal month and the consolidated results of its operations during such fiscal month and the then elapsed portion of the fiscal year and setting forth in comparative form the corresponding figures for the corresponding periods of the prior fiscal year, and which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Financial Officer of each Borrower on behalf of such Borrower as fairly presenting, in all material respects, the financial position and results of operations of such Borrower and its Subsidiaries on a consolidated basis in accordance with the Applicable Accounting Rules (subject to normal year-end audit adjustments and the absence of footnotes);

(d)     concurrently with any delivery of financial statements under paragraphs (a)  or (b)  above, a certificate of a Financial Officer of each Borrower (i) certifying that no Event of Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (ii) solely with respect to any fiscal period for which the average daily Availability during such fiscal period is less than 25% of the Maximum Credit, setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Fixed Charge Coverage Ratio and the Minimum Borrower EBITDA Contribution, (iii) setting forth computations in reasonable detail satisfactory to the Administrative Agent of the Average Quarterly Excess Availability, (iv) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (ii)  of the definition of the term Immaterial Subsidiary and (v) certifying a list of names of all Unrestricted Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Unrestricted Subsidiary;

 

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(e)     within 90 days after the beginning of each fiscal year, a reasonably detailed consolidated annual budget for each fiscal quarter during such fiscal year (including a projected consolidated balance sheet of each Borrower and its Subsidiaries as of the end of the following fiscal year, and the related consolidated statements of projected cash flow and projected income), including a description of underlying assumptions with respect thereto (collectively, the “ Budget ”), which Budget shall in each case be accompanied by the statement of a Financial Officer of each Borrower to the effect that the Budget is based on assumptions believed by such Financial Officer to be reasonable as of the date of delivery thereof;

(f)     upon the reasonable request of the Administrative Agent, an updated Perfection Certificate (or, to the extent such request relates to specified information contained in the Perfection Certificate, such information) reflecting all changes since the date of the information most recently received pursuant to this paragraph (f)  or Section 6.10(f) ;

(g)     (i) promptly, from time to time, such other information regarding the operations, collateral, business affairs and financial condition of the Holdcos, the Borrowers or any of the Borrowers’ respective Subsidiaries, or compliance with the terms of any Loan Document, or such consolidating financial statements as in each case the Administrative Agent may reasonably request (for itself or on behalf of any Lender) and (ii) prior written notice in the event that any Borrower changes its fiscal year end or any other material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary thereof;

(h)     promptly upon request by the Administrative Agent, copies of: (i) each Schedule SB or MB (Actuarial Information) to the most recent annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to a Plan; (ii) the most recent actuarial valuation report for any Plan; (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency, or provided to any Multiemployer Plan by the Holdcos, the Borrowers, a Subsidiary or any ERISA Affiliate, concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan or Multiemployer Plan as the Administrative Agent shall reasonably request; and

(i)     Borrowing Base Certificates, at the times specified in Section 6.13 .

Section 6.05     Litigation and Other Notices . Furnish to the Administrative Agent (which will promptly thereafter furnish to the Lenders) written notice of the following promptly after any Responsible Officer of the Holdcos or any Borrower obtains actual knowledge thereof:

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

(ii)     the filing or commencement of, or any written threat or notice of intention of any person to file or commence, any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority or in arbitration, against the Holdcos, any Borrower or any of the Borrowers’ respective Subsidiaries as to which an adverse determination is reasonably probable and which, if adversely determined, would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;

(iii)     any other development (including, without limitation, any development related to litigation or labor controversies) specific to the Holdcos, any Borrower or any of its Subsidiaries that is not a matter of general public knowledge and that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

 

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(iv)     the development or occurrence of any ERISA Event that, together with all other ERISA Events that have developed or occurred, would reasonably be expected to have a Material Adverse Effect;

(v)     the creation, establishment or acquisition of any direct or indirect Subsidiary of a Borrower; and

(vi)     the termination of, amendment to, or event of default under, any Secured Notes Document.

Section 6.06     Compliance with Laws . Comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; provided that this Section 6.06 shall not apply to Environmental Laws, which are the subject of Section 6.09 , or to laws related to Taxes, which are the subject of Section 6.03 .

Section 6.07     Maintaining Records; Access to Properties and Inspections . Maintain all financial records in accordance with the Applicable Accounting Rules and permit the Administrative Agent (and its consultants or agents), accompanied by any Lender which so elects, upon reasonable advance notice and at reasonable times during regular business hours, and at any time when an Event of Default exists, to have access to, examine, audit, make extracts from or copies of, and inspect any or all of the Loan Parties’ records, files, and books of account and the Collateral, and discuss the Loan Parties’ affairs with the Loan Parties’ officers and senior management; provided that, (i) unless an Event of Default is continuing, such access, examinations, audits and inspections shall be limited to two instances in any calendar year and (ii) all such access, examinations, audits and inspections will be at the Loan Parties’ expense. The Loan Parties will deliver to the Administrative Agent any instrument necessary for the Administrative Agent to obtain records from any service bureau maintaining records for the Loan Parties. The Administrative Agent may, and at the direction of the Required Lenders shall, at any time when an Event of Default exists, and at the Loan Parties’ expense, make copies of all of the Loan Parties’ books and records, or require the Loan Parties to deliver such copies to the Administrative Agent. Upon reasonable request to senior management of the applicable Borrower, the Administrative Agent may, without expense to the Administrative Agent, use such of the Loan Parties’ respective personnel, supplies, and premises as may be reasonably necessary for maintaining or enforcing the Collateral Agent’s Liens. The Administrative Agent shall have the right, at any time, in the Administrative Agent’s name or in the name of a nominee of the Administrative Agent, to verify the validity, amount, or any other matter relating to the Accounts, Inventory, or other Collateral, by mail, telephone, or otherwise; provided , however , in the absence of an Event of Default, the Collateral Agent agrees that it will not attempt to verify more than ten (10) Accounts each month.

Section 6.08     Use of Proceeds . Use the proceeds of each Credit Event solely for (a) working capital, capital expenditures, Permitted Business Acquisitions and other general corporate purposes not in violation of this Agreement or the other Loan Documents, (b) the Refinancing, (c) costs, expenses and fees in connection with the Revolving Facility and (d) upon the effectiveness of the Incremental Facility, the repayment of obligations owing to the purchasers under the AB Receivables Financing.

Section 6.09     Compliance with Environmental Laws . Comply, and make reasonable efforts to cause all lessees and other persons occupying its properties to comply, with all Environmental Laws applicable to its operations and properties; obtain and renew all material authorizations and permits required pursuant to Environmental Law for its operations and properties, in each case in accordance with Environmental Laws, complete any investigation, study, sampling and testing and undertake any clean up,

 

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removal, remediation or other response necessary to remove and clean up Hazardous Materials, to the extent such actions are required under any applicable Environmental Laws, and make an appropriate response to any notice, request for information, order, or complaint that alleges a violation of or liability under any Environmental Laws, except, in each case with respect to this Section 6.09 , to the extent the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

Section 6.10     Further Assurances; Additional Security . (a) Promptly execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that may be required under any applicable law or to carry out more effectively the purposes of this Agreement or any other Loan Document, including, for the avoidance of doubt, the post-closing items required to satisfy the Collateral and Guarantee Requirement set forth on Schedule 6.10 , or that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.

(b)     If any asset (including any Real Property (other than Real Property covered by paragraph (c)  below) or improvements thereto or any interest therein) that has an individual fair market value (as determined in good faith by the applicable Borrower) in an amount greater than $1,000,000 is acquired by a Borrower or any other Loan Party after the Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 6.10(g) or the Security Documents) (i) notify the Collateral Agent thereof, and (ii) cause such asset to be subjected to a Lien securing the ABL Finance Obligations (subject, as the case may be, to the Intercreditor Agreements and Permitted Liens) and take, and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect such Liens, (subject, as the case may be, to the Intercreditor Agreements and Permitted Liens), including actions described in paragraph (a)  of this Section 6.10 , all at the expense of the Loan Parties, subject to paragraph (g)  below.

(c)     Promptly notify the Collateral Agent of the acquisition of, and grant and cause each of the Subsidiary Loan Parties to grant to the Collateral Agent security interests and mortgages in, such Real Property of such Borrower or any such Subsidiary Loan Parties as are not covered by the original Mortgages, to the extent acquired after the Closing Date and having a value at the time of acquisition in excess of $25,000,000 in the aggregate, and, to the extent requested by the Collateral Agent, pursuant to documentation substantially in the form of the Mortgages delivered to the Collateral Agent pursuant to the post-closing timing requirement specified in the definition of “Collateral and Guarantee Requirement” or in such other form as is reasonably satisfactory to the Collateral Agent (each, an “ Additional Mortgage ”) and constituting valid and enforceable Liens subject to no other Liens except Permitted Liens and subject to the Intercreditor Agreements, at the time of perfection thereof, record or file, and cause each such Subsidiary to record or file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g)  below. Unless otherwise waived by the Collateral Agent, with respect to each such Additional Mortgage, the applicable Borrower shall deliver to the Collateral Agent (i) if such Real Property is an improved Real Property, prior to the execution and

 

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delivery of such Additional Mortgage, (x)(1) address and other identifying information with respect to such Real Property reasonably satisfactory to the Collateral Agent and (2) if any improvements on such Mortgaged Property are located within any area designated by the Director of the Federal Emergency Management Agency as a “special flood hazard” area (as may be established by a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such Mortgaged Property), evidence of a flood insurance policy (if such insurance is required by applicable Law and commercially reasonably available) from a company and in an amount satisfactory to the Collateral Agent for the applicable portion of the premises, naming the Collateral Agent, for the benefit of the Lenders, as mortgagee or (y) a certification from a registered engineer or land surveyor in a form reasonably satisfactory to the Collateral Agent or other evidence reasonably satisfactory to the Collateral Agent that none of the improvements on such Mortgaged Property is located within any area designated by the Director of the Federal Emergency Management Agency as a “special flood hazard” area and (ii) contemporaneously therewith a title insurance policy and a copy of any survey obtained by such Borrower with respect to each Real Property subject to an Additional Mortgage.

(d)     If any additional direct or indirect Subsidiary of any Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary), and if such Subsidiary is a Subsidiary Loan Party, within ten Business Days after the date such Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g)  below.

(e)     If any additional Foreign Subsidiary of any Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary), and if such Subsidiary is a “first tier” Foreign Subsidiary, within five Business Days after the date such Foreign Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to the Intercreditor Agreements and paragraph (g)  below.

(f)     (i) Furnish to the Collateral Agent prompt written notice of any change (A) in any Loan Party’s or the Parent Guarantor’s corporate or organization name or jurisdiction of organization or formation, (B) in any Loan Party’s or the Parent Guarantor’s identity or organizational structure or (C) in any Loan Party’s or the Parent Guarantor’s organizational identification number; provided that no Borrower shall effect or permit any such change unless all filings have been made, or will have been made within any statutory period, under the Uniform Commercial Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral for the benefit of the Secured Parties and (ii) promptly notify the Collateral Agent if any material portion of the Collateral is damaged or destroyed.

(g)     The Collateral and Guarantee Requirement and the other provisions of this Section 6.10 need not be satisfied with respect to (i) any motor vehicle, (ii) Exempt Deposit Accounts, (iii) any Equity Interests issued or acquired after the Closing Date (other than Equity Interests in each Borrower or, in the case of any person which is a Subsidiary, Equity Interests in such person issued or acquired after such person became a Subsidiary) in accordance with this Agreement if, and to the extent that, and for so long as (A) such Equity Interests constitute less than 100% of all applicable Equity

 

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Interests of such person and the person holding the remainder of such Equity Interests are not Affiliates, (B) doing so would violate applicable law or a contractual obligation binding on or with respect to such Equity Interests or such Subsidiary and (C) with respect to such contractual obligations, such obligation existed at the time of the acquisition thereof and was not created or made binding on or with respect to such Equity Interests or such Subsidiary in contemplation of or in connection with the acquisition of such Equity Interests or Subsidiary, (iv) any assets acquired after the Closing Date, to the extent that, and for so long as, taking such actions would violate an enforceable contractual obligation binding on such assets that existed at the time of the acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness permitted pursuant to Section 7.01(i) that is secured by a Permitted Lien) or (v) those assets as to which the Collateral Agent shall reasonably determine that the costs of obtaining or perfecting such a security interest are excessive in relation to the value of the security to be afforded thereby; provided that, upon the reasonable request of the Collateral Agent, the applicable Borrower shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (iii)  and (iv)  above.

(h)     Within 60 days after the Closing Date (or such later date as may be agreed by the Administrative Agent in its discretion), each Borrower shall execute and deliver to the Collateral Agent a Deposit Account Control Agreement with respect to each Deposit Account of such Borrower and the Loan Parties in existence as of the Closing Date, other than any Exempt Deposit Account.

(i)     Prior to any Loan Party establishing and funding a Deposit Account following the Closing Date, the applicable Borrower shall notify the Collateral Agent thereof and execute and deliver to the Collateral Agent a Deposit Account Control Agreement with respect to each such Deposit Account, other than any Exempt Deposit Account.

(j)     Following the Closing Date (and subject to the time period provided for in Section 6.10(h) ), the Loan Parties shall maintain effective Deposit Account Control Agreements with respect to each Deposit Account, other than Exempt Deposit Accounts, of the Loan Parties, at all times unless and until the Security Interest (as defined in the Collateral Agreement) with respect to such Deposit Account is released in accordance with this Agreement.

Section 6.11     Appraisals and Field Examinations . Whenever an Event of Default exists, and at other times not more frequently than once per consecutive 12-month period so long as Availability during such period is at all times greater than 12.5% of the Maximum Credit, the Loan Parties shall, at their expense and upon the Administrative Agent’s request, provide the Administrative Agent with appraisals and field examinations or updates thereof of any or all of the Collateral from one or more Acceptable Appraisers, and prepared in a form and on a basis reasonably satisfactory to the Administrative Agent, such appraisals and updates to include, without limitation, information required by requirements of Law and by the internal policies of the Lenders; provided that the Loan Parties shall provide, at the expense of the Loan Parties, during any time within a consecutive 12-month period that the Availability is less than 12.5% of the Maximum Credit, a second such appraisal or field examination or update during such period; provided , further , that upon the request of the Administrative Agent, the Loan Parties shall provide, at the expense of the Administrative Agent and the Lenders, any other such appraisal or field examination or update. In addition, the Loan Parties shall have the right (but not the obligation), at their expense, at any time and from time to time (but not more than once per year) to provide the Administrative Agent with additional appraisals or updates thereof of any or all of the Collateral from one or more Acceptable Appraisers, and prepared in a form and on a basis reasonably satisfactory to the Administrative Agent, in which case such appraisals or field examinations or updates shall be used in connection with the determination of the Orderly Liquidation Value and the calculation of the Borrowing Base hereunder.

 

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Section 6.12     Collection of Accounts; Payments . Subject to the post-closing timing requirement specified in Section 6.10 of this Agreement, establish a payment account for each Borrower, or designate an existing deposit account for each Borrower in form and substance reasonably satisfactory to the Administrative Agent (in either case, collectively, the “ Primary Payment Accounts ”), which shall each be a Controlled Account and into which all Account collections (other than, prior to the effectiveness of the Incremental Facility, with respect to Wise, collections from the AB Receivables) and other proceeds of ABL Priority Collateral with respect to the applicable Borrower will be deposited (it being understood that the Loan Parties shall promptly transfer to the applicable Primary Payment Account any such collections or proceeds on deposit in or credited to any other payment account or other account, or received directly by any Loan Party), and the Loan Parties hereby agree that, during an Accounts Availability Triggering Event, the Collateral Agent will have exclusive control over each Primary Payment Account; provided , however , that, in the absence of an Accounts Availability Triggering Event, the Loan Parties will have exclusive right to make withdrawals from the Primary Payment Accounts.

Section 6.13     Collateral Reporting . (a) Provide, or cause to be provided, to the Administrative Agent, a Borrowing Base Certificate (i) on or before the twelfth (12th) Business Day of each calendar month for the preceding calendar month-end and (ii) during the continuance of an Availability Triggering Event, on each Friday (with respect to the week ending the previous Friday) or any later date approved by the Administrative Agent in its sole discretion. If any of the Loan Parties’ records or reports of the Collateral required to be delivered pursuant to this Agreement or any other Loan Document are prepared by an accounting service or other agent, each Loan Party hereby authorizes such service or agent to deliver such records or reports to the Administrative Agent, for distribution to the Lenders. Without limiting the foregoing, a Borrower may, at or prior to the closing of a Permitted Business Acquisition (but subject to any review of the acquired company’s Eligible Accounts and Eligible Inventory as required by the definitions of such terms), deliver a revised Borrowing Base Certificate showing the Borrowing Base on a Pro Forma Basis after giving effect to such acquisition, which would be effective for purposes of Borrowing as of the time of the closing of such Permitted Business Acquisition and, for the avoidance of doubt, demonstrating compliance with the requirements of clause (iii) of the definition thereof. The applicable Borrower shall be permitted upon notice of such election to the Administrative Agent to deliver an updated Borrowing Base Certificate more frequently than monthly (as specified in such notice); provided that in such case, such Borrower shall, for the immediately following 90 days, deliver an updated Borrowing Base Certificate with the same frequency as the frequency specified in such notice.

(b)     Deliver to the Administrative Agent (i) concurrently with the delivery of each Borrowing Base Certificate, a summary of Inventory by location and type with a supporting perpetual Inventory report consistent with past practice; (ii) concurrently with the delivery of each Borrowing Base Certificate, a monthly trial balance showing Accounts outstanding aged from due date as follows: current, 1 to 30 days, 31 to 60 days and 61 days or more, (iii) from time to time, such other information with respect to the Borrowing Base or any other reports delivered under this Section 6.13 as shall be requested by the Administrative Agent in its reasonable discretion; and (iv) at the time of delivery of each of the monthly financial statements delivered pursuant to Section 6.04(c) : (A) a reconciliation of the most recent Borrowing Base and month-end Inventory reports by location each Borrower’s general ledger and monthly financial statements delivered pursuant to Section 6.04(c) ; (B) a reconciliation of the accounts receivable aging to the Borrowers’ most recent Borrowing Base Certificate, general ledger and monthly financial statements delivered pursuant to Section 6.04(c) ; (C) an aging of accounts payable and a reconciliation of such accounts payable aging to each Borrower’s general ledger and monthly financial statements delivered pursuant to Section 6.04(c) ; and (D) in the case of any monthly financial statements delivered for the last month of a fiscal quarter, a listing of government contracts, including those that are subject to the Federal Assignment of Claims Act of 1940 or any similar state or municipal law.

 

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Section 6.14     Anti-Money Laundering and Economic Sanction Laws; Anti-Corruption Laws . Each Loan Party shall comply, and each Loan Party shall cause each of its Subsidiaries to comply, in all material respects, with all laws, regulations and executive orders referred to in Sections 4.25 and 4.26 so as to make such representations and warranties true and correct in all material respects.

ARTICLE VII

NEGATIVE COVENANTS

Each Borrower (and for purposes of Section 7.11 , each Holdco) covenants and agrees with each Lender that unless and until (i) all Commitments shall have been terminated and (ii) all ABL Credit Obligations arising under the Loan Documents (other than contingent obligations for unasserted claims) shall have been paid and (iii) all Letters of Credit have been canceled or have expired (or have been Cash Collateralized or backstopped on terms reasonably satisfactory to the Administrative Agent) and all amounts drawn or paid thereunder have been reimbursed in full, unless the Required Lenders shall otherwise consent in writing, each Borrower will not, and will not permit any of the Material Subsidiaries to:

Section 7.01     Indebtedness . Incur, create, assume or permit to exist any Indebtedness, except:

(a)     Indebtedness existing on the Closing Date and set forth on Schedule 7.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with such Borrower or any Subsidiary);

(b)     (i) Indebtedness created hereunder and under the other Loan Documents and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; and (ii) Guarantees by the Borrowers and the Material Subsidiaries of Indebtedness of Ultimate Parent, Parent Guarantor or any Subsidiary thereof;

(c)     obligations (contingent or otherwise) arising under a Swap Contract if such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates, commodity prices or foreign exchange rates(or to allow any customer to do so); provided , however , to the extent that such Indebtedness is incurred under a Secured Hedge Agreement, such Secured Hedge Agreement was entered into in connection with the execution of customer contracts to hedge currency and commodity risk thereunder;

(d)     Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to any Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;

(e)     unsecured Indebtedness of any Borrower to the Ultimate Parent, any Subsidiary of Ultimate Parent or any Subsidiary and of any Subsidiary to Ultimate Parent, any Subsidiary of Ultimate Parent, the Borrowers or any other Subsidiary; provided that, except in respect of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management

 

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operations among Ultimate Parent and its subsidiaries, Indebtedness of any Loan Party to any Person incurred under this clause (e)  shall be subordinated to the ABL Credit Obligations on terms reasonably satisfactory to the Administrative Agent;

(f)     Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;

(g)     Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services in the ordinary course of business; provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within ten Business Days of notification to the applicable Borrower of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;

(h)     (i)(x) Indebtedness of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated or amalgamated with any Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger, consolidation or amalgamation and is not created in contemplation of such event and where such acquisition, merger, consolidation or amalgamation is permitted by this Agreement and (y) Indebtedness incurred to finance Permitted Business Acquisitions permitted pursuant to Section 7.04(j) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that no Default or Event of Default shall have occurred and be continuing or would result therefrom;

(i)     Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by any Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, together with the Remaining Present Value of outstanding leases permitted under Section 7.03(b) , would not exceed $125,000,000 at any time outstanding;

(j)     Capital Lease Obligations incurred by any Borrower or any Subsidiary in respect of any Sale and Lease Back Transaction that is permitted under Section 7.03 and any Permitted Refinancing Indebtedness in respect thereof;

(k)     other Indebtedness of any Borrower or any Subsidiary, in an aggregate principal amount outstanding that at the time of, and after giving effect to, the incurrence thereof, would not exceed $25,000,000 at any time outstanding; provided that any Indebtedness incurred pursuant to this clause (k) that by its terms is subordinated in right of payment to the ABL Credit Obligations shall not, pursuant to the terms thereof, be required to be repaid (other than pursuant to customary change of control, asset sale proceeds and similar provisions), in whole or in part, prior to the date that is 91 days following the Facility Maturity Date;

(l)     Indebtedness arising from agreements of any Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Transactions and any Permitted Business Acquisition or

 

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the disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;

(m)     Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business;

(n)     Indebtedness supported by a Letter of Credit in a principal amount not in excess of the stated amount of such Letter of Credit;

(o)     Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;

(p)     Indebtedness of Subsidiaries that are not Subsidiary Loan Parties; provided that the aggregate amount of Indebtedness incurred under this clause (p) , when aggregated with all other Indebtedness incurred and outstanding pursuant to this clause (p) , shall not exceed $10,000,000 at the time of such incurrence;

(q)     Indebtedness representing deferred compensation to employees and directors of any Borrower or any Subsidiary incurred in the ordinary course of business;

(r)     Indebtedness consisting of obligations of any Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such Person in connection with Permitted Business Acquisitions or any other Investment permitted hereunder;

(s)     Indebtedness incurred under any Qualified Receivables Financing;

(t)     Indebtedness of Wise to Rexam evidenced by or arising under the Rexam Financing Documents in an amount not to exceed the amount outstanding on the Closing Date, less the aggregate amount of all repayments, repurchases, redemptions, rebates or credits, whether optional or mandatory, in respect thereof, plus interest thereon (whether or not capitalized) at the rate provided in the Rexam Financing Documents and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; and

(u)     all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a)  through (t)  above.

Section 7.02     Liens . Create, incur, assume or permit to exist any Lien on any property or assets (including stock or other securities of any person, including any Borrower and any Subsidiary) at the time owned by it or on any income or revenues or rights in respect of any thereof, except the following (collectively, “ Permitted Liens ”):

(a)     Liens on property or assets of any Borrower and its Subsidiaries existing on the Closing Date and set forth on Schedule 7.02(a) and any modifications, replacements, renewals or extensions thereof; provided that such Liens shall secure only those obligations that they secure on the Closing Date (and any Permitted Refinancing Indebtedness in respect of such obligations permitted by Section 7.01(a) ) and shall not subsequently apply to any other property or assets of any Borrower or any Subsidiary other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien, and (B) proceeds and products thereof;

 

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(b)     (i) Liens created under the Loan Documents (including, without limitation, Liens created under the Security Documents securing obligations under Secured Hedge Agreements incurred pursuant to Section 7.01(c) and securing obligations under Cash Management Agreements) or permitted in respect of any Mortgaged Property by the terms of the applicable Mortgage and (ii) Liens securing Indebtedness incurred pursuant to Section 7.01(b)(ii) (including Liens securing Swap Agreements secured under the documents governing such Indebtedness), which Liens are subject to the Intercreditor Agreements or any other intercreditor agreement substantially consistent with and no less favorable to the Revolving Facility Lenders in any material respect than the Intercreditor Agreements;

(c)     Liens on any property or asset of any Borrower or any Subsidiary securing Indebtedness permitted under Section 7.01(h)(i)(x) or Permitted Refinancing Indebtedness in respect thereof if permitted by Section 7.01(h)(ii) , in each case, subject to the Intercreditor Agreement; provided that such Lien (i) does not apply to any other property or assets of any Borrower or any of its Subsidiaries not securing such Indebtedness at the date of the acquisition of such property or asset (other than after acquired property subjected to a Lien securing Indebtedness and other obligations incurred prior to such date and which Indebtedness and other obligations are permitted hereunder that require a pledge of after acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), (ii) such Lien is not created in contemplation of or in connection with such acquisition, and (iii) in the case of a Lien securing Permitted Refinancing Indebtedness, subject to compliance with clause (iv)  of the definition of the term “Permitted Refinancing Indebtedness”;

(d)     Liens for Taxes, assessments or other governmental charges or levies not yet due or that are being contested in compliance with Section 6.03 ;

(e)     Liens imposed by law, such as landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction or other like Liens arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or that are being contested in good faith by appropriate proceedings and in respect of which, if applicable, any Borrower or any Subsidiary shall have set aside on its books reserves in accordance with Applicable Accounting Rules;

(f)     (i) pledges and deposits and other Liens made in the ordinary course of business in compliance with the Federal Employers Liability Act or any other workers’ compensation, unemployment insurance and other social security laws or regulations and deposits securing liability to insurance carriers under insurance or self-insurance arrangements in respect of such obligations and (ii) pledges and deposits and other Liens securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to any Borrower or any Subsidiary;

(g)     deposits and other customary Liens to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than Capital Lease Obligations), statutory and regulatory obligations, surety and appeal bonds, performance and return of money bonds, bids, leases, government contracts, trade contracts, agreements with utilities, and other obligations of a like nature (including letters of credit in lieu of any such bonds or to support the issuance thereof) incurred in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;

(h)     zoning restrictions, survey exceptions and such matters as an accurate survey would disclose, easements, trackage rights, leases (other than Capital Lease Obligations), licenses, special assessments, rights of way, covenants, conditions, restrictions and declaration on or with respect to the use of Real Property, servicing agreements, development agreements, site plan agreements and other

 

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similar encumbrances incurred in the ordinary course of business and title defects or irregularities that are of a minor nature and that, in the aggregate, do not interfere in any material respect with the ordinary conduct of the business of any Borrower or any Subsidiary;

(i)     Liens securing Indebtedness permitted by Section 7.01(i) (limited to the assets subject to such Indebtedness);

(j)     Liens arising out of sale and lease-back transactions permitted under Section 7.03 , so long as such Liens attach only to the property sold and being leased in such transaction and any accessions thereto or proceeds thereof and related property;

(k)     Liens securing judgments that do not constitute an Event of Default under Section 8.01(j) and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made;

(l)     Liens disclosed by the title insurance policies delivered on or subsequent to the Closing Date and pursuant to Section 6.10 and any replacement, extension or renewal of any such Lien; provided that such replacement, extension or renewal Lien shall not cover any property other than the property that was subject to such Lien prior to such replacement, extension or renewal; provided , further , that the Indebtedness and other obligations secured by such replacement, extension or renewal Lien are permitted by this Agreement;

(m)     any interest or title of a lessor or sublessor under any leases or subleases entered into by any Borrower or any Subsidiary in the ordinary course of business;

(n)     Liens that are contractual rights of set off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of any Borrower or any Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of any Borrower or any Subsidiary or (iii) relating to purchase orders and other agreements entered into with customers of any Borrower or any Subsidiary in the ordinary course of business;

(o)     Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set off or similar rights;

(p)     Liens securing obligations in respect of trade related letters of credit or bank guarantees permitted under Section 7.01(g) or (m)  and covering the goods (or the documents of title in respect of such goods) financed by such letters of credit or bank guarantees and the proceeds and products thereof;

(q)     leases or subleases, licenses or sublicenses (including with respect to intellectual property and software) granted to others in the ordinary course of business not interfering in any material respect with the business of any Borrower and its Subsidiaries, taken as a whole;

(r)     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;

(s)     Liens solely on any cash earnest money deposits made by any Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement in respect of any Investment permitted hereunder;

 

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(t)     Liens with respect to property or assets of any Subsidiary that is not a Subsidiary Loan Party securing Indebtedness permitted under Section 7.01(p) ;

(u)     other Liens with respect to property or assets of any Borrower or any Subsidiary provided that either (i) the obligations secured by any such Liens shall not exceed $50,000,000 at any time outstanding or (ii) the Payment Conditions shall have been met; provided further that (i) no such Lien shall secure any Swap Obligation, (ii) at the time of the incurrence of such Lien no Default or Event of Default shall have occurred and be continuing or would result therefrom, (iii) the Indebtedness or other obligations secured by such Lien are otherwise permitted by this Agreement, and (iv) to the extent such Liens extend to ABL Priority Collateral, such Liens shall be subordinated to the Liens securing the ABL Finance Obligations pursuant to the Intercreditor Agreements (or an additional intercreditor agreement reasonably satisfactory to the Administrative Agent);

(v)     the prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business;

(w)     Liens arising from precautionary Uniform Commercial Code financing statements or consignments entered into in connection with any transaction otherwise permitted under this Agreement;

(x)     Liens on Equity Interests in joint ventures securing obligations of such joint venture;

(y)     Liens on securities that are the subject of repurchase agreements constituting Permitted Investments under clause (iii)  of the definition thereof;

(z)     the PBGC Lien;

(aa)     Liens on goods or inventory the purchase, shipment or storage price of which is financed by a documentary letter of credit, bank guarantee or bankers’ acceptance issued or created for the account of any Borrower or any Subsidiary in the ordinary course of business; provided that such Lien secures only the obligations of such Borrower or such Subsidiaries in respect of such letter of credit or bank guarantee to the extent permitted under Section 7.01 ;

(bb)     Liens securing insurance premiums financing arrangements, provided that such Liens are limited to the applicable unearned insurance premiums;

(cc)     Liens on deposits securing Swap Contracts permitted under Section 7.01(c) not to exceed $1,000,000 in the aggregate;

(dd)     Liens on the Specified Mill Assets securing Indebtedness under the Rexam Financing Documents to the extent such Indebtedness is permitted hereunder; and

(ee)     Liens on AB Receivables and other Qualified Receivables in connection with Qualified Receivables Financings permitted hereunder.

Section 7.03     Sale and Lease Back Transactions . Enter into any arrangement, directly or indirectly, with any person whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred (a “ Sale and Lease Back Transaction ”); provided that a Sale and Lease

 

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Back Transaction shall be permitted so long as the aggregate fair market value of all such property subject to a Sale and Lease Back Transaction does not exceed $25,000,000 in the aggregate at any time.

Section 7.04     Investments, Loans and Advances . Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a person that is not a Wholly Owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, an “ Investment ”), any other person, except:

(a)     (i) Investments by any Borrower or any Subsidiary in the Equity Interests of any Borrower or any Subsidiary; (ii) intercompany loans from any Borrower or any Subsidiary to any Borrower or any Subsidiary; and (iii) Guarantees by any Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of any Borrower or any Subsidiary, provided that the sum of (A) Investments (valued at the time of the making thereof and without giving effect to any write downs or write offs thereof) made after the Closing Date by the Loan Parties pursuant to clause (i)  in Subsidiaries that are not Subsidiary Loan Parties, plus (B) net intercompany loans made after the Closing Date by Loan Parties to Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (ii) , plus (C) Guarantees after the Closing Date by Loan Parties of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties pursuant to clause (iii) , shall not exceed an aggregate net amount equal to $5,000,000 ( plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (b) );

(b)     Permitted Investments and Investments that were Permitted Investments when made;

(c)     Investments arising out of the receipt by any Borrower or any Subsidiary of non-cash consideration for the sale of assets permitted under Section 7.05 ;

(d)     loans and advances to officers, directors, employees or consultants of any Borrower or any Subsidiary (i) in the ordinary course of business not to exceed $1,000,000 at any time outstanding (calculated without regard to write downs or write offs thereof), (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such person’s purchase of Equity Interests of the Holdcos (or any Parent Entity) solely to the extent that the amount of such loans and advances shall be contributed to such Borrower in cash as common equity;

(e)     accounts receivable, security deposits and prepayments arising and trade credit granted in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;

(f)     Swap Contracts permitted hereunder;

(g)     Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 7.04 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this clause (g)  is not increased at any time above the amount of such Investment existing or contractually committed to on the Closing Date;

(h)     Investments resulting from pledges and deposits under Sections 7.02(f) , (g) , (k) , (r) , (s)  and (u) ;

 

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(i)     other Investments by any Borrower or any Subsidiary if (i) the Payment Conditions shall have been met and (ii) no Event of Default shall have occurred and be continuing or would result therefrom;

(j)     Investments constituting Permitted Business Acquisitions;

(k) intercompany loans between Subsidiaries that are not Subsidiary Loan Parties and Guarantees by such Subsidiaries to the extent permitted by Section 7.01(l) ;

(l)     Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business or Investments acquired by any Borrower as a result of a foreclosure by such Borrower or any of its Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;

(m)     Investments of a Subsidiary acquired after the Closing Date or of an entity merged into any Borrower or merged into or consolidated with a Subsidiary after the Closing Date, in each case, to the extent permitted under this Section 7.04 and, in the case of any acquisition, merger, consolidation or amalgamation, in accordance with Section 7.05 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;

(n)     acquisitions by any Borrower of obligations of one or more current or former officers, directors or other employees of the Holdcos, any Parent Entity, such Borrower or its Subsidiaries and their respective estates, spouses or former spouses in connection with such person’s acquisition of Equity Interests of the Holdcos or any Parent Entity, so long as no cash is actually advanced by such Borrower or any of its Subsidiaries to such persons in connection with the acquisition of any such obligations;

(o)     Guarantees by any Borrower or any Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by any Borrower or any Subsidiary in the ordinary course of business;

(p)     Investments to the extent that payment for such Investments is made with Equity Interests of the Holdcos (or any Parent Entity);

(q)     Investments in the Equity Interests of one or more newly formed persons that are received in consideration of the contribution by the Holdcos, the applicable Borrower or the applicable Subsidiary of assets (including Equity Interests and cash) to such person or persons; provided that (i) the fair market value (as determined in good faith by such Borrower) of such assets, determined on an arms’- length basis, so contributed pursuant to this paragraph (q)  shall not in the aggregate exceed $1,000,000 and (ii) in respect of each such contribution, a Responsible Officer of the applicable Borrower shall certify (x) no Default or Event of Default shall have occurred and be continuing or would result from such contribution, (y) the fair market value (as determined in good faith by such Borrower) of the assets so contributed and (z) that the requirements of clause (i)  of this proviso remain satisfied;

(r)     Investments consisting of Restricted Payments permitted under Section 7.06 ;

 

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(s)     Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;

(t)     Investments in Subsidiaries that are not Loan Parties not to exceed $1,000,000 at any time outstanding (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this paragraph (u) ), as valued at the fair market value (as determined in good faith by the applicable Borrower) of such Investment at the time such Investment is made;

(u)     Investments consisting of the licensing or contribution of intellectual property licenses pursuant to joint marketing arrangements with other persons;

(v)     Guarantees permitted under Section 7.01 (except to the extent such Guarantee is expressly subject to Section 7.04) ;

(w)     advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the applicable Borrower or Subsidiary;

(x)     Investments by any Borrower and its Subsidiaries, including loans and advances, to any direct or indirect parent of such Borrower, if such Borrower or any other Subsidiary would otherwise be permitted to make a Restricted Payment in such amount ( provided that the amount of any such Investment shall also be deemed to be a Restricted Payment under the appropriate clause of Section 7.06 for all purposes of this Agreement);

(y)     Investments received substantially contemporaneously in exchange for Equity Interests of the Holdcos or any Parent Entity;

(z)     Investments in joint ventures not in excess of $5,000,000 in the aggregate (plus any return of capital actually received by the respective investors in respect of Investments theretofore made by them pursuant to this clause (z) ); provided that if any Investment pursuant to this clause (z)  is made in any person that is not a Subsidiary of any Borrower at the date of the making of such Investment and such person becomes a Subsidiary of any Borrower after such date, such Investment shall thereafter be deemed to have been made pursuant to Section 7.04(a) and shall cease to have been made pursuant to this clause (z)  for so long as such person continues to be a Subsidiary of a Borrower; and

(aa)     Reasonable and customary Investments (including, to the extent reasonable and customary, capital contributions, intercompany debt or other extensions of credit) in any Receivables Subsidiary in connection with any Qualified Receivables Financing.

Section 7.05     Mergers, Consolidations, Sales of Assets and Acquisitions . Merge into or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate or amalgamate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any part of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of any Borrower or any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the assets of any other person or any division, unit or business of any person, except that this Section shall not prohibit:

(a)     (i) the purchase and sale of inventory in the ordinary course of business by any Borrower or any Subsidiary, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset

 

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in the ordinary course of business by any Borrower or any Subsidiary, (iii) the sale of surplus, obsolete or worn out equipment or other property in the ordinary course of business by any Borrower or any Subsidiary or (iv) the sale of Permitted Investments in the ordinary course of business;

(b)     if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing or would result therefrom,

(i)     the merger, consolidation or amalgamation of any Subsidiary with or into any Borrower or any Subsidiary Loan Party in a transaction in which the surviving or resulting entity is such Borrower or, if a Borrower is not a party to such transaction, a Subsidiary Loan Party, and no person other than a Borrower or Subsidiary Loan Party receives any consideration;,

(ii)     the merger, consolidation or amalgamation of any Subsidiary that is not a Subsidiary Loan Party into or with any Subsidiary that is not a Subsidiary Loan Party,

(iii)     the liquidation or dissolution or change in form of entity of any Subsidiary if the applicable Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of such Borrower and is not materially disadvantageous to the Lenders, or

(iv)     any Subsidiary may merge, consolidate or amalgamate with or into any other person in order to effect an Investment permitted pursuant to Section 7.04 so long as the continuing or surviving person shall be a Subsidiary, which shall be a Loan Party if the merging, consolidating or amalgamating Subsidiary was a Loan Party and which together with each of its Subsidiaries shall have complied with the requirements of Section 6.10 ;

(c)     sales, transfers, leases or other dispositions to a Borrower or a Subsidiary (upon voluntary liquidation or otherwise); provided that any sales, transfers, leases or other dispositions by a Loan Party to a Subsidiary that is not a Subsidiary Loan Party in reliance on this paragraph (c)  shall be made in compliance with Section 7.07 and the aggregate gross proceeds of any such sales, transfers, leases or other dispositions plus the aggregate fair market value of any or all assets sold, transferred, leased, licensed or otherwise disposed of in reliance on clause (g)  below, shall not exceed, in any fiscal year of the Borrowers, $5,000,000;

(d)     Sale and Lease Back Transactions permitted by Section 7.03 ;

(e)     Investments permitted by Section 7.04 and Permitted Liens and Restricted Payments permitted by Section 7.06 ;

(f)     the sale or other disposition of defaulted receivables and the compromise, settlement and collection of receivables in the ordinary course of business or in bankruptcy or other proceedings concerning the other account party thereon and not as part of an accounts receivables financing transaction;

(g)     sales, transfers, leases, licenses or other dispositions of assets not otherwise permitted by this Section 7.05 (or required to be included in this clause (g)  pursuant to Section 7.05(c) ); provided that (i) the aggregate gross proceeds (including non-cash proceeds) of any or all assets sold, transferred, leased, licensed or otherwise disposed of in reliance upon this clause (g)  shall not exceed, in any fiscal year of the Borrowers, $10,000,000 and (ii) no Default or Event of Default exists or would result therefrom;

 

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(h)     Permitted Business Acquisitions (including any merger, consolidation or amalgamation in order to effect a Permitted Business Acquisition); provided that following any such merger, consolidation or amalgamation (i) involving a Borrower, such Borrower is the surviving corporation or such merger, consolidation or amalgamation shall otherwise satisfy the requirements of subsection (b)(i) above and (ii) involving a Subsidiary Loan Party, the surviving or resulting entity shall be a Subsidiary Loan Party that is a Wholly Owned Subsidiary;

(i)     leases, licenses (on a non-exclusive basis with respect to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property) of any real or personal property in the ordinary course of business;

(j)     sales, leases or other dispositions of inventory of any Borrower and its Subsidiaries determined by the management of such Borrower to be no longer useful or necessary in the operation of the business of such Borrower or any of its Subsidiaries;

(k)     any surrender or waiver of contract rights or the settlement, release, recovery on or surrender of contract tort or other claims of any kind to the extent that any of the foregoing could not reasonably be expected to have a Material Adverse Effect;

(l)     any exchange of assets for services and/or other assets of comparable or greater value; provided that (i) at least 90% of the consideration received by the transferor consists of assets that will be used in a business or business activity permitted hereunder, (ii) in the event of a swap with a fair market value (as determined in good faith by the applicable Borrower) in excess of $2,000,000, the Administrative Agent shall have received a certificate from a Responsible Officer of such Borrower with respect to such fair market value and (iii) in the event of a swap with a fair market value (as determined in good faith by the applicable Borrower) in excess of $5,000,000, such exchange shall have been approved by at least a majority of the Board of Directors of the applicable Holdco or such Borrower; provided that (A) the aggregate gross consideration (including exchange assets, other non-cash consideration and cash proceeds) of any or all assets exchanged in reliance upon this paragraph (n)  shall not exceed, in any fiscal year of the Borrowers, $10,000,000 and (B) no Default or Event of Default exists or would result therefrom;

(m)     any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other obligation with or to a person (other than each Borrower and its Subsidiaries) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition) in a Permitted Business Acquisition, made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;

(n)     any merger, consolidation, conveyance, transfer, lease or other disposition of the Equity Interests of, or undertaken by, Alabama Electric Motor Services, LLC, Wise Alloys Finance Corporation or Listerhill Total Maintenance Center, LLC, so long as the assets attributable to such entities do not have a book value or fair market value in an aggregate amount in excess of $4,000,000 measured at the time of each such disposition; and

(o)     with respect to any Receivables Subsidiary, the sale of all or substantially all of the applicable receivables of such Receivables Subsidiary in one or more transactions pursuant to any Qualified Receivables Financing.

Notwithstanding anything to the contrary contained in Section 7.05 above, (i) no sale, transfer or other disposition of assets shall be permitted by this Section 7.05 (other than sales, transfers, leases, licenses or

 

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other dispositions to Loan Parties pursuant to paragraph (c)  of this Section 7.05) unless such disposition is for fair market value (as determined in good faith by the applicable Borrower), or if not fair market value, the shortfall is permitted as an Investment under Section 7.04 , (ii) no sale, transfer or other disposition of assets in excess of $1,000,000 shall be permitted by paragraph (g)  of this Section 7.05 unless such disposition is for at least 75% cash consideration; provided that, for purposes of this clause (ii) , (a) the amount of any liabilities (as shown on any Borrower’s or any Subsidiary’s most recent balance sheet delivered pursuant to Section 6.04(c) ) of any Borrower or any Subsidiary of any Borrower (other than liabilities that are by their terms subordinated to the ABL Credit Obligations) that are assumed by the transferee of any such assets, (b) any notes or other obligations or other securities or assets received by such Borrower or such Subsidiary of such Borrower from such transferee that are converted by such Borrower or such Subsidiary of such Borrower into cash within 180 days of the receipt thereof (to the extent of the cash received) and (c) any Designated Non-Cash Consideration received by such Borrower or any of its Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c)  that is at that time outstanding, not to exceed $5,000,000 at the time of the receipt of such Designated Non-Cash Consideration (with the fair market value (as determined in good faith by the applicable Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) shall be deemed to be cash and (iii) in respect of any sale, transfer or other disposition of Accounts and/or Inventory made in any case outside of the ordinary course of business of any Borrower or any other applicable Loan Party, such Borrower shall notify the Administrative Agent thereof in writing and the amount set forth in clause (x)  of the definition of “Borrowing Base” shall be reduced by the Net Proceeds thereof until receipt by the Administrative Agent of the next Borrowing Base Certificate delivered pursuant to Section 6.13 hereof. To the extent any Collateral is disposed of in a transaction expressly permitted by this Section 7.05 to any Person other than the Holdcos, the Borrowers or any Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent shall take, and shall be authorized by each Lender to take, any actions reasonably requested by the applicable Borrower in order to evidence the foregoing.

Section 7.06     Dividends and Distributions . Declare or pay any dividend or make any other distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Equity Interests (other than dividends and distributions on Equity Interests payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of the person paying such dividends or distributions) or directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Subsidiary to purchase or acquire) any of its Equity Interests or set aside any amount for any such purpose (other than through the issuance of additional Equity Interests (other than Disqualified Stock) of the person redeeming, purchasing, retiring or acquiring such shares) (the foregoing, “ Restricted Payments ”); provided , however , that:

(a)     any Subsidiary of any Borrower may make Restricted Payments to such Borrower or to any Wholly Owned Subsidiary of such Borrower (or, in the case of non-Wholly Owned Subsidiaries, to such Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable basis from the perspective of such Borrower or such Subsidiary) based on their relative ownership interests so long as any repurchase of its Equity Interests from a person that is not such Borrower or a Subsidiary is permitted under Section 7.04) ;

(b)     each Borrower may make Restricted Payments to its applicable Holdco in respect of (i) overhead, legal, accounting and other professional fees and expenses of such Holdco, (ii) fees and expenses related to any public offering or private placement of debt or equity securities of such Holdco whether or not consummated, (iii) franchise Taxes or similar Taxes and fees and expenses in connection

 

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with the maintenance of such Holdco’s existence and such Holdco’s ownership of such Borrower, (iv) payments permitted by Section 7.07(b) , (v) the portion (which shall be 100% for so long as such Holdco owns no assets other than the Equity Interests in such Borrower) of the tax liability to each relevant jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the relevant jurisdiction of such Holdco attributable to such Borrower or its Subsidiaries, (vi) tax liabilities of such Holdco incurred as a result of transactions occurring prior to the Closing Date, and (vii) customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of such Holdco, in each case in order to permit such Holdco to make such payments; provided that, in the case of clauses (i) , (ii)  and (iii) , the amount of such Restricted Payments shall not exceed the portion of any amounts referred to in such clauses (i) , (ii)  and (iii)  that are allocable to such Borrower and its Subsidiaries (which shall be 100% for so long as such Holdco, owns no assets other than the Equity Interests in such Borrower);

(c)     non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;

(d)     each Borrower may make Restricted Payments to its applicable Holdco or any Parent Entity to finance any Investment permitted to be made pursuant to Section 7.04; provided that (i) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (ii) such parent shall, immediately following the closing thereof, cause (A) all property acquired (whether assets or Equity Interests) to be contributed to such Borrower or a Subsidiary or (B) the merger, consolidation or amalgamation (to the extent permitted in Section 7.05 ) of the Person formed or acquired into such Borrower or a Subsidiary in order to consummate such Permitted Business Acquisition or Investment, in each case, in accordance with the requirements of Section 6.10 ;

(e)     Restricted Payments made within 60 days after the date of declaration thereof, if at the date of declaration such payment would have been permitted under (and was counted against any applicable basket under) this Agreement; and

(f)     each Borrower may make any Restricted Payment; provided that (x) no Event of Default shall have occurred and be continuing or would result therefrom and (y) the Payment Conditions shall have been satisfied.

Section 7.07     Transactions with Affiliates . (a) Sell or transfer any property or assets to, or purchase or acquire any property or assets from, or otherwise engage in any other transaction with, any of its Affiliates or any known direct or indirect holder of 10% or more of any class of capital stock of the Holdcos or any Borrower in a transaction involving aggregate consideration in excess of $1,000,000, unless such transaction is (i) otherwise permitted (or required) under this Agreement or (ii) upon terms no less favorable to such Borrower or such Subsidiary, as applicable, than would be obtained in a comparable arm’s length transaction with a person that is not an Affiliate. For purposes of this Section 7.07 , any transaction with any Affiliate or any such 10% holder shall be deemed to have satisfied the standard set forth in clause (ii)  of the immediately preceding sentence if such transaction is approved by a majority of the disinterested members of the Board of Directors of the Holdcos or such Borrower.

(b)     The foregoing paragraph (a) shall not prohibit, to the extent otherwise permitted under this Agreement,

(i)     any issuance of securities, or other payments, loans (or cancellation of loans), awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, equity purchase agreements, stock options and stock ownership plans

 

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or similar employee benefit plans approved by the Board of Directors of the Holdcos or of any Borrower,

(ii)     loans or advances to employees or consultants of the Holdcos (or any Parent Entity), any Borrower or any of its Subsidiaries in accordance with Section 7.04(d) ,

(iii)     transactions among any Borrower or any Subsidiary or any entity that becomes a Loan Party as a result of such transaction (including via merger, consolidation or amalgamation in which a Subsidiary is the surviving entity),

(iv)     the payment of fees, reasonable out-of-pocket costs and indemnities to directors, officers, consultants and employees of the Holdcos, any Parent Entity, any Borrower and its Subsidiaries in the ordinary course of business (limited, in the case of the Holdcos or any Parent Entity, to the portion of such fees and expenses that are allocable to the applicable Borrower and its Subsidiaries),

(v)     (A) any employment agreements entered into by any Borrower or any of its Subsidiaries in the ordinary course of business, (B) any subscription agreement or similar agreement pertaining to the repurchase of Equity Interests pursuant to put/call rights or similar rights with employees, officers or directors, and (C) any employee compensation, benefit plan or arrangement, any health, disability or similar insurance plan which covers employees, and any reasonable employment contract and transactions pursuant thereto,

(vi)     Restricted Payments permitted under Section 7.06 , including payments to the Holdcos (and any Parent Entity),

(vii)     any purchase by a Holdco of the Equity Interests of the applicable Borrower, or contributions by a Holdco to the capital of the applicable Borrower; provided that any Equity Interests of such Borrower purchased by such Holdco shall be pledged to the Administrative Agent on behalf of the Lenders pursuant to the Collateral Agreement,

(viii)     transactions with Wholly Owned Subsidiaries for the purchase or sale of goods, products, parts and services entered into in the ordinary course of business in a manner consistent with past practice,

(ix)     any transaction in respect of which any Borrower delivers to the Administrative Agent (for delivery to the Lenders) a letter addressed to the Board of Directors of such Borrower from an accounting, appraisal or investment banking firm, in each case of nationally recognized standing that is (A) in the good faith determination of such Borrower qualified to render such letter and (B) reasonably satisfactory to the Administrative Agent, which letter states that such transaction is on terms that are no less favorable to such Borrower or such Subsidiary, as applicable, than would be obtained in a comparable arm’s length transaction with a person that is not an Affiliate,

(x)     transactions with joint ventures for the purchase or sale of goods, equipment and services entered into in the ordinary course of business,

(xi)     without duplication of any amounts otherwise paid with respect to Taxes, payments by the Holdcos (and any Parent Entity), any Borrower and its Subsidiaries pursuant to tax sharing agreements among the Holdcos (and any such Parent Entity), such Borrower and its Subsidiaries on customary terms that require each party to make payments when such Taxes are

 

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due or refunds received of amounts equal to the income tax liabilities and refunds generated by each such party calculated on a separate return basis and payments to the party generating tax benefits and credits of amounts equal to the value of such tax benefits and credits made available to the group by such party,

(xii)     the provision to subsidiaries, or by Affiliates, of cash management, accounting and other overhead services in the ordinary course of business undertaken in good faith (as certified in an officer’s certificate executed by a Responsible Officer of the applicable Borrower) and not for the purpose of circumventing any covenant set forth in this Agreement,

(xiii)     intercompany transactions undertaken in good faith (as certified in an officer’s certificate executed by a Responsible Officer of the applicable Borrower) for the purpose of improving the consolidated tax efficiency of such Borrower and its Subsidiaries and not for the purpose of circumventing any covenant set forth in this Agreement, or

(xiv)     any transactions between or among any Holdco, Borrower or any of its Subsidiaries and any other Constellium Entity.

Section 7.08     Business of the Borrowers and their respective Subsidiaries . Notwithstanding any other provisions hereof, engage at any time in any business or business activity other than any business or business activity conducted by any of them on the Closing Date and any business or business activities incidental or related thereto, or any business or activity that is reasonably similar or complementary thereto or a reasonable extension, development or expansion thereof or ancillary thereto.

Section 7.09     Limitation on Modifications of Indebtedness; Modifications of Certificate of Incorporation, By Laws and Certain Other Agreements; etc. (a) Amend or modify in any manner materially adverse to the Lenders (as determined in good faith by the Administrative Agent), or grant any waiver or release under or terminate in any manner (if such granting or termination shall be materially adverse to the Lenders taken as a whole (as determined in good faith by the Administrative Agent)), the articles or certificate of incorporation, by laws, limited liability company operating agreement, partnership agreement or other organizational documents of any Borrower or any of its Subsidiaries.

(b)     (i) Make, or agree or offer to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness for borrowed money on which a Borrower or a Subsidiary of a Borrower is a primary obligor prior to its scheduled maturity, except for (A) the ABL Finance Obligations, (B) Refinancings with the proceeds of Permitted Refinancing Indebtedness, (C) prepayments of other Indebtedness (excluding any Indebtedness which by its terms is subordinated in right of payment to the ABL Credit Obligations) in amounts not to exceed $1,000,000 in the aggregate, (D) prepayments of intercompany Indebtedness of the Loan Parties in amounts, when combined with any prepayments made pursuant to the following clause (E), not to exceed $10,000,000 in the aggregate and (E) other prepayments of Indebtedness in amounts, when combined with any prepayments made pursuant to the preceding clause (D), not to exceed $10,000,000 in the aggregate, provided, that (I) no Default or Event of Default has occurred and is continuing or would result therefrom and (II) the Payment Conditions shall have been satisfied; or

(ii)     Amend or modify, or permit the amendment or modification of, (A) any provision of any Secured Notes Document, except to the extent permitted by the Secured Notes Intercreditor Agreement or (B) any provision of Junior Financing, or any agreement, document or

 

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instrument evidencing or relating thereto, other than amendments or modifications that (1) are not in any manner materially adverse to Revolving Facility Lenders and that do not affect the subordination or payment provisions thereof (if any) in a manner adverse to the Revolving Facility Lenders and (2) otherwise comply with the definition of “Permitted Refinancing Indebtedness”.

(c)     Permit any Material Subsidiary to enter into any agreement or instrument that by its terms restricts (i) the payment of dividends or distributions or the making of cash advances to any Borrower or any Subsidiary that is a direct or indirect parent of such Subsidiary or (ii) the granting of Liens by any Borrower or such Material Subsidiary pursuant to the Security Documents, in each case other than those arising under any Loan Document, except, in each case, restrictions existing by reason of:

(A)     restrictions imposed by applicable law;

(B)     contractual encumbrances or restrictions in effect on the Closing Date under Indebtedness existing on the Closing Date and set forth on Schedule 7.01 or any agreements related to any Permitted Refinancing Indebtedness in respect of any such Indebtedness that does not expand the scope of any such encumbrance or restriction;

(C)     any restriction on a Subsidiary imposed pursuant to an agreement entered into for the sale or disposition of the Equity Interests or assets of a Subsidiary pending the closing of such sale or disposition;

(D)     customary provisions in joint venture agreements and other similar agreements applicable to joint ventures entered into in the ordinary course of business;

(E)     any restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent that such restrictions apply only to the property or assets securing such Indebtedness;

(F)     customary provisions contained in leases or licenses of intellectual property and other similar agreements entered into in the ordinary course of business;

(G)     customary provisions restricting subletting or assignment of any lease governing a leasehold interest;

(H)     customary provisions restricting assignment of any agreement entered into in the ordinary course of business;

(I)     customary restrictions and conditions contained in the document relating to any Lien, so long as (1) such Lien is a Permitted Lien in an amount less than $5,000,000 and such restrictions or conditions relate only to the specific asset subject to such Lien, and (2) such restrictions and conditions are not created for the purpose of avoiding the restrictions imposed by this Section 7.09 ;

(J)     customary net worth provisions contained in Real Property leases entered into by Subsidiaries of any Borrower, so long as such Borrower has determined in good faith that such net worth provisions would not reasonably be

 

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expected to impair the ability of such Borrower and its Subsidiaries to meet their ongoing obligations;

(K)     any agreement in effect at the time such subsidiary becomes a Subsidiary, so long as such agreement was not entered into in contemplation of such person becoming a Subsidiary other than Subsidiaries of such new Subsidiary;

(L)     restrictions in agreements representing Indebtedness permitted under Section 7.01 of a Subsidiary of any Borrower that is not a Subsidiary Loan Party;

(M)     customary restrictions on leases, subleases, licenses or Equity Interests or asset sale agreements otherwise permitted hereby as long as such restrictions relate to the Equity Interests and assets subject thereto;

(N)     restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or

(O)     any encumbrances or restrictions of the type referred to in Sections 7.09(c)(i) and 7.09(c)(ii) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (A)  through (N)  above; provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the applicable Borrower, no more restrictive with respect to such dividend and other payment restrictions than those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.

Section 7.10     Margin Stock; Use of Proceeds . (a) No Loan Party shall, and no Loan Party shall suffer or permit any of its Subsidiaries to, use any portion of the Loan proceeds, directly or indirectly, to purchase or carry Margin Stock or repay or otherwise refinance Indebtedness of any Loan Party or others incurred to purchase or carry Margin Stock, or otherwise in any manner which is in contravention of any applicable Law or in violation of this Agreement.

(b)     No Borrower shall, nor shall it permit any other Loan Party or any other Subsidiary to, use any proceeds of the Loans or any Letter of Credit in a manner that would make the representations and warranties referred to in Sections 4.25 and 4.26 fail to be true and correct in all material respects at any time.

Section 7.11     Holdcos Covenants . Each Holdco covenants and agrees with each Lender that unless and until (i) all Commitments shall have been terminated and (ii) all ABL Credit Obligations arising under the Loan Documents (other than contingent obligations for unasserted claims) shall have been repaid, unless the Required Lenders shall otherwise consent in writing, no Holdco (x) will create, incur, assume or permit to exist any Lien (other than Liens of a type described in Section 7.02(b) , (d), (e)  or (k)) on any of the Equity Interests issued by the applicable Borrower other than the Liens created under the Loan Documents or (y) will merge into or consolidate or amalgamate with any other person, or permit any other person to merge into or consolidate or amalgamate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired), or issue, sell, transfer or otherwise dispose of any Equity Interests of any Borrower or any Subsidiary, except that (1) Wise Holdings and Ravenswood Holdings shall each be permitted to merge into or consolidate or amalgamate with any other Subsidiary of

 

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Ultimate Parent that is organized under the laws of the United States or any political subdivision, state, or province thereof, in a transaction in which any of Wise Holdings, Ravenswood Holdings, or such Subsidiary is the surviving or resulting entity and (2) Parent Guarantor shall be permitted to merge into, or convert its jurisdiction of formation to, any Subsidiary of Ultimate Parent organized under the laws of the European Union, Switzerland, or United States or any political subdivision, state, or province thereof, provided that, in the case of clauses (1) and (2), the applicable surviving Person (if other than the applicable Holdco) shall promptly reaffirm its obligations, and, as applicable, its grant of security interests, under the Guaranty and the Collateral Agreement, as applicable, and otherwise comply with Section 6.10 to ensure that such Person remains a Loan Party or the Parent Guarantor hereunder, as applicable, and in the case of clause (2), shall promptly deliver to the Administrative Agent a favorable written opinion of its legal counsel qualified in its jurisdiction of organization addressed to the Administrative Agent, the Lenders and the L/C Issuer, which shall be in form and substance reasonably satisfactory to the Administrative Agent and covering such matters as the Administrative Agent shall reasonably request.

Section 7.12     Financial Covenants . If a Financial Covenant Triggering Event has occurred and is continuing:

(a)     permit the Fixed Charge Coverage Ratio to be less than 1.0 to 1.0 for the most recently ended four fiscal quarters for which the Administrative Agent has received financial statements pursuant to Section 6.04(a) or (b); or

(b)     permit the Minimum Borrower EBITDA Contribution to be less than 25% for the four most recently ended fiscal quarters for which the Administrative Agent has received financial statements pursuant to Section 6.04(a) or (b).

ARTICLE VIII

EVENTS OF DEFAULT

Section 8.01     Events of Default . In case of the happening of any of the following events (each, an “ Event of Default ”):

(a)     any representation or warranty made or deemed made by the Holdcos, any Borrower or any other Loan Party herein or in any other Loan Document or any certificate or document delivered pursuant hereto or thereto shall prove to have been false or misleading in any material respect (without duplication of other materiality qualifiers contained therein) when so made or deemed made;

(b)     default shall be made in the payment of any principal of any Loan or any L/C Obligation or the deposit of any funds as Cash Collateral in respect of L/C Obligations when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise;

(c)     default shall be made in the payment of any interest on any Loan or any L/C Obligation or in the payment of any Fee or any other amount (other than an amount referred to in (b) above) due under any Loan Document, when and as the same shall become due and payable, and such default shall continue unremedied for a period of five Business Days;

(d)     default shall be made in the due observance or performance by the Holdcos, any Borrower or any of its Subsidiaries of any covenant, condition or agreement contained in any of Section 6.01(a) , 6.05(i) , 6.08 or 6.10(h) , 6.12 or in Article VII ;

 

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(e)    default shall be made in the due observance or performance by the Holdcos, any Borrower or any of its Subsidiaries of any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraphs (b) , (c)  and (d)  above) and such default shall continue unremedied for a period of 30 days (or (i) 60 days if such default results solely from a Foreign Subsidiary’s failure to duly observe or perform any such covenant, condition or agreement; (ii) 5 Business Days in the case of any covenant, condition or agreement contained in Section 6.07 , 6.11 or 6.13 or (iii) 10 Business Days in the case of any covenant, condition or agreement contained in Section 6.04) after notice thereof from the Administrative Agent to any Borrower;

(f)    (i) any Loan Party, the Parent Guarantor or any Subsidiary of any thereof (A) fails to make payment when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and beyond any applicable grace period, regardless of amount, in respect of the Secured Notes Obligations or any Material Indebtedness (other than in respect of Swap Contracts), (B) fails to perform or observe any other condition or covenant, or any other event shall occur or condition shall exist, under any agreement or instrument relating to the Secured Notes Obligations or any Material Indebtedness, if the effect of such failure, event or condition (giving effect to any applicable grace period) is to cause, or to permit the holder or holders or beneficiary or beneficiaries of the Secured Notes Obligations or such Material Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, the Secured Notes Obligations or such Material Indebtedness to be declared to be due and payable prior to its stated maturity or (C) shall be required by the terms of the Secured Notes Obligations or such Material Indebtedness to offer to prepay or repurchase such Secured Notes Obligations or Material Indebtedness (or any portion thereof) prior to the stated maturity thereof; or (ii) there occurs under any Swap Contract or Swap Obligation an Early Termination Date (as defined in such Swap Contract) resulting from any event of default under such Swap Contract as to which any Loan Party, the Parent Guarantor or any Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) and the Swap Termination Value owed by a Loan Party, the Parent Guarantor or any Subsidiary thereof as a result thereof is greater than $15,000,000 (in the case of Borrower and its Subsidiaries) or $50,000,000 (in the case of any other Loan Party, the Parent Guarantor or Subsidiary thereof); provided that this clause (f)  shall not apply to secured Indebtedness that becomes due, or which any Loan Party or the Parent Guarantor shall be required to prepay or repurchase, as a result of the sale or transfer (including by way of condemnation or casualty) of the property or assets securing such Indebtedness if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness;

(g)     there shall have occurred a Change in Control;

(h)     an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Holdcos, any Borrower or any of its Subsidiaries, or of a substantial part of the property or assets of the Holdcos, any Borrower or any Subsidiary, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Holdcos, any Borrower or any of its Subsidiaries or for a substantial part of the property or assets of the Holdcos, any Borrower or any of its Subsidiaries or (iii) the winding up or liquidation of the Holdcos, any Borrower or any Subsidiary (except, in the case of any Subsidiary, in a transaction permitted by Section 7.05) ; and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;

(i)    the Holdcos, any Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding

 

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or the filing of any petition described in paragraph (h)  above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Holdcos, any Borrower or any of its Subsidiaries or for a substantial part of the property or assets of the Holdcos, any Borrower or any Subsidiary, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) become unable or admit in writing its inability or fail generally to pay its debts as they become due;

(j)    the failure by the Holdcos, any Borrower or any Subsidiary to pay one or more final judgments aggregating in excess of $15,000,000 (in the case of a Borrower and its Subsidiaries) or $50,000,000 (in the case of any other Loan Party, the Parent Guarantor or Subsidiary of any thereof) (in each case to the extent not covered by insurance), which judgments are not discharged or effectively waived or stayed for a period of 45 consecutive days;

(k)    (i) a trustee shall be appointed by a United States district court to administer any Plan, (ii) an ERISA Event or ERISA Events shall have occurred, (iii) the PBGC shall institute proceedings (including giving notice of intent thereof) to terminate any Plan or Plans, (iv) the Holdcos, any Borrower or any Subsidiary or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent or is being terminated, within the meaning of Title IV of ERISA, (v) the Holdcos, any Borrower or any Subsidiary shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan; and in each case in clauses (i)  through (v) above, such event or condition, together with all other such events or conditions, if any, would reasonably be expected to have a Material Adverse Effect;

(l)    (i) any Loan Document shall for any reason be asserted in writing by the Holdcos, any Borrower or any Subsidiary not to be a legal, valid and binding obligation of any party thereto, (ii) any security interest purported to be created by any Security Document and to extend to assets that are not immaterial to the Holdcos, any Borrower and its Subsidiaries on a consolidated basis shall cease to be, or shall be asserted in writing by any Borrower or any other Loan Party not to be, a valid and perfected security interest (perfected as or having the priority required by this Agreement or the relevant Security Document and subject to such limitations and restrictions as are set forth herein and therein) in the securities, assets or properties covered thereby, except to the extent that any such loss of perfection or priority results from the limitations of foreign laws, rules and regulations as they apply to pledges of Equity Interests in Foreign Subsidiaries or the application thereof, or from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or to file Uniform Commercial Code continuation statements or take the actions described on Schedule 4.04 and except to the extent that such loss is covered by a lender’s title insurance policy and the Administrative Agent shall be reasonably satisfied with the credit of such insurer, or (iii) the Guarantees pursuant to the Security Documents by the Holdcos, the Borrowers or the Subsidiary Loan Parties of any of the ABL Finance Obligations shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by the Holdcos or any Borrower or any Subsidiary Loan Party not to be in effect or not to be legal, valid and binding obligations; or

(m)    any Intercreditor Agreement or any provision thereof shall cease to be in full force and effect (except in accordance with its terms), or any of the Loan Parties or the Parent Guarantor party thereto shall deny or disaffirm their respective obligations thereunder or default in the due performance or observance of any term, covenant or agreement on their part to be performed or observed pursuant to the terms thereof;

(n)    then, and in every such event (other than an event with respect to any Borrower described in paragraph (h)  or (i)  above), and at any time thereafter during the continuance of such event,

 

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the Administrative Agent, at the request of the Required Lenders, shall, by notice to the Borrowers, take any or all of the following actions, at the same or different times: (i) terminate forthwith the Commitments (and any obligations to make L/C Credit Extensions), (ii) declare the Loans and L/C Obligations then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans and the L/C Obligations so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrowers accrued hereunder and under any other Loan Document, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by each Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding, (iii) require that the Borrowers Cash Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto), and (iv) exercise all rights and remedies granted to it under any Loan Document and all its rights under any other applicable law or in equity; and in any event with respect to the applicable Borrower described in paragraph (h)  or (i)  above, the Commitments (and any obligations to make L/C Credit Extensions) shall automatically terminate, the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrowers accrued hereunder and under any other Loan Document, shall automatically become due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by each Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding.

Section 8.02     Exclusion of Immaterial Subsidiaries . Solely for the purposes of determining whether an Event of Default has occurred under clause (h) , (i) , (j)  or (l)  of Section 8.01 , any reference in any such clause to any Subsidiary shall be deemed not to include any Immaterial Subsidiary affected by any event or circumstance referred to in any such clause.

Section 8.03     Application of Funds . After the exercise of remedies provided for in Section 8.01 (or after the Loans have automatically become immediately due and as set forth in Section 8.01) , any amounts received on account of the ABL Finance Obligations shall, subject to the provisions of Section 2.17 and the Intercreditor Agreement, be applied by the Administrative Agent in the following order:

first , to payment of that portion of the ABL Finance Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;

second , to payment of that portion of the ABL Finance Obligations constituting accrued and unpaid interest and unpaid principal of the Swing Line Loans payable to the Swing Line Lender and Agent Advances payable to the Administrative Agent, ratably among the Swing Line Lender and Administrative Agent in proportion to the respective amounts described in this clause Second held by them;

third , to payment of that portion of the ABL Finance Obligations constituting accrued and unpaid Letter of Credit Fees and unpaid principal of the L/C Borrowings, ratably among the L/C Issuers in proportion to the respective amounts described in this clause Third held by them;

fourth , to payment of that portion of the ABL Finance Obligations constituting fees (other than amounts paid under preceding clauses) payable to the Lenders and the L/C Issuers arising under the Loan Documents and amounts payable

 

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under Article III , ratably among them in proportion to the respective amounts described in this clause Fourth payable to them;

fifth , to the Administrative Agent for the account of the L/C Issuers, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrowers pursuant to Sections 2.05 and 2.16 ;

sixth , to payment of that portion of the ABL Finance Obligations, other than amounts paid under preceding clauses, constituting (i) accrued and unpaid interest on the Loans and other ABL Credit Obligations and (ii) unpaid principal of the Loans, in each case, ratably among the Lenders in proportion to the respective amounts described in this clause Sixth held by them;

seventh , to payment of that portion of the ABL Finance Obligations constituting unpaid amounts then owing under Secured Hedge Agreements and Secured Cash Management Agreements, ratably among the relevant Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Seventh held by them;

eighth , to payment of that portion of the ABL Finance Obligations constituting indemnities and other amounts (other than amounts paid under preceding clauses) payable to the Lenders and the L/C Issuers, ratably among them in proportion to the respective amounts described in this clause Eighth payable to them; and

last , the balance, if any, after all of the ABL Finance Obligations have been indefeasibly paid in full, to the Borrowers or as otherwise required by Law.

Subject to Sections 2.05(c) and 2.16 , amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other ABL Finance Obligations, if any, in the order set forth above.

Notwithstanding the foregoing, ABL Finance Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX hereof for itself and its Affiliates as if a “Lender” party hereto.

ARTICLE IX

THE AGENCY PROVISIONS

Section 9.01     Appointment and Authority .

(a) Administrative Agent . Each of the Lenders (in its capacities as a Lender and on behalf of itself and its Affiliates as a potential Hedge Bank and a potential Cash Management Bank) and L/C Issuers hereby irrevocably appoints Wells Fargo to act on its behalf as the Administrative Agent

 

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hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto (including, without limitation, the making of one or more Agent Advances). The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and L/C Issuers. No Borrower shall have rights as a third party beneficiary of any of such provisions (except as expressly provided in Section 9.06) . It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

(b) Collateral Agent . The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (in its capacities as a Lender on behalf of itself and its Affiliates and as a potential Hedge Bank and a potential Cash Management Bank) and L/C Issuers hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and L/C Issuers for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the ABL Finance Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents (and subject to the Intercreditor Agreements), or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article IX and Article X (including Section 10.04(c) , as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.

Section 9.02     Rights as a Lender . The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.

Section 9.03     Exculpatory Provisions . The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:

(i)    shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;

(ii)    shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel,

 

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may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and

(iii)    shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.

The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.01) or (ii) in the absence of its own gross negligence or willful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative Agent by a Borrower, a Lender or an L/C Issuer.

The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, (v) the value or the sufficiency of any Collateral or (vi) the satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

Section 9.04     Reliance by Administrative Agent . The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or L/C Issuer prior to the making of such Loan or the issuance, extension, renewal or increase of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for a Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

Section 9.05     Delegation of Duties . The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply

 

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to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

Section 9.06     Resignation of Administrative Agent .

(a)    The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Borrowers. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrowers, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “ Resignation Effective Date ”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

(b)    If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (iv)  of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrowers and such Person remove such Person as Administrative Agent and, in consultation with the Borrowers, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “ Removal Effective Date ”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.

(c)    With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in Section 3.01(g) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.

(d)    Any resignation by Wells Fargo as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swing Line Lender. If Wells Fargo resigns as an L/C

 

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Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit issued by it which are outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.05(c) . If Wells Fargo resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c) . Upon the appointment by the Borrowers of a successor L/C Issuer or Swing Line Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as applicable, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, issued by the retiring L/C Issuer which are outstanding at the time of such succession or make other arrangements satisfactory to Wells Fargo to effectively assume the obligations of Wells Fargo with respect to such Letters of Credit.

Section 9.07     Non-Reliance on Administrative Agent and Other Lenders . Each Lender and L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent, any arranger of this credit facility or any amendment thereto or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent, any arranger of this credit facility or any amendment thereto or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

Section 9.08     No Other Duties, Etc . Anything herein to the contrary notwithstanding, none of the Joint Bookrunners, Joint Lead Arrangers or Co-Syndication Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an L/C Issuer hereunder, but all such parties shall be entitled to the benefits of this Article IX .

Section 9.09     Administrative Agent May File Proofs of Claim . In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party or the Parent Guarantor, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise:

(i)    to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other ABL Credit Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.05(h) and (i) , 2.12 and 10.04) allowed in such judicial proceeding; and

 

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(ii)    to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.12 and 10.04 .

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the ABL Finance Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

Section 9.10     Collateral and Guaranty Matters . Without limiting the provisions of Section 9.09 each of the Lenders (in its capacities as a Lender and as a potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuers irrevocably authorizes the Administrative Agent, at its option and in its discretion, to:

(i)    release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (A) upon the Facility Termination Date, (B) with respect to any property that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder or under any other Loan Document or (C) if approved, authorized or ratified in writing in accordance with Section 10.01 ;

(ii)    release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents;

(iii)    subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.02(a) , (b) , (c) , (i)  or (j) ; and

(iv)    execute and deliver the Intercreditor Agreements, any amendments, supplements or joinders thereto, and any other intercreditor agreement necessary or desirable to permit the incurrence by the Loan Parties of secured indebtedness permitted to be incurred hereunder with the priority permitted hereunder and perform its obligations and duties, and exercise its rights and remedies, thereunder.

Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10 . In each case as specified in this Section 9.10 , the Administrative Agent will, at the Borrowers’ expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Agreement and the other Loan Documents or to subordinate its interest in such item, or to release such Subsidiary Loan Party from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.10 .

 

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In addition, Agent and the Secured Parties agree to release all Liens over any accounts receivable in connection with their transfer to a Receivables Subsidiary or their sale, transfer or pledge under any Qualified Receivables Financing permitted to be entered into pursuant to the Loan Documents, and will execute any documents and prepare and make any filings reasonably requested by the Borrowers (at the sole cost and expense of the Borrowers), and in form and substance approved by Agent in its reasonable discretion, as may be necessary to evidence such release.

The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.

Without limiting the foregoing, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the ABL Finance Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent or Collateral Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition (including any sale or disposition conducted under a plan of reorganization), any Secured Party may be the purchaser of any or all of such Collateral at any such sale or other disposition, and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Lender, Hedge Bank or Cash Management Bank in its or their respective individual capacities) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply any of the ABL Finance Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the ABL Finance Obligations provided under the Loan Documents, to have agreed to the foregoing provisions. The provisions of this paragraph are for the sole benefit of the Secured Parties and shall not afford any right to, or constitute a defense available to, any Loan Party. The Administrative Agent, in its capacity as “ABL Collateral Agent” under the PBGC Intercreditor Agreement, in its capacity as “ABL Agent” under the Wise Intercreditor Agreement and in its capacity as “ABL Agent” under the Ravenswood Intercreditor Agreement shall be entitled to all rights, privileges, protections, immunities, benefits and indemnities provided to the Administrative Agent under this Article IX and under Section 10.04 .

Section 9.11     Secured Hedge Agreements and Secured Cash Management Agreements . Except as otherwise expressly set forth herein or in any Guaranty or any Security Document, no Hedge Bank or Cash Management Bank that obtains the benefits of Section 8.01 , the Guaranty or any Collateral by virtue of the provisions hereof or of the Guaranty or any Security Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, ABL Finance Obligations arising under Secured Hedge Agreements and Secured Cash Management Agreements unless the Administrative Agent has received written notice of such ABL Finance Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Hedge Bank or Cash Management Bank, as the case may be.

 

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ARTICLE X

MISCELLANEOUS

Section 10.01     Amendments, Etc . Except as otherwise set forth in this Agreement, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders (or by the Administrative Agent with the consent or ratification of the Required Lenders or such other number or percentage of Lenders as may be specified herein) and the applicable Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that (x) the Administrative Agent and each Borrower may, with the consent of the Administrative Agent and each Borrower, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, omission, typographical error, mistake, defect or inconsistency if such amendment, modification or supplement does not adversely affect the rights of any Agent, any Lender or any L/C Issuer, to comply with local law or the advice of local counsel or to cause one or more Loan Documents to be consistent with other Loan Documents and (y) no such amendment, waiver or consent shall:

(i)    without the written consent of each Lender, (A) waive any condition set forth in Section 5.02 or (B) without limiting the generality of the preceding clause (A) , waive any condition set forth in Section 5.01 as to any Credit Event under the Revolving Facility (it being understood that the waiver of any Default or Event of Default or the amendment or waiver of any covenant or representation contained herein shall not constitute a waiver of any condition set forth in Section 5.01 or Section 5.02) ;

(ii)    extend or increase (other than pursuant to Section 2.15) the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.01) without the written consent of such Lender directly and adversely affected thereby;

(iii)    postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest or fees due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly and adversely affected thereby;

(iv)    reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or any fees payable hereunder or under any other Loan Document, without the written consent of each Lender directly and adversely affected thereby;

(v)    change Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender directly and adversely affected thereby;

(vi)    change any provision of this Section 10.01 , the definition of “Required Lenders” or the definition of “Supermajority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;

(vii)    modify the definition of “Pro Rata Share” or amend or otherwise modify the provisions of Section 2.14(c) without the written consent of each Lender;

 

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(viii)    release the Collateral Agent’s Liens on all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender;

(ix)    except as otherwise permitted under this Agreement, permit any Loan Party or the Parent Guarantor to assign its rights under this Agreement or any other Loan Document to which it is a party;

(x)    release all or substantially all of the value of the Guaranties, without the written consent of each Lender, except to the extent the release of any Subsidiary from the Guaranty is permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative Agent acting alone);

(xi)    subordinate the Collateral Agent’s Liens on the ABL Priority Collateral (other than with respect to Permitted Liens) or subordinate the payment of the ABL Finance Obligations, in each case, without the written consent of each Lender;

(xii)    increase the advance rates set forth in the definition of Borrowing Base or otherwise modify the definition thereof without the written consent of the Supermajority Lenders; or

(xiii)    except as otherwise set forth in the definitions of Eligible Accounts and Eligible Inventory, add new asset categories to the Borrowing Base, or otherwise cause the Borrowing Base availability under the Revolving Facility to be increased beyond the level permissible under this Agreement as then in effect, in each case without the written consent of the Supermajority Lenders (it being understood and agreed that the Administrative Agent’s release or reduction of a Reserve shall not constitute an amendment, waiver or consent under this Section 10.01) ;

provided , further , that: (i) no amendment, waiver or consent shall, unless in writing and signed by each applicable L/C Issuer in addition to the Lenders required above, affect the rights or duties of such L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; (iv) no amendment, waiver or consent which would require the consent of a Lender but for the fact that it is a Defaulting Lender shall be enforced against it without its consent; and (v) the Engagement Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately more adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.

Notwithstanding any provision herein to the contrary, the Borrowers may, by written notice to the Administrative Agent from time to time, make one or more offers (each, a “ Loan

 

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Modification Offer ”) to all the Lenders under the Revolving Facility (as subject to such a Loan Modification Offer, an “ Affected Facility ”) to make one or more Permitted Amendments (as defined below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers. Such notice shall set forth (i) the terms and conditions of the requested Permitted Amendment and (ii) the date on which such Permitted Amendment is requested to become effective (which shall not be less than 10 Business Days nor more than 30 Business Days after the date of such notice) (or such shorter periods as are acceptable to the Administrative Agent). Permitted Amendments shall become effective only with respect to the Loans of the Lenders under the Affected Facility that accept the applicable Loan Modification Offer (such Lenders, the “ Accepting Lenders ”) and, in the case of any Accepting Lender, only with respect to such Lender’s Loans under such Affected Facility as to which such Lender’s acceptance has been made. Each Borrower and each Accepting Lender shall execute and deliver to the Administrative Agent an agreement in form and substance satisfactory to the Administrative Agent giving effect to the Permitted Amendment (a “ Loan Modification Agreement ”) and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders under the Affected Facility. Notwithstanding the foregoing, no Permitted Amendment shall become effective under this paragraph unless the Administrative Agent shall have received any corporate documents, officers’ certificates or legal opinions consistent with those delivered on the Closing Date under Section 5.02 reasonably requested by the Administrative Agent. As used in this paragraph, “ Permitted Amendments ” shall be limited to (i) an extension of the final maturity date of the applicable Loans of the Accepting Lenders ( provided that such extension may not result in having more than two additional final maturity dates in any year, or more than three additional final maturity dates at any time, under this Agreement without the consent of the Administrative Agent), (ii) a reduction, elimination or extension, of the scheduled amortization of the applicable Loans of the Accepting Lenders, (iii) a change in rate of interest (including a change to the Base Rate or Eurodollar Rate and any provision establishing a minimum rate), premium, or other amount with respect to the applicable Loans of the Accepting Lenders and/or a change in the payment of fees to the Accepting Lenders and/or a change in the payment of fees to the Accepting Lenders (such change and/or payments to be in the form of cash, Equity Interests or other property to the extent not prohibited by this Agreement) and (iv) any other amendment to a Loan Document required to give effect to the Permitted Amendments described in clauses (i)  through (iii)  of this sentence.

If any Lender (a “ Non-Consenting Lender ”) does not consent to a proposed amendment, waiver, consent, release, discharge or termination with respect to any Loan Document that, pursuant to the terms of this Section 10.01 , requires the consent of each Lender (or each affected Lender) and that has been approved by the Required Lenders, the Borrowers may replace such Non-Consenting Lender in accordance with Section 10.14 .

No Real Property shall be taken as Collateral unless the Lenders receive 45 days prior written notice and each Lender confirms to the Administrative Agent and the Collateral Agent that it has completed all flood due diligence, received copies of all flood insurance documentation and confirmed flood insurance compliance as required by the Flood Laws or as otherwise satisfactory to such Lender. At any time that any Real Property constitutes Collateral, no modification of a Loan Document shall add, increase, renew or extend any Loan, Commitment or other Credit Event hereunder (other than pursuant to Section 2.15) until the completion of flood due diligence, documentation and coverage as confirmed to the Administrative Agent and the Collateral Agent by all Lenders and as required by the Flood Laws or as otherwise satisfactory to all Lenders.

 

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Section 10.02     Notices; Effectiveness; Electronic Communication .

(a)     Notices Generally . Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b)  below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

(i)    if to any Borrower, the Holdcos or any other Loan Party, the Administrative Agent, an L/C Issuer or the Swing Line Lender to the address, fax number, electronic mail address or telephone number specified for such Person on Schedule 10.02 ; and

(ii)    if to any other Lender, to the address, fax number, electronic mail address or telephone number specified in its Administrative Questionnaire.

Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by fax shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient).Notices and other communications delivered through electronic communications to the extent provided in subsection (b)  below, shall be effective as provided in such subsection (b) .

(b)     Electronic Communications . Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender or L/C Issuer pursuant to Article II if such Lender or L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent, the Swing Line Lender and L/C Issuers or the Borrowers may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i)  of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i)  and (ii) , if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.

(c)     The Platform . THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A

 

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PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent, the Joint Bookrunners, the Co-Syndications Agents or any of their respective Related Parties (collectively, “ Agent Parties ”) have any liability to the Holdcos, any Borrower, any Lender, any L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of Borrower Materials through the Internet.

(d)     Change of Address, Etc . Each of the Holdcos, each Borrower, the Administrative Agent, each L/C Issuer and the Swing Line Lender may change its address, fax or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, fax or telephone number for notices and other communications hereunder by notice to each Borrower, the Administrative Agent, each L/C Issuer and the Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, fax number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.

(e)     Reliance by Administrative Agent, L/C Issuers and Lenders . The Administrative Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic Borrowing Requests, Letter of Credit Requests and Swing Line Loan Notices) purportedly given by or on behalf of any Borrower or any other Loan Party even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. Each Borrower shall indemnify the Administrative Agent, each L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on any notice purportedly given by or on behalf of such Borrower in the absence of gross negligence or willful misconduct by the Administrative Agent in relying on any notice purportedly given by or on behalf of such Borrower, such Lender or Related Party, as applicable, as determined in a final and non-appealable judgment by a court of competent jurisdiction. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.

Section 10.03     No Waiver; Cumulative Remedies; Enforcement . No failure by any Lender or L/C Issuer or by the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided and provided under each other Loan Document are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

Notwithstanding anything to the contrary contained herein or in any other Loan Document, but subject to the Intercreditor Agreements, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.01 for the benefit of all the Lenders and the L/C Issuers; provided , however , that the foregoing shall not prohibit (i) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents,

 

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(ii) any L/C Issuer and the Swing Line Lender from exercising the rights and remedies that inure to its benefit solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be, hereunder and under the other Loan Documents, (iii) any Lender from exercising setoff rights in accordance with Section 10.09 (subject to the terms of Section 2.14) or (iv) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; provided , further , that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (x) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.01 and (y) in addition to the matters set forth in clauses (ii) , (iii)  and (iv)  of the preceding proviso and subject to Section 2.14 , any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

Section 10.04     Expenses; Indemnity; Damage Waiver .

(a)     Costs and Expenses . The Loan Parties and the Parent Guarantor, jointly and severally, agree to pay, upon the Administrative Agent’s demand, (i) all reasonable and documented out-of-pocket expenses and customary administrative charges incurred by the Administrative Agent, the Joint Lead Arrangers, the Joint Bookrunners and their respective Affiliates (including the reasonable and invoiced fees, charges and disbursements of Sidley Austin LLP, as counsel for the Administrative Agent, and, if necessary, the reasonable fees, charges and disbursements of one local counsel per jurisdiction), in connection with the syndication and arrangement of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents (including expenses incurred in connection with due diligence and initial ongoing Collateral examination to the extent incurred in compliance with this Agreement, filing and search charges, recording taxes, appraisals, environmental assessments and field examination charges and expenses (including a charge at the then-standard rate of the Administrative Agent per person per day for the examiners of the Administrative Agent in the field and in the office, which, as of the Closing Date, is not to exceed $1,000 per person per day for examinations with respect to Loan Parties) or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the Transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses and customary administrative charges incurred by any L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and, (iii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, any Lender or any L/C Issuer (including the reasonable and invoiced fees, charges and disbursements of any special counsel (limited to one firm for the Administrative Agent, the Lenders and the L/C Issuers unless, in the reasonable opinion of the Administrative Agent or any such Lender or L/C Issuer seeking reimbursement, such joint representation would be inappropriate due to the existence of any actual or potential conflict of interest, in which case the Administrative Agent or any such Lender or L/C Issuer, as the case may be, shall inform the Borrowers of such conflict and the Borrowers shall reimburse the legal fees and expenses of no more than such number of additional outside counsel for the Administrative Agent, the Lenders and the L/C Issuers as is necessary to avoid any actual or potential conflict of interest)) and local counsel (limited to one firm for the Administrative Agent, the Lenders and the L/C Issuers in each relevant jurisdiction unless, in the reasonable opinion of the Administrative Agent or any such Lender or L/C Issuer seeking reimbursement, such joint representation would be inappropriate due to the existence of any actual or potential conflict of interest, in which case the Administrative Agent or any such Lender or L/C Issuer, as the case may be, shall inform the Borrowers of such conflict and the Borrowers shall reimburse the legal fees and expenses of no more than such number of additional outside counsel for the Administrative Agent, the Lenders and the L/C Issuers as is necessary to avoid any actual or potential conflict of interest for the Administrative Agent, the Lenders and the L/C Issuer), in connection with the enforcement, collection or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection

 

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with the Loans made or Letters of Credit issued hereunder, including all such reasonable and documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.

(b)     Indemnification . The Loan Parties and the Parent Guarantor, jointly and severally, shall indemnify the Administrative Agent (and any sub-agent thereof), the Collateral Agent, the Joint Lead Arrangers, the Joint Bookrunners, the Co-Syndication Agents, each Lender, each L/C Issuer, and each of its respective Affiliates and their respective Related Parties (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable legal counsel fees, charges and disbursements of not more than one counsel, plus, if necessary, one local counsel per jurisdiction (except the allocated costs of in-house counsel) unless, in the reasonable opinion of any such Indemnitee seeking indemnity, such joint representation would be inappropriate due to the existence of any actual or potential conflict of interest, in which case such Indemnitee or Indemnitees, as the case may be, shall inform the Borrowers of such conflict and the Borrowers shall reimburse the legal fees and expenses of no more than such number of additional outside counsel for the Indemnitees as is necessary to avoid any actual or potential conflict of interest), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including any Borrower or any other Loan Party or the Parent Guarantor) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the Transactions and the other transactions contemplated hereby or thereby (including, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01 )), (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto or (iv) any payment of Payoff Letter Charges made or required to be made by the Administrative Agent to the Existing Agents pursuant to the Payoff Letters; provided that, with respect to clauses (i) , (ii)  and (iii)  above, such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee (for purposes of this proviso only, each of the Administrative Agent, any Joint Lead Arranger, any Joint Bookrunner, any L/C Issuer, the Swing Line Lender or any Lender shall be treated as several and separate Indemnitees, but each of them, together with its respective directors, trustees, officers and employees, shall be treated as a single Indemnitee) or (y) any material breach of any Loan Document by such Indemnitee. Subject to and without limiting the generality of the foregoing sentence, each Loan Party and the Parent Guarantor agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel or consultant fees, charges and disbursements (limited to not more than one counsel, plus, if necessary, one local counsel per jurisdiction) (except the allocated costs of in-house counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (A) any claim related in any way to Environmental Laws and Loan Parties or any of their Subsidiaries, or (B) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any Real Property; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the (1) gross negligence, bad faith or willful misconduct of such Indemnitee or (2) any material breach of any Loan Document by such

 

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Indemnitee (for purposes of this proviso only, each of the Administrative Agent, any Joint Lead Arranger, any Joint Bookrunner, any L/C Issuer, the Swing Line Lender or any Lender shall be treated as several and separate Indemnitees, but each of them together, together with its respective directors, trustees, officers and employees, shall be treated as a single Indemnitee). None of the Indemnitees (or any of their respective Affiliates) shall be responsible or liable to the Loan Parties or any of their respective subsidiaries, Affiliates or stockholders or any other person or entity for any special, indirect, consequential or punitive damages, which may be alleged as a result of the Revolving Facility or the Transactions. Without limiting the provisions of Section 3.01(c) , this Section 10.04(b) shall not apply with respect to Taxes (other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim). The provisions of this Section 10.04 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of any of the ABL Credit Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Administrative Agent or any Lender or L/C Issuer. All amounts due under this Section 10.04 shall be payable on written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.

(c)     Reimbursement by Lenders . To the extent that the Loan Parties or the Parent Guarantor for any reason fail indefeasibly to pay any amount required under subsection (a)  or (b)  of this Section to be paid by it or them to the Administrative Agent (or any sub-agent thereof), any L/C Issuer or the Swing Line Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), each L/C Issuer or the Swing Line Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s outstanding Loans and unused Commitments at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lenders’ percentage (carried out to the ninth decimal place) of the Revolving Facility (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), an L/C Issuer or the Swing Line Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) an L/C Issuer or the Swing Line Lender in connection with such capacity. The obligations of the Lenders under this subsection (c)  are subject to the provisions of Section 2.02(a) .

(d)     Waiver of Consequential Damages . To the fullest extent permitted by applicable Law, no Borrower shall assert, and each Borrower hereby waives, and acknowledges that no other Loan Party or the Parent Guarantor shall have, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in subsection (b)  above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and non-appealable judgment of a court of competent jurisdiction.

(e)     Payments . All amounts due under this Section shall be payable not later than ten Business Days after demand therefor; provided , however, any Indemnitee shall promptly refund an

 

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indemnification payment received hereunder to the extent that there is a final judicial determination that such Indemnitee was not entitled to indemnification with respect to such payment pursuant to this Section 10.04 .

(f)     Survival . The agreements in this Section and the indemnity provisions of Section 10.02(e) shall survive the resignation of the Administrative Agent, any L/C Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the Commitments of all the Lenders and the repayment, satisfaction or discharge of all the other ABL Credit Obligations.

(g)     Revolving Loans for Payment of Payoff Letter Charges . If, and to the extent that, any Borrower fails to reimburse the Administrative Agent within one Business Day after demand therefor for any applicable Payoff Letter Charges paid or required to be paid by the Administrative Agent pursuant to the Payoff Letters, and provided that the conditions set forth in Section 5.01 are satisfied, such Borrower shall be deemed to have requested that the Administrative Agent make, and the Administrative Agent shall make, a Revolving Facility Loan in the amount of such Payoff Letter Charges, the proceeds of which Revolving Facility Loan shall be applied to reimburse the Administrative Agent for payment of, or pay the applicable Existing Agent amount of, as applicable, such Payoff Letter Charges.

Section 10.05     Payments Set Aside . To the extent that any payment by or on behalf of any Borrower or any other Loan Party or the Parent Guarantor is made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative Agent, any L/C Lender or any Lender exercises its right of set-off, and such payment or the proceeds of such set-off or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (i) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such set-off had not occurred, and (ii) each Lender and L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuers under clause (ii)  of the preceding sentence shall survive the payment in full of the ABL Credit Obligations and the termination of this Agreement.

Section 10.06     Successors and Assigns .

(a)     Successors and Assigns Generally . The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither any Borrower nor any other Loan Party nor the Parent Guarantor (except as otherwise permitted by this Agreement) may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 10.06(b) , (ii) by way of participation in accordance with the provisions of Section 10.06(d) , or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.06(e) . Nothing in this Agreement, expressed or implied, is intended to confer, shall be construed to confer, or shall confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d)  of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

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(b)     Assignments by Lenders . Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this Section 10.06(b) , participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:

(i)     Minimum Amounts .

(A)     in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment under the Revolving Facility and/or the Loans at the time owing to it or contemporaneous assignments to related Approved Funds that equal at least the amount specified in subsection (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

(B)     in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, each Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).

(ii)     Proportionate Amounts . Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii)  shall not apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans.

(iii)     Required Consents . No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:

(A)     the consent of each Borrower (such consent not to be unreasonably withheld, conditioned or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrowers shall be deemed to have consented to any such assignment unless they shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice thereof; provided , further , that the Borrowers’ consent shall not be required during the primary syndication of the Revolving Facility;

(B)     the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) shall be required for assignments in respect of (i) any unfunded Commitment if such assignment is to a Person that is not a Lender with a Commitment, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (ii) any Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and

 

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(C)     the consent of each L/C Issuer and the Swing Line Lender (such consent not to be unreasonably withheld, conditioned or delayed) shall be required for any assignment in respect of the Revolving Facility.

(iv)     Assignment and Assumption . The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption via an electronic settlement system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and shall pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent). The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and all applicable tax forms.

(v)     No Assignment to Certain Persons . No such assignment shall be made (A) to any Loan Party or any Affiliates or Subsidiaries of any Loan Party, (B) to any Defaulting Lender or any of its Subsidiaries, or (C) to any natural person.

(vi)     Certain Additional Payments . In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrowers and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, any L/C Issuer or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Revolving Facility Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)  of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01 , 3.04, 3.05 and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment); provided that, except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d)  of this Section 10.06 . Notwithstanding the foregoing, no assignee, which as of the date of any assignment to it pursuant to this Section 10.06 would be entitled to any payments

 

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under Sections 3.01 , 3.04 or 3.05 in an amount greater than the assignor would have been entitled to as of such date with respect to the rights assigned, shall be entitled to such greater payments.

(c)     Register . (i) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrowers (and such agency being solely for Tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders and L/C Issuers, and the Commitments of, and principal amounts (and stated interest) of the Loans, L/C Borrowings and Swing Line Loans owing to, each Lender and L/C Issuer pursuant to the terms hereof from time to time (the “ Register ”).The entries in the Register shall be conclusive absent manifest error, and the Borrowers, the Administrative Agent, the Lenders and L/C Issuers shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender, L/C Issuer or Swing Line Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by any Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. In addition, at any time that a request for a consent for a material or other substantive change to the Loan Documents is pending, any Lender or L/C Issuer may request and receive from the Administrative Agent a copy of the Register.

(ii)     Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), all applicable tax forms, the processing and recordation fee referred to in paragraph (b)(iv) of this Section 10.06 (unless waived in accordance with such paragraph) and any written consent to such assignment required by paragraph (b)(iii) of this Section 10.06 , the Administrative Agent shall promptly accept such Assignment and Assumption and record the information contained therein in the Register. No assignment, whether or not evidenced by a promissory note, shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph (c)(ii) .

(d)     Participations . Any Lender may at any time, without the consent of, or notice to, any Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, a known Defaulting Lender or a Loan Party or any Affiliates or Subsidiaries of a Loan Party) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent, the L/C Issuers and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.04(c) without regard to the existence of any participation.

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement or any of the other Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clause (y)  of the first proviso to Section 10.01 that affects such Participant and requires the consent of each Lender directly affected thereby. Each Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b)  of this Section (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the

 

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participation); provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 10.14 as if it were an assignee under paragraph (b)  of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01, 3.04 or 3.05 , with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, unless the sale of the participation to such Participant is made with the Borrowers’ prior written consent. A participant shall not be entitled to the benefits of Section 3.01 to the extent such Participant fails to comply with Section 3.01(e) as though it were a Lender. Each Lender that sells a participation agrees, at a Borrower’s request and expense, to use reasonable efforts to cooperate with such Borrower to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.09 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.14 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, L/C Borrowings, Swing Line Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, L/C Borrowing, Swing Line Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(e)     Certain Pledges . Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(f)     Resignation as an L/C Issuer or Swing Line Lender after Assignment . Notwithstanding anything to the contrary contained herein, if at any time Wells Fargo assigns all of its Revolving Facility Commitment and Revolving Facility Loans pursuant to Section 10.06(b) , Wells Fargo may, (i) upon 30 days’ notice to the Borrowers and the Lenders, resign as an L/C Issuer and/or (ii) upon 30 days’ notice to the Borrowers, resign as Swing Line Lender. In the event of any such resignation as an L/C Issuer or the Swing Line Lender, the Borrowers shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided , however , that no failure by the Borrowers to appoint any such successor shall affect the resignation of Wells Fargo as an L/C Issuer or the Swing Line Lender, as the case may be. If Wells Fargo resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit issued by it which remain outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.05(c) ). If Wells Fargo resigns as the Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c) . Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be,

 

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and (ii) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, issued by the retiring L/C Issuer and remaining outstanding at the time of such succession or make other arrangements satisfactory to Wells Fargo to effectively assume the obligations of Wells Fargo with respect to such Letters of Credit.

Section 10.07     Treatment of Certain Information; Confidentiality . Each of the Administrative Agent, the L/C Issuers and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed: (i) to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (ii) to the extent required or requested by any applicable regulatory authority having jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners); (iii) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process; (iv) to any other party hereto; (v) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (vi) subject to an agreement containing confidentiality provisions substantially the same (and at least as restrictive) as those of this Section, to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or any assignee invited to be a Lender pursuant to Section 2.15 or (B) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the obligations under this Agreement, (vii) to (A) any rating agency in connection with rating any Borrower or its Subsidiaries or the credit facilities provided hereunder or (B) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, in each case on a confidential basis, (viii) with the consent of the Borrowers or (ix) to the extent such Information (A) becomes publicly available other than as a result of a breach of this Section or (B) becomes available to the Administrative Agent, any L/C Issuer or any Lender or any of their respective Affiliates on a non-confidential basis from a source other than the Holdcos, any Borrower or any Subsidiary. For purposes of this Section, “Information” means all information received from the Holdcos, any Borrower or any Subsidiary relating to the Holdcos, any Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any L/C Issuer or any Lender on a non-confidential basis prior to disclosure by the Holdcos, any Borrower or any Subsidiary. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. Notwithstanding any other provision of this Agreement, any other Loan Document or any Assignment and Assumption, the provisions of this Section 10.07 shall survive with respect to the Administrative Agent and each Lender and L/C Issuer until the second anniversary of the Administrative Agent or Lender ceasing to be the Administrative Agent or a Lender or an L/C Issuer, respectively.

Section 10.08     Platform; Borrower Materials . Each of the Holdcos and each Borrower hereby acknowledges that the Administrative Agent and/or the Arranger may, but shall not be obligated to, make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Holdcos and any Borrower hereunder (collectively, “ Borrower Materials ”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “ Platform ”).

Section 10.09     Right of Setoff . If an Event of Default shall have occurred and be continuing, each Lender and each L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Law, to set off and apply any

 

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and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or L/C Issuer or any such Affiliate to or for the credit or the account of any Borrower, any other Loan Party or the Parent Guarantor against any and all of the obligations of such Borrower, such Loan Party or the Parent Guarantor now or hereafter existing under this Agreement or any other Loan Document to such Lender or an L/C Issuer or such Affiliate, irrespective of whether or not such Lender, L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Borrower, such Loan Party or the Parent Guarantor may be contingent or unmatured or are owed to a branch or office of such Lender or L/C Issuer or such Affiliate different from the branch or office holding such deposit or obligated on such indebtedness; provided that, in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, L/C Issuers and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the ABL Finance Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, L/C Issuer or their respective Affiliates may have. Each Lender and L/C Issuer agrees to notify the Borrowers and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.

Section 10.10     Interest Rate Limitation . Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “ Maximum Rate ”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the applicable Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (i) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (ii) exclude voluntary prepayments and the effects thereof and (iii) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the ABL Credit Obligations hereunder.

Section 10.11     Counterparts; Integration; Effectiveness . This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent or an L/C Issuer, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 5.02 , this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by fax or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.

Section 10.12     Survival of Representations and Warranties . All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent

 

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and each Lender and L/C Issuer, regardless of any investigation made by the Administrative Agent or any Lender or L/C Issuer or on their behalf and notwithstanding that the Administrative Agent or any Lender or L/C Issuer may have had notice or knowledge of any Default or Event of Default at the time of any credit extension, and shall continue in full force and effect as long as any Loan or any other ABL Credit Obligation shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.

Section 10.13     Severability . If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (i) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (ii) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.13 , if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.

Section 10.14     Replacement of Lenders . If any Lender is a Defaulting Lender or a Non-Consenting Lender or if any other circumstance exists hereunder that gives the Borrowers the right to replace a Lender as a party hereto, then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 10.06 ), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:

(i)     unless waived, the Borrowers or such assignee shall have paid to the Administrative Agent the assignment fee specified in Section 10.06(b) ;

(ii)     such Lender shall have received payment of an amount equal to the outstanding par principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from such assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts);

(iii)     in the case of any assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01 , such assignment will result in a reduction in such compensation or payments thereafter; and

(iv)     such assignment does not conflict with applicable Laws.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver or consent, as applicable, by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply. Each party hereto agrees that an assignment required pursuant to this Section 10.14 may be effected pursuant to, and recorded on the Register after execution of, an Assignment and Assumption executed by each Borrower, the Administrative Agent and the assignee and the Lender required to make such assignment need not be a party thereto. Each Lender agrees that, if the Borrowers elect to replace such Lender in accordance with this Section, it shall promptly deliver to the Administrative Agent any Note (if Notes have been issued in respect of such Lender’s Loans) subject to such Assignment and Assumption. Nothing in this Section

 

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10.14 shall be deemed to prejudice any rights that the Borrowers may have against any Lender that is a Defaulting Lender.

Section 10.15     Governing Law; Jurisdiction Etc .

(a)     Governing Law . THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE APPLICATION OF LAWS OF ANOTHER JURISDICTION.

(b)     Submission to Jurisdiction . EACH BORROWER, EACH OTHER LOAN PARTY AND THE PARENT GUARANTOR IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, ANY L/C ISSUER OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY BORROWER, THE PARENT GUARANTOR OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(c)     Waiver of Venue . EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B)  OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

 

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(d)     Service of Process . EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 . NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

Section 10.16     Waiver of Jury Trial . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

Section 10.17     No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i)(A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Joint Lead Arrangers, the Joint Bookrunners, the Co-Syndication Agents and the Lenders are arm’s-length commercial transactions between each Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Joint Lead Arrangers, the Joint Bookrunners, the Co-Syndication Agents and the Lenders, on the other hand, (B) each Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii)(A) the Administrative Agent, each Joint Lead Arranger, each Joint Bookrunner, each Co-Syndication Agent and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for any Borrower or any of its Affiliates, or any other Person and (B) neither the Administrative Agent, any Joint Lead Arranger, any Joint Bookrunner, any Co-Syndication Agent nor any Lender has any obligation to any Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Joint Lead Arrangers, the Joint Bookrunners, the Co-Syndication Agents and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrowers and their respective Affiliates, and neither the Administrative Agent, any Joint Lead Arranger, any Joint Bookrunner, any Co-Syndication Agent nor any Lender has any obligation to disclose any of such interests to any Borrower or its Affiliates. To the fullest extent permitted by law, each Borrower hereby waives and releases any claims that it may have against the Administrative Agent, the Joint Lead Arrangers, the Joint Bookrunners or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

Section 10.18     Electronic Execution of Assignments and Certain Other Documents . The words “execute,” “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in

 

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electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

Section 10.19     USA Patriot Act Notice . Each Lender that is subject to the Patriot Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties and the Parent Guarantor that pursuant to the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56 (signed into Law October 26, 2001) (the “ Patriot Act ”)), it is required to obtain, verify and record information that identifies each Loan Party and the Parent Guarantor, which information includes the name and address of each Loan Party and the Parent Guarantor and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party and the Parent Guarantor in accordance with the Patriot Act. Each Borrower shall, and shall cause each other Loan Party and the Parent Guarantor to, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

Section 10.20     Intercreditor Agreements . Each Lender party hereto understands, acknowledges and agrees that it is the intention of the parties hereto that each of the ABL Finance Obligations and the Secured Notes Obligations are intended to constitute a distinct and separate class from the other, and, as between the Secured Parties, on the one hand, and the Secured Notes Secured Parties, on the other hand, it is the intention of the parties that (i) the ABL Finance Obligations (including all post-petition interest with respect thereto) have a first priority security interest in all ABL Priority Collateral and that the Secured Notes Obligations (including all post-petition interest with respect thereto) have a second priority security interest in all ABL Priority Collateral, and (ii) the Secured Notes Obligations (including all post-petition interest with respect thereto) have a first priority security interest in all Secured Notes Priority Collateral and that the ABL Finance Obligations (including all post-petition interest with respect thereto) have a second priority security interest in all Secured Notes Priority Collateral. Each Lender further understands, acknowledges and agrees that the provisions setting forth the priorities as between the Secured Notes Secured Parties, on the one hand, and the Secured Parties, on the other hand, are set forth in the Secured Notes Intercreditor Agreement.

Each Lender agrees that it will be bound by, and will take no actions contrary to, the provisions of each Intercreditor Agreement. Each Lender authorizes and instructs the Administrative Agent and the Collateral Agent to enter into the Security Documents and the Intercreditor Agreements on behalf of such Lender and to take all actions (and execute all documents) required (or deemed advisable) by the Administrative Agent or the Collateral Agent in accordance with the terms of the Security Documents and the Intercreditor Agreements.

The provisions of this Section 10.20 are not intended to summarize all relevant provisions of the Intercreditor Agreements. Reference must be made to each Intercreditor Agreement itself to understand all terms and conditions thereof. Each Lender is responsible for making its own analysis and review of each Intercreditor Agreement and the terms and provisions thereof, and neither the Administrative Agent nor the Collateral Agent or any of their respective affiliates, representatives, advisors, attorneys or other Person makes any representation to any Lender as to the sufficiency or advisability of the provisions contained in any Intercreditor Agreement. Notwithstanding anything to the contrary set forth herein or in any other Loan Document, this Agreement is subject to the terms and provisions of each Intercreditor Agreement. In the event of an inconsistency between the provisions of

 

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this Agreement and any Intercreditor Agreement, the provisions of such Intercreditor Agreement shall prevail.

Each Lender further agrees that it will be bound by, and will take no actions contrary to, the provisions of any intercreditor agreement contemplated by Section 7.02(b) and (u)  (each, a “ Secured Debt Intercreditor Agreement ”). Each Lender authorizes and instructs the Administrative Agent and the Collateral Agent to enter into any Secured Debt Intercreditor Agreement on behalf of such Lender and to take all actions (and execute all documents) required (or deemed advisable) by the Administrative Agent or the Collateral Agent in accordance with the terms of such Secured Debt Intercreditor Agreement.

Section 10.21     Field Audit and Examination Reports; Disclaimer by Lenders . By signing this Agreement, each Lender: (i) is deemed to have requested that the Administrative Agent furnish such Lender, promptly after it becomes available, a copy of each field audit or examination report (each a “ Report ” and collectively, “ Reports ”) prepared by or on behalf of the Administrative Agent; (ii) expressly agrees and acknowledges that neither Wells Fargo nor the Administrative Agent (A) makes any representation or warranty as to the accuracy of any Report, or (B) shall be liable for any information contained in any Report; (iii) expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that the Administrative Agent, Wells Fargo, or other party performing any audit or examination will inspect only specific information regarding the Borrowers and will rely significantly upon the Borrowers’ books and records, as well as on representations of the Borrowers’ personnel; (iv) agrees to keep all Reports confidential and strictly for its internal use, and not to distribute except to its participants, or use any Report in any other manner; and (v) without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (A) to hold the Administrative Agent and any such other Lender preparing a Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying Lender may reach or draw from any Report in connection with any loans or other credit accommodations that the indemnifying Lender has made or may make to any Borrower, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a loan or loans of any Borrower; and (B) to pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts incurred by or on behalf of the Administrative Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.

Section 10.22     Release of Liens and Guarantees . In the event that any Loan Party conveys, sells, leases, assigns, transfers or otherwise disposes of all or any portion of any of the Equity Interests or assets of any Subsidiary Loan Party to a person that is not (and is not required to become) a Loan Party in a transaction not prohibited by Section 7.05 , any Liens created by any Loan Document in respect of such Equity Interests or assets shall be automatically released and the Administrative Agent shall promptly (and the Lenders hereby authorize the Administrative Agent to) take such action and execute any such documents as may be reasonably requested by the Holdcos or any Borrower and at the Borrowers’ expense to release any Liens created by any Loan Document in respect of such Equity Interests or assets, and, in the case of a disposition of the Equity Interests of any Subsidiary Loan Party in a transaction permitted by Section 7.05 (including through merger, consolidation, amalgamation or otherwise) and as a result of which such Subsidiary Loan Party would cease to be a Subsidiary, such Subsidiary Loan Party’s obligations under the Loan Documents shall be automatically terminated and the Administrative Agent shall promptly (and the Lender hereby authorizes the Administrative Agent to) take such action and execute such documents at the Borrowers’ expense as may be reasonably requested by the Holdcos or any Borrower to terminate such Subsidiary Loan Party’s obligations under the Loan Documents. In addition, the Administrative Agent agrees (a) to take such actions as are reasonably requested by any Borrower and at the Borrowers’ expense to terminate the Liens and security interests created by the Loan Documents when all the ABL Credit Obligations (other than contingent

 

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indemnification obligations) are paid in full, all Commitments to lend hereunder are terminated and all Letters of Credit have been either cancelled or cash collateralized as required hereunder and (b) to enter into any Secured Debt Intercreditor Agreement (in the circumstances and on those terms contemplated by this Agreement) and to take such actions (and execute all documents) as are reasonably requested by the Holdcos or any Borrower in connection with such Secured Debt Intercreditor Agreement.

Section 10.23     Headings . Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

Section 10.24     Acknowledgement and Consent to Bail-In of EEA Financial Institutions . Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a)     the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

(b)     the effects of any Bail-In Action on any such liability, including, if applicable:

(i)      a reduction in full or in part or cancellation of any such liability;

(ii)     a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii)     the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.

Section 10.25     Power of Attorney

(a)     A party may appoint an attorney to represent it for purposes of signing this Agreement or any agreement or document it enters into in connection with this Agreement.

(b)     If the power of attorney is expressed to be governed by Dutch law, each other party accepts that choice of law, in accordance with article 14 of the Hague Convention on the Law Applicable to Agency of 14 March 1978.

[Signature Pages Follow]

 

- 158 -

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first written above.

 

CONSTELLIUM HOLDCO II B.V.

By:

 

/s/ Mark Kirkland

Name: Mark Kirkland

Title:   Authorised Signatory

Signature Page to the Credit Agreement

(Wise/Ravenswood)

WISE METALS GROUP LLC

By:

 

/s/ Rina E. Teran

Name: Rina E. Teran

Title:   Vice President

WISE ALLOYS LLC

By:

 

/s/ Rina E. Teran

Name: Rina E. Teran

Title:   Vice President

CONSTELLIUM US HOLDINGS I, LLC

By:

 

/s/ Rina E. Teran

Name: Rina E. Teran

Title:   Vice President

CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC

By:

 

/s/ Rina E. Teran

Name: Rina E. Teran

Title:   Vice President

Signature Page to the Credit Agreement

(Wise/Ravenswood)

WELLS FARGO BANK, NATIONAL

ASSOCIATION,

as Administrative Agent, Collateral Agent, L/C

Issuer, Swing Line Lender and Lender

By:

 

/s/ Robert H. Milhorat

Name: Robert H. Milhorat

Title:   Director

Signature Page to the Credit Agreement

(Wise/Ravenswood)

Bank of America, N.A.,

as Lender

By:

 

/s/ Bailey E. Falls

Name: Bailey E. Falls

Title:   Sr. Vice President

Signature Page to the Credit Agreement

(Wise/Ravenswood)

Deutsche Bank AG New York Branch,

as Lender

By:

 

/s/ Anca Trifan

Name: Anca Trifan

Title:   Managing Director

 

By:

 

/s/ Marcus Tarkington

Name: Marcus Tarkington

Title:   Director

Signature Page to the Credit Agreement

(Wise/Ravenswood)

JPMORGAN CHASE BANK, N.A.,

as Lender

By:

 

/s/ Peter S. Predun

Name: Peter S. Predun

Title:   Executive Director

Signature Page to the Credit Agreement

(Wise/Ravenswood)

BMO HARRIS BANK N.A.

as Lender

By:

 

/s/ Quinn Heiden

Name: Quinn Heiden

Title:   Director

Signature Page to the Credit Agreement

(Wise/Ravenswood)

BARCLAYS BANK PLC,

as Lender

By:

 

/s/ Marguerite Sutton

Name: Marguerite Sutton

Title:   Vice President

Internal Only

Signature Page to the Credit Agreement

(Wise/Ravenswood)

HSBC BANK USA, N.A.,

as Lender

By:

 

/s/ Frederic Fournier

Name: Frederic Fournier

Title:   Senior Vice President

                  # 20013

Signature Page to the Credit Agreement

(Wise/Ravenswood)

CITIBANK, N.A.,

as Lender

By:

 

/s/ Shane Azzara

Name: Shane Azzara

Title:   Vice President and Director

Signature Page to the Credit Agreement

(Wise/Ravenswood)

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,

as Lender

By:

 

/s/ Vipul Dhadda

Name: Vipul Dhadda

Title:   Authorized Signatory

 

By:

 

/s/ Karim Rahimtoola

Name: Karim Rahimtoola

Title:   Authorized Signatory

Signature Page to the Credit Agreement

(Wise/Ravenswood)

EXHIBIT A

FORM OF ASSIGNMENT AND ASSUMPTION

This Assignment and Assumption (the “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] 1 Assignor identified in item 1 below ([the][each, an] “ Assignor ”) and [the][each] 2 Assignee identified in item 2 below ([the][each, an] “ Assignee ”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] 3 hereunder are several and not joint.] 4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below (including without limitation any letters of credit, guarantees, and swingline loans included in such facilities), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “ Assigned Interest ”). Following the execution of this Assignment and Assumption, it will be delivered to the Administrative Agent for its consent (if required) and for recording pursuant to the Credit Agreement, effective as of the Effective Date. Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.

 

1.    

 

Assignor[s]:            

 

 

  
   

 

  

2.

 

Assignee[s]:

 

 

  

 

1 For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor,
choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.

2 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee,
choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.

3 Select as appropriate.

4 Include bracketed language if there are either multiple Assignors or multiple Assignees.

EXHIBIT A

 

                                                                                                       

[Assignee is an [Affiliate][Approved Fund] of [ identify Lender ]

 

3.

  

Borrowers:

  

Wise Alloys LLC and Constellium Rolled Products Ravenswood, LLC

4.

  

Administrative Agent:    

  

Wells Fargo Bank, National Association, as the administrative agent under the Credit Agreement

5.

  

Credit Agreement:

  

Credit Agreement, dated as of June 21, 2017 (as amended, restated, supplemented or otherwise modified from time to time), among WISE ALLOYS LLC, a Delaware limited liability company, CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC, a Delaware limited liability company, WISE METALS GROUP LLC, a Delaware limited liability company, CONSTELLIUM US HOLDINGS I, LLC, a Delaware limited liability company, CONSTELLIUM HOLDCO II B.V., a private limited liability company incorporated under Dutch law, having its corporate seat in Amsterdam, The Netherlands and having its registered office address at 1119 NW Schiphol Rijk, Tupolevlaan 41, The Netherlands, registered with the register of the chamber of commerce in Amsterdam, The Netherlands under number 34393946, the LENDERS party thereto from time to time, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent and collateral agent for the Lenders.

6.

  

Assigned Interest[s]:

  

 

Assignor[s] 5    Assignee[s] 6   

Facility

Assigned 7

  

Aggregate
Amount of
  Commitment/  

Loans for all

Lenders 8

  

Amount of
  Commitment/  

 Loans Assigned 8  

   Percentage
Assigned of
  Commitment/  
Loans 9 		   CUSIP
Number
             
              

$

  

$

        %     
             
              

$

  

$

        %     
             
              

$

  

$

        %     

[7. Trade Date:                                          ] 10

 

 

 

5 List each Assignor, as appropriate.

6 List each Assignee, as appropriate.

7 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under
this Assignment (e.g., “Revolving Facility Commitment,” “Incremental Revolving Facility Commitment,” etc.)

8 Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date
and the Effective Date.

9 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.

10 To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of
the Trade Date.

EXHIBIT A

Effective Date:                               , 20          [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

The terms set forth in this Assignment and Assumption are hereby agreed to:

 

ASSIGNOR[S] 11

[NAME OF ASSIGNOR]

By:

     
 

Title:

 

 

[NAME OF ASSIGNOR]

 

By:

     
 

Title:

 

 

ASSIGNEE[S] 12

 

[NAME OF ASSIGNEE]

 

By:

     
 

Title:

 

 

[NAME OF ASSIGNEE]

 

By:

     
 

Title:

 

 

[Consented to and] 13  Accepted:

 

[NAME OF ADMINISTRATIVE AGENT], as

Administrative Agent

By:

 

 

 

Title:

 

 

1 1 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).

1 2 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).

13 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.

EXHIBIT A

 

Consented To:

  

Consented To:

WISE ALLOYS LLC 14

  

CONSTELLIUM ROLLED PRODUCTS

RAVENSWOOD, LLC 15

 

By:

 

 

 

                 By:

 

 

 
 

Name:

   

Name:

 
 

Title:

   

Title:

 

Consented To:

 

WELLS FARGO BANK, NATIONAL

 

ASSOCIATION, as L/C Issuer and Swing Line

 

Lender 16

 

By:

 

 

     
 

Name:

     
 

Title:

     

 

Title:

 

 

 

 

 

14

Include to the extent the consent of the Borrowers is required under Section 10.06(b)(iii)(A) of the Credit Agreement.

15

Include to the extent the consent of the Borrowers is required under Section 10.06(b)(iii)(A) of the Credit Agreement.

16

Include to the extent the consent of the L/C Issuer and Swing Line Lender is required under Section 10.06(b)(iii)(C) of the Credit Agreement.

 

EXHIBIT A

ANNEX 1

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION

1.     Representations and Warranties.

1.1     Assignor[s] . [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is not a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrowers, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by the Borrowers, any of their respective Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.

1.2.     Assignee[s] . [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 10.06 of the Credit Agreement (subject to such consents, if any, as may be required thereunder), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.04 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender 17 attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

2.     Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest,

 

 

1 7 The concept of “Foreign Lender” should be conformed to the section in the Credit Agreement governing withholding taxes
and gross-up. If the Borrower is a U.S. Borrower, the bracketed language should be deleted.

EXHIBIT A

fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.

3.     General Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.

EXHIBIT B-1

FORM OF SOLVENCY CERTIFICATE

                             , 20     

Reference is made to that certain Credit Agreement, dated as of June 21, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement” ), among WISE ALLOYS LLC, a Delaware limited liability company (“ Wise ”), CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC, a Delaware limited liability company (“ Ravenswood” , and together with Wise, each a “ Borrower ” and collectively, the “ Borrowers ”), WISE METALS GROUP LLC, a Delaware limited liability company, CONSTELLIUM US HOLDINGS I, LLC, a Delaware limited liability company, CONSTELLIUM HOLDCO II B.V., a private limited liability company incorporated under Dutch law, having its corporate seat in Amsterdam, The Netherlands and having its registered office address at 1119 NW Schiphol Rijk, Tupolevlaan 41, The Netherlands, registered with the register of the chamber of commerce in Amsterdam, The Netherlands under number 34393946, the LENDERS party thereto from time to time, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent and collateral agent (in such capacities, the “ Administrative Agent ”) for the Lenders. This Certificate is furnished to the Administrative Agent pursuant to Section 5.02(e) of the Credit Agreement. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

Each of the undersigned, being the Chief Financial Officer or Treasurer, as applicable, of each Borrower, in that capacity only and not in any individual capacity (and without personal liability), DOES HEREBY CERTIFY on behalf of such Borrower that as of the date hereof, after giving effect to the Transactions on the Closing Date (including the execution and delivery of the Credit Agreement, the making of Loans and the use of proceeds of such Loans on the date hereof):

1. the fair value of the assets of each Borrower (individually) and the Holdcos, the Borrowers and their respective Subsidiaries, on a consolidated basis, at a fair valuation, exceeds the debts and liabilities, direct, subordinated, unmatured, unliquidated, contingent or otherwise, of such Borrower (individually) and the Holdcos, the Borrowers and their respective Subsidiaries, on a consolidated basis, respectively;

2. the present fair saleable value of the property of each Borrower (individually) and the Holdcos, the Borrowers and their respective Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability of such Borrower (individually) and the Holdcos, the Borrowers and their respective Subsidiaries, on a consolidated basis, respectively, on their debts and other liabilities, direct, subordinated, unmatured, unliquidated, contingent or otherwise, as such debts and other liabilities become absolute and matured;

3. each Borrower (individually) and the Holdcos, the Borrowers and their respective Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and

4. each Borrower (individually) and the Holdcos, the Borrowers and their respective Subsidiaries, on a consolidated basis, do not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the Closing Date.

[Remainder of page intentionally left blank.]

IN WITNESS WHEREOF, each Borrower has caused this certificate to be executed on its behalf by its Chief Financial Officer as of the date set forth above.

 

WISE ALLOYS LLC

By:

 

                                                       

 

Name:

 

                                             

 

Title:

 

CONSTELLIUM ROLLED PRODUCTS

RAVENSWOOD, LLC

By:

 

                                                         

 

Name:

 

                                                 

 

Title:

 

[ Signature Page for Solvency Certificate ]

EXHIBIT B-2

FORM OF BORROWING BASE CERTIFICATE

See attached.

 

LOGO

  Summary Page Borrowing Base Certificate

 

Date

  

                6/13/17

     

Name

  

Wise Alloys, LLC and Constellium Rolled Products Ravenswood, LLC

  

 

   A/R As of:  

        5/31/17        

   Inventory As of:  

        5/31/17        

 

 

The undersigned,                              (“Borrowers”), pursuant to that certain Credit Agreement dated as of                              (as amended, restated, modified, supplemented, refinanced, renewed, or extended from time to time, the “Credit
Agreement”), entered into among Borrowers, the lenders signatory thereto from time to time and Wells Fargo Bank, N.A. as the arranger and administrative agent (in such capacity, together with its successors and assigns, if any, in such
capacity, “Agent”), hereby certifies to Agent that the following items, calculated in accordance with the terms and definitions set forth in the Credit Agreement for such items are true and correct, and that Borrowers are in compliance
with and, after giving effect to any currently requested Advances, will be in compliance with, the terms, conditions, and provisions of the Credit Agreement.

 

 

Accounts Receivable

 

Accounts Receivable Balance per Aging Report Assigned To Wells Fargo Capital Finance

   -    

Less Ineligibles (detailed on page 2)

   #N/A

Eligible Accounts Receivable

   #N/A

Accounts Receivable Availability before Sublimit(s)

   #N/A
    

Net Available Accounts Receivable after Sublimit(s)

   #N/A

 

Inventory

 

Inventory Balance Assigned To Wells Fargo Capital Finance

   -    

Less Ineligibles (detailed on page 5)

   -    

Eligible Inventory

   -    

Inventory Availability before Sublimit(s)

   -    
  

Net Available Inventory after Sublimit(s)

   -    

 

Summary & Other Assets

 

Reserves

          
  

Wise Alloys, LLC Reserves

       
  

Wise Alloys, LLC Reserves

      (1,097,264.67)
  

RWD Reserves - Warehousemen / Convertor Offset

     
  

RWD Reserves

      (1,097,264.67)

 

Total Reserves Calculated before the Credit Line

     

Total Collateral Availability

      #N/A
        

Suppressed Availability

  

Availability before Reserves

  

Total Credit Line      300,000,000.00  

      #N/A

 

Reserves

          
  

    Wise Alloys, LLC Reserves

       
  

    Wise Alloys, LLC Reserves

       
  

    RWD Reserves

     
  

    RWD Reserves

      -    

 

Total Reserves Calculated after the Credit Line

       
 

Total Availability after Reserves before Loan Balance and LCs

      #N/A

Wise Alloys, LLC Letter of Credit Balance

   As of:   

4/30/17    

       

Wise Alloys, LLC Loan Ledger Balance

   As of:   

4/30/17    

       

RWD Letter of Credit Balance

   As of:   

6/10/17    

      750,000.00  

RWD Loan Ledger Balance

   As of:   

6/10/17    

      37,700,000.00  
           

Net Availability

         #N/A

 

 

Additionally, the undersigned hereby certifies and represents and warrants to the Lender Group on behalf of Borrower that (i) as of the date hereof, each representation or warranty contained in or pursuant to any Loan Document, any
agreement, instrument, certificate, document or other writing furnished at any time under or in connection with any Loan Document, and as of the effective date of any advance, continuation or conversion requested above is true and
correct in all material respects (except to the extent any representation or warranty expressly related to an earlier date), (ii) each of the covenants and agreements contained in any Loan Document have been performed (to the extent required to be performed on or before the date hereof or each such effective date), (iii) no Default or Event of Default has occurred and is continuing on the date hereof, nor will any thereof occur after giving effect to the request above, and (iv) all of the foregoing is true and correct as of the effective date of the calculations set forth above and that such calculations have been made in accordance with the requirements of the Credit Agreement.

 

 

                                                                                                                                                                                        

Authorized Signer                                                                                               Date  

(mm/dd/yyyy)

Accounts Receivable Availability Detail

  

Name:.

 

Wise Alloys, LLC and Constellium Rolled Products Ravenswood, LLC

             

Report based on Aging dated:

               

 

  Loan ID #:       TBD       TBD      
 

Division Name:    

 

 

Wise Alloys

 

     

RWD

 

     

Total

 

Aging Spreads:

             
 

Post dated

          -           -    
 

Current

                  -    
 

1-30 DPD

                  -    
 

31-60 DPD

                  -    
 

61-90 DPD

                  -    
 

91+ DPD

                  -    
               

A/R Aging Balance:

  -           -           -    

Ineligibles:

             
 

Past Due (60 DPD and 120 DOI)

                  -    
 

AB Past Due

                  -    
 

Past Due Credits

                  -    
 

CrossAge (50%)

                  -    
 

Intercompany

                  -    
 

Foreign > $30,000,000

                  -    
 

Government

                  -    
 

COD

                  -    
 

Debit Memo

                  -    
 

Employee Sales

                  -    
 

Progress Billing

                  -    
 

Extended Terms

                  -    
 

Finance Charges

                  -    
 

Guaranteed

                  -    
 

Samples

                  -    
 

Consignment Sales

                  -    
 

Bill & Hold

                  -    
 

Bankrupt/Doubtful

                  -    
 

Shortpay

                  -    
 

Claims by Customers

                  -    
 

Concentration Limit

  #N/A       #N/A       #N/A
 

Penalty Clause

                  -    
 

Accrued Rebates

                  -    
 

Defaulted Accounts

                  -    
 

Non-Ordinary Course Sales

                  -    
 

Other

                  -    
 

Other (Contras)

                  -    
 

Other (Foreign sales w/o credit insurance)

                  -    
 

Other

                  -    
 

Other

                  -    
 

Other

                  -    
 

Other

                  -    
 

Other

                  -    
 

Other

                  -    
 

Other

                  -    
 

Other

  #N/A               #N/A
 

Other

                  -    
 

Other

                  -    
 

Other

                  -    
 

Other

                  -    
               

Total Ineligible A/R:

  #N/A       #N/A       #N/A
               

Eligible A/R

  #N/A       #N/A       #N/A

Advance Rate

  85%       85%      

A/R Availability before Sublimit(s)

  #N/A       #N/A       #N/A
               

Line Limit or Sublimit(s)

                   
               

Net A/R Availability

  #N/A       #N/A       #N/A

 

 

Page 2 - AR Detail

AR CONCENTRATIONS

 

Wise Alloys, LLC

     

As of:                     

 

       Ineligibles       
#          Customer Name Calc   

% or $ Allowed of

Eligible AR

    

% of

Eligible

     % of AR      Total     Post dated      Current      1-30 DPD      31-60 DPD      61-90 DPD      91+ DPD      Credits in Past Due      Other Foreign      Offset      Adjustments      Total    Eligible A/R      Conc Cap      Conc IE     

% of

Balance

 

1      

          25%        #N/A        #N/A      -                                                                                                -        -          #N/A        #N/A           

2      

          25%        #N/A        #N/A      -                                                                                                -  +      -          #N/A        #N/A           

3      

          25%        #N/A        #N/A      -                                                                                                -        -          #N/A        #N/A           

4      

          25%        #N/A        #N/A      -                                                                                                -        -          #N/A        #N/A           

5      

          25%        #N/A        #N/A      -                                                                                                -        -          #N/A        #N/A           

6      

          25%        #N/A        #N/A      -                                                                                                -        -          #N/A        #N/A           

7      

          25%        #N/A        #N/A      -                                                                                                -        -          #N/A        #N/A           

8      

          25%        #N/A        #N/A      -                                                                                                -        -          #N/A        #N/A           

9      

          25%        #N/A        #N/A      -                                                                                                -        -          #N/A        #N/A           

10    

          25%        #N/A        #N/A      -                                                                                                -        -          #N/A        #N/A           
    

Total Analyzed

       #N/A        #N/A      -        -          -          -          -          -          -          -          -                   -        -        -                   #N/A           
                                                           
  

CONSOLIDATED TOTAL AR

 

     #N/A      –        –          –          –          –          –          –                               
                                                           
  

Ineligible AR Prior to Concentration Ineligible

                                                               
                                                           
  

Net Eligible AR Prior to Concentration Ineligible -

                 -                                             
                                                           

Concentration Caps or Limits per LSA:

                                                 
  

Names (Customer_Name_Calc)

     % or Dollar Cap                                                        
 
                                                            
  

All Others

     25%                                                        

 

Page 2b - AR Concentrations-Wise

AR CONCENTRATIONS

 

Constellium Rooled products Ravenswood, LLC

     

As of: 5/31/2017

 

       Ineligibles       
#          Customer Name Calc   

% or $ Allowed of

Eligible AR

    

% of

Eligible

     % of AR      Total     Post dated      Current      1-30 DPD      31-60 DPD      61-90 DPD      91+ DPD      Credits in Past Due      Cross-Aged      Other Foreign      Offset      Adjustments      Total    Eligible A/R      Conc Cap      Conc IE     

% of

Balance

 

1      

          25%        #N/A        #N/A                                                                                                            -      $ -          #N/A        #N/A           

2      

          25%        #N/A        #N/A                                                                                                            -      $ -          #N/A        #N/A           

3      

          25%        #N/A        #N/A                                                                                                            -      $ -          #N/A        #N/A           

4      

          25%        #N/A        #N/A                                                                                                            -      $ -          #N/A        #N/A           

5      

          25%        #N/A        #N/A                                                                                                            -      $ -          #N/A        #N/A           

6      

          25%        #N/A        #N/A                                                                                                            -      $ -          #N/A        #N/A           

7      

          25%        #N/A        #N/A                                                                                                            -      $ -          #N/A        #N/A           

8      

          25%        #N/A        #N/A                                                                                                            -      $ -          #N/A        #N/A           

9      

          25%        #N/A        #N/A                                                                                                            -      $ -          #N/A        #N/A           

10    

          25%        #N/A        #N/A                                                                                                            -      $ -          #N/A        #N/A           
    

Total Analyzed

       #N/A        #N/A      -        -          -          -          -          -          -          -          -          -                   -        -        -                   #N/A           
                                                              
  

CONSOLIDATED TOTAL AR

 

     #N/A      -        -          -          -          -          -          -                                  
                                                              
  

Ineligible AR Prior to Concentration Ineligible

                 #N/A                                                
                                                              
  

Net Eligible AR Prior to Concentration Ineligible

                 #N/A                                                
                                                              

Concentration Caps or Limits per LSA:

                                                    
  

Names (Customer_Name_Calc)

     % or Dollar Cap                                                           
 
                                                               
  

All Others

     25%                                                           

 

Page 2b - AR Concentrations - RWD

Inventory Availability Detail

                                   

Name:

 

Wise Alloys, LLC and Constellium Rolled Products Ravenswood, LLC

                                 
                                   

Based on the Inventory Perpetual dated:

  5/31/17                                  
    Loan ID #:       TBD     TBD     TBD     TBD     TBD     TBD     TBD     TBD   TBD    
                                       
   

Inventory Category:    

 

 

Wise RM

 

   

Wise Semi-Finished Goods

 

   

Wise FG

 

   

Wise In Transit

 

   

RWD RM

 

   

RWD Semi-Finished Goods

 

   

RWD FG

 

   

RWD Other

 

 

RWD In-Transit

 

   

Total

 

   

Inventory Total:    

                                                      -  
   

Inventory Total:    

                                                      -  
                                                       
                   
   

Total Gross Inventory:     

                               -         -                                      -                                      -                                      -         -                                      -                                      -                                    -                                      -    
                   

Ineligibles:

                                                         
 

Freight-In Charges

                                                      -    
 

Other Inventory (Chemicals/Supplies)

                                                      -    
 

Foreign

                                                      -    
 

Toll Conversion Costs

                                                      -    
 

Slow Moving

                                                      -    
 

Inventory locations < $100

                                                      -    
 

Excess/Obsolete

                                                      -    
 

Consignment

                                                      -    
 

Packaging

                                                      -    
 

Tooling/Replacement Parts

                                                      -    
 

Display Items

                                                      -    
 

Returns

                                                      -    
 

Other - In-transit RAW (RWD)

                                                      -    
 

Other - In-transit WIP (RWD)

                                                      -    
 

Other - In-transit FG (RWD)

                                                      -    
 

Other - Conversion cost in toll material (RWD)

                                                      -    
 

Other-Slow Moving Inv Reserve already in NOLV

                                                      -    
 

Other

                                                      -    
 

Appraisal Reserve (grossed up)

                                                      -    

Total Ineligible Inventory:

  -         -         -         -         -         -         -         -       -         -    
                                                       
                   

Eligible Inventory

  -         -         -         -         -         -         -         -       -         -    
 

Advance Rate

  72.59%     61.03%     76.59%     0.00%     78.97%     61.97%     80.00%     0.00%   80.00%    

Availability before Sublimit

  -         -         -         -         -         -         -         -       -         -    
                                                       
                   
 

Sublimits

                                                  25,000,000.00       
                                                       
                   

Net Inventory Availability

  -         -         -         -         -         -         -         -       -         -    
                                   

Appraisal Review

                                                                           

As of:

  6/6/17                                      
      Wise RM     Wise Semi-Finished Goods     Wise FG     Wise In Transit     RWD RM    

RWD Semi-Finished

Goods

    RWD FG            
    Eligible Inventory per Appraisal       -         -         -         -         -         -         -                
    Appraised NOLV %       85.40%     71.80%     90.10%     0.00%     92.90%     72.90%     101.40%     0.00%        
    % times the NOLV       85%     85%     85%     85%     85%     85%     85%            
    % of NOLV       72.59%     61.03%     76.59%     0.00%     78.97%     61.97%     86.19%            
    Appraised Value       -         -         -         -         -         -         -                
    Appraisal Reserve                                          
    Appraisal Ineligible (grossed up)                                                                                

 

Page 3 - Inventory Detail

Inventory by Location (Top 20)

Wise Alloys, LLC                                                                                              

 

     
   

Period

  

Activity date

  

Location_calc

  

Extended_value_calc

    

Location_type_calc

 
         

1 

                               
         

2 

                               
         

3 

                               
         

4 

                               
         

5 

                               
         

6 

                               
         

7 

                               
         

8 

                               
         

9 

                               
         

10 

                               
         

11 

                               
         

12 

                               
         

13 

                               
         

14 

                               
         

15 

                               
         

16 

                               
         

17 

                               
         

18 

                               
         

19 

                               
         

20 

                               
       

Subtotal top 20

     -       
       

All others

     -       
       

Grand total inventory

     -       

Constellium Rolled Products Ravenswood, LLC

        
             
   

Period

  

Activity date

  

Location_calc

  

Extended_value_calc

    

Location_type_calc

 
         

1 

                               
         

2 

                               
         

3 

                               
         

4 

                               
         

5 

                               
         

6  

                               
         

7 

                               
         

8 

                               
         

9 

                               
         

10 

                               
         

11 

                               
         

12 

                               
         

13 

                               
         

14 

                               
         

15 

                               
         

16 

                               
         

17 

                               
         

18 

                               
         

19 

                               
         

20 

                               
       

Subtotal top 20

     -       
       

All others

     -       
       

Grand total inventory

     -       

 

Top Inventory Locations

WELLS FARGO CAPITAL FINANCE

ACCOUNTS RECEIVABLE ACTIVITY REPORT

 

  

Name:   0

      Report #:   

 

  
  

Cutoff:

      Date Prepared:    6/13/2017   
              

 

  

 

A/R Collateral Activity

          

Wise Alloys, LLC

          

A/R Beginning Balance

                

(Ending A/R Balance from previous report)

          
 

Sales

             

(+)

    
          
 

DILUTIVE Credits

             

(-)

    
          
 

Non Dilutive / Adjustment (+)

             

(+)

    
          
 

Dilutive / Adjustment (-)

             

(-)

    
          
 

Gross Collection

             

(-)

    
          
 

Discount

             

(-)

    
          
 
 

Non-AR Cash

             

(+)

    
          

A/R Ending Balance

       -            
          

Aging Balance

                
          

Variance

      

 

-    

 

 

 

     
 

GL Balance

                

Reconciling items

          
          

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

Adjusted Balance

     -            
          

Variance

       -            

 

                             AR Transactions -Wise

WELLS FARGO CAPITAL FINANCE

ACCOUNTS RECEIVABLE ACTIVITY REPORT

 

  

Name:  Constellium Rolled Products Ravenswood, LLC

   Report #:    2886   
           

 

  
  

Cutoff: 5/31/2017

      Date Prepared:    6/13/2017   
              

 

  

 

A/R Collateral Activity

          

Constellium Rolled Products Ravenswood, LLC

          

A/R Beginning Balance

                

(Ending A/R Balance from previous report)

        
 

Sales

             

(+)

    
          
 

DILUTIVE Credits

             

(-)

    
          
 

Non Dilutive / Adjustment (+)

             

(+)

    
          
 

Dilutive / Adjustment (-)

             

(-)

    
          
 

Gross Collection

             

(-)

    
          
 

Discount

             

(-)

    
          
 
 

Non-AR Cash

             

(+)

    
          

A/R Ending Balance

       -            
          

Aging Balance

                
          

Variance

      

 

-    

 

 

 

     
 

GL Balance

                

Reconciling items

          
          

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

                                                                                                       

              

Adjusted Balance

       -            
          

Variance

       -            
      

AR Transactions -RWD

    

 

Consolidated AP Analysis

                    

Wise Alloys, LLC

                      Currency:   

USD

  

 

AP Concentrations

                       
    #       

Vendor Name Calc

  

% of 

Total AP 

   Total as of    

Post Dated/ 

Unvouchered 

   Current     0-30 DPD     31-60 DPD     61-90 DPD     91+ DPD    

Total 

91+DPD 

1

        #N/A     -                                     -   

2

        #N/A     -                                     -   

3

        #N/A     -                                     -   

4

        #N/A     -                                     -   

5

        #N/A     -                                     -   

6

        #N/A     -                                     -   

7

        #N/A     -                                     -   

8

        #N/A     -                                     -   

9

        #N/A     -                                     -   

10

        #N/A     -                                     -   
                   

Total Analyzed  

   #N/A      -       -      -       -       -       -       -       -   
         #N/A     #N/A     #N/A     #N/A     #N/A     #N/A     #N/A     #N/A 
                             
                 
        #N/A     -                                     -   
                 
        #N/A     -                                     -   
                 
        #N/A     -                                     -   
                 
        #N/A     -                                     -   
                 
        #N/A     -                                     -   
                             
                 
  

Total AP 

   #N/A     -       -       -       -       -       -       -       -   
         #N/A     #N/A     #N/A     #N/A     #N/A     #N/A     #N/A     #N/A 
                             
                 
  

Remaining AP 

   #N/A     -       -       -       -       -       -       -       -   
         #N/A     #N/A     #N/A     #N/A     #N/A     #N/A     #N/A     #N/A 

AP Analysis over 90 days from due date

                 
    #       

Vendor Name Calc

  

% of Total 

Past Due 

   Total Balance    

Post Dated/ 

Unvouchered 

   Current     0-30 DPD     31-60 DPD     61-90 DPD     91+ DPD     Total -91+DPD 

1

        #N/A                                        -   

2

        #N/A                                        -   

3

        #N/A                                        -   

4

        #N/A                                        -   

5

        #N/A                                        -   

6

        #N/A                                        -   

7

        #N/A                                        -   

8

        #N/A                                        -   

9

        #N/A                                        -   

10

        #N/A                                        -   
                 

Total Analyzed 

   #N/A     -       -       -       -       -       -       -       -   

 

Consolidated AP Analysis

Consolidated AP Analysis

                    

Constellium Rolled Products Ravenswood, LLC                  

      Currency:   

USD

  

 

AP Concentrations

                                       
    #       

Vendor Name Calc

  

% of 

Total AP 

   Total as of     Post Dated/ 
Unvouchered  		   Current     0-30 DPD     31-60 DPD     61-90 DPD     91+ DPD     Total  91+DPD 

1

        #N/A                         -       -       -       -   

2

        #N/A                         -       -       -       -   

3

        #N/A                         -       -       -       -   

4

        #N/A                         -       -       -       -   

5

        #N/A                         -       -       -       -   

6

        #N/A                         -       -       -       -   

7

        #N/A                         -       -       -       -   

8

        #N/A                         -       -       -       -   

9

        #N/A                         -       -       -       -   

10

        #N/A                         -       -       -       -   
                   

Total Analyzed  

   #N/A     -       -                 -       -       -       -   
         #N/A     #N/A     #N/A     #N/A     #N/A     #N/A     #N/A     #N/A 
                             
                 
  

Total AP  

   #N/A                                         
                             
                 

Manual

        #N/A     -                                     -   
                 

Manual

        #N/A     -                                     -   
                 

Manual

        #N/A     -                                     -   
                 

Manual

        #N/A     -                                     -   
                 

Manual

        #N/A     -                                     -   
                 

Manual

        #N/A     -                                     -   
                 

Manual

        #N/A     -                                     -   
                 

Manual

        #N/A     -                                     -   
                 

Manual

        #N/A     -                                     -   
                 

Manual

        #N/A     -                                     -   
                 

Manual

        #N/A     -                                     -   
                             
                 
  

Total AP  

   #N/A     -       -       -       -       -       -       -       -   
         #N/A     #N/A     #N/A     #N/A     #N/A     #N/A     #N/A     #N/A 
                             
                 
  

Remaining AP  

   #N/A     -       -       -       -       -       -       -       -   
         #N/A     #N/A     #N/A     #N/A     #N/A     #N/A     #N/A     #N/A 

AP Analysis over 90 days from due date

                 
    #       

Vendor Name Calc

  

% of Total 

Past Due 

   Total Balance     Post Dated/ 
Unvouchered  		   Current     0-30 DPD     31-60 DPD     61-90 DPD     91+ DPD     Total -  91+DPD 
                     

1

        #N/A                                        -   
                     

2

        #N/A                                        -   
                     

3

        #N/A                                        -   
                     

4

        #N/A                                        -   
                     

5

        #N/A                                        -   
                     

6

        #N/A                                        -   
                     

7

        #N/A                                        -   
                     

8

        #N/A                                        -   
                     

9

        #N/A                                        -   
                     

10

        #N/A                                        -   
                 

Total Analyzed 

   #N/A     -       -       -       -       -       -       -       -   

 

Consolidated AP Analysis

EXHIBIT C-1

FORM OF

BORROWING REQUEST

Wells Fargo Bank, National Association

[Date]

Ladies and Gentlemen:

Reference is made to the Credit Agreement, dated as of June 21, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among WISE ALLOYS LLC, a Delaware limited liability company, CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC, a Delaware limited liability company, WISE METALS GROUP LLC, a Delaware limited liability company, CONSTELLIUM US HOLDINGS I, LLC, a Delaware limited liability company, CONSTELLIUM HOLDCO II B.V., a private limited liability company incorporated under Dutch law, having its corporate seat in Amsterdam, The Netherlands and having its registered office address at 1119 NW Schiphol Rijk, Tupolevlaan 41, The Netherlands, registered with the register of the chamber of commerce in Amsterdam, The Netherlands under number 34393946, the LENDERS party thereto from time to time, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent and collateral agent (in such capacities, the “ Administrative Agent” ) for the Lenders. Terms defined in the Credit Agreement and not otherwise defined herein are used herein with the same meanings. This notice constitutes a Borrowing Request and the Borrower (as defined below) hereby requests Borrowings under the Credit Agreement, and in that connection the Borrower specifies the following information with respect to such Borrowings requested hereby:

 

 

(a)

Name of requesting Borrower:                                    (the “ Borrower ”)

 

 

(b)

Aggregate Amount of Borrowing: 18

 

 

(c)

Aggregate Amount of Revolving Facility Credit Exposure (after giving effect to the requested Borrowing):

 

 

(d)

Date of Borrowing (which shall be a Business Day):

 

 

(e)

Type of Borrowing (Base Rate or Eurodollar Rate):

 

 

(f)

Interest Period (if a Eurodollar Rate Borrowing):

 

 

(g)

Location and number of Borrower’s account to which proceeds of Borrowing are to be disbursed:                                                                             

The Borrower hereby represents and warrants that the conditions specified in paragraphs (b)  and (c)  of Section 5.01 of the Credit Agreement are satisfied.

[Remainder of page intentionally left blank.]

 

18

Such amount to be not less than $1,000,000 and an integral multiple of $250,000.

 

C-1-1

Very truly yours,

 

[CONSTELLIUM ROLLED PRODUCTS

RAVENSWOOD, LLC][WISE ALLOYS LLC]

By:

 

 

 

Name:

Title:

[Signature page to Borrowing Request]

EXHIBIT C-2

FORM OF

SWING LINE LOAN NOTICE

Wells Fargo Bank, National Association

[Date]

Ladies and Gentlemen:

Reference is made to the Credit Agreement, dated as of June 21, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among WISE ALLOYS LLC, a Delaware limited liability company, CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC, a Delaware limited liability company, WISE METALS GROUP LLC, a Delaware limited liability company, CONSTELLIUM US HOLDINGS I, LLC, a Delaware limited liability company, CONSTELLIUM HOLDCO II B.V., a private limited liability company incorporated under Dutch law, having its corporate seat in Amsterdam, The Netherlands and having its registered office address at 1119 NW Schiphol Rijk, Tupolevlaan 41, The Netherlands, registered with the register of the chamber of commerce in Amsterdam, The Netherlands under number 34393946, the LENDERS party thereto from time to time, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent and collateral agent (in such capacities, the “ Administrative Agent” ) for the Lenders. Terms defined in the Credit Agreement and not otherwise defined herein are used herein with the same meanings. This notice constitutes a Swing Line Loan Notice and the Borrower (as defined below) hereby requests Borrowings under the Credit Agreement, and in that connection the Borrower specifies the following information with respect to such Borrowings requested hereby:

 

 

(A)

Name of requesting Borrower:                                  (the “ Borrower ”)

 

 

(B)

Aggregate Amount of Borrowing 19 :                                                          

 

 

(C)

Date of Borrowing (which shall be a Business Day):                               

 

 

(D)

Location and number of Borrower’s account to which proceeds of Borrowing are to be disbursed:                                                                                    

The Borrower named below hereby represents and warrants that the conditions specified in paragraphs (b)  and (c)  of Section 5.01 of the Credit Agreement are satisfied.

 

Very truly yours,

 

[CONSTELLIUM ROLLED PRODUCTS

RAVENSWOOD, LLC][WISE ALLOYS LLC]

By:

   

    Name:

 

    Title:

 

 

 

1 9

Such amount to be not less than $250,000 and an integral multiple of $250,000.

EXHIBIT C-3

FORM OF LETTER OF CREDIT REQUEST

Dated             

Wells Fargo Bank, National Association

as Administrative Agent for the Lenders party

to the Credit Agreement referred to below

Attention:                     

L/C Issuer: Wells Fargo Bank, N.A.

  401 Research Pkwy, 1st Floor

  Winston Salem, NC 27101

Dear Ladies and Gentlemen:

We hereby request that the L/C Issuer, in its individual capacity, issue a [standby] [trade] Letter of Credit for the account of the undersigned on        1        (the “ Date of Issuance ”), which Letter of Credit shall be denominated in United States Dollars and shall be in the aggregate amount of        2        .

For the purposes of this Letter of Credit Request, unless otherwise defined herein, all capitalized terms used herein and defined in that certain Credit Agreement, dated as of June 21, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among WISE ALLOYS LLC, a Delaware limited liability company, CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC, a Delaware limited liability company, WISE METALS GROUP LLC, a Delaware limited liability company, CONSTELLIUM US HOLDINGS I, LLC, a Delaware limited liability company, CONSTELLIUM HOLDCO II B.V., a private limited liability company incorporated under Dutch law, having its corporate seat in Amsterdam, The Netherlands and having its registered office address at 1119 NW Schiphol Rijk, Tupolevlaan 41, The Netherlands, registered with the register of the chamber of commerce in Amsterdam, The Netherlands under number 34393946, the LENDERS party thereto from time to time, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent and collateral agent (in such capacities, the “ Administrative Agent ”) for the Lenders, shall have the respective meanings provided such terms in the Credit Agreement.

The beneficiary of the requested Letter of Credit will be        3        , and such Letter of Credit will be in support of        4        and will have a stated expiration date of        5        .

 

 

1

Date of Issuance, which shall be at least two (2) Business Days after the date hereof (or such shorter period as is reasonably acceptable to the L/C Issuer).

2

Aggregate initial amount of the Letter of Credit.

3

Insert name and address of beneficiary.

4

Insert brief description of supportable obligations.

5

Insert the last date upon which drafts may be presented which may not be later than the dates referred to in Section 2.05 of the Credit Agreement.

We hereby certify that the conditions specified in paragraphs (b)  and (c)  of Section 5.01 of the Credit Agreement are satisfied.

 

[WISE ALLOYS LLC][CONSTELLIUM

ROLLED PRODUCTS RAVENSWOOD, LLC]

By

   
 

Name:

 

Title:

[Signature page to Letter of Credit Request]

 

EXHIBIT D-1

[FORM OF]

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes and Lenders that are Disregarded Entities for U.S. Federal Income Tax Purposes Whose Owner, for U.S. Federal Income Tax Purposes, is not a Partnership for U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement, dated as of June 21, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among WISE ALLOYS LLC, a Delaware limited liability company, CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC, a Delaware limited liability company, WISE METALS GROUP LLC, a Delaware limited liability company, CONSTELLIUM US HOLDINGS I, LLC, a Delaware limited liability company, CONSTELLIUM HOLDCO II B.V., a private limited liability company incorporated under Dutch law, having its corporate seat in Amsterdam, The Netherlands and having its registered office address at 1119 NW Schiphol Rijk, Tupolevlaan 41, The Netherlands, registered with the register of the chamber of commerce in Amsterdam, The Netherlands under number 34393946, the LENDERS party thereto from time to time, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent and collateral agent (in such capacities, the “ Administrative Agent ”) for the Lenders.

Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrowers with a duly completed and executed certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W- 8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

In the case of a Lender that is a disregarded entity for U.S. federal income tax purposes, each of the above certifications and representations is given with respect to the person treated as such Lender’s owner for U.S. federal income tax purposes.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF LENDER]

By:

   

            Name:

            Title:

Date:

 

                      , 20[ ]

EXHIBIT D-2

[FORM OF]

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes and Participants that are Disregarded Entities for U.S. Federal Income Tax Purposes Whose Owner, for U.S. Federal Income Tax Purposes, is not a Partnership for U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement, dated as of June 21, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among WISE ALLOYS LLC, a Delaware limited liability company, CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC, a Delaware limited liability company, WISE METALS GROUP LLC, a Delaware limited liability company, CONSTELLIUM US HOLDINGS I, LLC, a Delaware limited liability company, CONSTELLIUM HOLDCO II B.V., a private limited liability company incorporated under Dutch law, having its corporate seat in Amsterdam, The Netherlands and having its registered office address at 1119 NW Schiphol Rijk, Tupolevlaan 41, The Netherlands, registered with the register of the chamber of commerce in Amsterdam, The Netherlands under number 34393946, the LENDERS party thereto from time to time, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent and collateral agent (in such capacities, the “ Administrative Agent ”) for the Lenders.

Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with a duly completed and executed certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

In the case of a Participant that is a disregarded entity for U.S. federal income tax purposes, each of the above certifications and representations is given with respect to the person treated as such Participant’s owner for U.S. federal income tax purposes.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF PARTICIPANT]

By:

   

            Name:

            Title:

Date:

 

                      , 20[ ]

EXHIBIT D-3

[FORM OF]

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes and Participants that are Disregarded Entities for U.S. Federal Income Tax Purposes Whose Owner, for U.S. Federal Income Tax Purposes, is a Partnership for U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement, dated as of June 21, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among WISE ALLOYS LLC, a Delaware limited liability company, CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC, a Delaware limited liability company, WISE METALS GROUP LLC, a Delaware limited liability company, CONSTELLIUM US HOLDINGS I, LLC, a Delaware limited liability company, CONSTELLIUM HOLDCO II B.V., a private limited liability company incorporated under Dutch law, having its corporate seat in Amsterdam, The Netherlands and having its registered office address at 1119 NW Schiphol Rijk, Tupolevlaan 41, The Netherlands, registered with the register of the chamber of commerce in Amsterdam, The Netherlands under number 34393946, the LENDERS party thereto from time to time, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent and collateral agent (in such capacities, the “ Administrative Agent ”) for the Lenders.

Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with a duly completed and executed IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) a duly completed and executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, or (ii) a duly completed and executed IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption, together with any other information required to be provided by IRS Form W-8IMY. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

In the case of a Participant that is a disregarded entity for U.S. Federal income Tax purposes, each of the above certifications and representations is given with respect to the person treated as such Participant’s owner for U.S. federal income tax purposes.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]

By:

   

            Name:

            Title:

Date:

 

                      , 20[ ]

[Signature page to Tax Compliance Certificate]

EXHIBIT D-4

[FORM OF]

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes and Lenders that are Disregarded Entities for U.S. Federal Income Tax Purposes Whose Owner, for U.S. Federal Income Tax Purposes, is a Partnership for U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement, dated as of June 21, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among WISE ALLOYS LLC, a Delaware limited liability company, CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, LLC, a Delaware limited liability company, WISE METALS GROUP LLC, a Delaware limited liability company, CONSTELLIUM US HOLDINGS I, LLC, a Delaware limited liability company, CONSTELLIUM HOLDCO II B.V., a private limited liability company incorporated under Dutch law, having its corporate seat in Amsterdam, The Netherlands and having its registered office address at 1119 NW Schiphol Rijk, Tupolevlaan 41, The Netherlands, registered with the register of the chamber of commerce in Amsterdam, The Netherlands under number 34393946, the LENDERS party thereto from time to time, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent and collateral agent (in such capacities, the “ Administrative Agent ”) for the Lenders.

Pursuant to the provisions of Section 3.01 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to the Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrowers with a duly completed and executed IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) a duly completed and executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, or (ii) a duly completed and executed IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption, together with any other information required to be provided by IRS Form W-8IMY. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

In the case of a Lender that is a disregarded entity for U.S. Federal Income Tax purposes, each of the above certifications and representations is given with respect to the person treated as such Lender’s owner for U.S. federal income tax purposes.

EXHIBIT D-4

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[Signature page to Tax Compliance Certificate]

EXHIBIT D-4

 

[NAME OF LENDER]

By:

   

            Name:

            Title:

Date:

 

                      , 20[ ]

[Signature page to Tax Compliance Certificate]

Schedule 1.01(a)

Certain U.S. Subsidiaries

 

1.

Wise Alloys Finance Corporation

2.

Wise Alloys Funding LLC

3.

Wise Alloys Funding II LLC

Schedule 1.01(b)

Mortgaged Properties

 

 

Name of Borrower/Guarantor

 

  

 

Address/City/State/Zip Code

  

 

County

Constellium Rolled Products

Ravenswood, LLC

 

  

859 Century Road, Ravenswood, WV 26164

  

Jackson                

Wise Alloys LLC

  

4805 Second Street, Muscle Shoals, AL 35661

  

Colbert

Wise Alloys LLC

  

1009 Ford Rd, Muscle Shoals, AL 35661

  

Colbert

Wise Alloys LLC

  

501 West 20th Avenue, Sheffield, AL 35660

  

Colbert

Schedule 1.01(c)

Immaterial Subsidiaries

 

1.

Wise Alloys Funding LLC

2.

Wise Alloys Funding II LLC

3.

Wise Alloys Finance Corporation

Schedule 1.01(d)

Qualified Receivables

Ball Corporation

Schedule 1.01(e)

Unrestricted Subsidiaries

None

Schedule 1.01(f)

Acceptable Appraisers

Sector3 Appraisals, Inc.

8802 69th Road

Flushing, NY 11375

Tel:      (718) 268-4376

Fax:     (718) 425-9784

Hilco Appraisal Services

5 Revere Drive, Suite 206

Northbrook, IL 60062

Tel:      (847) 509-1100

Fax:     (847) 509-1150

Schedule 1.01(g)

Existing Letters of Credit

 

1.

Letter of Credit issued by Wells Fargo Bank, National Association in favor of AIG on behalf of Wise Alloys LLC in the amount of $83,131

 

2.

Letter of Credit issued by Wells Fargo Bank, National Association in favor of ACE on behalf of Wise Alloys LLC in the amount of $243,000

Schedule 1.01(h)

Account Debtor Restrictions

In the case of Accounts of Account Debtors other than Anheuser-Busch, with respect to which more than one hundred

twenty (120) days have elapsed since the date of the original invoice therefor or which is more than sixty (60) days past

due and after the Incremental Facility Effective Date, in the case of AB Receivables, with respect to which more than one

hundred thirty-five (135) days have elapsed since the date of the original invoice therefor or which is more than twenty -five (25) days past due

SCHEDULE 2.01

Commitments

 

Lender  

Revolving Facility    
Commitment as of the  
Closing Date

 

Wells Fargo Bank, National Association

 

$96,000,000

 

Bank of America, N.A.

 

$60,000,000

 

Deutsche Bank AG New York Branch

 

$30,000,000

 

JPMorgan Chase Bank, N.A.

 

$30,000,000

 

BMO Harris Bank N.A.

 

$27,000,000

 

Barclays Bank PLC

 

$19,500,000

 

HSBC Bank USA, N.A.

 

$19,500,000

 

Citibank, N.A.

 

$12,000,000

 

Credit Suisse AG, Cayman Islands Branch

 

$6,000,000

 

     

Total

 

$300,000,000

 

 

SCHEDULE 2.15

Incremental Revolving Facility Commitments

Part I

 

Lender  

Incremental Revolving    

Facility Commitment    

 

Wells Fargo Bank, National Association

  $64,000,000

 

Bank of America, N.A.

  $40,000,000

 

Deutsche Bank AG New York Branch

  $20,000,000

 

JPMorgan Chase Bank, N.A.

  $20,000,000

 

BMO Harris Bank N.A.

  $18,000,000

 

Barclays Bank PLC

  $13,000,000

 

HSBC Bank USA, N.A.

  $13,000,000

 

Citibank, N.A.

  $8,000,000

 

Credit Suisse AG, Cayman Islands Branch

  $4,000,000

 

     
   

Total

  $200,000,000

 

Part II

 

Lender  

Revolving Facility    
Commitment on and    
after the  Incremental    
Facility Effective Date      

 

Wells Fargo Bank, National Association

  $160,000,000

 

Bank of America, N.A.

  $100,000,000

 

Deutsche Bank AG New York Branch

  $50,000,000

 

JPMorgan Chase Bank, N.A.

  $50,000,000

 

BMO Harris Bank N.A.

  $45,000,000

 

 

Barclays Bank PLC

      $32,500,000    

 

HSBC Bank USA, N.A.

      $32,500,000    

 

Citibank, N.A.

      $20,000,000    

 

Credit Suisse AG, Cayman Islands Branch

      $10,000,000    

 

     
   

Total

      $500,000,000    

 

 

Schedule 4.01

Organization and Good Standing

None

 

Schedule 4.04

Governmental Approvals

Any Mortgage in respect of the Ravenswood Property or any Lien in respect of any other assets of Constellium
Rolled Products Ravenswood, LLC that is subject to a Lien in favor of the PBGC on the Closing Date may only be granted
after (i) obtaining the consent of the PBGC to such Mortgage or Lien and (ii) intercreditor arrangements satisfactory to
the PBGC have been entered into or are otherwise permitted under the existing terms of the PBGC Intercreditor Agreement.

 

Schedule 4.07(b)

Leased Properties

None

 

Schedule 4.08(a)

Subsidiaries

 

         
     Subsidiaries  

    Jurisdiction of    

Formation

  Record Owner  

    Percentage of Equity    

Interest Owned

 

1.  

Constellium-UACJ ABS LLC    

  Delaware  

Constellium US

Holdings I, LLC

  51%
2.  

Constellium Rolled Products

Ravenswood, LLC

  Delaware  

Constellium US

Holdings I, LLC

  100%
3.  

Alabama Electric Motor

Services, LLC

  Delaware  

Wise Metals Group

LLC

  100%
4.  

Listerhill Total Maintenance

Center LLC

  Delaware  

Wise Metals Group

LLC

  100%
5.  

Wise Alloys LLC

  Delaware  

Wise Metals Group

LLC

  100%
6.  

Wise Alloys Finance

Corporation

  Delaware   Wise Alloys LLC   100%
7.  

Wise Alloys Funding LLC

  Delaware   Wise Alloys LLC   100%
8.  

Wise Alloys Funding II LLC

  Delaware   Wise Alloys LLC   100%

 

Schedule 4.08(b)

Subscriptions

None

 

Schedule 4.13

Taxes

None

 

Schedule 4.16

Environmental Matters

None

 

Schedule 4.21

Insurance

See attached.

 

 

    LOGO  

        Constellium

Schedule of Insurance

  6/2/2017
           
Line of Business   Policy Number  

Carrier/ Underwriting

Paper

 

  Effective Dates   Limits of Liability   Deductible / SIR /  Commission
 

Global Program Lines

 

 

Property
         US Underlyer to Global Program negotiated by Aon Paris. Various sublimits and deductibles apply

 

           

Commercial Property - Primary

(1st Layer)

*Not Finalized

  CPD11737-06  

HDI Gerling America Ins. Co.

  1/4/2017-1/4/2018  

$426,440,000 Limit of Liability

   
           

Commercial Property - Excess

(2nd Layer)

*Not Finalized

  7534105  

AIG/Insurance Co. of the State of PA

  1/4/2016-1/4/2018  

$213,220,000 xs $426,440,000

 

Key Deductibles :

 

$5,330,500 - PI/BD Ravenswood

4805 Second St. Muscle Shoals

$1,066,100 - PI/BD Van Buren

Bowling Green

All Others - Please refer to imbedded spreadsheet

 

 

Builders Risk

US Underlyer to Global Program negotiated by Aon Paris. Various sublimits and deductibles apply

 

Builders Risk

M99041-120 Mill HAGC

  BIPI08140480  

Ace American Insurance Co.

  8/15/2016-2/2/2017  

Project Sum Insured: $2,580,000

 

$500,000 Per Occurrence incl.

            Flood

            Earth Movement

            Water Damage

            Named Windstorm

Builders Risk

Stand Qualification M99016

  BIPI08140443  

Ace American Insurance Co.

  7/21/2016-6/30/2017  

Project Sum Insured: $16,000,000

 

$500,000 Per Occurrence incl.

            Flood

            Earth Movement

            Water Damage

            Named Windstorm

Builders Risk

MS Level 1& 2 Upgrade

  BIPI07332452  

Ace American Insurance Co.

  10/1/2016-12/15/2017  

Project Sum Insured: $5,020,677

 

$500,000 Per Occurrence incl.

            Flood

            Earth Movement

            Water Damage

            Named Windstorm

 

Casualty

US Underlyer to Global Program negotiated by Aon Paris. Various sublimits and deductibles apply

 

General Liability

  PCS00157(17)  

Axa Insurance Co.

  1/4/2017-1/4/2018  

$2,000,000 Aggregate

            Products/Completed Ops

$1,000,000 Each Occurrence

            Employee Benefit Liability

            Damage to Premises Rented to You

            Personal & Advertising Injury

$10,000 Medical Expense

 

$100,000 BI/PD Combined Deductible

           

Umbrella

  XS001571(16)  

Axa Insurance Co.

  1/4/2017-1/4/2018  

$24,000,000 Lead Umbrella

 

$25,000 SIR

 

Financial Services Policies

US Underlyer to Global Program negotiated by Aon Paris. Various sublimits and deductibles apply

 

           

Directors & Officers

  32456599  

AIG/National Union Fire Ins. Co. of Pittsburgh, PA

  07/01/2016-01/04/2018  

$1,000,000 Fronted Limit

 

$1,000,000 Deductible

           

Directors & Officers

Excess Side-A DIC

  US00066592DO16A  

XL Specialty Insurance Co.

  07/01/2016-01/04/2018  

$1,000,000xs$1,000,000 Fronted Limit

   
           

Employment Practices Liability

  32456600  

AIG/National Union Fire Ins. Co. of Pittsburgh, PA

  07/01/2016-01/04/2018  

$1,000,000 Fronted Limit

 

$500,000 Deductible

 

Marine Cargo

US Underlyer to Global Program negotiated by Aon Paris. Various sublimits and deductibles apply

 

Marine Cargo

  MAR001618(17)  

Axa Insurance Co.

  1/4/2017-1/4/2018  

$7,420,000 any one shipment

$3,180,000 any one exhibition/trade fair

$1,000 any one sending by mail/parcel post

Export from US to Mexico

$72,000 Truck/Trailer

$280,000 Railroad (per convoy)

            Bonded Warehouse or Custom (per event)

 

 

$5,300 Deductible in respect of shipment by either vessel, air, truck, rail or ferry

 

Business Travel Accident

US Underlyer to Global Program negotiated by Aon Paris. Various sublimits and deductibles apply

 

Business Travel Accident

  GTP-9134252-B  

AIG

  1/1/2017-1/1/2018  

$10,000 Per Accident/Terrorism/War Risk

Class I - 3x Salary up to $250k

Class II - 3x Salaray up to $1.5M

 

 

N/A

 

Standalone Local Lines

 

Business Auto

  CBA1004235  

QBE Insurance Co.

  1/4/2017-1/4/2018  

$1,000,000 CSL

$10,000 Medical Payments

$1,000,000 UM/UIM

$1,000 Compehensive/Collision

 

 

Nil

           

Workers’ Compensation

  CWC1004236  

North Pointe Insurance Co.

  1/4/2017-1/4/2018  

Statutory: Coverage A

$1,000,000 Employers Liability

 

 

Nil

           

Workers’ Compensation - CT

  CWC3977273  

Praetorian Insurance Co.

  1/4/2017-1/4/2018  

Statutory: Coverage A

$1,000,000 Employers Liability

 

 

Nil

 

1

     LOGO  

        Constellium

Schedule of Insurance

  6/2/2017
           
Line of  Business    Policy Number   

Carrier/Underwriting

Paper

 

  Effective Dates   Limits of Liability   Deductible / SIR / Commission
           

Environmental Site Liability

   PPLG27418090001   

AIG/Illinois Union Ins. Co.

  1/05/2015-1/05/2018  

$25,000,000 Per Pollution Condition

$25,000,000 Aggregate - All Pollution Conditions

 

$100,000 SIR

(aggregated 4x; maintenance of $25,000)

           

ERISA Bond

   8223-2225   

Federal Ins. Co.

  1/04/2017-1/04/2018  

$5,000,000 Limit of Liability

 

Nil

           

US Customs Bond

   *000525003   

American Casualty Co. of

Reading PA

  6/21/2016-6/21/2017  

Obligee: United States Customs Service

Principal: Wise Metals Group LLC

   
           

Contractors Professional Liability

Listerhill Total Maintenance Center

   16017295   

Lexington Ins. Co.

  1/04/2017-6/30/2017  

$1,000,000 Per Claim

$1,000,000 Aggregate

 

$25,000 Deductible

 

Run-Off (Wise Metals)

 

           

Directors & Officers

Run-Off

   14239358   

AIG/National Union Fire Ins. Co. of Pittsburgh

  1/05/2015-1/05/2021  

$10,000,000 Directors & Officers

$5,000,000 Employment Practices

$2,000,000 Fiduciary

 

$50,000 Directors & Officers

$150,000 Employment Practices

Nil Fiduciary

           

Directors & Officers Excess

Run-Off

   DOX0051860001   

Arch Ins. Co.

  1/05/2015-1/05/2021  

$10,000,000X$10,000,000

   
           

Fiduciary Liability

Run-Off

   FDC005186401   

Arch Ins. Co.

  1/05/2015-1/05/2021  

$3,000,000X$2,000,000

   

 

 

2

Schedule 4.23

Intellectual Property

None

Schedule 5.02(b)

Local Counsel

Stibbe London B.V., as counsel with respect to matters of Netherlands law to Holdco II B.V.

Schedule 6.10

Post-Closing Deliveries

Within 60 days after the Closing Date (or such later date as may be agreed by the Administrative Agent in its discretion), each Borrower shall execute and deliver to the Collateral Agent a Deposit Account Control Agreement with respect to each Deposit Account of such Borrower and the Loan Parties in existence as of the Closing Date, other than any Exempt Deposit Account.

Within 90 days after the Closing Date, each Borrower shall execute and deliver the documents required by clause (vii) through (ix) of the definition of “Collateral and Guarantee Requirement.”

Schedule 7.01

Indebtedness

 

1.

Capital lease obligations of Wise Alloys LLC in the amount of $550,000.

 

2.

Loan by and between Alabama Saves LLC and Wise Alloys LLC in the amount of $1,546,000

 

3.

Credit Facility Agreement by and between Constellium Finance and Wise Alloys LLC in the amount of $180,000,000.

 

4.

Intragroup Loan Agreement by and between Constellium Finance and Wise Metals Group LLC in the amount
of $547,550,000.

 

5.

Intra-Group Loan Agreement by and between Constellium Finance SAS and Constellium Rolled Products
Ravenswood, LLC in the amount of $20,000,000.

Schedule 7.02(a)

Liens

 

1.

Constellium Rolled Products Ravenswood, LLC holdS US Treasury Bills at BB&T on behalf of the State of West
Virginia as security for its legacy self-insured workers compensation liability. On March 31, 2017 the Company
purchased T Bills with an original cost of $7,977,460.29 with a maturity value of $8,058,000 on March 29, 2018
(CUSIP # 912796LS6). It is anticipated these treasury bills will be replaced with a Wells Fargo letter of credit
shortly after closing.

 

2.

Trust Agreement between Constellium Rolled Products Ravenswood, LLC and United Bank, Inc. to secured
liabilities of Constellium Rolled Products Ravenswood, LLC in respect of a hazardous waste management facility
(storage ponds). The trust is to be funded in an amount of $472,616 with annual payments over a ten-year period,
commencing on January 17, 2008. The environmental escrow account has a balance of $478,183.96 as of
May 31, 2017.

 

3.

Other Liens:

 

             
Debtor   Secured Party  

Jurisdiction
of filing

 

  Type of filing   File #   File Date  

Description of

Collateral

Constellium Rolled Products Ravenswood, LLC

 

TFS Capital

Funding

  DE  

Financing

Statement

  2011 4480201   11/22/2011  

Certain equipment

Constellium Rolled Products Ravenswood, LLC

 

HYG Financial

Services, Inc.

  DE  

Financing

Statement

  2012 2304071   06/14/2012  

Certain equipment

Constellium Rolled Products Ravenswood, LLC

 

Noble Americas

Corp.

  DE  

Financing

Statement

  2014 4719738   11/21/2014  

Aluminum RSI/Prime

Constellium Rolled Products Ravenswood, LLC

 

Pension Benefit Guaranty Corporation

  DE  

Financing

Statement

  2016 2405619   04/22/2016  

Real property described on Exhibit B to financing statement, all equipment, fixtures, water and utility

rights

Constellium Rolled Products Ravenswood, LLC

 

Glencore Ltd.

  DE  

Financing

Statement

  20170235140   01/11/2017  

Glencore Ltd.’s

Aluminum

Wise Alloys LLC

 

Wells Fargo Equipment Finance, Inc.

  DE  

Financing

Statement

  20103454547   10/04/2010  

New Mazak Variaxis

815/120R Vertical

Machining Center S/N

223937

Wise Alloys LLC

 

Capital One, N.A.; CSC

Leasing Co.

  DE  

Financing

Statement

  20104625210   12/29/2010  

Certain equipment

Wise Alloys LLC

 

Caterpillar Financial

Services Corporation

  DE  

Financing

Statement

  20110165764   01/14/2011  

Caterpillar 962H Wheel

Loader S/N: K6K00510

Wise Alloys LLC

 

De Lage

Landen Financial Services, Inc.

  DE  

Financing

Statement

  20120499162   02/08/2012  

Certain equipment

             

Debtor

 

  

Secured Party

 

  

Jurisdiction of
filing

 

   Type of filing    File #    File Date   

Description of

Collateral

Wise Alloys LLC

  

IBM Credit

LLC

   DE   

Financing

Statement

   20123218866    08/20/2012   

Certain equipment

Wise Alloys LLC

  

Rexam

Beverage Can

Company

   DE   

Financing

Statement

   20123258979    08/22/2012   

Certain equipment and fixtures

Wise Alloys LLC

  

General Electric Capital Corporation

   DE   

Financing

Statement

   20123788652    10/02/2012   

Certain equipment

Wise Alloys LLC

  

The McPherson

Companies, Inc.

   DE   

Financing

Statement

   20130258419    01/18/2013   

Certain equipment

Wise Alloys LLC

  

Rexam

Beverage Can

Company

   DE   

Financing

Statement

   20130448515    02/04/2013   

Certain equipment

Wise Alloys LLC

  

Caterpillar Financial

Services

Corporation

   DE   

Financing

Statement

   20130613191    02/15/2013   

1 Exodus MX457R Material Handler s/n/: 457-12-017

Wise Alloys LLC

  

Nations Fund I, Inc.

   DE   

Financing

Statement

   20130891276    03/07/2013   

Certain equipment

Wise Alloys LLC

  

AlabamaSaves, LLC

   DE   

Financing

Statement

   20131591974    04/25/2013   

Certain equipment

Wise Alloys LLC

  

Nations Fund I, Inc.

   DE   

Financing

Statement

   20131592139    04/25/2013   

Certain equipment

Wise Alloys LLC

  

Nations Fund I, Inc.

   DE   

Financing

Statement

   20132337591    06/18/2013   

Certain equipment

Wise Alloys LLC

  

Nations Fund I, Inc.

   DE   

Financing

Statement

   20132344183    06/19/2013   

1 2006 Taylor THC-400L Forklift with S/N: 32656 and 60 “Kissing Forks

Wise Alloys LLC

  

Nations Fund I, Inc.

   DE   

Financing

Statement

   20132344191    06/19/2013   

Certain equipment

Wise Alloys LLC

  

Deere Credit,

Inc.

   DE   

Financing

Statement

   20132349539    06/19/2013   

Hitachi ZX210 Excavator

S/N 330005 with 42”

Bucket Manual Thumb

60: Ditch Bucket W/BOE

Wise Alloys LLC

  

Nations Fund I, Inc.

   DE   

Financing

Statement

   20132359181    06/19/2013   

2013 Freightline M2106

Tractor

3ALACXDT3DDFH979

8

Wise Alloys LLC

  

Nations Fund I, Inc.

   DE   

Financing

Statement

   20132419720    06/24/2013   

Certain equipment

Wise Alloys LLC

  

Nations Fund I, Inc.

   DE   

Financing

Statement

   20133617934    09/17/2013   

Certain equipment

Wise Alloys LLC

  

Gt

Commodities

LLC

   DE   

Financing

Statement

   20134392768    11/07/2013   

Aluminum

Wise Alloys LLC

  

Deere Credit,

Inc.

   DE   

Financing

Statement

   20140733220    02/25/2014   

Certain equipment

Wise Alloys LLC

  

Nations Fund I, Inc.

   DE   

Financing

Statement

   20142937498    07/23/2014   

Certain equipment

             

Debtor

 

  

Secured Party

 

  

Jurisdiction of
filing

 

   Type of filing    File #    File Date   

Description of

Collateral

Wise Alloys LLC

  

General Electric Capital Corporation

   DE   

Financing

Statement

   20143429552    08/26/2014   

Certain equipment

Wise Alloys LLC

  

Deere Credit,

Inc.

   DE   

Financing

Statement

   20144432480    11/04/2014   

Certain equipment

Wise Alloys LLC

  

Deere Credit,

Inc.

   DE   

Financing

Statement

   20150235506    01/20/2015   

Certain equipment

Wise Alloys LLC

  

Deere Credit,

Inc.

   DE   

Financing

Statement

   20150235589    01/20/2015   

Certain equipment

Wise Alloys LLC

  

Deere Credit,

Inc.

   DE   

Financing

Statement

   20150741651    02/23/2015   

Certain equipment

Wise Alloys LLC

  

General Electric Credit Corporation of

Tennessee

   DE   

Financing

Statement

   20151042729    03/12/2015   

Certain equipment

Wise Alloys LLC

  

Deere Credit,

Inc.

   DE   

Financing

Statement

   20152587656    06/17/2015   

Certain equipment

Wise Alloys LLC

  

LaSalle

Systems

Leasing, Inc.;

MB Financial

Bank, N.A.;

Beverly Bank

& Trust

Company N.A.

   DE   

Financing

Statement

   20153300950    07/30/2015   

Certain equipment

Wise Alloys LLC

  

Alpert & Alpert Iron & Metal, Inc., a

California

corporation

   DE   

Financing

Statement

   20154086665    09/15/2015   

Aluminum owned by

Secured Party

Wise Alloys LLC

  

Deere Credit,

Inc.

   DE   

Financing

Statement

   20161255833    03/02/2016   

Certain equipment

Wise Alloys LLC

  

Hitachi Capital

America Corp

   DE   

Financing

Statement

   20161577012    03/16/2016   

Certain receivables

Wise Alloys LLC

  

Wells Fargo Vendor

Financial

Services, LLC

   DE   

Financing

Statement

   20162861522    05/12/2016   

1 Caterpillar Wheel Mounted Cable Log Skidder, Serial# EMB00860, Model#

950M

Wise Alloys LLC

  

Deere Credit,

Inc.

   DE   

Financing

Statement

   20168031328    12/27/2016   

Certain equipment

Wise Alloys LLC

  

Harbor Capital

Leasing, Inc.

   DE   

Financing

Statement

   20171109930    02/17/2017   

Certain equipment

Wise Alloys LLC

  

Deere Credit,

Inc.

   DE   

Financing

Statement

   20172941489    05/04/2017   

Certain equipment

Wise Alloys LLC

  

Deere Credit,

Inc.

   DE   

Financing

Statement

   20172941554    05/04/2017   

Certain equipment

Wise Alloys Funding

II LLC

  

Hitachi Capital

America Corp.

   DE   

Financing

Statement

   20161577228    03/16/2016   

Accounts and proceeds; Chattel Paper and proceeds

             

Debtor

 

  

Secured Party

 

  

Jurisdiction of
filing

 

   Type of filing    File #    File Date   

Description of

Collateral

Wise Alloys Funding

II LLC

  

Intesa Sanpaolo

S.P.A., New

York Branch

   DE   

Financing

Statement

   20167258773    11/22/2016     

Wise Alloys LLC

  

Toyota Motor

Credit

Corporation

   DE   

Financing

Statement

   20121927732    05/02/2012   

Certain vehicles

Wise Alloys LLC

  

Louis J. JR.

Capano

   DE   

Financing

Statement

   20091553434    07/22/2009   

Notice of Bailment

Constellium Rolled

Products Ravenswood,

LLC

  

Deutsche Bank

Trust Company

Americas

   DE   

Financing

Statement

   20163453063    06/08/2016   

All assets

Schedule 7.04

Investments

None

Schedule 10.02

Notice Information

Constellium Rolled Products Ravenswood, LLC

Constellium Rolled Products Ravenswood, LLC

P.O. Box 68

859 Century Road

Ravenswood, WV 26164

Attn:

Derek Scantlin

Stephanie Kay

Tel:

(304) 273-6262

(304) 273-7134

Fax:

(304) 273-6846

Email: derek.scantlin@constellium.com

With a copy to:

Paul Weiss Rifkind Wharton & Garrison LLP

1286 Sixth Avenue

New York, NY 10019

Attn:

Austin Witt

Tel:

(212) 373-3181

Email: awitt@paulweiss.com

Wise Alloys LLC

Wise Alloys LLC

4805 Second Street

Muscle Shoals, Alabama 35661

Attn:

Alex Godwin

Tel: +1 256 386 6169

Email : alex.godwin@constellium.com

With a copy to:

Paul Weiss Rifkind Wharton & Garrison LLP

1286 Sixth Avenue

New York, NY 10019

Attn:

Austin Witt

Tel:

(212) 373-3181

Email: awitt@paulweiss.com

Wise Metals Group LLC

Wise Metals Group LLC

4805 Second Street

Muscle Shoals, Alabama 35661

Attn:

Alex Godwin

Tel:

+1 256 386 6169

Email : alex.godwin@constellium.com

With a copy to:

Paul Weiss Rifkind Wharton & Garrison LLP

1286 Sixth Avenue

New York, NY 10019

Attn:

Austin Witt

Tel:

(212) 373-3181

Email: awitt@paulweiss.com

Constellium US Holdings I, LLC

Constellium US Holdings I, LLC

830 Third Avenue, 9th floor

New York, New York 10022

Attn:

Rina E. Teran

Tel:

212-675-5087

Email: rina.teran@constellium.com

With a copy to:

Paul Weiss Rifkind Wharton & Garrison LLP

1286 Sixth Avenue

New York, NY 10019

Attn:

Austin Witt

Tel:

(212) 373-3181

Email: awitt@paulweiss.com

Constellium Holdco II B.V.

Constellium Holdco II B.V.

c/o Constellium US Holdings I, LLC

830 Third Avenue, 9th floor

New York, New York 10022

Attn:

Rina E. Teran

Tel:

212-675-5087

Email: rina.teran@constellium.com

With a copy to:

Stibbe London B.V.

53 New Broad Street –

London EC2M 1JJ –

United Kingdom

Attn:

Hans Witteveen / Rik van Kessel

Tel:

+44 207 151 09 21

Email: Hans.Witteveen@Stibbe.com and Rik.vanKessel@Stibbe.com

With a copy to:

Paul Weiss Rifkind Wharton & Garrison LLP

1286 Sixth Avenue

New York, NY 10019

Attn:

Austin Witt

Tel:

(212) 373-3181

Email: awitt@paulweiss.com

Administrative Agent

Wells Fargo Bank, National Association

100 Park Avenue, 14th Floor

New York, NY 100017

Attn:

Herbert C. Korn

Tel:

212-545-4535

Email: herb.korn@wellsfargo.com

L/C Issuer

Wells Fargo Bank, National Association

100 Park Avenue, 14th Floor

New York, NY 100017

Attn:

Herbert C. Korn

Tel:

212-545-4535

Email: herb.korn@wellsfargo.com

Swing Line Lender

Wells Fargo Bank, National Association

100 Park Avenue, 14th Floor

New York, NY 100017

Attn:

Herbert C. Korn

Tel:

212-545-4535

Email: herb.korn@wellsfargo.com

Exhibit 10.2

 

From CONSTELLIUM ISSOIRE
     rue Yves Lamourdedieu Zl Ies Listes
     63500 Issoire, France

 

     CONSTELLIUM NEUF BRISACH
     ZIP Rhenane Nord. RD 52
     68600 Biesheim. France

 

     (together the “Borrowers”)

 

     CONSTELLIUM HOLDCO II B.V.
     Tupolevlaan 41-61.
     1119 NW Schipol-Rijk. The Netherlands

 

     (the “Parent Company”)

 

To FACTOFRANCE
     Tour Facto 18 rue Hoche
     92988 Paris-La Defense Cedex France
     (the “Agent”).

 

     The financial institutions listed in the inventory Financing Facility Agreement (as defined below) (the “ O riginal Lenders ”)

Paris, on 13 June 2017

Dear Sir or Madam

Amendment to the Inventory Financing Facility Agreement (the “ Amendment ”)

We refer to the inventory financing credit facility agreement entered into on 21 April 2017 between Constellium Neuf Brisach and Constellium Issoire as borrowers. Constellium Holdco II B.V. as parent company and guarantor. Factofrance as agent arranger and original lender. Credit Suisse International as original lender. BNP Paribas as original lender and Deutsche Bank AG, London Branch as original lender (the “Inventory Financing Facility Agreement”).

Unless otherwise defined herein, capitalized terms defined in the Inventory Financing Facility Agreement shall have the same meaning when used in this letter

We hereby request you to agree to

 

i.

replace the definition of “Inventory Turn Ratio” of the Inventory Financing Facility Agreement with the following provisions

“Inventory Turn Ratio” means , in respect of any Borrower, on any Quarter Date, the ratio of (i) the sum of the aggregate amount of sales of such Borrower during the 365 days immediately preceding such Quarter Date and (ii) the average of the sum of the Inventory Value (With Dispossession) and the Inventory Value (Without Dispossession) of such Borrower as indicated in the Escrow Agent Certificates and Escrow Agent Statements (or, if not delivered in accordance with clause 5 5 2, in the statements as to the position of inventory (registre des positions de stocks)) delivered to the Agent in the three different calendar months immediately

 

Paris 12766874.6

   1   

preceding such Quarter Date provided in accordance with Clause 5.5.2 (a)) delivered to the Agent”

 

ii.

replace article 5.5.2 of the Inventory Financing Facility Agreement with the following provisions 5.5.2 For that purpose, t he Escrow Agent will provide the Agent

 

  a)

in any event at the latest on the last Business Day of each calendar month with (i) an Escrow Agent Certificate countersigned by the relevant Borrower and setting out, inter alia the applicable Inventory Value (With Dispossession) and (ii) statements as to positions of inventory (registre des positions de stocks) issued by the relevant Borrower during such calendar month setting out the position of the inventory pledged under the Inventory Pledge Agreement Without Dispossession entered into by such Borrower; and

 

  b)

with an Escrow Agent Statement countersigned by the relevant Borrower setting out, inter alia the applicable Inventory Value (Without Dispossession) within 8 Business Days from a request

 

  (i)

by the Agent (provided that the Agent may only issue two requests per calendar year), or

 

  (ii)

by any Borrower it being specified that, each time a Borrower wishes to deliver a Utilisation Request

 

  A prior to such Borrower being entitled to deliver such Utilisation Request, such Borrower shall have made such a request no later than 8 Business Days preceding the contemplated Utilisation Request date and the Escrow Agent shall have provided such an Escrow Agent Statement no later than the contemplated Utilisation Request date ; and

 

  B once the Escrow Agent has provided such Escrow Agent Statement, such Borrower may issue an Utilization Request within a month of the issuance of such Escrow Agent Statement.

 

  c)

if, at any time, the amount of all outstanding Loans made available to any Borrower is superior to 75% of the Borrowing Base Value applicable to such Borrower as at such date, every 8 Business Days, with Escrow Agent Reports countersigned by the relevant Borrower and setting out inter alia, the applicable Inventory Value (With Dispossession) and the Inventory Value (Without Dispossession);

 

iii.

replace article 20.1.3 of the Inventory Financing Facility Agreement by the following provisions

 

  “20.1.3 

any of the representations and warranties made by an Obligor under a Finance Document is or proved to be incorrect or misleading when made, to the extent that such misrepresentation has a Material Adverse Effect and, unless the circumstances giving rise to and the effects of such misrepresentation are capable of remedy and are remedied within ten (10) Business Days of the earlier of (i) the Agent giving notice to the relevant Obligor of such misrepresentation and (ii) the relevant Obligor becoming aware of such misrepresentation”

This Amendment shall not constitute a novation of the Inventory Financing Facility Agreement.

This Amendment is made in eight original copies.

The provisions of this Amendment shall be construed in accordance with and shall be governed by French law All disputes arising out of or in connection with this Amendment and in particular with its

 

Paris 12766874.6

   2   

validity interpretation performance or non-performance shall be exclusively referred to the competent courts in the jurisdiction of the Paris Court of Appeal

We would be grateful if you could confirm your agreement with the above by countersigning the enclosed copies of this letter and by returning us three original signed copies of this letter.

Yours faithfully

 

Paris 12766874.6

   3   

The Borrowers

 

CONSTELLIUM ISSOIRE

By

 

/s/ Christel Sahyoun

Name

 

Christel Sahyoun

CONSTELLIUM NEUF BRISACH

By  

/s/ Christel Sahyoun

Name

 

Christel Sahyoun

The Parent Company

 

CONSTELLIUM HOLDCO II B.V.

By  

/s/ Christel Sahyoun

Name

 

Christel Sahyoun

 

Paris 12766874.6

   4   

The Agent

 

FACTOFRANCE

By

 

/s/ Christine Vadon

Name

 

Christine Vadon

The Original Lenders

 

FACTOFRANCE

By

 

/s/ Christine Vadon

Name

 

Christine Vadon

 

Paris 12766874.6

   5   

CREDIT SUISSE INTERNATIONAL

   

By

 

/s/ Garrett Lynskey

     

/s/ Brian Fitzgerald

Name

 

Garrett Lynskey

Authorised Signatory

     

Brian Fitzgerald

Authorised Signatory

 

Paris 12766874.6

   6   

BNP PARIBAS

By

 

/s/ Michael Gholam

Name

 

Michael Gholam

Authorised Signatory BNP Paribas

By

 

/s/ Laetitia Moiron

Name

 

Laetitia Moiron

BNP Paribas Authorised Signatory

 

 

Paris 12766874.6

   7   

DEUTSCHE BANK AG. LONDON BRANCH

     

By

 

/s/ Mark Dixson

     

/s/ Ray Dukes

Name

 

Mark Dixson

Managing Director

     

Ray Dukes

Vice President

 

Paris 12766874.6

   8   

Exhibit 10.3

April 2017

CONSTELLIUM ISSOIRE

and

CONSTELLIUM NEUF BRISACH

as Borrowers

CONSTELLIUM HOLDCO II B.V.

as Parent Company

FACTOFRANCE

as Arranger and Agent

THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1

as Original Lenders

 

 

FACILITY AGREEMENT

 

 

 

LOGO

Paris 12422678.19

TABLE OF CONTENTS

 

1.

 

Definitions and interpretation

     4  

2.

 

The Facility

     20  

3.

 

Purpose

     21  

4.

 

Conditions of Utilisation

     21  

5.

 

Utilisation

     22  

6.

 

Repayment

     25  

7.

 

Prepayment and cancellation

     26  

8.

 

Interest

     31  

9.

 

Interest Periods

     32  

10.

 

Changes to the calculation of interest

     33  

11.

 

Fees

     34  

12.

 

Tax gross up and indemnities

     34  

13.

 

Increased Costs

     41  

14.

 

Other indemnities

     42  

15.

 

Mitigation by the Lenders

     43  

16.

 

Costs and expenses

     43  

17.

 

Guarantee

     44  

18.

 

Representations

     46  

19.

 

Undertakings

     48  

20.

 

Events of Default

     51  

21.

 

Changes to the Parties

     52  

22.

 

Role of the Agent, the Arranger and the Reference Banks

     56  

23.

 

Conduct of business by the Finance Parties

     65  

24.

 

Sharing among the Finance Parties

     65  

25.

 

Payment mechanics

     67  

26.

 

Set-off

     70  

27.

 

Notices

     70  

28.

 

Day count convention

     72  

29.

 

Partial invalidity

     72  

30.

 

Remedies, waivers and hardship

     73  

31.

 

Amendments and waivers

     73  

32.

 

Confidential Information

     74  

33.

 

Confidentiality of Reference Bank Quotations

     77  

 

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34. Applicable Law - Jurisdiction

     79  

SCHEDULE 1.

 

The Original Lenders

     80  

SCHEDULE 2.

 

Conditions Precedent

     81  

SCHEDULE 3.

 

Form of Utilisation Request

     84  

SCHEDULE 4.

 

Form of Transfer Agreement

     86  

SCHEDULE 5.

 

Form of TEG Letter

     89  

SCHEDULE 6.

 

Form of Confidentiality Undertaking

     91  

SCHEDULE 7.

 

Form of Guarantee Demand

     92  

SCHEDULE 8.

 

Dutch Legal Reservations

     93  

SCHEDULE 9.

 

Independent Appraiser engagement letter

     94  

SCHEDULE 10.

 

Form of Security Documents

     95  

 

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     THIS FACILITY AGREEMENT is made between:

 

    1.

CONSTELLIUM ISSOIRE , a société par actions simplifiée governed by French law whose registered office is at rue Yves Lamourdedieu ZI les Listes, 63500 Issoire, France, registered with the trade and companies registry of Clermont-Ferrand under number 672 014 081 ; and

 

    2.

CONSTELLIUM NEUF BRISACH , a société par actions simplifiée governed by French law whose registered office is at ZIP Rhénane Nord, RD 52, 68600 Biesheim, France, registered with the trade and companies registry of Colmar under number 807 641 360,

as borrowers (each a “ Borrower ” and together the “ Borrowers ”);

 

    3.

CONSTELLIUM HOLDCO II B.V. , a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the laws of the Netherlands , with its seat ( statutaire zetel ) in Amsterdam and whose registered office is at Tupolevlaan 41- 61, 1119 NW Schipol-Rijk, The Netherlands, registered with the Dutch trade register ( Handelsregister ) under number 34393946, as parent company (the “ Parent Company ”);

 

    4.

THE FINANCIAL INSTITUTIONS listed in SCHEDULE 1 ( The Original Lenders ) as original lenders (“the Original Lenders ”); and

 

    5.

FACTOFRANCE , a company incorporated under the laws of France as a société par actions simplifiée and licensed as a credit institution (établissement de crédit), whose registered office is located at Tour Facto, 18, rue Hoche, 92988 Paris-La Défense Cedex, France, registered with the Trade and Companies Registry of Nanterre under number 063 802 466, as arranger (in such capacity, the “ Arranger ”) and as agent (in such capacity, the “ Agent ”).

    WHEREAS:

 

    (A)

The Borrowers have decided to finance their general corporate requirements by entering into an inventory financing credit facility.

 

    (B)

Subject to the terms and conditions of the Finance Documents, the Lenders will make available to the Borrowers a credit facility secured by, inter alia, inventory pledge agreements.

 

    (C)

The Parties have therefore decided to enter into the Finance Documents in order to set out the terms and conditions applicable to this inventory financing credit facility to be made available by the Lenders to the Borrowers.

     IT IS AGREED as follows:

 

    1.

DEFINITIONS AND INTERPRETATION

 

    1.1

Definitions

In this Agreement:

“ Accounting Principles ” means in relation to the Parent Company and any Borrower, generally accepted accounting principles in its jurisdiction of incorporation, and used in the financial statements or accounts to be remitted by the Parent Company and such Borrower to the Agent pursuant to this Agreement.

“ Affiliate ” means as to a specified entity, an entity that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the entity specified.

 

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“ Agreement ” means this facility agreement.

“ Authorisation ” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

“ Availability Period ” means the period starting on the Signing Date (included) and ending on the Termination Date (excluded).

“ Available Commitment ” means, in relation to any Lender, such Lender’s Commitment minus:

 

  (a)

the amount of its participation in any outstanding Loans; and

 

  (b)

in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date (but not taking into account that Lender’s participation in any Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date).

“ Available Facility ” means, at any time, for any Borrower, the lesser of:

 

  (a)

the Borrowing Base Value applicable to such Borrower at that time; and

 

  (b)

the aggregate for the time being of each Lender’s Available Commitment.

“ Available Tranche A Amount ” means, at any time, for any Borrower, the lesser of:

 

  (a)

the Available Facility applicable to such Borrower at that time; and

 

  (b)

the Financeable Inventory Value (With Dispossession) applicable to such Borrower at that time.

“ Available Tranche B Amount ” means, at any time, for any Borrower, the maximum between:

 

  (a)

the difference between (i) the Available Facility applicable to such Borrower at that time and (ii) the Financeable Inventory Value (With Dispossession) applicable to such Borrower at that time; and

 

  (b)

zero.

“ Basel Committee ” means the Basel Committee on Banking Supervision.

“ Basel III ” means:

 

  (a)

the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee in December 2010; and

 

  (a)

the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee in November 2011,

each in the form existing on the date of this Agreement, excluding any change in (or in the interpretation, administration or application of) such agreements and rules after the date hereof.

 

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“ Borrower Change of Control ” has the meaning ascribed to such term in Clause 7.2.2.

“ Borrowing Base Event ” means, in respect of any Borrower, the fact that, on any Quarter Date, the Inventory Turn Ratio of such Borrower is inferior to:

 

  (a)

regarding Constellium Issoire, 3; and

 

  (b)

regarding Constellium Neuf Brisach, 6,

provided that, for the avoidance of doubt, if on any following Quarter Date the Inventory Turn Ratio of such Borrower is superior or equal to 3 regarding Constellium Issoire or 6 regarding Constellium Neuf Brisach, the Borrowing Base Event will no longer be continuing.

“ Borrowing Base Value ” means, on any date, for any Borrower:

 

  (a)

if no Borrowing Base Event has occurred and is continuing in respect of this Borrower, the lesser of:

 

  (i)

the sum of the Financeable Inventory Value (With Dispossession) and the Financeable Inventory Value (Without Dispossession) of this Borrower as at such date; and

 

  (ii)

the product of the Financeable Inventory Value (With Dispossession) of this Borrower as at such date by 4; and

 

  (b)

if a Borrowing Base Event has occurred and is continuing in respect of this Borrower, the Financeable Inventory Value (With Dispossession) of this Borrower as at such date.

“ Break Costs ” means the amount (if any) by which:

 

  (a)

the interest (excluding the applicable Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

 

  (b)

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

“ Business Day ” means a day (other than a Saturday or Sunday) on which banks are generally open for normal business in Paris, London and Amsterdam, and (in relation to any date for payment or purchase of Euro) any TARGET Day.

“ Change of Control ” means, as the case may be, a Parent Change of Control and/or a Borrower Change of Control.

“ Commitment ” means:

 

  (a)

in relation to an Original Lender, the amount in Euro set opposite its name under the heading “Commitment” in SCHEDULE 1 ( The Original Lenders ) and the amount of any other Commitment transferred to it under this Agreement; and

 

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  (b)

in relation to any other Lender, the amount in Euro of Commitment transferred to it under this Agreement,

to the extent not cancelled, reduced or transferred by it under this Agreement.

“ Confidential Information ” means all information relating to any Obligor, the Group, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:

 

  (a)

any member of the Group or any of its advisers; or

 

  (b)

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

 

  (i)

information that:

 

  (1)

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 32 ( Confidential Infor mation); or

 

  (2)

is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

 

  (3)

is known by that Finance Party before the date the information is disclosed to it in accordance with Paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

 

  (ii)

any Reference Bank Quotation.

“ Confidentiality Undertaking ” means a confidentiality undertaking substantially in the form set out in SCHEDULE 6 ( Form of Confidentiality Undertaking ) or in any other form agreed between the Parent Company and the Agent.

“ Constellium N.V. ” means Constellium N.V., a public company with limited liability ( naamloze vennootschap ) incorporated under the laws of the Netherlands, having its corporate seat ( statutaire zetel ) in Amsterdam, the Netherlands, its registered office at Tupolevlaan 41, 1119 NW Schiphol-Rijk, the Netherlands and registered with the Trade Register of the Chamber of Commerce (Kamer van Koophandel, afdeling Handelsregister) under number 34393663

“ CRD IV Directive ” means directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms in the form existing on the date of this Agreement, excluding any change in (or in the interpretation, administration or application of) such directive after the date hereof.

 

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“ CRR Regulation ” means regulation No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms, in the form existing on the date of this Agreement, excluding any change in (or in the interpretation, administration or application of) such regulation after the date hereof.

“ Cross-Acceleration ” means, in respect of any Financial Indebtedness (other than any financial indebtedness owed to another member of the Group) of any member of the Group, the aggregate outstanding amount of which exceeds fifty million Euros (EUR 50,000,000), any event of default (however described):

 

  (a)

with respect to any Financial Indebtedness other than the ones referred to in Paragraph (vii) of the definition of Financial Indebtedness, which has led the relevant lenders or financing parties to declare such relevant Financial Indebtedness due and payable prior to its specified maturity; or

 

  (b)

with respect to any Financial Indebtedness referred to in Paragraph (vii) of the definition of Financial Indebtedness, which has led any counterparty to early terminate such Financial Indebtedness further to a breach of the relevant member of the Group of its obligations thereunder.

“ Default ” means any event or circumstance set out in Clause 20.1 ( Events of Default ), which would, with the expiry of a grace period, the giving of notice, the making of any determination or combination of the foregoing, constitute an Event of Default.

“ Defaulting Lender ” means any Lender:

 

  (a)

which has failed to make its participation in a Loan available (or has notified the Agent or the Parent Company (which has notified the Agent) that it will not make its participation in a Loan available) by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders’ participation) unless its failure to pay is caused by an administrative or technical error or a Disruption Event, and payment is made within 3 Business Days of its due date; or

 

  (b)

which has otherwise rescinded or repudiated a Finance Document; or

 

  (c)

with respect to which an Insolvency Event has occurred and is continuing,

“ Disruption Event ” means either or several of:

 

  (a)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

  (b)

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

  (i)

from performing its payment obligations under the Finance Documents; or

 

  (ii)

from communicating with other Parties in accordance with the terms of the Finance Documents,

 

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Paris 12422678.19

 

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

“ Eligible Inventory ” means, in respect of any Borrower, aluminium raw material, semi-finished goods and finished goods which fulfil the following criteria:

 

  (a)

they are located in the Warehouse of such Borrower;

 

  (b)

with respect to semi-finished goods and finished goods only, they are Ordered Products;

 

  (c)

they are free from any pledge, lien ( privilège ), retention of title or any other Security (except under the Security Documents); and

 

  (d)

in case of enforcement of the Finance Parties’ rights under the Security Documents, the Finance Parties are entitled to sell such material or goods without infringing any applicable intellectual property rights in relation to such material or goods.

“ Escrow Agent ” means Société Européenne de Garantie - Eurogarant, a company incorporated under the laws of France as a société anonyme whose registered office is at 82 rue Beaubourg, 75003 Paris, France and registered with the trade and company registry of Paris under number 393 759 923.

“ Escrow Agent Reports ” mean together any Escrow Agent Certificate and any Escrow Agent Statement.

“ Escrow Agent Certificate ” means, in respect of any Borrower, any escrow agent certificate ( certificat de tierce détention ) as defined in the Inventory Pledge Agreement With Dispossession entered into by such Borrower.

“Escrow Agent Statement” means, in respect of any Borrower, any escrow agent statement ( état des stocks gagés ) as defined in the Inventory Pledge Agreement Without Dispossession entered into by such Borrower.

“ EURIBOR ” means, in relation to any Loan:

 

  (a)

the euro interbank offered rate administered by the European Money Markets Institute (or any person which takes over the administration of that rate) for Euros and for a one (1) month term, as displayed at 11:00 a.m. (Brussels time) two (2) Business Days before the Utilisation Date of such Loan on the page EURIBOR01 of the Thomson Reuters screen or any replacement Thomson Reuters page which displays that rate or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters (it being specified that if the relevant page or service ceases to be available, the Agent, in consultation with the Parent Company, may specify another page or service displaying the relevant rate) (the “ Screen Rate ”);

 

  (b)

if no Screen Rate is available, the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request quoted by HSBC France, Crédit Agricole and Crédit Mutuel (or any other credit institution selected by the Agent (acting on the instructions of all the Lenders) in consultation with the Parent Company) (each a “ Reference Bank ”) as the rate at which the relevant Reference Bank could borrow funds in Euro for a period of one (1) month in the European interbank market were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period (the “ Reference Banks Rate ”);

 

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Paris 12422678.19

  (c)

if no Screen Rate and no Reference Banks Rate is available, the rate which results from interpolating on a linear basis between:

 

  (i)

the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than one (1) month; and

 

  (ii)

the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds one (1) month,

(the “ Interpolated Screen Rate ”); and

 

  (d)

if no Screen Rate and no Reference Banks Rate is available and it is not possible to calculate the Interpolated Screen Rate, for each Lender, the rate referred to in Clause 10.2.1(b).

“ Euro ” or “ EUR ” means the single currency of the Participating Member States.

“ Event of Default ” means any event or circumstance specified as such in Clause 20.1 ( Events of Default ).

“ Facility ” means the revolving loan facility made available under this Agreement as described in Clause 2.1 ( The Facility ).

“ Facility Office ” means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.

“ FATCA ” means:

 

  (a)

sections 1471 to 1474 of the US Internal Revenue Code of 1986 or any associated regulations;

 

  (b)

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in Paragraph (a) above; or

 

  (c)

any agreement pursuant to the implementation of any treaty, law or regulation referred to in Paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

“ FATCA Application Date ” means:

 

  (a)

in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the US Internal Revenue Code of 1986 (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;

 

  (b)

in relation to a “withholdable payment” described in section 1473(1)(A)(ii) of the US Internal Revenue Code of 1986 (which relates to “gross proceeds” from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or

 

  (c)

in relation to a “passthru payment” described in section 1471(d)(7) of the US Internal Revenue Code of 1986 not falling within Paragraphs (a) or (b) above, 1 January 2019,

 

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Paris 12422678.19

or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement.

“ FATCA Deduction ” means a deduction or withholding from a payment under a Finance Document required by FATCA.

“ FATCA Exempt Party ” means a Party that is entitled to receive payments free from any FATCA Deduction.

“ Fee Letter ” means any letter or letters dated on or about the date of this Agreement between the Arranger and the Parent Company or the Agent and the Parent Company setting out any of the fees referred to in Clause 11 ( Fees ).

“ Financeable Inventory Value (With Dispossession) ” means, in respect of any Borrower, on any date:

 

  (a)

if no Borrowing Base Event has occurred and is continuing in respect of this Borrower, the product of 90% of the last available Recalculated Net Orderly Liquidation Percentage by the Inventory Value (With Dispossession) in respect of such Borrower applicable as at such date; and

 

  (b)

if a Borrowing Base Event has occurred and is continuing in respect of this Borrower, the product of 70% of the last available Recalculated Net Orderly Liquidation Percentage by the Inventory Value (With Dispossession) in respect of such Borrower applicable as at such date.

“ Financeable Inventory Value (Without Dispossession) ” means, in respect of any Borrower, on any date, the product of 70% of the last available Recalculated Net Orderly Liquidation Percentage by the Inventory Value (Without Dispossession) in respect of such Borrower applicable as at such date.

“ Finance Documents ” means this Agreement, any Fee Letter, any Security Document and any other document designated as such by the Agent and the Parent Company.

“ Finance Lease ” means the leases, financial leases (locations avec option d’achat) or hire-purchase contracts which would, in accordance with the relevant Accounting Principles, be treated as a finance or capital leases.

“ Finance Party ” means the Agent, the Arranger or a Lender.

“ Financial Indebtedness ” means, without double-counting, any indebtedness for or in respect of:

 

  (i)

monies borrowed and debit balances at banks or other financial institutions;

 

  (ii)

any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;

 

  (iii)

any amount raised pursuant to any note purchase facility or the issue of bonds (other than Trade Instruments) notes, debentures, loan stock or any similar instrument;

 

  (iv)

the amount of any liability in respect of any Finance Lease;

 

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  (v)

receivables sold or discounted (except off balance sheet transfers of receivables);

 

  (vi)

any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the economical effect of a borrowing;

 

  (vii)

any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);

 

  (viii)

any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;

 

  (ix)

any amount raised by the issue of redeemable shares which are redeemable (other than at the option of the issuer) before the Termination Date or are otherwise classified as borrowings under the Accounting Principles;

 

  (x)

in respect of the Borrowers only, the amount of any liability in respect of any guarantee for any of the items referred to in Paragraphs (i) to (ix) above, and in respect of the Parent Company the amount of any liability in respect of any guarantee for any of the items referred to in Paragraphs (i) to (ix) above, to the extent the payment of any such liability would jeopardize the Parent Company’s ability to face its other Financial Indebtedness.

“ Funding Rate ” means any individual rate notified by a Lender to the Agent pursuant to Clause 10.2.1(b).

“ Group ” means Constellium N.V. and its Affiliates.

“ Guarantee ” has the meaning given to such term in Clause 17.1.1.

“ Guarantor ” has the meaning given to such term in Clause 17.1.

“ Holding Company ” means, in relation to a Finance Party, any entity which controls such Finance Party.

“ Independent Appraiser ” means Hilco Valuation Services, a company incorporated under the laws of England and Wales as a limited company whose registered office is at 3 St Helen’s Place, London, United Kingdom, and registered with the trade and company registry of England & Wales under number 04703331, or any other third party appointed by the Agent acting on the instructions of the Super Majority Lenders (with the prior approval of the Parent Company, not to be unreasonably withheld) responsible for assessing the commercial value of the Pledged Inventory pursuant to Clause 5.6 (Audits of the Pledged Inventory) .

“ Independent Appraiser Net Orderly Liquidation Percentage ” means, in respect of any Borrower, the weighted average of the Product Net Orderly Liquidation Percentages applicable to such Borrower, notified by the Independent Appraiser to the Agent and such Borrower half-yearly in accordance with Clause 5.7.1.

 

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“ Independent Appraiser Report ” means the report sent half-yearly to each Borrower and the Agent by the Independent Appraiser following its audits of the Pledged Inventory performed in accordance with Clause 5.6.2.

“ Insolvency Event ” in relation to an entity means that the entity:

 

  (a)

is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

  (b)

becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 

  (c)

makes a general assignment, arrangement or composition with or for the benefit of its creditors;

 

  (d)

institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights (including any resolution measure as set out-in article L. 613-51 et seq. of the French Code monétaire et financier or any analogous measure in any other jurisdiction), or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

 

  (e)

has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in Paragraph (d) above and:

 

  (i)

results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

  (ii)

is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

 

  (f)

has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

  (g)

seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in Paragraph (d) above);

 

  (h)

has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

 

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  (i)

causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in Paragraphs (a) to (h) above; or

 

  (j)

takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

“ Insolvency Proceeding ” means in respect of any Obligor, any of the following events:

 

  (a)

it has passed any corporate resolution in furtherance or approving the opening of, or it has instituted legal proceedings, or a third party has made any petition or filing, in relation to its suspension of payments ( cessation des paiements ), a moratorium of its Financial Indebtedness, its dissolution, the opening of proceedings for sauvegarde (including sauvegarde financière accélérée or sauvegarde accélérée ), redressement judiciaire or liquidation judiciaire or reorganisation of such entity other than a solvent liquidation or reorganisation of such entity;

 

  (b)

a judgement for sauvegarde (including sauvegarde financière accélérée or sauvegarde accélérée ), redressement judiciaire or liquidation judiciaire or for cession totale ou partielle de l’entreprise is rendered in relation to such entity under Articles L.620-1 to L.670-8 of the French Code de commerce ;

 

  (c)

it is in a state of cessation des paiements within the meaning of Article L.631-1 of the French Code de commerce ; or

 

  (d)

any analogous proceeding is started in any other relevant jurisdiction.

“ Interest Period ” means, in relation to a Loan, the thirty-day period (as this period may be reduced pursuant to Clause 9.1.1 or Clause 9.1.3) starting on the Utilisation Date of that Loan and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.3 ( Default interest).

“ Inventory Pledge Agreement With Dispossession ” means, in respect of each Borrower, the inventory pledge agreement with dispossession ( acte de gage avec dépossession ) entered into on or about the date hereof between such Borrower and the Finance Parties

“ Inventory Pledge Agreement Without Dispossession ” means, in respect of each Borrower, the inventory pledge agreement without dispossession ( acte de gage sans dépossession ) entered into on or about the date hereof between such Borrower and the Finance Parties.

“ Inventory Turn Ratio ” means, in respect of any Borrower, on any Quarter Date, the ratio of (i) the sum of the aggregate amount of sales of such Borrower during the preceding 365 days and (ii) the average of the sum of the Inventory Value (With Dispossession) and the Inventory Value (Without Dispossession) of such Borrower as indicated in the last three Escrow Agent Certificates and Escrow Agent Statements delivered to the Agent.

“ Inventory Value (With Dispossession) ” means, on any date, in respect of any Borrower, the book value as at such date of any Eligible Inventory of such Borrower pledged under the Inventory Pledge Agreement With Dispossession entered into by such Borrower, as set out in the accounting systems of the Borrower and determined according to the same methodology as the one used by the relevant Borrower in its accounting as at the Signing Date.

 

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“ Inventory Value (Without Dispossession) ” means, on any date, in respect of any Borrower, the book value as at such date of any Eligible Inventory of such Borrower pledged under the Inventory Pledge Agreement Without Dispossession entered into by such Borrower, as set out in the accounting systems of the Borrower and determined according to the same methodology as the one used by the relevant Borrower in its accounting as at the Signing Date.

“ Legal Reservations ” means any legal reservations that are specifically made in the legal opinions delivered in relation to this Agreement.

“ Lender ” means:

 

  (a)

any Original Lender; and

 

  (b)

any entity (excluding, for the avoidance of doubt, any natural person) which has become a Party in accordance with Clause 21 ( Changes to the Parties ),

which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

“ Loan ” means a Tranche A Loan or a Tranche B Loan.

“ London Metal Exchange Price ” means, on any date, the last bid and offer price for aluminium quoted during the second ring session at the London Metal Exchange and as shown on the London Metal Exchange website as at such date.

“ LTM Adjusted EBITDA ” means, in relation to any Borrower, on any date, the adjusted EBITDA of such Borrower for the last twelve months, determined in accordance with the definition of adjusted EBITDA of the Group set out in the annual report filed by Constellium N.V. with the United States Securities and Exchange Commission (Form 20-F) (adjusted EBITDA of the Group being defined in such report as the income from continuing operations before income taxes, results from joint ventures, net finance costs, other expenses and depreciation and amortization as adjusted to exclude restructuring costs, impairment charges, unrealized gains or losses on derivatives and on foreign exchange differences, metal price lag, share equity plan expense, effects of purchase accounting adjustments, start-up costs or acquisition, integration and separation costs, certain incremental costs and other exceptional, unusual or generally non-recurring items), provided that any change in the accounting practices used to determine such adjusted EBITDA shall be subject to the prior approval of the Super Majority Lenders.

“ Majority Lenders ” means a Lender or Lenders whose Commitments aggregate more than 50% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 50% of the Total Commitments immediately prior to the reduction).

“ Margin ” means:

 

  (a)

for any Tranche A Loan, two per cent (2%) per annum; and

 

  (b)

for any Tranche B Loan, two per cent seventy-five (2.75%) per annum.

“ Material Adverse Effect ” means, in the reasonable opinion of the Super Majority Lenders, a material adverse effect on: (i) the ability of the Parent Company or the Borrowers to perform, or, as the case may be, the performance by the Parent Company or the Borrowers of, their payment or other material obligations under the Finance Documents; or (ii) the legality, validity,

 

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effectiveness, enforceability of or ranking of any right or any security interests granted or to be granted to a Finance Party under the Finance Documents; or (iii) the value of any Pledged Inventory.

“ New Lender ” has the meaning given to that term in Clause 21.1.1.

“ Non-Cooperative Jurisdiction ” means a “non-cooperative state or territory” ( Etat ou territoire non coopératif ) as set out in the list referred to in Article 238-0 A of the French Code Général des Impôts, as such list may be amended from time to time.

“ Obligor ” means a Borrower or the Parent Company.

“ Ordered Products ” means semi-finished goods and finished goods which have been irrevocably ordered by or are subject to a binding forecast from a client of a Borrower.

“ Parent Change of Control ” has the meaning ascribed to such term in Clause 7.2.1.

“ Participating Member State” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

“ Party ” means a party to this Agreement.

“ Pledged Inventory ” means any inventory pledged pursuant to the Security Documents.

“ Product Net Orderly Liquidation Percentage ” means, in respect of each Borrower, the percentage per type of products (raw material, semi-finished goods and finished goods) on a non-conversion basis notified by the Independent Appraiser to the Agent and such Borrower half-yearly in accordance with Clause 5.7.1.

“ Qualifying Lender ” has the meaning given to it in Clause 12 ( Tax gross up and indemnities ).

“ Quarter Date ” means 31 March, 30 June, 30 September and 31 December of each calendar year respectively.

“ Recalculated Net Orderly Liquidation Percentage ” means, in respect of any Borrower, the percentage calculated on each date on which an Utilisation Request is delivered by a Borrower in accordance with Clause 5.7.3.

“ Reference Bank Quotation ” means any quotation supplied to the Agent by a Reference Bank.

“ Related Fund ” in relation to a fund (the “ first fund ”), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

“ Relevant Market ” means, in relation to Euro, the European interbank market and, in relation to any other currency, the London interbank market.

 

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LOGO

“ Test Date ” means, in relation to any Loan in respect of which the provisions of Clause 9.1.3 do not apply, any Business Day of the period between the Utilisation Date of such Loan (excluded) and the last day of the Interest Period of such Loan (excluded) (provided that no more than two Test Dates, as determined by the Agent, may occur during any Interest Period).

“ Total Commitments ” means the aggregate of the Commitments, being 100,000,000 Euros as at the date of this Agreement.

“ Trade Instruments ” means any performance bonds or advance payment bonds issued in respect of the obligations of any member of the Group arising in the ordinary course of trading of that member of the Group.

“ Tranche A ” means the portion of the Facility, of a maximum amount in principal at any time equal to the aggregate of the Available Tranche A Amount and any outstanding Tranche A Loan as at such time, made available to each Borrower in accordance with the terms of this Agreement.

“ Tranche A Loan ” means a loan made or to be made under the Tranche A or the principal amount outstanding for the time being of that loan.

“ Tranche B ” means the portion of the Facility, of a maximum amount in principal at any time equal to the aggregate of the Available Tranche B Amount and any outstanding Tranche B Loan as at such time, made available to each Borrower in accordance with the terms of this Agreement.

“ Tranche B Loan ” means a loan made or to be made under the Tranche B or the principal amount outstanding for the time being of that loan.

“ Transfer Agreement ” means an agreement substantially in the form set out in SCHEDULE 4 ( Form of Transfer Agreement ) or any other form agreed between the Agent and the Parent Company.

“ Transfer Date ” means, in relation to a transfer, the later of:

 

  (a)

the proposed Transfer Date specified in the relevant Transfer Agreement; and

 

  (b)

the date on which the Agent executes the Transfer Agreement.

“ Unpaid Sum ” means any sum due and payable but unpaid by an Obligor under the Finance Documents.

“ U.S. ” means the United States of America.

“ Utilisation ” means a utilisation of the Facility.

“ Utilisation Date ” means the date of a Utilisation, being the date on which the relevant Loan is to be made.

“ Utilisation Request ” means a notice substantially in the form set out in SCHEDULE 3 ( Form of Utilisation Request ).

“ VAT ” means:

 

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  (a)

any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

  (b)

any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in Paragraph (a) above, or imposed elsewhere.

“ Warehouse ” shall, in relation to any Borrower, have the meaning given to that term in the Inventory Pledge Agreement With Dispossession or the Inventory Pledge Agreement Without Dispossession, as applicable, entered into by such Borrower.

 

    1.2

Interpretation

 

  1.2.1

The Finance Documents set forth all the rights and obligations of the Parties regarding the Facility. They replace and substitute any and all prior letters, proposals, offers and agreements between the Parties regarding the Facility.

 

  1.2.2

In this Agreement, unless the contrary intention appears, any reference to:

 

  (a)

this Agreement includes a reference to its recitals and its Schedules;

 

  (b)

a Clause, a Paragraph or a Schedule is a reference to a clause, a paragraph or a schedule of this Agreement;

 

  (c)

the singular shall include the plural and vice-versa;

 

  (d)

a day refers to a calendar day; and

 

  (e)

time in this Agreement refers to local time in Paris (France), unless expressly provided to the contrary.

 

  1.2.3

Words appearing therein in French shall have the meaning ascribed to them under French law and such meaning shall prevail over their translation into English, if any.

 

  1.2.4

Where an obligation is expressed in a Finance Document to be performed on a date which is not a Business Day, such date shall be postponed to the first following day that is a Business Day unless that day falls in the following calendar month in which case that date will be the first preceding day that is a Business Day.

 

  1.2.5

Unless expressly provided to the contrary in a Finance Document, any reference in a Finance Document to:

 

  (a)

any agreement or other deed, arrangement or document shall be construed as a reference to the relevant agreement, deed, arrangement or document as the same may have been, or may from time to time be, replaced, extended, amended, restated, varied, supplemented or superseded; and

 

  (b)

any statutory provision or legislative enactment shall be deemed also to refer to any re-enactment, modification or replacement and any statutory instrument, order or regulation made thereunder or under any such re-enactment.

 

  1.2.6

A Default or an Event of Default is “ continuing ” if it has not been remedied or waived.

 

  1.2.7

Unless a contrary indication appears, any reference in this Agreement to:

 

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  (a)

the “ Agent ”, the “ Arranger ”, any “ Finance Party ”, any “ Lender ”, any “ Obligor ” or any “ Party ” shall be construed so as to include its successors in title, permitted transferees to, or of, its rights and/or obligations under the Finance Documents;

 

  (b)

“ acting in concert ” (to the extent that it relates to a French company) has the meaning given to it in Articles L.233-10 and 233-10-1 of the French Code de Commerce ;

 

  (c)

“ control ” shall have the meaning given to it in Article L. 233-3 of the French Code de commerce ;

 

  (d)

“ gross negligence ” means “ faute lourde ”;

 

  (e)

a “ group of Lenders ” includes all the Lenders;

 

  (f)

a “ guarantee ” includes any “ cautionnement ”, “ aval ” and any “ garantie ” which is independent from the debt to which it relates;

 

  (g)

“ indebtedness ” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

  (h)

a “ merger ” includes any fusion implemented in accordance with Articles L.236-1 to L.236-24 of the French Code de commerce ;

 

  (i)

a “ person ” includes any natural person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality);

 

  (j)

a “ regulation ” includes any regulation, rule, official directive, request or guideline having the force of law of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

 

  (k)

a “ security interest ” includes any type of security ( sûreté réelle ) and transfer by way of security;

 

  (l)

a “ transfer ” includes any means of transfer of rights and/or obligations under French law; and

 

  (m)

“ wilful misconduct ” means “dol” .

 

  1.2.8

Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

 

    2.

THE FACILITY

 

    2.1

The Facility

Subject to the terms of this Agreement, the Lenders make available to the Borrowers an Euro revolving loan facility in an aggregate amount equal to the Total Commitments.

 

    2.2

Finance Parties’ rights and obligations

 

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  2.2.1

The obligations of each Finance Party under the Finance Documents are several ( conjointes et non solidaires ). Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

 

  2.2.2

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from a Borrower is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with Clause 2.2.3. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by a Borrower which relates to a Finance Party’s participation in the Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Borrower.

 

  2.2.3

A Finance Party may, except as specifically provided in the Finance Documents (such as, in particular, in Clause 20.2 (Acceleration), clause 9 of each Inventory Pledge Agreement With Dispossession and clause 9 of each Inventory Pledge Agreement Without Dispossession), separately enforce its rights under or in connection with the Finance Documents (provided for the avoidance of doubt that no Finance Party may decide on its own to enforce any pledge granted under any Security Document).

 

    2.3

Borrowers’ rights and obligations

 

  2.3.1

The obligations of each Borrower under the Finance Documents are several ( conjointes et non solidaires ) and in no circumstance shall any provision in this Agreement create any guarantee between the Borrowers.

 

  2.3.2

In respect of each Borrower, its individual payment obligations under the Finance Documents (in particular, without limitation, under Clauses 11 (Fees), 12 (Tax gross up and indemnities), 13 (Increased Costs), 14 (Other indemnities) and 16 (Costs and expenses)) shall be limited to the portion of such claimed amounts due or attributable to it only.

 

    3.

PURPOSE

 

    3.1

Purpose

Each Borrower shall apply all amounts borrowed by it under the Facility towards its general working capital and/or general corporate purpose requirements.

 

    3.2

Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

 

    4.

CONDITIONS OF UTILISATION

 

    4.1

Initial conditions precedent

 

  4.1.1

No Borrower may deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in SCHEDULE 2 ( Conditions Precedent) in form

 

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and substance satisfactory to the Agent (acting reasonably). The Agent shall notify the Parent Company and the Lenders promptly upon being so satisfied.

 

  4.1.2

Notwithstanding the foregoing, the Parties acknowledge that the conditions precedent set forth in SCHEDULE 2 ( Conditions Precedent) Part 1 shall be satisfied or waived at the latest on the Signing Date (failing which this Agreement shall not enter into effect).

The Agent undertakes to promptly notify the Parent Company if any condition precedent is not fulfilled in a form and substance reasonably satisfactory to it on the date on which such condition precedent is due to be fulfilled.

 

    4.2

Further conditions precedent

The Lenders will only be obliged to comply with Clause 5.4 ( Lenders’ participation ) if:

 

  4.2.1

on the date of the Utilisation Request and on the proposed Utilisation Date, no Default is continuing or would result from the proposed Loan;

 

  4.2.2

on the date of the Utilisation Request and on the proposed Utilisation Date, the Repeating Representations to be made by each Obligor are true in all material respects by reference to the facts and circumstances on that date; and

 

  4.2.3

prior to the date of the Utilisation Request, the Escrow Agent Certificate and the Escrow Agent Statement in respect of the relevant Borrower which are due to be provided to the Agent by the most recent date prior to the date of the Utilisation Request in accordance with Clause 5.5.2 have been so provided.

 

    4.3

Conditions precedent for any Tranche B Loan

The Lenders will only be obliged to comply with Clause 5.4 ( Lenders’ participation ) in respect of any proposed Tranche B Loan if on the proposed Utilisation Date:

 

  4.3.1

the LTM Adjusted EBITDA as at such date of the relevant Borrower is at least equal to:

 

  (a)

in respect of Constellium Issoire, 40,000,000 Euros; and

 

  (b)

in respect of Constellium Neuf Brisach, 65,000,000 Euros; and

 

  4.3.2

the relevant Borrower draws on the same Utilisation Date a Tranche A Loan in an amount equal to the Available Tranche A Amount as at such date.

 

    4.4

Conditions precedent for the sole benefit of the Lenders

The conditions precedent provided for in Clause 4.1 ( Initial conditions precedent ), Clause 4.2 ( Further conditions precedent ) and Clause 4.3 ( Conditions precedent for any Tranche B Loan ) are stipulated for the sole benefit of the Lenders.

 

    5.

UTILISATION

 

    5.1

Delivery of a Utilisation Request

A Borrower may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request not later than three (3) Business Days before the relevant Utilisation Date.

 

    5.2

Completion of a Utilisation Request

 

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  5.2.1

Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

 

  (a)

the proposed Utilisation Date is a Business Day within the Availability Period;

 

  (b)

the amount requested does not exceed, for any Tranche A Loan, the Available Tranche A Amount and, for any Tranche B Loan, the Available Tranche B Amount, at the time the relevant Utilisation Request is made;

 

  (c)

the currency and amount of the Loans comply with Clause 5.3 ( Currency and amount of a Loan ); and

 

  (d)

the proposed Interest Period (being 30 days or 8 Business Days, as the case may be) complies with Clause 9 ( Interest Periods ).

 

  5.2.2

Only one Tranche A Loan and one Tranche B Loan may be requested in each Utilisation Request.

 

  5.2.3

Only one Utilisation Request may be sent per calendar week by each Borrower.

 

  5.2.4

Only one Tranche A Loan and one Tranche B Loan may be outstanding at any time per Borrower.

 

    5.3

Currency and amount of a Loan

 

  5.3.1

The currency specified in a Utilisation Request must be Euro.

 

  5.3.2

The sum of the amounts of the Tranche A Loan and, as the case may be, of the Tranche B Loan requested in any Utilisation Request must be a minimum of five million Euros (EUR 5,000,000) or, if less, the Available Facility applicable to the relevant Borrower.

 

    5.4

Lenders’ participation

 

  5.4.1

If the conditions set out in Clause 4 (Conditions of Utilisation) and in Clause 5 (Utilisation) have been met, each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

 

  5.4.2

The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

 

  5.4.3

The Agent shall notify each Lender of the amount of each Loan and the amount of its participation in that Loan not later than 2 Business Days before the Utilisation Date.

 

    5.5

Determination of the Available Tranche A Amount and the Available Tranche B Amount

 

  5.5.1

The Available Tranche A Amount and the Available Tranche B Amount applicable to any Utilisation will be calculated based on the Inventory Value (With Dispossession) and the Inventory Value (Without Dispossession) set out in the last Escrow Agent Reports provided to the Agent prior to the delivery of the relevant Utilisation Request.

 

  5.5.2

For that purpose, the Escrow Agent will provide the Agent:

 

  (a)

on the last Business Day of each calendar month; and

 

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  (b)

if, at any time, the amount of all outstanding Loans made available to any Borrower is superior to 75% of the Borrowing Base Value applicable to such Borrower as at such date, every 8 Business Days,

with Escrow Agent Reports countersigned by the relevant Borrower and setting out, inter alia, the Inventory Value (With Dispossession) and the Inventory Value (Without Dispossession).

 

  5.5.3

The Borrowers shall permit the Escrow Agent to have access to the Warehouses in accordance with the terms of the Inventory Pledge Agreement With Dispossession and the Inventory Pledge Agreement Without Dispossession entered into by such Borrower.

 

    5.6

Audits of the Pledged Inventory

 

  5.6.1

Subject to (i) a ten (10) Business Days prior notice to the relevant Borrower(s) or (ii) the occurrence of an Event of Default which is continuing, the Agent (or any agent acting on its behalf) shall be entitled to conduct a field audit of each Warehouse and of the Pledged Inventory in order to assess the value of the Pledged Inventory which is Eligible Inventory. Except in case of fraudulous behaviour of the relevant Borrower or if an Event of Default has occurred and is continuing, the Agent shall only be entitled to carry out one (1) audit, inspection or investigation per Borrower during a twelve (12) month period (the first period starting on the date of this Agreement).

 

  5.6.2

Subject to a fifteen (15) Business Days prior notice to the relevant Borrower(s), the Independent Appraiser shall be entitled to conduct twice a year (or if an Event of Default has occurred and is continuing, as many times as the Agent deems fit) a field audit of each Warehouse and of the Pledged Inventory in order to assess the value of the Pledged Inventory which is Eligible Inventory and to study the exit strategies of the Finance Parties in case of enforcement of the Security Documents. The Independent Appraiser will provide the Agent and the relevant Borrower half-yearly with an Independent Appraiser Report following completion of such audits.

 

  5.6.3

Subject to Clause 5.6.4 to Clause 5.6.7, each Borrower undertakes (a) to grant access to each Warehouse to any of the Agent and the Independent Appraiser, and any of their respective employees or agents and (b) to provide the Independent Appraiser with any information related to its Pledged Inventory as it may reasonably request.

 

  5.6.4

Any audit or inspection carried-out under this Clause 5.6 ( Audits of the Pledged Inventory ) shall only be made during normal office hours and the assistance provided by the Borrowers in the course of any audit or inspection shall not unreasonably interfere with its usual daily operating needs.

 

  5.6.5

In relation to the audits or inspections carried-out under this Clause 5.6 ( Audits of the Pledged Inventory ), unless an Event of Default has occurred and is continuing, the Agent and the Independent Appraiser shall coordinate and make their best effort in order to carry-out their respective audits or inspection on the same date.

 

  5.6.6

The Independent Appraiser and its employees and agents appointed for the purpose of any audit or inspection under this Clause 5.6 ( Audits of the Pledged Inventory ) must be bound by a Confidentiality Undertaking.

 

  5.6.7

If the delivery of any document is not possible or may, in the relevant Borrower’s reasonable opinion, affect the best commercial interests of such Borrower, then such

 

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Borrower undertakes to make available any such document for inspection by the Agent or Independent Appraiser in every instance, provided that such Borrower is entitled not to disclose the parts of the documents that it considers in good faith as not necessary for the purpose of the Finance Parties preserving or exercising their rights under the Finance Documents.

 

  5.6.8

Each Borrower shall reimburse the Agent within ten (10) Business Days upon receipt of a duly documented request from the Agent for the costs reasonably incurred in relation to any audit, whether conducted directly by the Agent or by an Independent Appraiser pursuant to this Clause 5.6 (Audits of the Pledged Inventory ), provided that the total costs in relation to any audit conducted pursuant to this Clause 5.6 (Audits of the Pledged Inventory ) borne by the Borrowers shall not exceed an aggregate amount equal to EUR 150,000 per year, unless an Event of Default has occurred and is continuing.

 

    5.7

Net Orderly Liquidation Percentage

 

  5.7.1

The Independent Appraiser will determine the Product Net Orderly Liquidation Percentages applicable to each Borrower and the Independent Appraiser Net Orderly Liquidation Percentage applicable to each Borrower semi-annually following the audits carried out by it in accordance with Clause 5.6, according to, as at the Signing Date, the methodology described in the engagement letter of the Independent Appraiser set out in SCHEDULE 9 (Independent Appraiser engagement letter).

 

  5.7.2

If, at any time, (i) the Independent Appraiser indicates to the Agent and the Parent Company that it intends to modify its methodology for the determination of the Product Net Orderly Liquidation Percentages and the Independent Appraiser Net Orderly Liquidation Percentage or (ii) a new Independent Appraiser is appointed, the Parties will, in good faith, discuss the application of such new methodology and, as the case may be, negotiate any amendment to the Finance Document which is necessary to take into account such new methodology.

 

  5.7.3

On each date on which an Utilisation Request is delivered by a Borrower to the Agent, the Recalculated Net Orderly Liquidation Percentage applicable to the Loan to be made to such Borrower on the Utilisation Date of that Loan will be determined on the basis of the weighted average of the last Product Net Orderly Liquidation Percentages applicable to such Borrower, taking into account the repartition of the Pledged Inventory which is Eligible Inventory of such Borrower per type of products (raw material, semi-finished goods and finished goods) as set out in the last available Escrow Agent Reports relating to such Borrower.

 

    5.8

Cancellation of Commitment

At the end of the Availability Period, any Commitment which, at such date, is unutilised shall be immediately cancelled.

 

    6.

REPAYMENT

 

    6.1

Each Borrower shall repay a Loan made available to it on the last day of its Interest Period.

 

    6.2

Without prejudice to any Borrower’s obligation under Clause 6.1, if a Loan is to be made available to such Borrower:

 

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  6.2.1

on the same day that a maturing Loan is due to be repaid by such Borrower; and

 

  6.2.2

in whole or in part for the purpose of refinancing the maturing Loan,

the aggregate amount of the new Loan shall be treated as if applied in or towards repayment of the maturing Loan so that:

 

  (a)

if the amount of the maturing Loan exceeds the aggregate amount of the new Loan:

 

  (i)

the relevant Borrower will only be required to make a payment under Clause 25.1 ( Payments to the Agent ) in an amount equal to that excess; and

 

  (ii)

the new Loan shall be treated as having been made available and applied by the relevant Borrower in or towards repayment of the maturing Loan and the Lenders will not be required to make a payment under Clause 25.1 ( Payments to the Agent ) in respect of the new Loan; and

 

  (b)

if the amount of the maturing Loan is equal to or less than the aggregate amount of the new Loan:

 

  (i)

the relevant Borrower will not be required to make a payment under Clause 25.1 ( Payments to the Agent ); and

 

  (ii)

the Lenders will be required to make a payment under Clause 25.1 ( Payments to the Agent ) in respect of the new Loan only to the extent that the new Loan exceeds the maturing Loan and the remainder of the new Loan shall be treated as having been made available and applied by the relevant Borrower in or towards repayment of the maturing Loan.

 

    6.3

In any case, all Loans shall be repaid in full at the latest on the Termination Date.

 

    7.

PREPAYMENT AND CANCELLATION

 

    7.1

Illegality

If, in any applicable jurisdiction, it becomes unlawful for any Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan or if a Borrower or any direct shareholder of a Borrower becomes subject to, or affected by, Sanctions:

 

  7.1.1

that Lender shall promptly notify the Agent upon becoming aware of that event;

 

  7.1.2

upon the Agent notifying the Parent Company, the Available Commitment of that Lender will be immediately cancelled; and

 

  7.1.3

to the extent that the Lender’s participation has not been transferred pursuant to Clause 7.6.4, each Borrower shall repay that Lender’s participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Parent Company or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender’s corresponding Commitment shall be cancelled in the amount of the participations repaid.

 

    7.2

Change of control

 

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If:

 

  7.2.1

a change of control occurs in respect of the Parent Company, pursuant to which any person or group of persons acting in concert (other than a member of the Group) (a) holds directly or indirectly more than 25]% of the share capital or has the power to cast, or control the casting of, more than 25% of the voting rights of the Parent Company or (b) owns the right to determine the composition of the majority of the members of the board of directors (or equivalent) of the Parent Company (a “ Parent Change of Control ”); or

 

  7.2.2

a change of control occurs in respect of any Borrower, pursuant to which any person or group of persons acting in concert (other than the Parent Company or any member of the Group) (a) holds directly or indirectly more than 50% of the share capital or has the power to cast, or control the casting of, more than 50% of the voting rights of such Borrower or (b) owns the right to determine the composition of the majority of the members of the board of directors (or equivalent) of such Borrower (a “ Borrower Change of Control ”):

 

  (a)

the Parent Company shall promptly notify the Agent upon becoming aware of that event; and

 

  (b)

if a Lender so requires and notifies the Agent within 5 days of the Parent Company notifying the Agent of the event, the Agent shall, by not less than 15 days-notice to the Parent Company, cancel the Commitment of that Lender and declare the participation of that Lender in all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Commitment of that Lender will be cancelled and all such outstanding Loans and amounts will become immediately due and payable.

 

    7.3

Termination of factoring agreement

 

  7.3.1

If in accordance with the provisions of the factoring agreement entered into between, inter alia, the Borrowers as sellers and Factofrance as factor on 4 January 2011, as amended and restated on 3 December 2015 and as amended and/or restated from time to time (the “ Factoring Agreement ”), the factor receives a notification from the Borrowers indicating that they wish to terminate the Factoring Agreement, the Agent shall, upon becoming aware of it or having been given notice of the same by the factor, notify the Lenders of the same and, by not less than 2 Business Days notice to the Parent Company, cancel the Commitment of all Lenders, whereupon the Commitment of all Lenders will be cancelled (provided that, for the avoidance of doubt, any Loan outstanding as at such time will be repaid on its scheduled maturity date).

 

  7.3.2

If (i) the factor under the Factoring Agreement decides to terminate the Factoring Agreement in accordance with clause 12.1.2 of the Factoring Agreement, upon expiration of the 3 months-period referred to in clause 12.1.2 of the Factoring Agreement, (ii) a Stop Purchase Event or a Default (each as defined in the Factoring Agreement) occurs and the factor under the Factoring Agreement decides to no longer purchase all its eligible receivables from one of the Borrowers as seller under the Factoring Agreement in accordance with clause 12.2 or 12.3 of the Factoring Agreement, as applicable, or (iii) a Borrower withdraws from the Factoring Agreement in accordance with clause 12.4 of the Factoring Agreement, but subject in any case to any other provision to the contrary in this Agreement:

 

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  (a)

the Agent will notify the Lenders accordingly and:

 

  (b)

if a Lender so requires and notifies the Agent within 5 days of the receipt of the notification referred to in Paragraph (a) above, the Agent shall, by not less than 20 Business Days-notice to the Parent Company, cancel the Commitment of that Lender, whereupon the Commitment of that Lender will be cancelled (provided that, for the avoidance of doubt, any Loan outstanding as at such time will be repaid on its scheduled maturity date).

 

    7.4

Voluntary cancellation

The Parent Company may, if it gives the Agent not less than 15 Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or part (being a minimum amount of 10,000,000 Euros) of the Available Facility. Any cancellation under this Clause 7.4 shall reduce the Commitments of the Lenders rateably under the Facility.

 

    7.5

Voluntary prepayment

Subject to the terms of this Agreement, any Borrower may, if it gives the Agent not less than 5 Business Days (or such shorter period of not less than 2 Business Days as the Majority Lenders may agree) prior notice, prepay the whole of a Loan, provided that, if there is a Tranche A Loan and a Tranche B Loan outstanding in respect of such Borrower, such Borrower may prepay the Tranche A Loan only if the Tranche B Loan has been fully repaid.

 

    7.6

Right of replacement or repayment and cancellation in relation to a single Lender

 

  7.6.1

If:

 

  (a)

any sum payable to any Lender by an Obligor is required to be increased under Clause 12.2.3 or under an equivalent provision of any Finance Document; or

 

  (b)

any Lender claims indemnification from the Parent Company under Clause 12.3 ( Tax indemnity ) or Clause 13.1 ( Increased costs ); or

 

  (c)

any amount payable to any Lender by an Obligor under a Finance Document is not, or will not be (when the relevant corporate income tax is calculated) treated as a deductible charge or expense for French tax purposes for that Obligor by reason of that amount being (i) paid or accrued to a Lender incorporated, domiciled, established or acting through a Facility Office situated in a Non- Cooperative Jurisdiction, or (ii) paid to an account opened in the name of or for the benefit of that Lender in a financial institution situated in a Non-Cooperative Jurisdiction,

the Parent Company may, whilst the circumstance giving rise to the requirement for that increase, indemnification or non-deductibility for French tax purposes continues, give the Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender’s participation in the Loans or give the Agent notice of its intention to replace that Lender in accordance with Clause 7.6.4.

 

  7.6.2

On receipt of a notice of cancellation referred to in Clause 7.6.1, the Commitment of that Lender shall immediately be reduced to zero.

 

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  7.6.3

On the last day of each Interest Period which ends after the Parent Company has given notice of cancellation under Clause 7.6.1 (or, if earlier, the date specified by the Parent Company in that notice), each Borrower to which a Loan is outstanding shall repay that Lender’s participation in that Loan.

 

  7.6.4

If:

 

  (a)

any of the circumstances set out in Clause 7.6.1 apply to a Lender;

 

  (b)

a Lender requests a cancellation of its Commitment in accordance with Clause 7.3.2;

 

  (c)

an Obligor becomes obliged to pay any amount in accordance with Clause 7.1 ( Illegality ) to any Lender; or

 

  (d)

it becomes unlawful for a Borrower to perform any of its obligations to any Lender under Clause 12.2.3 or under an equivalent provision of any Finance Document,

the Parent Company may, on 20 Business Days’ prior notice to the Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 21 (Changes to the Parties) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity selected by the Parent Company which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 21 (Changes to the Parties) for a purchase price in cash payable at the time of the transfer in an amount equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest, Break Costs and other amounts payable in relation thereto under the Finance Documents.

 

  7.6.5

The replacement of a Lender pursuant to Clause 7.6.4 shall be subject to the following conditions:

 

  (a)

the Parent Company shall have no right to replace the Agent;

 

  (b)

neither the Agent nor any Lender shall have any obligation to find a replacement Lender;

 

  (c)

in no event shall the Lender replaced under Clause 7.6.4 be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and

 

  (d)

the Lender shall only be obliged to transfer its rights and obligations pursuant to Clause 7.6.4 once it is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer.

 

  7.6.6

A Lender shall perform the checks described in Paragraph (d) of Clause 7.6.5 as soon as reasonably practicable following delivery of a notice referred to in Clause 7.6.4 and shall notify the Agent and the Parent Company when it is satisfied that it has complied with those checks.

 

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  7.6.7

Right of cancellation in relation to a Defaulting Lender

 

  (a)

If any Lender becomes a Defaulting Lender, the Parent Company may, at any time whilst that Lender continues to be a Defaulting Lender, give the Agent notice of cancellation of the Available Commitment of that Lender.

 

  (b)

On receipt of the notice referred to in Paragraph (a) above, the Available Commitment of the Defaulting Lender shall immediately be reduced to zero.

 

  (c)

The Agent shall as soon as practicable after receipt of a notice referred to in Paragraph (a) above, notify all the Lenders.

 

    7.7

Mandatory prepayment and cancellation in relation to a single Lender

If it becomes unlawful for a Borrower to perform any of its obligations to any Lender under Clause 12.2.3 or under an equivalent provision of any Finance Document and to the extent that the Lender’s participation has not been transferred pursuant to Clause 7.6.4:

 

  7.7.1

the Parent Company shall promptly notify the Agent upon becoming aware of that event;

 

  7.7.2

upon the Agent notifying that Lender, its Commitment will be immediately cancelled; and

 

  7.7.3

that Borrower shall repay that Lender’s participation in the Loans made to that Borrower on the last day of each Interest Period which ends after the Parent Company has given notice under Paragraph (a) above or, if earlier, the date specified by that Lender in a notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law).

 

    7.8

Minimum Value

If, on any Test Date on which a Loan is outstanding in respect of a Borrower:

 

  7.8.1

the Financeable Inventory Value (With Dispossession) applicable to that Borrower as at such date is inferior to the amount in principal of any outstanding Tranche A Loan made available to such Borrower, that Borrower shall repay to the Lenders an amount equal to the difference between the amount in principal of such outstanding Tranche A Loan and the applicable Financeable Inventory Value (With Dispossession) as at such date; or

 

  7.8.2

the Financeable Inventory Value (Without Dispossession) applicable to that Borrower as at such date is inferior to the amount in principal of any outstanding Tranche B Loan made available to such Borrower, that Borrower shall repay to the Lenders an amount equal to the difference between the amount in principal of such outstanding Tranche B Loan and the applicable Financeable Inventory Value (Without Dispossession) as at such date.

 

    7.9

Restrictions

 

  7.9.1

Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and cancellation) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant

 

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cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

 

  7.9.2

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

 

  7.9.3

Unless a contrary indication appears in this Agreement, any part of the Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.

 

  7.9.4

The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

 

  7.9.5

No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

  7.9.6

If the Agent receives a notice under this Clause 7 ( Prepayment and cancellation ) it shall promptly forward a copy of that notice to either the Parent Company or the affected Lender, as appropriate.

 

  7.9.7

If all or part of any Lender’s participation in a Loan is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 ( Further conditions precedent ), an amount of that Lender’s Commitment (equal to the amount of the participation which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.

 

    7.10

Application of prepayments

Any prepayment of a Loan pursuant to Clause 7.8 ( Minimum Value ) shall be applied pro rata to each Lender’s participation in that Loan.

 

    8.

INTEREST

 

    8.1

Calculation of interest

The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of (or zero if such aggregate amount is negative):

 

  8.1.1

the applicable Margin; and

 

  8.1.2

EURIBOR.

 

    8.2

Payment of interest

The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period.

 

    8.3

Default interest

 

  8.3.1

If a Borrower fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue to the fullest extent permitted by law and without notice ( mise en demeure ) on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to Clause 8.3.2, is one per cent. (1%) per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the

 

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currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 8.3 (Default interest) shall be immediately payable by the Borrower on demand by the Agent.

 

  8.3.2

If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

 

  (a)

the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

 

  (b)

the rate of interest applying to the overdue amount during that first Interest Period shall be one per cent. (1%)) per annum higher than the rate which would have applied if the overdue amount had not become due.

 

  8.3.3

Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount only if, within the meaning of Article 1343-2 of the French Code Civil , such interest is due for a period of at least one year, but will remain immediately due and payable.

 

    8.4

Notification of rates of interest

The Agent shall promptly notify the Lenders and the relevant Borrower of the determination of a rate of interest under this Agreement.

 

    8.5

Effective Global Rate ( Taux Effectif Global )

For the purposes of Articles L.314-1 to L.314-5 and R.314-1 et seq. of the French Code de la consommation and Article L.313-4 of the French Code Monétaire et Financier , the Parties acknowledge that (i) the effective global rate ( taux effectif global ) calculated on the date of this Agreement, based on assumptions as to the period rate ( taux de période ) and the period term ( durée de période ) and on the assumption that the interest rate and all other fees, costs or expenses payable under this Agreement will be maintained at their original level throughout the term of this Agreement, is set out in a letter from the Agent to each Borrower and (ii) that letter forms part of this Agreement. Each Borrower acknowledges receipt of that letter.

 

    9.

INTEREST PERIODS

 

    9.1

Interest Periods

 

  9.1.1

An Interest Period for a Loan shall not extend beyond the Termination Date.

 

  9.1.2

A Loan has one Interest Period only.

 

  9.1.3

The Interest Period of a Loan made available to a Borrower will be eight (8) Business Days if:

 

  (a)

as at the Utilisation Date of such Loan, the amount of all outstanding Loans (taking into account such Loan) made available to such Borrower is superior to 75% of the Borrowing Base Value applicable to such Borrower as at such date; and

 

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  (b)

the London Metal Exchange Price (expressed in Euro) has been reduced by more than 15% since the day falling 30 days before the Utilisation Date of such Loan,

provided that the Agent shall notify the Parent Company before the relevant Utilisation Date of the occurrence of the event mentioned in Clause 9.1.3.

 

    9.2

Non-Business Days

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

 

    10.

CHANGES TO THE CALCULATION OF INTEREST

 

    10.1

Market disruption

If before close of business in Paris two TARGET Days before the first day of the relevant Interest Period, the Agent receives notifications from the Majority Lenders that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of the applicable EURIBOR, then Clause 10.2 ( Cost of funds ) shall apply to that Loan for the relevant Interest Period.

 

    10.2

Cost of funds

 

  10.2.1

If this Clause 10.2 ( Cost of funds ) applies, the rate of interest on each Lender’s share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

 

  (a)

the applicable Margin; and

 

  (b)

the rate notified to the Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.

 

  10.2.2

If this Clause 10.2 ( Cost of funds ) applies and the Agent or the Parent Company so requires, the Agent and the Parent Company shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.

 

  10.2.3

Any alternative basis agreed pursuant to Clause 10.2.2 shall, with the prior consent of all the Lenders and the Parent Company, be binding on all Parties.

 

    10.3

Break Costs

 

  10.3.1

Each Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

 

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  10.3.2

Each Finance Party shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

 

    11.

FEES

 

    11.1

Commitment fee

 

  11.1.1

The Borrowers shall pay to the Agent (for the account of each Lender) a fee in Euro computed on a daily basis at the rate of zero point eighty per cent. (0.80%) per annum on that Lender’s Available Commitment for the Availability Period.

 

  11.1.2

The commitment fee shall be determined and payable by each Borrower as follows:

 

  (a)

if none of the Borrowers has borrowed under the Facility for more than half of the Total Commitments, each Borrower shall pay a commitment fee on an amount equal to the difference between half of the Total Commitments and the amounts drawn by such Borrower under the Facility; and

 

  (b)

if one of the Borrowers has borrowed under the Facility for more than half of the Total Commitments, the other Borrower (only) shall pay a commitment fee on an amount equal to the difference between the Total Commitments and the amounts drawn by all the Borrowers under the Facility.

 

  11.1.3

The commitment fee is payable first on the date falling three months after the Signing Date and thereafter every three months.

 

  11.1.4

No commitment fee is payable to the Agent (for the account of a Lender) on the Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.

 

    11.2

Arrangement fee

The Borrowers shall pay to the Arranger an arrangement fee in the amount and at the times agreed in a Fee Letter.

 

    11.3

Agency fee

The Borrowers shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

 

    11.4

VAT

The commitment fee, the arrangement fee and the annual management fee are expressed VAT excluded.

 

    12.

TAX GROSS UP AND INDEMNITIES

 

    12.1

Definitions

 

  12.1.1

In this Agreement:

“ Protected Party ” means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

 

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“ Qualifying Lender ” means a Lender which:

 

  (a)

fulfils the conditions imposed by French Law in order for a payment of interest not to be subject to (or as the case may be, to be exempt from) any Tax Deduction; or

 

  (b)

is a Treaty Lender.

“ Tax Credit ” means a credit against, relief or remission for, or repayment of any Tax.

“ Tax Payment ” means either the increase in a payment made by an Obligor to a Finance Party under Clause 12.2 ( Tax gross-up ) or a payment under Clause 12.3 ( Tax indemnity ).

“ Treaty Lender ” means a Lender which:

 

  (a)

is treated as resident of a Treaty State for the purposes of the Treaty;

 

  (b)

does not carry on business in France through a permanent establishment with which that Lender’s participation in the Loan is effectively connected;

 

  (c)

is acting from a Facility Office situated in its jurisdiction of incorporation; and

 

  (d)

fulfils any other conditions which must be fulfilled under the Treaty by residents of the Treaty State for such residents to obtain exemption from Tax imposed on interest by France, subject to the completion of any necessary procedural formalities.

“ Treaty State ” means a jurisdiction having a double taxation agreement with France (the “ Treaty ”), which makes provision for full exemption from Tax imposed by France on interest payments.

 

  12.1.2

Unless a contrary indication appears, in this Clause 12 ( Tax gross up and indemnities ) a reference to “ determines ” or “ determined ” means a determination made in the absolute discretion of the person making the determination.

 

    12.2

Tax gross-up

 

  12.2.1

Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

 

  12.2.2

The Parent Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Parent Company and that Obligor.

 

  12.2.3

If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

 

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  12.2.4

A payment shall not be increased under Clause 12.2.3 by reason of a Tax Deduction on account of Tax imposed by France, if on the date on which the payment falls due:

 

  (a)

the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or double taxation agreement, or any published practice or published concession of any relevant taxing authority; or

 

  (b)

the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under Clause 12.2.7,

provided that the exclusion for changes after the date a Lender became a Lender under this Agreement in Clause 12.2.4(a) shall not apply in respect of any Tax Deduction on account of Tax imposed by France on a payment made to a Lender if such Tax Deduction is imposed solely because this payment is made to an account opened in the name of or for the benefit of that Lender in a financial institution situated in a Non- Cooperative Jurisdiction.

 

  12.2.5

If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

 

  12.2.6

Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

 

  12.2.7

A Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall complete any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.

 

    12.3

Tax indemnity

 

  12.3.1

The Parent Company shall (within ten Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.

 

  12.3.2

Clause 12.3.1 shall not apply:

 

  (a)

with respect to any Tax assessed on a Finance Party:

 

  (i)

under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or

 

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Paris 12422678.19

  (ii)

under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,

if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or

 

  (b)

to the extent a loss, liability or cost:

 

  (i)

is compensated for by an increased payment under Clause 12.2 ( Tax gross-up );

 

  (ii)

would have been compensated for by an increased payment under Clause 12.2 ( Tax gross-up ) but was not so compensated solely because one of the exclusions in Clause 12.2.4 applied; or

 

  (iii)

relates to a FATCA Deduction required to be made by a Party.

 

  (c)

with respect to any Tax assessed as a direct result of the breach by a Finance Party of its express obligations hereunder or under any other Finance Document, or the wilful misconduct or gross negligence of such Finance Party;

 

  (d)

with respect to any Tax that would not have arisen but for:

 

  (i)

the failure by a Finance Party to file any relevant Tax return, Tax computation or other statement or document which such Finance Party was obliged to file by any law of its jurisdiction of incorporation;

 

  (ii)

any failure by a Finance Party to provide in due time to any Obligor any document necessary for the application of any relevant or applicable Treaty State, including certification of tax residence of such Finance Party issued by the tax administration competent for such Finance Party which any Obligor may reasonably have requested such Finance Party in writing to provide (to the extent any such request being made in a timely manner and containing all necessary details to enable such Finance Party to comply with the terms thereof),

except:

 

  (1)

where any such failure was directly or indirectly caused by the relevant Obligor (including, without limitation, failure to provide a Finance Party with any necessary information) or by any event or circumstance outside the reasonable control of such Finance Party, or

 

  (2)

where it would be illegal or contrary to any applicable law for a Finance Party to do so;

 

  (e)

with respect to any Tax assessed as a result of a payment to a Finance Party or to person acting on such Finance Party’s behalf being made to a bank account opened in a financial institution located in a Non-Cooperative Jurisdiction or to a beneficiary that is incorporated, domiciled, or acting through an office located, in a Non-Cooperative Jurisdiction; and

 

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  (f)

to any assignee of the rights and obligations of a Finance Party under the Agreement in accordance with Clause 21 (Changes to the Parties) , to the extent that such gross-up payment or indemnities referred to in Clause 12.2 (Tax gross-up) or 12.3 (Tax indemnity) would not have been due by the relevant Obligor if the relevant Finance Party had not assigned or transferred its right or obligations to the relevant third party.

 

  12.3.3

A Protected Party making, or intending to make a claim under Clause 12.3.1 shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Parent Company.

 

  12.3.4

A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3 ( Tax indemnity ), notify the Agent.

 

    12.4

Tax Credit

If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

 

  12.4.1

a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

 

  12.4.2

that Finance Party has obtained and utilised that Tax Credit,

the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.

 

    12.5

Lender Status Confirmation

 

  12.5.1

Each Original Lender confirms on the date of this Agreement that it is a Qualifying Lender.

 

  12.5.2

Each Lender which becomes a Party to this Agreement after the date of this Agreement shall indicate, in the Transfer Agreement which it executes on becoming a Party, and for the benefit of the Agent and without liability to any Obligor, which of the following categories it falls in:

 

  (a)

not a Qualifying Lender;

 

  (b)

a Qualifying Lender (other than a Treaty Lender); or

 

  (c)

a Treaty Lender.

If a New Lender fails to indicate its status in accordance with this Clause 12.5.2 then such New Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Agent which category applies (and the Agent, upon receipt of such notification, shall inform the Parent Company). For the avoidance of doubt, a Transfer Agreement shall not be invalidated by any failure of a Lender to comply with this Clause 12.5.2.

 

  12.5.3

Such New Lender shall also specify, in the Transfer Agreement which it executes upon becoming a Party, whether it is incorporated or acting through a Facility Office situated

 

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in a Non-Cooperative Jurisdiction. For the avoidance of doubt, a Transfer Agreement shall not be invalidated by any failure of a Lender to comply with this Clause 12.5.3.

 

    12.6

Stamp taxes

The Borrowers shall pay and, within ten Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document, except for any such Tax payable (A) in respect of a transfer or sub-participation of a Loan (or part thereof) by that Finance Party or (B) upon a voluntary registration made by any Finance Party if such registration is not necessary to evidence, prove, maintain, enforce, compel or otherwise assert the rights of such Finance Party under a Finance Document.

 

    12.7

Value added tax

 

  12.7.1

All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to Clause 12.7.2, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).

 

  12.7.2

If VAT is or becomes chargeable on any supply made by any Finance Party (the “ Supplier ”) to any other Finance Party (the “ Recipient ”) under a Finance Document, and any Party other than the Recipient (the “ Relevant Party ”) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

 

  (a)

(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this Paragraph (a) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

 

  (b)

(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

 

  12.7.3

Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably

 

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determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

 

  12.7.4

In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply.

 

    12.8

FATCA Information

 

  12.8.1

Subject to Clause 12.8.3, each Party shall, within ten Business Days of a reasonable request by another Party:

 

  (a)

confirm to that other Party whether it is:

 

  (i)

a FATCA Exempt Party; or

 

  (ii)

not a FATCA Exempt Party;

 

  (b)

supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and

 

  (c)

supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.

 

  12.8.2

If a Party confirms to another Party pursuant to Clause 12.8.1(a) that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

 

  12.8.3

Clause 12.8.1 shall not oblige any Finance Party to do anything, and Clause 12.8.1(c) shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

 

  (a)

any law or regulation;

 

  (b)

any fiduciary duty; or

 

  (c)

any duty of confidentiality.

 

  12.8.4

If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with Clause 12.8.1(a) or Clause 12.8.1(b) (including, for the avoidance of doubt, where Clause 12.8.3 applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

 

    12.9

FATCA Deduction

 

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  12.9.1

Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

 

  12.9.2

Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Parent Company and the Agent and the Agent shall notify the other Finance Parties.

 

    13.

INCREASED COSTS

 

    13.1

Increased costs

 

  13.1.1

Subject to Clause 13.3 ( Exceptions ) and in accordance with Clause 13.2 ( Increased Cost claims ), each Borrower shall pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or its Holding Company as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement.

 

  13.1.2

In this Agreement “ Increased Costs ” means:

 

  (a)

a reduction in the rate of return from the Facility or on a Finance Party’s (or its Holding Company’s) overall capital;

 

  (b)

an additional or increased cost; or

 

  (c)

a reduction of any amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or its Holding Company to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.

 

    13.2

Increased cost claims

 

  13.2.1

A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Parent Company.

 

  13.2.2

Each Finance Party shall, as soon as practicable, provide the Parent Company and the Agent with a certificate characterizing and justifying its claim and the calculation of the Increased Cost (without such Finance Party being required to disclose any confidential information regarding its tax affairs).

 

  13.2.3

If any Borrower or the Parent Company contests the amount of the relevant Increased Cost, the relevant Finance Party, the relevant Borrower and the Parent Company shall negotiate in good faith during a 20 Business Days period to find a mutually acceptable solution capable of avoiding or mitigating such Increased Costs.

 

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  13.2.4

If no mutually acceptable solution has been reached at the expiry of such period, the relevant Borrower shall pay the amount initially requested by the relevant Finance Party within 5 Business Days.

 

    13.3

Exceptions

Clause 13.1 ( Increased costs ) does not apply to the extent any Increased Cost is:

 

  13.3.1

attributable to a Tax Deduction required by law to be made by an Obligor;

 

  13.3.2

attributable to a FATCA Deduction required to be made by a Party;

 

  13.3.3

resulting from the application by the relevant Finance Party of (i) Basel III, (ii) CRR Regulation and (iii) CRD IV Directive;

 

  13.3.4

an increase in the rate of corporate income taxes applicable to the relevant Finance Party;

 

  13.3.5

compensated for by Clause 12.3( Tax indemnity ) (or would have been compensated for under Clause 12.3 ( Tax indemnity ) but was not so compensated solely because any of the exclusions in Clause 12.3.2 applied); or

 

  13.3.6

attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.

 

    14.

OTHER INDEMNITIES

 

    14.1

Other indemnities

Each Obligor shall, within ten Business Days of demand, indemnify each Finance Party against any duly documented cost, loss or liability incurred by that Finance Party as a result of:

 

  14.1.1

the occurrence of any Event of Default;

 

  14.1.2

funding, or making arrangements to fund, its participation in a Loan requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

 

  14.1.3

a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Parent Company.

Under no circumstances shall any Borrower be liable to any Finance Party under Clause 14.1 for any indirect damages of any kind or nature whatsoever or any loss of business or business opportunity or any loss of goodwill.

 

    14.2

Indemnity to the Agent

Each Obligor shall, within ten Business Days of demand, indemnify the Agent against any duly documented cost, loss or liability incurred by the Agent (acting reasonably) as a result of:

 

  14.2.1

investigating any event which it reasonably believes is a Default; or

 

  14.2.2

acting or relying on any notice, request or instruction sent by any Obligor which it reasonably believes to be genuine, correct and appropriately authorised.

 

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Under no circumstances shall any Borrower be liable to the Agent under Clause 14.2 for any indirect damages of any kind or nature whatsoever or any loss of business or business opportunity or any loss of goodwill.

 

    15.

MITIGATION BY THE LENDERS

 

    15.1

Mitigation

 

  15.1.1

Each Finance Party shall, in consultation with the Parent Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 ( Illegality ), Clause 12 ( Tax gross up and indemnities ) or Clause 13 ( Increased Costs ) or in any amount payable under a Finance Document by an Obligor established in France becoming not deductible from that Obligor’s taxable income for French tax purposes by reason of that amount being (i) paid or accrued to a Finance Party incorporated, domiciled, established or acting through a Facility Office situated in a Non-Cooperative Jurisdiction or (ii) paid to an account opened in the name of or for the benefit of that Finance Party in a financial institution situated in a Non-Cooperative Jurisdiction, including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

 

  15.1.2

Clause 15.1.1 does not in any way limit the obligations of any Obligor under the Finance Documents.

 

    15.2

Limitation of liability

 

  15.2.1

Each Borrower shall within ten Business Days of demand indemnify each Finance Party for all duly documented costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).

 

  15.2.2

A Finance Party is not obliged to take any steps under Clause 15.1 ( Mitigation ) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

 

    16.

COSTS AND EXPENSES

 

    16.1

Transaction expenses

The Parent Company shall within ten Business Days of demand pay the Agent and the Arranger the amount of all duly documented costs and expenses (including legal fees) reasonably incurred by any of them and approved by the Parent Company in connection with the negotiation, preparation, printing and execution of:

 

  16.1.1

this Agreement and any other documents referred to in this Agreement; and

 

  16.1.2

any other Finance Documents executed after the date of this Agreement.

 

    16.2

Amendment costs

The Parent Company shall, within ten Business Days of demand, pay to the Agent the amount of all duly documented costs and expenses (including legal fees) reasonably incurred by the Agent in connection with any waiver, amendment or consent relating to any Finance Document (to the extent that such costs and expenses have been previously approved in writing by the Parent Company).

 

    16.3

Enforcement costs

 

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The Parent Company shall, within ten Business Days of demand, pay to each Finance Party the amount of all duly documented costs and expenses (including legal fees) reasonably incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

 

    16.4

Independent Appraiser and Escrow Agent costs

The Borrowers shall, within five (5) Business Days of demand, pay to the Agent the amount of all duly documented costs and expenses (including legal fees) reasonably incurred by the Agent in connection with (a) the valuation of the Pledged Inventory carried out by the Independent Appraiser in accordance with Clause 5.6.2 or (b) the appointment of and the work carried out by the Escrow Agent in relation to the Finance Documents (to the extent that such costs and expenses have been previously approved in writing by the Parent Company).

 

    17.

GUARANTEE

 

    17.1

Guarantee

The Parent Company (in such capacity, the “ Guarantor ”) hereby irrevocably:

 

  17.1.1

guarantees to the Finance Parties by way of a cautionnement solidaire pursuant to Articles 2288 et seq. of the French Code civil (the “ Guarantee ”) the due and punctual performance by each Borrower of its payment obligations in favour of the Finance Parties under the Finance Documents (the “ Secured Obligations ”);

 

  17.1.2

undertakes to pay to the Finance Parties any amount owed by each Borrower, provided that the relevant Borrower has failed to perform such payment obligations for more than three (3) Business Days following the date on which performance was due (after the expiry of any applicable grace period or amicable resolution period under the Agreement) within seven (7) Business Days of receipt of a duly documented request by the Agent to that end (a “ Demand ”) in accordance with Clause 17.4; and

 

  17.1.3

confirms that it intends that the Guarantee be an accessory (accessoire) of the secured obligations and that it shall extend to any (however fundamental) change, variation, increase, decrease, extension addition or reduction, of or to any Finance Document and/or the Facility or any amount made available under any of the Finance Documents.

 

    17.2

Maximum Amount

 

  17.2.1

Subject to Clause 17.2.2, the Guarantee is limited to an aggregate amount equal to 102% of the Total Commitments (the “ Maximum Guaranteed Amount ”).

 

  17.2.2

Each payment made by the Guarantor pursuant to this Guarantee shall reduce the Maximum Guaranteed Amount by a corresponding amount.

 

    17.3

Expiry Date

 

  17.3.1

The Guarantee shall expire and shall have no further effect (and no Demand may be made for any reason whatsoever) after the date on which all the Secured Obligations have been paid or discharged in full or the Maximum Guaranteed Amount has been reduced to zero (the “ Release Date ”).

 

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  17.3.2

As from the Release Date, the Agent agrees to confirm in writing without delay to the Guarantor (i) the occurrence of the Release Date and (ii) that it is discharged from any obligation under the terms of the Guarantee.

 

    17.4

Form of Demand

Any Demand under the Guarantee shall only be valid if it is (i) made in writing, (ii) made by way of a duly completed guarantee demand in the form set out in SCHEDULE 7 (Form of Guarantee Demand) and (iii) sent to the Parent Company at the address specified in Clause 27 ( Notices ).

 

    17.5

Continuing Guarantee

 

  17.5.1

The obligations of the Parent Company under Clause 17.1 ( Guarantee ) constitute a continuing guarantee and will extend to the ultimate balance of all sums payable by any Borrower under any Finance Document, regardless of any intermediate payment or discharge in whole or in part.

 

  17.5.2

The Guarantee shall not be discharged, impaired or otherwise affected (A) further to any merger, split-off, winding-up, contribution of assets or similar transaction or in case of any dissolution, liquidation or similar act or process (whether judicial or amicable) involving a Finance Party, the Parent Company or any Borrower or (B) in the case of a Change of Control affecting a Borrower or the Parent Company.

 

  17.5.3

The obligations of the Parent Company under the Guarantee shall be binding on its successors and assigns.

 

    17.6

Waiver of defences

Until all obligations guaranteed under Clause 17.1 ( Guarantee ) have been paid and discharged in full, the Parent Company irrevocably and expressly:

 

  17.6.1

undertakes not to exercise any rights which it may have under Article 2298 (bénéfice de discussion) or Article 2303 (bénéfice de division) of the French Code civil ;

 

  17.6.2

waives any right it may have of first requiring any Finance Party to proceed against or enforce any other rights or security or claim payment before claiming from the Parent Company under this Clause 17 ( Guarantee );

 

  17.6.3

waives any right to require that any protest (prôtet) be accomplished, it being understood that the Guarantee may be called upon by the Finance Parties as many times pursuant to the terms of this Agreement as they shall require with a view to recovering any liability owing under the Guarantee remaining unpaid by any relevant Borrower as at the relevant date;

 

  17.6.4

undertakes not to exercise (and waives) any right which it may have against any Borrower under Article 2309 of the French Code civil and, for the purposes of the Guarantee, not to exercise any right of set-off (compensation) that it may have under Article 1347 of the French Code civil ;

 

  17.6.5

undertakes not to exercise (and waives) any rights which it may have under Article 2316 of the French Code civil to take any action against any Borrower in the event of any extension of any date for payment of any amount due, owing or payable to the

 

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Finance Parties under any Finance Document, in each case without the consent of the Parent Company; and

 

  17.6.6

undertakes not to claim or enforce any subrogation right it may have against a Borrower in accordance with Article 1346-3 of the French Code civil .

 

18.

REPRESENTATIONS

 

18.1

Each Obligor makes the representations and warranties set out in this Clause 18 ( Representations ) to each Finance Party on the date of this Agreement.

 

  18.1.1

Status: it is a company validly incorporated and existing under the laws of its place of incorporation, it is in compliance with all applicable corporate laws and regulations relating to its incorporation;

 

  18.1.2

Powers, authorisations and consents: (i) it has full power and authority to enter into the Finance Documents to which it is a party, (ii) with respect to each Borrower only, it has full power and authority to own its assets pledged under either the Inventory Pledge Agreement With Dispossession or the Inventory Pledge Agreement Without Dispossession to which it is a party and (iii) and no governmental or regulatory consent is required in order for it to enter into the Finance Documents to which it is a party and it has taken all action necessary to authorise, and it maintains and complies with the term of any Authorisation required to enable, the execution and performance by it of the Finance Documents to which it is a party;

 

  18.1.3

Preservation of corporate existence : it has obtained and maintains all licences, Authorisations and certifications necessary to the performance of its business, where failure to do so would have a Material Adverse Effect;

 

  18.1.4

Non-conflict: the entry into and performance of the Finance Documents to which it is a party do not conflict with, contravene to or violate:

 

  (a)

its constitutional documents;

 

  (b)

any law or regulation applicable to it;

 

  (c)

any restrictions under any agreement, contract, deed or instrument to which it is a party; or

 

  (d)

any order, judgment, award or injunction binding on it;

in a manner which is reasonably expected to have a Material Adverse Effect;

 

  18.1.5

Legal validity : subject to the Legal Reservations, its obligations under the Finance Documents to which it is a party constitute legal, valid and binding obligations enforceable against it in accordance with their respective terms;

 

  18.1.6

Accounts : the Parent Company and each Borrower’s most recent audited annual accounts present a true and fair view of such Borrower’s or the Parent Company’s, as applicable, financial condition, as at the date on which they were issued and of the results of their operations for the period then ended, all in accordance with the Accounting Principles as consistently applied;

 

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  18.1.7

No litigation: there are no current actions, suits or proceedings pending against or affecting it, in or before any judicial or administrative court, arbitrator or regulatory authority that, if adversely determined, might reasonably be expected to have a Material Adverse Effect;

 

  18.1.8

No default:

 

  (a)

no Event of Default is continuing or might reasonably be expected to result from the making of any Loan;

 

  (b)

no other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or to which its assets are subject, which might have a Material Adverse Effect;

 

  18.1.9

No Insolvency Proceeding : (i) it is not subject to any Insolvency Proceeding and (ii) for the purpose of the EU Insolvency Regulations (EC) No 1346/2000 of 29 May 2000 (the “ Insolvency Regulations ”), its “centre of main interests” (as such term is defined in the Insolvency Regulations) is in its jurisdiction of incorporation;

 

  18.1.10

Accuracy of information : to its best knowledge, all information furnished in writing by it to the Finance Parties for the purposes of or in connection with the Finance Documents, is true and accurate in every material respect on the date on which such information is provided or stated and does not contain any material misstatement of fact;

 

  18.1.11

Capacity to identify and individualise : in relation to each Borrower only, it has operating systems capable of identifying and individualising in the ordinary course of business in a clear and precise manner each Pledged Inventory;

 

  18.1.12

Governing law and enforcement : subject to the Legal Reservations (and, as far as the Parent Company is concerned, to the legal reservations set out in SCHEDULE 8 (Dutch Legal Reservations):

 

  (a)

the choice of law made in each Finance Document to which it is a party as the governing law of such Finance Document will be recognised and enforced in its jurisdiction of incorporation; and

 

  (b)

any judgment obtained in the jurisdiction the law of which is designated to govern any Finance Document to which it is a party will be recognised and enforced in its jurisdiction of incorporation;

 

  18.1.13

Deduction of Tax: under the law of its jurisdiction of incorporation in force at the date of this Agreement, it is not required to make any Tax Deduction from any payment it may make under any Finance Document to which it is a party to any Finance Party which is a Qualifying Lender;

 

  18.1.14

No filing or stamp taxes : under Dutch law it is not necessary that any Finance Document to which it is a party be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to such Finance Document or the transactions contemplated by such Finance Document;

 

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  18.1.15

Pari passu ranking: its payment obligations under the Finance Documents to which it is a party rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally;

 

  18.1.16

Eligible Inventory : any inventory which is declared as being Eligible Inventory by the relevant Borrower complies with the criteria set out in the definition of “Eligible Inventory” in Clause 1.1 (Definitions);

 

  18.1.17

Anti-bribery, anti-corruption and anti-money laundering : it has not, and none of its subsidiaries, directors or officers or to the best knowledge of such Obligor, any affiliate, or employee of it, has, engaged in any activity or conduct which would violate any applicable anti-bribery, anti-corruption or anti-money laundering laws, regulations or rules in any applicable jurisdiction and it has, to the extent required under applicable laws, instituted and maintained policies and procedures designed to prevent violation of such laws, regulations and rules; and

 

  18.1.18

Sanctions : it is not, and none of its subsidiaries, directors or officers, or, to the best of its knowledge, any of its affiliates or employees is, an individual or entity, that is, or is owned or controlled by persons that are: (i) the target of any Sanctions (a “ Sanctioned Person ”) or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions broadly prohibiting dealings with such government, country, or territory (a “ Sanctioned Country ”).

 

18.2

Repetition

The Repeating Representations are deemed to be made by each Borrower by reference to the facts and circumstances then existing on the date of each Utilisation Request and thereafter on the first day of each Interest Period.

 

19.

UNDERTAKINGS

From the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force, each Obligor, to the extent applicable to it, and only for itself, undertakes to the Finance Parties as follows:

 

19.1

No change in business : it shall not make any change in its business which has a Material Adverse Effect;

 

19.2

Safe-keeping of documents : it shall hold and keep all supply contracts relating to its Pledged Inventory;

 

19.3

Corporate form and registered office : it will notify the Agent at the latest 30 calendar days prior to changing its corporate form or relocating its registered office; no Borrower shall change its jurisdiction of incorporation;

 

19.4

No merger : it shall not, if it would have a Material Adverse Effect, operate a legal reorganization, merge or consolidate with or into, or contribute, transfer or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any person, it being understood that should a voluntary reorganization or restructuration of companies of the Group (including by a way of amalgamation, merger, demerger, spin-off or voluntary liquidation) involving one or

 

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more Borrowers is intended to take place, the relevant Borrowers shall notify the Agent of any such event as soon as possible after all internal corporate approvals have been obtained and being legally entitled to do so;

 

19.5

Provision of information:

 

  19.5.1

upon request of the Agent, to the extent such information are publicly available and otherwise without prior request of the Agent, each of the Borrowers and the Parent Company, as applicable, will deliver to the Agent:

 

  (a)

annually, as soon as reasonably practicable and no later than one hundred and eighty (180) days from its year-end, the audited statutory annual financial statements (balance sheet and related income statement) of each Borrower together with the relevant auditors’ reports;

 

  (b)

annually, as soon as reasonably practicable and no later than one hundred and eighty (180) days from the Parent Company’s year-end, copies of the audited consolidated annual financial statements (balance sheet, related income statement and cash flow statement) of the Group together with the relevant auditors’ reports;

 

  (c)

quarterly, and no later than sixty (60) days after each Quarter Date, copies of the Group’s consolidated quarterly management accounts;

 

  (d)

monthly, (except for the month of January of each year), and no more than thirty (30) days after its month end (and forty-five (45) days for the first six (6) monthly statements to be remitted as from the Signing Date), the unaudited and unreviewed monthly financial statements (balance sheet and related income statement) for each Borrower;

 

  19.5.2

each Borrower shall deliver to the Agent the following general information:

 

  (a)

promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against the Parent Company or a Borrower, in each case, which, if adversely determined, might have a Material Adverse Effect;

 

  (b)

promptly, upon request of the Agent (acting reasonably), copies of all documents dispatched by each Borrower to its financial creditors generally (or any class of them) in their capacity as such at the same time as they are dispatched, excluding for the avoidance of doubt any information provided to holders of equity or instruments that may give access to equity in such capacity;

 

  (c)

promptly, upon reasonable request of the Agent, such information regarding the financial condition, business and operations of the Group which may have a material impact on the ability of the Obligors to perform their obligations under the Finance Documents;

 

  (d)

promptly, upon reasonable request of the Agent, such documentation and other evidence as reasonably requested by any Finance Party in order to carry out and be satisfied that it (or any prospective new Lender) has complied with all necessary “Know Your Customer” requirements as per its policy or other similar checks under any applicable laws or regulations;

 

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  (e)

promptly, upon request of the Agent, any agreement entered into between any Borrower and its suppliers to the extent that (i) the purpose of the relevant agreement is for a Borrower to acquire goods which are to be pledged under the Inventory Pledge Agreement With Dispossession or the Inventory Pledge Agreement Without Dispossession to which such Borrower is a party and (ii) the purchase price of such goods provided in the relevant agreement is equal or above EUR 2,000,000;

 

  19.5.3

each Obligor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless an Obligor is aware that a notification has already been provided by another Obligor);

 

19.6

Compliance with law : it shall comply with all laws to which it is subject, if failure to do so would have a Material Adverse Effect;

 

19.7

Information on Insolvency Proceedings : subject to applicable law, and as soon as becoming aware of such event, it undertakes to inform the Agent of the commencement or taking of any Insolvency Proceeding, a composition, compromise, assignment or arrangement with any of its creditors for reason of financial difficulties or proceedings for the appointment of a mandataire ad hoc (on the grounds of financial difficulties) or for a conciliation in accordance with Articles L.611-3 to L.611-15 of the French Code de commerce ;

 

19.8

Use of proceeds: each Borrower undertakes to use the proceeds arising from the Facility in a manner compliant with applicable laws;

 

19.9

No security interest : it shall not create or allow to exist any pledge, privilège , retention of title clause ( clause de réserve de propriété ), trust or other security interest, or any other agreement having a similar effect, on its Pledged Inventory (except as contemplated in the Finance Documents);

 

19.10

Warehouse : it shall remit to the Escrow Agent in the Warehouses goods intended to be pledged under the Inventory Pledge Agreement With Dispossession entered into by it and it shall not remit to the Escrow Agent any goods belonging to third parties;

 

19.11

Insurance Policy:

 

  19.11.1

it shall ensure that, at all times, its Pledged Inventory is fully insured under insurance policies which remain in full force and effect, and it shall pay the related premiums on their due date to the relevant insurer(s);

 

  19.11.2

within thirty (30) days of (i) each anniversary date of this Agreement and (ii) any renewal of any such insurance policies, it shall provide the Agent with an annual certificate issued by the relevant insurer(s) detailing the characteristics, duration and maximum amount of such insurance policies; and

 

  19.11.3

upon the occurrence of an Enforcement Event (as defined in the relevant Security Document) in relation to a Borrower, the Agent may notify the insurer(s) under the insurance policies entered into by such Borrower in relation to its Pledged Inventory that, in accordance with article L. 121-13 of the Code des assurances , any indemnity due by such insurer(s) in relation to the Pledged Inventory of such Borrower shall be paid directly to the Agent and no longer to the relevant Borrower; and

 

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19.12

Sanctions : it will not, directly or indirectly, use the proceeds of any Loan, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or any other person (i) to fund any activities or business of or with any person or in any country or territory that, at the time of such funding, is a Sanctioned Person or a Sanctioned Country, or (ii) in any other manner that would result in a violation of Sanctions by any person (including any person participating in the Facility, whether as underwriter, advisor, investor, Lender, Agent or otherwise).

 

20.

EVENTS OF DEFAULT

 

20.1

Events of Default

Each of the events or circumstances set out in this Clause 20.1 ( Events of Default ) is an Event of Default:

 

  20.1.1

an Obligor does not pay on the due date any amount payable to a Finance Party pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable unless (A) its failure to pay is caused by an administrative or a technical error or a Disruption Event and (B) payment is made within five (5) Business Days of its due date;

 

  20.1.2

an Obligor fails to comply with any of its obligations under the Finance Documents to the extent that such failure has a Material Adverse Effect and, if capable of remedy, continues unremedied for a period of ten (10) Business Days of the earlier of (i) the Agent giving notice of such failure to the relevant Obligor and (ii) the relevant Obligor becoming aware of such failure to comply;

 

  20.1.3

any of the representations and warranties made by an Obligor in Clause 18 ( Representations ) is or proved to be incorrect or misleading when made, to the extent that such misrepresentation has a Material Adverse Effect and, unless the circumstances giving rise to and the effects of such misrepresentation are capable of remedy and are remedied within ten (10) Business Days of the earlier of (i) the Agent giving notice to the relevant Obligor of such misrepresentation and (ii) the relevant Obligor becoming aware of such misrepresentation;

 

  20.1.4

the occurrence of a Cross-Acceleration;

 

  20.1.5

an Obligor becomes subject to Insolvency Proceedings unless, in relation to any steps or procedures effectively taken or started, such steps or procedures are (i) promptly contested by the relevant Obligor and (ii) are finally dismissed within twenty (20) days;

 

  20.1.6

an Obligor challenges the validity or enforceability (opposabilité) of any material right or obligation under the Finance Documents or rescinds or purports to rescind any of the Finance Documents without the consent of the Agent and the other parties to such Finance Document;

 

  20.1.7

any of the Finance Documents ceases to be legal, valid, binding and enforceable (opposable) in its entirety, to the extent that, if it ceases to be enforceable ( opposable ) against third parties, the event giving rise to such unenforceability, if capable of remedy, is not remedied within five (5) Business Days of the earlier of (i) the Agent giving notice to the relevant Obligor of such event and (ii) the relevant Obligor becoming aware of such event;

 

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  20.1.8

it is or it becomes illegal or unlawful for an Obligor to perform any of its obligations under the Finance Documents;

 

  20.1.9

the occurrence of any event or circumstance which has a Material Adverse Effect;

 

  20.1.10

the occurrence of a seizure or an attachment resulting from a court decision ( sûretés judiciaires ) (not including any provisional measures ( mesures conservatoires )) from a creditor of an Obligor for an amount in excess of 5,000,000 Euros (in aggregate), unless such seizure or attachment is finally dismissed or discharged within forty-five (45) days, provided that if during that timeframe the relevant Obligor demonstrates to the Agent in a manner satisfactory to the Agent that such seizure or attachment is unjustified, this shall not constitute an Event of Default;

 

  20.1.11

an Obligor has knowingly omitted or concealed material information or has knowingly made false statements to a Finance Party regarding any material information to be provided by such Obligor upon the signature of any of the Finance Documents or during the course of the performance thereof;

 

  20.1.12

the auditor of any Obligor raises reservations as to the accounts of such Obligor to the extent such reservation reflects serious deficiencies in accounting (which excludes any observation in the auditor’s report in connexion with the implementation of new accounting standards or with major accounting estimates that would trigger going concern issues (as defined in the relevant Accounting Principles)); or

 

  20.1.13

the occurrence of significant delays or any aggravation of delays for payment in respect of suppliers and unsecured or secured creditors (such as inter alia the French Trésor Public , Urssaf , caisses de retraite etc.) of such Obligor (other than resulting from the normal course of such Obligor’s business), except if such Obligor demonstrates to the Agent in a manner satisfactory to the Agent that such non-payment results from a contestation in good faith by such Obligor of its obligation to pay, which, individually or collectively, would have a Material Adverse Effect.

 

20.2

Acceleration

On and at any time after the occurrence of an Event of Default which is continuing, the Agent may, and shall if so directed by the Super Majority Lenders, without mise en demeure or any other judicial or extra judicial step, by notice to the Parent Company:

 

  20.2.1

cancel the Total Commitments whereupon they shall immediately be cancelled; and/or

 

  20.2.2

declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable.

 

21.

CHANGES TO THE PARTIES

 

21.1

Transfers by the Lenders

 

  21.1.1

Subject to this Clause 21 ( Changes to the Parties ), a Lender (the “ Existing Lender ”) may transfer any of its rights (including such as relate to that Lender’s participation in each Loan) and/or obligations to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the “ New Lender ”), provided that, unless an Event of Default has occurred or is continuing, any

 

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such transfer shall be made for a minimum amount of EUR15,000,000 or shall concern all the rights and obligations of such Lender.

 

  21.1.2

The consent of the Finance Parties is hereby given to a transfer by an Existing Lender to a New Lender.

 

21.2

Conditions of transfer

 

  21.2.1

The consent of the Parent Company is required for a transfer by an Existing Lender, provided that the Parent Company hereby consents to a transfer:

 

  (a)

to another Lender or an Affiliate of a Lender; or

 

  (b)

made at a time when an Event of Default is continuing.

Notwithstanding the above, no transfer, sub-participation or subcontracting may be effected to a New Lender incorporated or acting through a Facility Office situated in a Non-Cooperative Jurisdiction without the prior consent of the Parent Company, which shall not be unreasonably withheld. In case of a transfer of obligations, the New Lender shall be duly authorised to lend in France in accordance with French law.

 

  21.2.2

The consent of the Parent Company to a transfer must not be unreasonably withheld or delayed. Provided that, during such period of time, the Parent Company has been provided with (i) the name of the New Lender, (ii) its place of incorporation, (iii) its rating and (iv) the list of sanctions laws or regulations applicable to the New Lender, the Parent Company will be deemed to have given its consent ten (10) Business Days after the Existing Lender has requested it unless consent is expressly refused by the Parent Company within that time.

 

  21.2.3

Subject to any applicable laws and regulations regarding procedures for specific transfer, a transfer will only be effective if the procedure set out in Clause 21.5 ( Procedure for transfer ) is complied with.

 

  21.2.4

If:

 

  (a)

a Lender transfers any of its rights and/or obligations under the Finance Documents or changes its Facility Office; and

 

  (b)

as a result of circumstances existing at the date the transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 12 ( Tax gross up and indemnities ) or Clause 13 ( Increased Costs ),

then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the transfer or change had not occurred. This Clause 21.2.4 shall not apply in respect of a transfer made in the ordinary course of the primary syndication of the Facilities.

 

  21.2.5

Each New Lender, by executing the relevant Transfer Agreement, confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer

 

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becomes effective and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.

 

21.3

Transfer fee

The New Lender shall, on the date upon which a transfer takes effect, pay to the Agent (for its own account) a fee of five thousand Euros (5,000 euros).

 

21.4

Limitation of responsibility of Existing Lenders

 

  21.4.1

Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:

 

  (a)

the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;

 

  (b)

the financial condition of any Obligor;

 

  (c)

the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents;

 

  (d)

the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document; or

 

  (e)

the existence of any transferred rights or receivables or their accessories,

and any representations or warranties implied by law are excluded.

 

  21.4.2

Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

 

  (a)

has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and

 

  (b)

will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

 

  21.4.3

Nothing in any Finance Document obliges an Existing Lender to:

 

  (a)

accept a re-transfer from a New Lender of any of the rights and/or obligations transferred under this Clause 21 ( Changes to the Parties ); or

 

  (b)

support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.

 

21.5

Procedure for transfer

 

  21.5.1

Subject to the conditions set out in Clause 21.2 ( Conditions of transfer ) and subject to any applicable laws and regulations regarding procedures for specific transfer, a transfer of rights and/or obligations is effected in accordance with Clause 21.5.3 when the Agent executes an otherwise duly completed Transfer Agreement delivered to it by

 

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the Existing Lender and the New Lender. The Agent shall, subject to Clause 21.5.2, as soon as reasonably practicable after receipt by it of a duly completed Transfer Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Agreement.

 

  21.5.2

The Agent shall only be obliged to execute a Transfer Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.

 

  21.5.3

As from the Transfer Date:

 

  (a)

to the extent that in the Transfer Agreement the Existing Lender seeks to transfer its rights and its obligations under the Finance Documents, the Existing Lender shall be discharged to the extent provided for in the Transfer Agreement from further obligations towards each of the Obligors and the other Finance Parties under the Finance Documents and each Obligor and the other Finance Parties hereby consent to such discharge;

 

  (b)

the rights and/or obligations of the Existing Lender with respect to the Obligors shall be transferred to the New Lender, to the extent provided for in the Transfer Agreement;

 

  (c)

the Agent, the Arranger, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have had had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Arranger and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and

 

  (d)

the New Lender shall become a Party as a “Lender”.

 

21.6

Copy of Transfer Agreement to Parent Company

The Agent shall, as soon as reasonably practicable after it has executed a Transfer Agreement, send to the Parent Company a copy of that Transfer Agreement.

 

21.7

Security over Lenders’ rights

 

  21.7.1

In addition to the other rights provided to Lenders under this Clause 21 ( Changes to the Parties ), each Lender may without consulting with or obtaining consent from any Obligor, at any time transfer, charge, pledge or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:

 

  (a)

any transfer, charge, pledge or other Security to secure obligations to a federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank) including, without limitation, any transfer of rights to a special purpose vehicle where Security over securities issued by such special purpose vehicle is to be created in favour of a federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank); and

 

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  (b)

in the case of any Lender which is a fund, any transfer, charge, pledge or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,

to the extent that:

 

  (i)

no such transfer, charge, pledge or Security shall:

 

  (1)

release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant transfer, charge, pledge or Security for the Lender as a party to any of the Finance Documents; or

 

  (2)

require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents; and

 

  (ii)

until the occurrence of an event of default (howsoever defined in the documents relating to such transfer, charge, pledge or Security), the relevant Lender will continue to remain in charge of the reception of payment under any claim it may have against any Obligor under the Finance Documents.

 

  21.7.2

The limitations on transfers by a Lender set out in any Finance Document, in particular in Clause 21.1 ( Transfers by the Lenders ), Clause 21.2 ( Conditions of transfer ) and Clause 21.3 ( Transfer fee ) shall not apply to the creation of Security pursuant to Clause 21.7.1.

 

  21.7.3

The limitations and provisions referred to in Clause 21.7.2 shall further not apply to any enforcement of Security created pursuant to Clause 21.7.1 by a federal reserve or central bank, a Lender, an Affiliate of a Lender or when an Event of Default is continuing.

 

21.8

Changes to the Obligors

No Obligor may transfer any of its rights and/or obligations under the Finance Documents.

 

22.

ROLE OF THE AGENT, THE ARRANGER AND THE REFERENCE BANKS

 

22.1

Appointment of the Agent

 

  22.1.1

Each of the Arranger and the Lenders appoints the Agent to act as its agent under and in connection with the Finance Documents.

 

  22.1.2

Each of the Arranger and the Lenders authorises the Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.

 

  22.1.3

Notwithstanding the provisions of Article 1161, paragraph 1, of the French Code civil , each Finance Party (other than the Agent) expressly authorises, where necessary, the

 

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Agent to sign any document it signs on behalf of such Finance Party, (i) on behalf of the Agent acting for its own account and (ii) on behalf of one or more others counterparties to this document.

 

22.2

Instructions

 

  22.2.1

The Agent shall:

 

  (a)

unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by:

 

  (i)

all Lenders or the Super Majority Lenders if the relevant Finance Document stipulates the matter is an all Lender or a Super Majority Lenders decision; and

 

  (ii)

in all other cases, the Majority Lenders; and

 

  (b)

not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with Paragraph (a) above.

 

  22.2.2

The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders or Super Majority Lenders, as applicable (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.

 

  22.2.3

Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders or Super Majority Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.

 

  22.2.4

The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.

 

  22.2.5

In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.

 

  22.2.6

The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration proceedings relating to any Finance Document.

 

22.3

Duties of the Agent

 

  22.3.1

The Agent’s duties under the Finance Documents are solely mechanical and administrative in nature.

 

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  22.3.2

Subject to Clause 22.3.3, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.

 

  22.3.3

Without prejudice to Clause 21.6 (Copy of Transfer Agreement to Parent Company), Clause 22.3.2 shall not apply to any Transfer Agreement.

 

  22.3.4

Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.

 

  22.3.5

If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties.

 

  22.3.6

If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or the Arranger) under this Agreement it shall promptly notify the other Finance Parties.

 

  22.3.7

The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).

 

22.4

Role of the Arranger

Except as specifically provided in the Finance Documents, the Arranger has no obligations of any kind to any other Party under or in connection with any Finance Document.

 

22.5

No fiduciary duties

 

  22.5.1

Nothing in any Finance Document constitutes the Agent or the Arranger as a trustee or fiduciary of any other person.

 

  22.5.2

Neither the Agent nor the Arranger shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.

 

22.6

Business with the Group

The Agent and the Arranger may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.

 

22.7

Rights and discretions

 

  22.7.1

The Agent may:

 

  (a)

rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;

 

  (b)

assume that:

 

  (i)

any instructions received by it from the Majority Lenders, Super Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and

 

  (ii)

unless it has received notice of revocation, that those instructions have not been revoked; and

 

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  (c)

rely on a certificate from any person:

 

  (i)

as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or

 

  (ii)

to the effect that such person approves of any particular dealing, transaction, step, action or thing,

as sufficient evidence that that is the case and, in the case of Paragraph (i) above, may assume the truth and accuracy of that certificate.

 

  22.7.2

The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:

 

  (a)

no Default has occurred (unless it has actual knowledge of a Default arising under Clause 20.1 ( Events of Default );

 

  (b)

any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and

 

  (c)

any notice or request made by the Parent Company (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.

 

  22.7.3

The Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.

 

  22.7.4

The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying, unless directly caused by its gross negligence or wilful misconduct.

 

  22.7.5

The Agent may act in relation to the Finance Documents through its officers, employees and agents.

 

  22.7.6

Unless a Finance Document expressly provides otherwise the Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.

 

  22.7.7

Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the Arranger is obliged to do or omit to do anything if it would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.

 

  22.7.8

Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.

 

22.8

Responsibility for documentation

 

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Neither the Agent nor the Arranger is responsible or liable for:

 

  22.8.1

the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent, the Arranger, an Obligor or any other person in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; or

 

  22.8.2

the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.

 

22.9

No duty to monitor

The Agent shall not be bound to enquire:

 

  22.9.1

whether or not any Default has occurred;

 

  22.9.2

as to the performance, default or any breach by any Party of its obligations under any Finance Document; or

 

  22.9.3

whether any other event specified in any Finance Document has occurred.

 

22.10

Exclusion of liability

 

  22.10.1

Without limiting Clause 22.10.2 (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent), the Agent will not be liable for:

 

  (a)

any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct;

 

  (b)

exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document, other than by reason of gross negligence or wilful misconduct; or

 

  (c)

without prejudice to the generality of Paragraphs (a) and (b) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation, for negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of:

 

  (i)

any act, event or circumstance not reasonably within its control; or

 

  (ii)

the general risks of investment in, or the holding of assets in, any jurisdiction,

including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or

 

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fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.

 

  22.10.2

No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent may rely on this Clause.

 

  22.10.3

The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.

 

  22.10.4

Nothing in this Agreement shall oblige the Agent or the Arranger to carry out:

 

  (a)

any “know your customer” or other checks in relation to any person; or

 

  (b)

any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender,

on behalf of any Lender and each Lender confirms to the Agent and the Arranger that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or the Arranger.

 

  22.10.5

Without prejudice to any provision of any Finance Document excluding or limiting the Agent’s liability, any liability of the Agent arising under or in connection with any Finance Document shall be limited to the amount of actual loss which has been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages.

 

22.11

Lenders’ indemnity to the Agent

Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent, within three Business Days of demand, against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Agent (otherwise than by reason of the Agent’s gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 25.10 ( Disruption to Payment Systems etc. ) notwithstanding the Agent’s negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document).

 

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22.12

Resignation of the Agent

 

  22.12.1

The Agent may resign and appoint one of its Affiliates acting through an office in France as successor by giving notice to the Lenders and the Parent Company.

 

  22.12.2

Alternatively the Agent may resign by giving 30 days’ notice to the Lenders and the Parent Company, in which case the Super Majority Lenders (after consultation with the Parent Company) may appoint a successor Agent, which shall not be incorporated or acting through an office situated in a Non-Cooperative Jurisdiction.

 

  22.12.3

The Parent Company may, on no less than 30 days’ prior notice to the Agent, require the Lenders to replace the Agent and appoint a replacement Agent if any amount payable under a Finance Document by an Obligor established in France becomes not deductible from that Obligor’s taxable income for French tax purposes by reason of that amount (i) being paid or accrued to an Agent incorporated or acting through an office situated in a Non-Cooperative Jurisdiction or (ii) paid to an account opened in the name of that Agent in a financial institution situated in a Non-Cooperative Jurisdiction. In this case, the Agent shall resign and a replacement Agent shall be appointed by the Super Majority Lenders (after consultation with the Company) within 30 days after notice of replacement was given.

 

  22.12.4

If the Super Majority Lenders have not appointed a successor Agent in accordance with Clause 22.12.2 within 20 days after notice of resignation was given, the retiring Agent (after consultation with the Parent Company) may appoint a successor Agent.

 

  22.12.5

The retiring Agent shall make available to the successor Agent such documents and records necessary to the performance of Agent’s functions under the Finance Documents, and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents. The Parent Company shall, within three Business Days of demand, reimburse the retiring Agent for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.

 

  22.12.6

The Agent’s resignation notice shall only take effect upon the appointment of a successor.

 

  22.12.7

Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under Clause 22.12.6) but shall remain entitled to the benefit of Clause 14.2 ( Indemnity to the Agent ) and this Clause 22 ( Role of the Agent, the Arranger ) (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.

 

  22.12.8

After consultation with the Parent Company, the Super Majority Lenders may, by notice to the Agent, require it to resign in accordance with Clause 22.12.2. In this event, the Agent shall resign in accordance with Clause 22.12.2.

 

  22.12.9

The Agent shall resign in accordance with Clause 22.12.2 (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to

 

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Clause 22.12.4) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:

 

  (a)

the Agent fails to respond to a request under Clause 12.8 ( FATCA Information ) and the Parent Company or a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;

 

  (b)

the information supplied by the Agent pursuant to Clause 12.8 ( FATCA Information ) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or

 

  (c)

the Agent notifies the Parent Company and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date,

and (in each case) the Parent Company or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Agent were a FATCA Exempt Party, and the Parent Company or that Lender, by notice to the Agent, requires it to resign.

 

22.13

Confidentiality

 

  22.13.1

In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.

 

  22.13.2

If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.

 

22.14

Relationship with the Lenders

 

  22.14.1

The Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent’s principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:

 

  (a)

entitled to or liable for any payment due under any Finance Document on that day; and

 

  (b)

entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,

unless it has received not less than five Business Days’ prior notice from that Lender to the contrary in accordance with the terms of this Agreement.

 

  22.14.2

Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address and electronic mail address and/or any other information required to enable the transmission of information by that means (and, in each case, the department or officer,

 

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if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, electronic mail address (or such other information), department and officer by that Lender for the purposes of Clause 27.2 ( Addresses ) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.

 

22.15

Credit appraisal by the Lenders

Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to the Agent and the Arranger that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:

 

  22.15.1

the financial condition, status and nature of each member of the Group;

 

  22.15.2

the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;

 

  22.15.3

whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and

 

  22.15.4

the adequacy, accuracy or completeness of any other information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.

 

22.16

Deduction from amounts payable by the Agent

If any Party owes an amount to the Agent under the Finance Documents the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.

 

22.17

Security

 

  22.17.1

Agent as holder of security

Each Finance Party (other than the Agent) irrevocably appoints the Agent to act as its agent ( mandataire ) under and in connection with the Security Documents.

 

  22.17.2

Responsibility

The Agent is not liable nor responsible to any other Finance Party for:

 

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  (a)

any failure in perfecting or protecting the security created by any Security Document; or

 

  (b)

any other action taken by it in connection with any Security Document,

unless directly caused by its gross negligence or wilful misconduct,

 

  (c)

the right or title of any person in or to, or the value of, or sufficiency of any part of the security created by the Security Documents;

 

  (d)

the priority of any security created by the Security Documents; or

 

  (e)

the existence of any other Security affecting any asset secured under a Security Document.

 

  22.17.3

Authorisation

Each Finance Party authorises the Agent (by itself or by such person(s) as it may nominate) to enter into the Security Documents as agent ( mandataire ) on its behalf provided that it has received confirmation from such Finance Party that it approves the terms and conditions of each such Security Document.

 

22.18

Role of Reference Banks

 

  22.18.1

No Reference Bank is under any obligation to provide a quotation or any other information to the Agent.

 

  22.18.2

No Reference Bank will be liable for any action taken by it under or in connection with any Finance Document, or for any Reference Bank Quotation, unless directly caused by its gross negligence or wilful misconduct.

 

  22.18.3

No Party (other than the relevant Reference Bank) may take any proceedings against any officer, employee or agent of any Reference Bank in respect of any claim it might have against that Reference Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document, or to any Reference Bank Quotation, and any officer, employee or agent of each Reference Bank may rely on this Clause 22.18.

 

23.

CONDUCT OF BUSINESS BY THE FINANCE PARTIES

 

23.1

No provision of this Agreement will:

 

  23.1.1

interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;

 

  23.1.2

oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or

 

  23.1.3

oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.

 

23.2

Any Lender is entitled to exercise any of its rights and discretion under the Finance Documents through any agent (including any entity appointed to act as servicer on its behalf).

 

24.

SHARING AMONG THE FINANCE PARTIES

 

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24.1

Payments to Finance Parties

If a Finance Party (a “ Recovering Finance Party ”) receives or recovers any amount from an Obligor other than in accordance with Clause 25 ( Payment mechanics ) (a “ Recovered Amount ”) and applies that amount to a payment due under the Finance Documents then such Recovering Finance Party shall be deemed to have been substituted (within the meaning of Article 1994 of the French Code civil ) for the Agent for purposes of receiving or recovering a Sharing Payment (as defined below) and:

 

  24.1.1

the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent;

 

  24.1.2

the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 25 (Payment mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and

 

  24.1.3

the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the “Sharing Payment”) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 25.5 ( Partial payments ).

 

24.2

Redistribution of payments

The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) (the “ Sharing Finance Parties ”) in accordance with Clause 25.5 ( Partial payments ) towards the obligations of that Obligor to the Sharing Finance Parties.

 

24.3

Recovering Finance Party’s rights

On a distribution by the Agent under Clause 24.2 ( Redistribution of payments ) of a payment received by a Recovering Finance Party from an Obligor, as between the relevant Obligor and the Recovering Finance Party, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by that Obligor to the Recovering Finance Party.

 

24.4

Reversal of redistribution

If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:

 

  24.4.1

each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the “ Redistributed Amount ”); and

 

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  24.4.2

as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor to the relevant Sharing Finance Party.

 

24.5

Exceptions

 

  24.5.1

This Clause 24 ( Sharing among the Finance Parties ) shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.

 

  24.5.2

A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:

 

  (a)

it notified that other Finance Party of the legal or arbitration proceedings; and

 

  (b)

that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.

 

25.

PAYMENT MECHANICS

 

25.1

Payments to the Agent

 

  25.1.1

On each date on which a Borrower or a Lender is required to make a payment under a Finance Document, that Borrower or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in Euros.

 

  25.1.2

Payment shall be made to such account in Paris, as specified by the Agent, and with such bank as the Agent, in each case, specifies.

 

25.2

Distributions by the Agent

Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 25.3 ( Distributions to an Obligor ) and Clause 25.4 ( Clawback ) be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five Business Days’ notice with a bank specified by that Party in the principal financial centre of a Participating Member State or London as specified by that Party.

 

25.3

Distributions to an Obligor

The Agent may (with the consent of the relevant Borrower or in accordance with Clause 26 ( Set-off ) apply any amount received by it for that Borrower in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Borrower under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.

 

25.4

Clawback

 

  25.4.1

Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or

 

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perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.

 

  25.4.2

If the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.

 

25.5

Partial payments

 

  25.5.1

If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:

 

  (a)

first, in or towards payment pro rata of any unpaid amount owing to the Agent under the Finance Documents;

 

  (b)

secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;

 

  (c)

thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and

 

  (d)

fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

 

  25.5.2

The Agent shall, if so directed by the Super Majority Lenders, vary the order set out in Paragraphs (b) to (d) above.

 

  25.5.3

Clauses 25.5.1 and 25.5.2 will override any appropriation made by an Obligor.

 

25.6

No set-off by Obligors

Subject to the provisions of Clause 6.2, all payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.

 

25.7

Business Days

 

  25.7.1

Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

 

  25.7.2

During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.

 

25.8

Currency of account

 

  25.8.1

Subject to Clauses 25.8.2 to 25.8.4, Euro is the currency of account and payment for any sum due from a Borrower under any Finance Document.

 

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  25.8.2

A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is denominated, pursuant to this Agreement, on its due date.

 

  25.8.3

Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated, pursuant to this Agreement, when that interest accrued.

 

  25.8.4

Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.

 

25.9

Change of currency

 

  25.9.1

Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:

 

  (a)

any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Parent Company); and

 

  (b)

any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).

 

  25.9.2

If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Parent Company) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Market and otherwise to reflect the change in currency.

 

25.10

Disruption to Payment Systems etc.

If either the Agent determines (in its discretion) that a Disruption Event has occurred or the Agent is notified by the Parent Company that a Disruption Event has occurred:

 

  25.10.1

the Agent may, and shall if requested to do so by the Parent Company, consult with the Parent Company with a view to agreeing with the Parent Company such changes to the operation or administration of the Facility as the Agent may deem necessary in the circumstances;

 

  25.10.2

the Agent shall not be obliged to consult with the Parent Company in relation to any changes mentioned in Clause 25.10.1 if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;

 

  25.10.3

the Agent may consult with the Finance Parties in relation to any changes mentioned in Clause 25.10.1 but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;

 

  25.10.4

any such changes agreed upon by the Agent and the Parent Company shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the

 

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Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 31 ( Amendments and waivers ); and

 

  25.10.5

the Agent shall notify the Finance Parties of all changes agreed pursuant to Clause 25.10.4.

 

26.

SET-OFF

Without prejudice to Clause 6.2, if a Default is continuing, a Finance Party may set off any matured obligation due from a Borrower under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Borrower, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off. A Finance Party which has exercised its right of set-off pursuant to this Clause 26 shall promptly notify the Borrower and the Agent of any such set-off or conversion.

 

27.

NOTICES

 

27.1

Communications in writing

Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by electronic mail, normal letter mailed or hand delivered, registered letter or registered letter with acknowledgement of receipt.

 

27.2

Addresses

The address (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:

 

  27.2.1

in the case of the Parent Company and of the Borrowers, that identified with its name below;

 

  27.2.2

in the case of each Lender, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and

 

  27.2.3

in the case of the Agent, that identified with its name below,

or any substitute address or department or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not less than five Business Days’ notice.

 

Party

 

   Name    Details     

 

Parent

Company

  

 

Constellium Holdco II B.V.

  

 

Address:

  

(c/o Constellium Paris)

 

40-44, rue Washington, 75008 Paris,

France

 

 

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Party

 

   Name    Details     
         

Attention:

  

Laurent Schmitt, Dr. Mark Kirkland, Director Treasury & Enterprise Risk Management

 

     

e-mail:

  

laurent.schmitt@constellium.com / Mark.Kirkland@constellium.com

 

     

Copy:

  

Jeremy Leach, VP and General Counsel Constellium

 

     

e-mail:

  

Jeremy.leach@constellium.com

 

Borrower

  

Constellium Issoire

  

Address:

  

rue Yves Lamourdedieu ZI les Listes, 63500 Issoire

 

     

Attention:

  

Marc Monaco, Dr. Mark Kirkland, Director Treasury & Enterprise Risk Management

 

     

e-mail:

  

marc.monaco@constellium.com / Mark.Kirkland@constellium.com

 

Borrower

  

Constellium Neuf Brisach

  

Address:

  

ZIP Rhenane Nord-RD 52

 

68600 Bisheim

 

     

Attention:

  

Thierry Malraison, Dr. Mark Kirkland, Director Treasury & Enterprise Risk Management

 

     

e-mail:

  

thierry.malraison@constellium.com / Mark.Kirkland@constellium.com

 

Agent

  

Factofrance

  

Address:

  

Factofrance

 

Tour Facto, 18, rue Hoche

 

92988 Paris La Défense

 

France

 

     

Attention:

  

Christine Vadon

 

     

e-mail:

  

Christine. Vadon@factofrance.com

 

     

Fax:

  

+ 33 (0)1 46 35 17 04

 

 

27.3

Delivery

 

  27.3.1

Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:

 

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  (a)

if by way of electronic mail, when actually received (or made available) in readable form and in the case of any electronic communication made by a Party to the Agent only if it is addressed in such a manner as the Agent shall specify for this purpose; and

 

  (b)

if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address, and, if a particular department or officer is specified as part of its address details provided under Clause 27.2 ( Addresses ), if addressed to that department or officer.

 

  27.3.2

Any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified with the name of the Agent above (or any substitute department or officer as the Agent shall specify for this purpose).

 

  27.3.3

All notices from or to an Obligor shall be sent through the Agent.

 

  27.3.4

Any communication or document made or delivered to the Parent Company in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.

 

  27.3.5

Any communication or document which becomes effective, in accordance with Clauses 27.3.1 to 27.3.4, after 5:00 p.m. in the place in which the Party to whom the relevant communication is sent or made available has its address for the purpose of this Agreement shall be deemed only to become effective on the following day.

 

27.4

English language

 

  27.4.1

Any notice given under or in connection with any Finance Document must be in English.

 

  27.4.2

All other documents provided under or in connection with any Finance Document must be:

 

  (a)

in English; or

 

  (b)

if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.

 

28.

DAY COUNT CONVENTION

Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Market differs, in accordance with that market practice.

 

29.

PARTIAL INVALIDITY

If, at any time, any provision of a Finance Document is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

 

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30.

REMEDIES, WAIVERS AND HARDSHIP

 

30.1

Remedies and waivers

No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under a Finance Document shall operate as a waiver of any such right or remedy or constitute an election to affirm any of the Finance Documents. No election to affirm any Finance Document on the part of any Finance Party shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in each Finance Document are cumulative and, subject to Clause 30.2 ( No hardship ), not exclusive of any rights or remedies provided by law.

 

30.2

No hardship

Each Party hereby acknowledges that the provisions of Article 1195 of the French Code civil shall not apply to it with respect to its obligations under the Finance Documents and that it shall not be entitled to make any claim under Article 1195 of the French Code civil .

 

31.

AMENDMENTS AND WAIVERS

 

31.1

Required consents

 

  31.1.1

Subject to Clause 31.2 ( All Lenders matters ), Clause 31.3 (Super Majority Lenders) and Clause 31.4 (Other exceptions), any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will be binding on all Parties.

 

  31.1.2

The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 31 ( Amendments and waivers ).

 

31.2

All Lenders matters

An amendment or waiver of any term of any Finance Document that has the effect of changing or which relates to:

 

  31.2.1

the definition of “Majority Lenders” or “Super Majority Lenders” in Clause 1.1 (Definitions);

 

  31.2.2

an extension to the date of payment of any amount under the Finance Documents;

 

  31.2.3

a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;

 

  31.2.4

an increase in any Commitment, or extension of the Availability Period;

 

  31.2.5

a modification to the definition of “Borrowing Base Value” in Clause 1.1 (Definitions) or of any component of such definition which may result in an increase of any Borrowing Base Value;

 

  31.2.6

any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under the Facility;

 

  31.2.7

a change to the Borrowers or the Parent Company;

 

  31.2.8

any provision relating to Sanctions or anti-bribery regulations;

 

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  31.2.9

any provision which expressly requires the consent of all the Lenders;

 

  31.2.10

Clause 2.2 ( Finance Parties’ rights and obligations ), Clause 7.10 ( Application of prepayments ), Clause 21 (Changes to the Parties), Clause 24 ( Sharing among the Finance Parties ), this Clause 31 ( Amendments and waivers ) or Clause 34 ( Applicable Law - Jurisdiction );

 

  31.2.11

the nature or scope of:

 

  (i)

the guarantee granted under Clause 17 ( Guarantee );

 

  (ii)

(other than as expressly permitted by the provisions of any Finance Document) the Pledged Inventory; or

 

  (iii)

the manner in which the proceeds of enforcement of any Security granted pursuant to any Security Document are distributed; or

 

  31.2.12

the release or partial release of any guarantee granted under Clause 17 ( Guarantee ) or of any Security granted pursuant to any Security Document (other than as contemplated by the Finance Documents),

shall not be made without the prior consent of all the Lenders.

 

31.3

Super Majority Lenders

An amendment or waiver of any term of any Finance Document that has the effect of changing or which relates to:

 

  31.3.1

any provision which expressly requires the consent or the instructions of the Super Majority Lenders;

 

  31.3.2

any condition precedent provided for in Clause 4 ( Conditions of Utilisation ) and Clause 5 ( Utilisation ); or

 

  31.3.3

Clause 20 ( Events of Default ),

shall not be made without the prior consent of the Super Majority Lenders.

 

31.4

Other exceptions

An amendment or waiver which relates to the rights or obligations of the Agent, the Arranger or a Reference Bank (each in their capacity as such) may not be effected without the consent of the Agent, the Arranger, or that Reference Bank as the case may be.

 

32.

CONFIDENTIAL INFORMATION

 

32.1

Confidentiality

 

  32.1.1

Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 32.1.2 (Disclosure of Confidential Information), and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.

 

  32.1.2

Disclosure of Confidential Information

 

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Any Finance Party may, without prejudice to the provisions of article L.511-33 of the French Code monétaire et financier , disclose:

 

  (a)

to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this Paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;

 

  (b)

to any person:

 

  (i)

to (or through) whom it transfers (or may potentially transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Agent and, in each case, to any of that person’s Affiliates, Related Funds, representatives and professional advisers;

 

  (ii)

with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person’s Affiliates, Related Funds, representatives and professional advisers;

 

  (iii)

appointed by any Finance Party or by a person to whom Paragraph (i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under Clause 22.14.2);

 

  (iv)

who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in Paragraph (i) or (ii) above;

 

  (v)

to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;

 

  (vi)

to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;

 

  (vii)

to whom or for whose benefit that Finance Party transfers, charges, pledges or otherwise creates security (or may do so) pursuant to Clause 21.7 (Security over Lenders’ rights) including to a federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank) to (or through) whom it creates security pursuant to Clause 21.7

 

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(Security over Lenders’ rights) and any federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank) may disclose such Confidential Information to a third party to whom it transfers (or may potentially transfer) rights under the Finance Documents or the securities issued by the special purpose vehicle in connection with the enforcement of such security;

 

  (viii)

who is a Party; or

 

  (ix)

with the consent of the Parent Company;

in each case, such Confidential Information as that Finance Party shall consider appropriate if:

 

  (1)

in relation to Paragraphs (i), (ii) and (iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;

 

  (2)

in relation to Paragraph (iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;

 

  (3)

in relation to Paragraphs (v), (vi) and (vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;

 

  (4)

to any person appointed by that Finance Party or by a person to whom Paragraph (i), or (ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this Paragraph (4) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement in a form agreed between the Parent Company and the relevant Finance Party; and

 

  (5)

to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.

 

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32.2

Entire agreement

Without prejudice to the provisions of article L.511-33 of the French Code monétaire et financier , this Clause 32 constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.

 

32.3

Inside information

Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.

 

32.4

Notification of disclosure

Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Parent Company:

 

  32.4.1

of the circumstances of any disclosure of Confidential Information made pursuant to Paragraph (b)(v) of Clause 32.1.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that Paragraph during the ordinary course of its supervisory or regulatory function; and

 

  32.4.2

upon becoming aware that Confidential Information has been disclosed in breach of this Clause 32.

 

32.5

Continuing obligations

The obligations in this Clause 32 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of twelve months from the earlier of:

 

  32.5.1

the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and

 

  32.5.2

the date on which such Finance Party otherwise ceases to be a Finance Party.

 

33.

CONFIDENTIALITY OF REFERENCE BANK QUOTATIONS

 

33.1

Confidentiality and disclosure

 

  33.1.1

The Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by Clauses 33.1.2, 33.1.3 and 33.1.4.

 

  33.1.2

The Agent may, without prejudice to the provisions of article L.511-33 of the French Code monétaire et financier , disclose:

 

  (a)

any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the relevant Borrower pursuant to Clause 8.4 ( Notification of rates of interest ); and

 

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  (b)

any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement in a form as agreed between the Agent and the relevant Lender or Reference Bank, as the case may be.

 

  33.1.3

The Agent may, without prejudice to the provisions of article L.511-33 of the French Code monétaire et financier , disclose any Funding Rate or any Reference Bank Quotation, and each Obligor may disclose any Funding Rate, to:

 

  (a)

any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and representatives if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant to this Paragraph (a) is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;

 

  (b)

any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent, it is not practicable to do so in the circumstances;

 

  (c)

any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent, it is not practicable to do so in the circumstances; and

 

  (d)

any person with the consent of the relevant Lender or Reference Bank, as the case may be.

 

  33.1.4

The Agent’s obligations in this Clause 33 relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under Clause 8.4 ( Notification of rates of interest ) provided that (other than pursuant to Clause 33.1.2(a)) the Agent shall not include the details of any individual Reference Bank Quotation as part of any such notification.

 

33.2

Related obligations

 

  33.2.1

The Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Agent and each

 

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Obligor undertake not to use any Funding Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose.

 

  33.2.2

The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender or Reference Bank, as the case may be:

 

  (a)

of the circumstances of any disclosure made pursuant to of Clause 33.1.3(a) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and

 

  (b)

upon becoming aware that any information has been disclosed in breach of this Clause 33.

 

33.3

No Event of Default

No Event of Default will occur under Clause 20.1.2 by reason only of an Obligor’s failure to comply with this Clause 33.

 

34.

APPLICABLE LAW - JURISDICTION

 

34.1

The provisions of this Agreement shall be construed in accordance with and shall be governed by French law.

 

34.2

Each of the Parties to this Agreement agrees that any and all disputes arising out of or in connection with this Agreement and in particular with its validity, interpretation, performance or non-performance, shall be exclusively referred to the competent courts in the jurisdiction of the Paris Court of Appeal.

 

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SCHEDULE 1. T HE O RIGINAL L ENDERS

 

Name of Original Lender   

Commitment

 

  Factofrance

  

35,000,000 euros

 

  Credit Suisse International

  

20,000,000 euros

 

  BNP Paribas

  

20,000,000 euros

 

  Deutsche Bank AG, London branch

  

25,000,000 euros

 

 

 

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SCHEDULE 2.

            C ONDITIONS P RECEDENT

Part 1 – Conditions Precedent at the Signing Date

 

1.

The following documents must be delivered by each Obligor on the Signing Date :

 

  (a)

A certified copy of the up-to-date constitutional documents ( statuts) of each Borrower;

 

  (b)

An original copy or a certified copy of the up-to-date constitutional documents ( statuten ) of the Parent Company;

 

  (c)

An original copy or a certified copy of the certificate of incorporation of each Borrower ( Extrait K-bis ) dated no later than one month prior to the Signing Date;

 

  (d)

An original copy or a certified copy of the up-to-date deed of incorporation of the Parent Company ( oprichtingsakte );

 

  (e)

An original copy or a certified copy of a statement of charges over assets and encumbrances ( état des inscriptions et nantissements ), including a statement as to pledges without dispossession ( gages sans dépossession ), in relation to each Borrower, dated no later than one month prior to the Signing Date.

 

  (f)

To the extent required by any applicable law or by its constitutional documents, original copies or certified copies of the resolutions of the competent corporate bodies, approving the terms of, the transactions contemplated by, and the execution and performance of the Finance Documents, including, with respect to the Parent Company, confirmation that the Guarantee complies with the corporate benefit principle applicable to it;

 

  (g)

An original copy or a certified copy of the power(s) of attorney of the person(s) signing the Finance Documents or any notice or certificate under the Finance Documents;

 

  (h)

A specimen of the signature of each person referred to in Paragraph (g) above and of each person authorised by the resolution referred to in Paragraph (f) above.

 

  (i)

A certificate of an authorised signatory of each Obligor confirming that borrowing or guaranteeing, as appropriate, the Total Commitments, would not cause any borrowing, guaranteeing or similar limit binding on the relevant Obligor to be exceeded.

 

  (j)

A certificate of an authorised signatory of the relevant Obligor certifying that each copy document relating to it specified in this Part 1 of SCHEDULE 2 ( Conditions Precedent ) is correct, complete and in full force and effect as at a date no earlier than the Signing Date.

 

2.

The following legal opinions must be provided on the Signing Date :

 

  (a)

Legal opinion by Clifford Chance Europe LLP in respect of the legal existence, the absence of insolvency proceedings, capacity and authority of the Borrowers in connection with the execution and performance of the Finance Documents to be executed on the Signing Date to which they are a party;

 

  (b)

Legal opinion by Clifford Chance Amsterdam in respect of the legal existence, the absence of insolvency proceedings, capacity and authority of the Parent Company in

 

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  connection

with the execution and performance of the Finance Documents to which it is a party; and

 

  (c)

Legal opinion by Dentons Europe in respect of the validity and enforceability of the Finance Documents to be executed on the Signing Date drafted by them.

 

3.

Other documents and evidence

 

  (a)

Execution of this Agreement and the Fee Letters.

 

  (b)

Report from the Escrow Agent satisfactory to the Agent.

 

  (c)

All costs and expenses (including the Agent’s and the Arranger’s legal costs, to the extent invoiced in due time) then due and payable by each Obligor under the Finance Documents have been paid.

Part 2 – Conditions Precedent at the first Utilisation Date

 

1.

Documents and evidence

 

  (a)

Execution of the Security Documents substantially in the form set out in SCHEDULE 10 (Form of Security Documents) or in such other form as may be agreed between the Agent (acting on the instructions of all the Lenders) and the Parent Company, provided that the Agent may request to be provided by each Borrower, on or before the execution of such Security Documents, with the following documents:

 

  (i)

a certified copy of the up-to-date constitutional documents ( statuts) of each Borrower if such constitutional documents have been modified since the Signing Date;

 

  (ii)

an original copy or a certified copy of the certificate of incorporation of each Borrower ( Extrait K-bis ) if the certificate of incorporation of such Borrower delivered to the Agent as condition precedent to the Signing Date is more than two months old;

 

  (iii)

an original copy or a certified copy of a statement of charges over assets and encumbrances ( état des inscriptions et nantissements ), including a statement as to pledges without dispossession ( gages sans dépossession ), in relation to each Borrower, if the statement of charges over assets and encumbrances of such Borrower delivered to the Agent as condition precedent to the Signing Date is more than two months old; and

 

  (iv)

if necessary, original copies or certified copies of the resolutions of the competent corporate bodies, approving the terms of, the transactions contemplated by, and the execution and performance of the Security Documents to be executed by it and an original copy or a certified copy of the power(s) of attorney of the person(s) signing the Security Documents to be executed by it.

 

  (b)

Execution of any necessary document with the Escrow Agent and the Independent Appraiser.

 

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  (c)

Evidence that an insurance policy complying with the terms of the Finance Documents has been entered into by each Borrower in relation to its Pledged Inventory and that the related premiums have been paid to the insurer.

 

  (d)

All costs and expenses (including the Agent’s and the Arranger’s legal costs) then due and payable by each Obligor under the Finance Documents have been paid.

 

2.

The following legal opinions must be provided on or before the first Utilisation Date:

 

  (a)

Legal opinion by Clifford Chance Europe LLP in respect of the legal existence, the absence of insolvency proceedings, capacity and authority of the Borrowers in connection with the execution and performance of the Finance Documents to be executed on or before the first Utilisation Date to which they are a party;

 

  (b)

Legal opinion by Dentons Europe in respect of the validity of the Finance Documents to be executed on or before the first Utilisation Date drafted by them.

 

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SCHEDULE 3.

F ORM OF U TILISATION R EQUEST

Utilisation Request

From:   [ Borrower ]

To:       [ Agent ]

Dated: [ ● ]

Dear Sirs,

Constellium – 100,000,000 EUR Facility Agreement dated [ ● ] April 2017 (the “Agreement” )

 

1.

We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.

 

2.

We wish to borrow a Tranche A Loan [and a Tranche B Loan] on the following terms:

 

Proposed Utilisation Date:

  

[ ● ] (or, if that is not a Business Day, the next Business Day)

Currency of Loans:

  

Euro

Amount of Tranche A Loan:

  

[ ● ]

[ Amount of Tranche B Loan:

  

[ ● ]]

Interest Period:

  

[ ● ]

 

3.

The Available Tranche A Amount [and the Available Tranche B Amount] for the proposed Utilisation Date is determined as follows:

 

  -

applicable Inventory Value (With Dispossession): sum of [•],[•] and [•];

 

  -

applicable Inventory Value (Without Dispossession): sum of [•],[•] and [•];

 

  -

applicable Recalculated Net Orderly Liquidation Percentage: [•];

 

  -

Financeable Inventory Value (With Dispossession): [90%]/[70%] of sum of [•],[•] and [•];

 

  -

Financeable Inventory Value (Without Dispossession): 70% of sum of [•],[•] and [•];

 

  -

Borrowing Base Value: [ sum of Financeable Inventory Value (With Dispossession) and Financeable Inventory Value (Without Dispossession) ]/[ 4* Financeable Inventory Value (With Dispossession) ]/[ Financeable Inventory Value (With Dispossession) ]

 

  -

Available Facility: [ Borrowing Base Value OR sum of Available Commitments ]

 

  -

Available Tranche A Amount: [ Available Facility OR Financeable Inventory Value (With Dispossession) ]

 

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- Available Tranche B Amount:[ Difference between Available Facility and Financeable Inventory Value (With Dispossession) ]

 

4.

We confirm that each condition specified in Clause 4.2 ( Further conditions precedent ) is satisfied on the date of this Utilisation Request.

 

5.

[This Tranche A Loan is to be made in [whole]/[part] for the purpose of refinancing [ identify maturing Loan ]/[The proceeds of this Tranche A Loan should be credited to [ account ].] [[This Tranche B Loan is to be made in [whole]/[part] for the purpose of refinancing [ identify maturing Loan ]/[The proceeds of this Tranche B Loan should be credited to [ account ].]]

 

6.

This Utilisation Request is irrevocable.

Yours faithfully

 

 

authorised signatory for

[ name of Borrower ]

 

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SCHEDULE 4. F ORM OF T RANSFER A GREEMENT

This Transfer Agreement is made on [•]

BETWEEN :

 

1.

[•] (the “ Existing Lender ”)

 

AND :

 

2.

[•] (the “ New Lender ”)

WHEREAS :

 

(A)

The Existing Lender has entered into a revolving loan facility in an aggregate amount equal to 100,000,000 euros under a facility agreement dated [•] April 2017, between Constellium Holdco II B.V. as Parent Company, Constellium Neuf Brisach and Constellium Issoire as Borrowers, the financial institutions listed in part I of schedule 1 thereto as Original Lenders and Factofrance acting as Arranger and as Agent of the Lenders (the “ Facility Agreement ”).

 

(B)

The Existing Lender wishes to transfer and the New Lender wishes to acquire [all]/[the part specified in Schedule 1 to this Transfer Agreement] of the Existing Lender’s Commitment, rights [and obligations] referred to in Schedule 1 to this Transfer Agreement.

 

(C)

Terms defined in the Facility Agreement have the same meaning when used in this Transfer Agreement.

IT IS AGREED AS FOLLOWS :

 

1.

[The Existing Lender and the New Lender agree to the transfer ( cession ) of]/[The Existing Lender confirms that, by a separate agreement, it will transfer ( céder ) on the Transfer Date to the New Lender] 1 [all]/[the part specified in Schedule 1 to this Transfer Agreement] of the Existing Lender’s Commitment, rights [and obligations] referred to in Schedule 1 to this Transfer Agreement together with the Existing Lender’s rights and benefits under all Security and guarantees granted by the Obligors, in accordance with Clause 21.5 ( Procedure for transfer ) of the Facility Agreement. 2

 

2.

The proposed Transfer Date is [•] 3 .

 

3.

The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 27.2 ( Addresses ) are set out in Schedule 1 to this Transfer Agreement.

 

 

1         Use this option if the transfer is made by way of a separate agreement (e.g. pursuant to Articles L. 214-169 or L. 313-23 et seq. of the French Code monétaire et financier ).

2         In the case of a transfer of rights and/or obligations by the Existing Lender under this Transfer Agreement, the New Lender should, if it considers it necessary to make the transfer effective as against the Obligors, arrange for such transfer to be notified to the Obligors or acknowledged by the Obligors.

3         Please note that in case of a transfer made, for example, by way of bordereau FCT , bordereau Dailly or contrat de fiducie , it is assumed that the Transfer Date will be the date affixed on such bordereau FCT or bordereau Dailly or agreed in such contrat de fiducie .

 

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4.

The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in Clause 21.4 ( Limitation of responsibility of Existing Lenders ) of the Facility Agreement.

 

5.

The New Lender confirms, for the benefit of the Agent and without liability to any Obligor, that it is:

 

  (a)

a Qualifying Lender other than a Treaty Lender;

 

  (b)

a Treaty Lender;

 

  (c)

not a Qualifying Lender, 4

 

 

and that it is [not] 5 incorporated or acting through a Facility Office situated in a Non-Cooperative Jurisdiction.

 

6.

The New Lender confirms to the other Finance Parties represented by the Agent that it has become entitled to the same rights and that it will assume the same obligations to those Parties as it would have been under if it was an Original Lender.

 

7.

This Transfer Agreement is governed by French law. The Tribunal de Commerce de Paris shall have jurisdiction in relation to any dispute concerning it.

 

8.

This Transfer Agreement has been entered into on the date stated at the beginning of this Transfer Agreement.

 

 

 

 

4         Delete as applicable. Each New Lender is required to confirm which of these three categories it falls within.

5         Delete as applicable. Each New Lender is required to confirm whether it falls within one of these categories or not.

 

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Schedule 1

Commitment/rights [and obligations] to be transferred

[ insert relevant details ]

[ Facility Office address, fax number and attention details for notices and account details for payments ]

 

[Existing Lender]

  

[New Lender]

By:

  

By:

This Transfer Agreement is accepted by the Agent and the Transfer Date is confirmed as [•].

[Agent]

By:

 

88

 

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SCHEDULE 5 . F ORM O F TEG L ETTER

[ On the letterhead of the Agent ]

From: Factofrance as Agent

To: [ Borrower ]

Date: [•]

Dear Sirs,

Constellium – 100,000,000 EUR Facility Agreement dated [ ● ] (the “Agreement” )

We refer to the Agreement. This is the letter setting out the applicable effective global rate ( taux effectif global ) referred to in the Agreement.

Terms defined in the Agreement have the same meaning in this letter unless given a different meaning in this letter.

The effective global rate ( taux effectif global ) calculated on or about the date of this Agreement on the basis of a 365-day year is for an Interest Period of one month and at EURIBOR rate of [•] per cent. per annum, [•] per cent. (which corresponds to a taux de période of [•] per cent. for a durée de période of one month).

The above rates:

 

(a)

are given in order to comply with the provisions of Articles L.314-1 to L.314-5 and R.314-1 et seq. of the French Code de la consommation and Article L.313-4 of the French Code Monétaire et Financier and for information only;

 

(b)

are calculated on the basis that:

 

  (i)

drawdown for the full amount of the Facility has been made in Euro on [•];

 

  (ii)

the EURIBOR rate, expressed as an annual rate, is as fixed on [•];

 

  (iii)

the Margin is [•]% per annum; and

 

(c)

take into account the various fees, costs and expenses payable by you under this Agreement, on the assumption that these fees, costs and expenses will be maintained at their original level throughout the term of this Agreement.

This letter is designated a Finance Document.

Please confirm your acceptance of the terms of this letter by signing and returning to us the enclosed copy.

Yours faithfully,

FACTOFRANCE

as Agent

 

89

 

Paris 12422678.19

We agree to the above

 

[ • ]

as Borrower

 

90

 

Paris 12422678.19

SCHEDULE 6 . F ORM OF C ONFIDENTIALITY U NDERTAKING

 

 

91

 

Paris 12422678.19

NON-DISCLOSURE AGREEMENT

This agreement (the “Agreement”), made on 🌑 2017 (the “Effective Date”) by and between [ 🌑 ] (hereinafter referred to as “Constellium” or “Discloser”), on the one hand,

and

[• ] a company 🌑 organized and existing under the laws of [ 🌑 ], having its registered office at 🌑 , registered in the Trade and Companies Registry of 🌑 under number 🌑

(hereinafter referred to as “Recipient”), on the other hand,

sets forth the terms and conditions of the confidential disclosure of certain information between Constellium and Recipient (hereinafter referred to each as a “Party” and together as the “Parties”).

Preamble

Constellium is a supplier of the Recipient for automotive aluminium products who is considering to expand its activity located at Biesheim (France) ( hereafter the Project)

Therefore Constellium would like to discuss and provide the recipient with Confidential Inf(hereafter the “ Permitted Purpose ”).

The Parties agree as follows :

1. “ Affiliate ” means, with respect to Constellium, any company directly or indirectly controlled by its parent company “Constellium N.V”, (it being understood that, for the purposes hereof, the term “ control ” means). a corporation that is related to either party by 50% or more equity ownership, whether as parent, subsidiary, common percentage or some other direct or indirect ownership.)

2. “ Confidential Information ” means the information described at the end of this Agreement, which is disclosed to the Recipient by Constellium in any manner, whether orally, visually or in tangible form (including, without limitation, documents, specifications, analyses devices and computer readable media) and all copies thereof.

3. Except as expressly permitted herein, for a period of ten (10) years from the Effective Date (the “Non-Disclosure Period”), Recipient shall maintain in strict confidence and not disclose or use any Confidential Information.

4. Recipient shall have the right to use Confidential Information disclosed by Discloser solely for the Permitted Purpose.

5. Recipient shall disclose Confidential Information solely to the employees of the Recipient who have a need to know such information for the Permitted Purpose. Recipient shall take all such action as shall be necessary or desirable in order to ensure that each of such person(s) maintain the confidentiality of any Confidential Information that is so disclosed.

6. Confidential Information shall not include any information that Recipient can demonstrate:

 

1

(a) was in Recipient’s possession without confidentiality restriction prior to disclosure by Constellium hereunder;

(b) was generally known in the trade or business in which it is practiced by Constellium at the time of disclosure to Recipient hereunder, or becomes so generally known after such disclosure, through no act or omission of Recipient;

(c) has come into the possession of Recipient without confidentiality restriction from a third party and such third party as well as any other third party from whom such information was originally obtained, is or was under no obligation to Constellium or any of its Affiliates to maintain the confidentiality of such information; or

(d) was developed by Recipient independently of and without reference to any Confidential Information.

If a particular portion or aspect of the Confidential Information becomes subject to any of the foregoing exceptions, all other portions or aspects of such information shall remain subject to all of the provisions of this Agreement.

7. Recipient agrees not to reproduce or copy by any means Confidential Information. Upon termination of this Agreement, Recipient’s right to use Confidential Information, as granted in paragraph 4 above, shall immediately terminate. Upon such expiration or earlier termination, or upon demand by Discloser at any time, Recipient shall return promptly to Constellium or destroy, at Constellium’s option, all materials and electronic data/documents that disclose or embody Confidential Information.

8. Recipient shall not remove any proprietary rights legend from, and shall, upon Constellium’ reasonable request, add any proprietary rights legend to, materials disclosing or embodying Confidential Information.

9. Recipient undertakes to indemnify and hold harmless Constellium from and against any losses incurred by Constellium and/or any of Constellium’s Affiliates in connection with or arising from any breach by Recipient of, or failure by Recipient to comply with, any of its undertakings or obligations under this Agreement. Without prejudice to any other rights or remedies which Constellium may have, Recipient acknowledges and agrees that damages may not be an adequate remedy for any breach by Recipient of the provisions of this Agreement and, without prejudice to its right to claim for damages, Constellium shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach.

10. In the event that Recipient is ordered to disclose Constellium’ Confidential Information pursuant to a judicial or governmental request, requirement or order, Recipient shall promptly notify Constellium and take reasonable steps to assist Constellium in contesting such request, requirement or order or otherwise in protecting Constellium’ rights prior to disclosure.

11. Recipient acknowledges that Confidential Information may still be under development, or may be incomplete, and that such information may relate to projects that are under development or are planned for development. CONSTELLIUM MAKES NO WARRANTIES REGARDING THE ACCURACY OF THE CONFIDENTIAL INFORMATION. Constellium accepts no responsibility for any expenses, losses or action incurred or undertaken by Recipient as a result of Recipient’s receipt or use of Confidential Information.

 

2

12. The Recipient acknowledges that the Discloser is a company listed on the New York Stock Exchange (NYSE) and Euronext (ticker:CSTM), and that, as a consequence, the Recipient is aware of and will advise those of its employees who are authorized to get access to the Confidential Information in accordance with paragraph 5 that the applicable laws and regulations prohibit any person who has material, non-public information about a listed company from purchasing or selling securities of such a company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.

13. Neither Party has any obligation under or by virtue of this Agreement to purchase from or furnish to the other party any products or services, or to enter into any other agreement, including but not limited to, a development, purchasing or technology licensing agreement.

14. Other than as expressly specified herein, Constellium grants no license to Recipient under any copyrights, patents, trademarks, trade secrets or other proprietary rights to use or reproduce Confidential Information.

15. This Agreement expresses the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, commitments and understandings pertaining to the subject matter hereof. Any modifications of or changes to this Agreement shall be in writing and signed by both Parties.

16. Unless earlier terminated in accordance with the provisions hereof, this Agreement shall remain in full force and effect for the duration of the Non-Disclosure Period, whereupon it shall expire. Either party may terminate this Agreement at any time, without cause, effective immediately upon written notice of termination. In the event this Agreement is terminated, its provisions shall survive, for the Non-Disclosure Period, with respect to Confidential Information disclosed prior to the effective date of termination. Any causes of action accrued on or before such expiration or termination shall survive until the expiration of the applicable statute of limitations.

17. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

18. The Recipient shall not, without Constellium prior written consent, transfer or assign this Agreement either in whole or in part.

19. This Agreement shall be binding upon and shall inure to the benefit of each of the Parties and their respective successors and permitted assigns.

20. This Agreement will be construed and interpreted in accordance with Dutch law regardless of the laws that might be applicable under principle of conflict of law rules; it being understood that the terms of the Agreement shall prevail on the above applicable law.

    Any and all disputes with respect to the interpretation or other disputes between the Parties arising under or in connection with the Agreement, which disputes cannot be resolved by discussion between the Parties, shall be finally settled by the Commercial Court of Amsterdam without prejudice to the right of Constellium to bring any action or seek for any available remedy or relief before a competent court having jurisdiction over the registered office of Recipient.

 

3

Confidential Information

Constellium identifies the following as its Confidential Information disclosed and/or to be disclosed hereunder solely for the Permitted Purpose: all financial information related to and any data related to Energy supply (price, volumes, type of contracts…) provided by Constellium and/or any of its Affiliates to Recipient, or otherwise obtained by the Recipient, relating to Constellium and/or any of its Affiliates including but not limited to any information related business, operations, strategy, know-how, trade secrets, intellectual property rights, operational, commercial, financial and legal aspects, products as well as the existence and/or the content of the Permitted Purpose and, more generally, any and all information made available to Recipient, in any way whatsoever, in relation to the Permitted Purpose. The Confidential Information is highly sensitive for the reasons set forth in paragraph 12 and any disclosure of such Confidential Information by Recipient in breach of its undertakings hereunder is likely to cause a serious harm to Constellium and/or its Affiliates. For the avoidance of doubt, all information disclosed by Constellium and/or any of its Affiliates to the Recipient for the Permitted Purpose prior to the execution of this Agreement shall be considered as the Confidential Information for the purposes hereof.

IN WITNESS HEREOF, the Parties have caused the Agreement to be executed in duplicate by their respective duly authorized officers, and each of the Parties shall retain one original.

 

  [ 🌑 ]         [ 🌑 ]

By:

 

 

     

By:

 

 

Title:

 

 

     

Title:

 

 

 

 

4

SCHEDULE 7 . F ORM OF G UARANTEE D EMAND

From: Factofrance as Agent

To: Constellium Holdco II B.V. as guarantor

[ Insert address and contact details set out in clause 27.2 of the Agreement or any contact details notified by Constellium Holdco II B.V. in accordance with clause 27.2 of the Agreement ]

Date: [•]

URGENT / ATTENTION REQUIRED

Dear Sirs,

Constellium – 100,000,000 EUR Facility Agreement dated [•] April 2017 (the “Agreement”)

We refer to the Agreement. This a Demand under the Agreement.

Terms defined in the Agreement have the same meaning in this letter unless given a different meaning in this letter.

On [•] 6 , we sent a notification ( mise en demeure ) to [ Borrower ] requesting payment by it of an amount of [•] which was due and payable by it on [•] in accordance with clause [20.1.1] of the Agreement and which remains unpaid as of today.

In accordance with clause 17 (Guarantee) of the Agreement, we therefore hereby request you as guarantor, within seven (7) Business Days of receipt by you of this demand, to pay to us as Agent acting on behalf of the Finance Parties an amount of [•] to the following bank account: [•] 7 .

Yours faithfully,

FACTOFRANCE

as Agent

 

 

 

6 This date must be at least 3 Business Days before the date of the demand

7 The relevant bank account must be in France or in The Netherlands

 

92

 

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SCHEDULE 8 . D UTCH L EGAL R ESERVATIONS

Pursuant to Rome I, the relevant court in The Netherlands (i) may give effect to mandatory provisions (i.e. provisions the respect for which is regarded as crucial for a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the Finance Documents (article 9 section 1 Rome I)) of the law of the country where the obligations arising out of the Finance Documents have to be or have been performed, insofar as those overriding mandatory provisions render the performance of the contract unlawful (article 9 section 3 Rome I), (ii) may apply the overriding mandatory provisions of the laws of The Netherlands; (iii) may refuse to apply the choice of law in the Finance Documents if such application is manifestly incompatible with the public policy of The Netherlands (article 21 Rome I) and (iv) shall have regard to the law of the country in which performance takes place in relation to the manner of performance and the steps to be taken in the event of defective performance (article 12 section 2 Rome I). The foregoing paragraph also applies with respect to the choice of Netherlands law for a power of attorney in the Finance Documents expressed to be governed by any law other than the law of The Netherlands.

The enforcement of the Finance Documents and of any foreign judgments in The Netherlands will be subject to the rules of civil procedure as applied by the courts in The Netherlands.

Notwithstanding a contractual provision to the contrary, a competent court in The Netherlands may assume jurisdiction (i) pursuant to article 1074 section 2 or article 254 Dutch Code of Civil Procedure ( Wetboek van Burgerlijke Rechtsvordering ) in urgent matters, when, in view of the interests of the parties, provisional measures are required, (ii) in the context of a pre-judgment attachment ( conservatoir beslag ) against the Parent Company or any of its assets, and (iii) if the defendant enters appearance and does not contest the jurisdiction prior to defences relating to the merits and, if Section 1 ( eerste afdeling ) Title 1 Book 1 Dutch Code of Civil Procedure applies, there is a reasonable ground for jurisdiction of such Dutch court.

A Dutch court may decline jurisdiction if concurrent proceedings are being brought elsewhere.

 

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SCHEDULE 9 . I NDEPENDENT A PPRAISER ENGAGEMENT LETTER

 

 

94

 

Paris 12422678.19

LOGO

 

West One

Wellington Street

Leeds LS1 1BA

  

Dir: 08453 130 180

Fax: 08453 130 189

www.hilcovaluationservices.com

Via Electronic Mail: Christine.vadon@ge.com

23 January 2017

Ms Christine Vadon

Factofrance

18 Rue Hoche

92800 Puteaux

France

RE:     Inventory Valuation for Asset Based Lending Purposes

RE:    Constellium (French Sites)

Dear Christine:

Hilco Valuation Services Europe (“HVS Europe”) is pleased to submit its proposal to Factofrance (“Factofrance” or the “Lender”) concerning the Inventory Appraisal Factofrance has asked Hilco to undertake with respect to Constellium (French Sites) (“Constellium” or the “Company”) for the purpose of ABL lending.

The proposal is organised in the following four sections:

¨     Form of Opinion and Objective

¨     Approach and Scope

¨     Timing

¨     Fees and Costs

Form of Opinion and Objective

Hilco will appraise the inventory of Constellium, to include the inventory located at Neuf-Brisach and Issoire. Hilco will provide to Factofrance a projection of gross and net orderly liquidation values (“GOLV”) and (“NOLV”) based upon an Orderly Liquidation Sale (“Sale”) of the company’s inventory.

Orderly Liquidation Value is herein defined as: An estimated amount expressed in terms of currency in Pounds Sterling (£GBP) which the subject equipment inspected could typically realise at a privately negotiated sale, properly advertised and professionally managed, by a seller obligated to sell over an extended period of time, usually within six to twelve months, as of the effective date of this appraisal report. Further, the ability of the asset group to draw sufficient prospective buyers to insure competitive offers is considered. All assets are to be sold on a piecemeal basis “as is” with purchasers responsible for removal of the assets at their own risk and expense. Any change in location, condition, deletions or additions to the total assets appraised could change the psychological and/or monetary appeal necessary to gain the values indicated.

Net Orderly Liquidation Value is herein defined as: Orderly Liquidation Value as defined above net of the costs of liquidation. These costs may include the direct liquidation costs including sales commissions, marketing, advertising, sale site preparation, removal supervision, accounting, travel, labor expenses, etc. and the cost of occupancy including real estate taxes or rent, mortgage costs, utilities, insurance, security services, building maintenance personnel, etc.

 

 

LOGO

2

 

Approach and Scope

Hilco plans to address the objectives through analysis of inventory reports; walkthrough of existing inventory, management reports and systems; and an on-site visit to Neuf-Brisach and Issoire and an inspection of distribution facilities.

As appropriate and during visits and analysis of the financial and operating data, Hilco will conduct management discussions with key Company executives.

The inventory valuation will be based upon certain criteria, including but not limited to:

 

•   Analysis and review of Company’s inventory performance reports with emphasis on analysing and understanding performance trends and inventory shifts (if any);
•   Study and evaluation of competitive pressures that may affect recovery valuation;
•   Review of gross margin erosion (if any) by sub-category and sales to inventory mix;
•   Evaluation of company operating expense potentially variable to net recovery assumptions;
•   Evaluation of the integrity of the Company’s inventory reporting systems by performing a walk-through of inventory systems; and
•   Management interviews and discussion concerning above items.

The inventory appraisal will incorporate both conversion and non-conversion scenarios.

All financial information in the appraisal report will be presented in Euros (€), in conformity with the Company’s financial reporting.

Timing

The following table illustrates Hilco’s proposed schedule:

 

Acceptance of Proposal

Information Request to Company

Information Due from Company by

Project Commence Date

Final Written Report Delivered*

  

ASAP

Already sent

ASAP

25 January 2017

ASAP

* The above dates are contingent upon the timely execution of this engagement letter and the timely receipt of all the information detailed in Hilco’s Information Request List .

Fees and Costs

Hilco’s fee for the Inventory Evaluation and Appraisal described above will be an initial fee of € 40,000 plus expenses and VAT, with an additional € 50,000 plus VAT payable on successful completion of the deal, i.e. on Factofrance obtaining the mandate to provide an inventory facility to Constellium. A follow up desktop appraisal on same basis to be completed during 2017 at a cost of € 25,000 plus VAT. Payment in full for the completed appraisal is due upon receipt of invoice. Our Bank details for direct payment are listed here for your convenience:

 

Bank:

Sort code:

Account Name:

Account Number:

  

Bank of Scotland

12-09-19

Hilco Appraisal Ltd.

06004656

 

LOGO

4

 

Generally

The appraisal will conform to the guidelines established by the Uniform Standards of Professional Appraisal Practice . The appraisal will be subject to Hilco’s standard limitations and statement of conditions. The contents of the appraisal are to be considered confidential and for the use of Factofrance. The contents of the appraisal will not be transmitted to any third party without the express written consent of Factofrance.

The appraisal report shall be deemed owned by Factofrance, who may at its option, provide such appraisal to other persons interested in providing financing for any or all of the assets (“other lenders”). The other lenders shall be entitled to rely on the appraisal reports to the same extent as Factofrance.

The appraisal is intended only for use in asset based financing, in conjunction with business planning purposes. The appraisal is invalid if used for any other purpose. We will provide independent valuation services only. Our work product is not intended to provide legal, accounting, or taxation advice. Our analyses and conclusions do not represent an opinion as to the solvency of the underlying company, the fairness of the potential transaction, or the merits of the potential transaction.

Hilco’s maximum liability to Factofrance, in the aggregate, arising for any reason out of or relating to this engagement, whether a claim in tort, contract, or otherwise, shall be limited to the fee invoiced by Hilco in relation to this project, except to the extent such liability is finally determined to have been caused by gross negligence or intentional misconduct of Hilco or its personnel. Neither Hilco nor its members, affiliates, officers, directors, employees and agents shall be liable to Factofrance for any incidental, consequential, indirect, special, or punitive damages relating to this engagement.

E ACH OF H ILCO AND F ACTOFRANCE HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT AND ANY AMENDMENT , INSTRUMENT , DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING , AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY .

The final report with two (2) bound copies and a PDF electronic version will be completed and delivered to Factofrance. If the terms and conditions of this proposal are acceptable, kindly indicate your acceptance at the bottom of this page and return it via electronic email to John Boxall: j boxall@hilcoglobal.eu .

 

LOGO

5

 

I look forward to working with you towards the successful completion of this project. Please do not hesitate to contact me should you have any question or requirements.

Sincerely,

 

LOGO

 

John Boxall

Director

 

  

Accepted and Agreed:

Factofrance

  

By:

 

/s/ Christine Vadon                    

  

Date: 24 January 201 7                             

 

Christine Vadon

  

 

 

LOGO

SCHEDULE 10 .     F ORM OF S ECURITY D OCUMENTS

 

 

95

 

Paris 12422678.19

Le [•] 2017

CONSTELLIUM [ISSOIRE / NEUF BRISACH]

le Constituant

FACTOFRANCE

l’Agent

et

les BENEFICIAIRES INITIAUX

 

 

 

CONTRAT DE GAGE SANS DEPOSSESSION

 

 

LOGO

Dentons Europe, AARPI

Avocats à la cour

5 boulevard Malesherbes, 75008 Paris, France

 

Paris 12496135.9

SOMMAIRE

 

Article    Page  

1.

  Définitions et Interprétations      1  

2.

  Gage      4  

3.

  Formalités      4  

4.

  Valeur Minimum du Gage      4  

5.

  Autorisation d’utilisation et de disposition      5  

6.

  Evaluation des Stocks Gagés      5  

7.

  Déclarations et garanties      6  

8.

  Engagements      6  

9.

  Réalisation      7  

10.

  Divers      7  

11.

  Successeurs et ayants-droit      8  

12.

  Engagement de mainlevée      8  

13.

  Notifications      8  

14.

  Loi applicable et juridiction      8  

ANNEXE 1 Modèle d’Etat des Stocks Gagés

     10  

ANNEXE 2 Liste des Prêteurs Initiaux

     12  

ANNEXE 3 Liste des Stocks Gagés

     13  

 

Paris 12496135.9

CONTRAT DE GAGE DE BIENS MEUBLES SANS DEPOSSESSION

ENTRE :

 

1.

CONSTELLIUM [ISSOIRE / NEUF BRISACH] , une société par actions simplifiée de droit français, dont le siège social est situé [rue Yves Lamourdedieu ZI les Listes, 63500 Issoire, France/ ZIP Rhénane Nord, RD 52, 68600 Biesheim, France ], immatriculée au Registre du commerce et des sociétés de [Clermont-Ferrand/ Colmar] sous le numéro [672 014 081/807 641 360] en qualité de constituant (le “ Constituant ”),

DE PREMIERE PART,

 

2.

FACTOFRANCE , une société par actions simplifiée de droit français, dont le siège social est situé 18 rue Hoche, Tour Facto, 92988 Paris La Défense Cedex, France, immatriculée au Registre du Commerce et des Sociétés de Nanterre sous le numéro 063 802 466 en qualité d’agent agissant au nom et pour le compte des Bénéficiaires (l’” Agent ”),

DE SECONDE PART,

ET :

 

3.

Les BENEFICIAIRES INITIAUX (tels que ce terme est défini ci-après), représentés par l’Agent,

DE TROISIEME PART.

ÉTANT PRÉALABLEMENT EXPOSÉ QUE :

 

(A)

Les Prêteurs Initiaux (tel que ce terme est défini ci-après) ont convenu d’accorder au Constituant une facilité de crédit revolving en euro au titre d’un contrat de crédit de langue anglaise soumis au droit français intitulé Facility Agreement et conclu le [•] 2017 entre notamment (i) les Prêteurs Initiaux (tel que ce terme est défini ci-après) en qualité de prêteurs ( Lenders), (ii) l’Agent en qualité d’agent (Agent) et (iii) le Constituant en qualité d’emprunteur ( Borrower) (le “ Contrat de Crédit” ) aux fins de financer les besoins généraux et/ou le fonds de roulement du Constituant.

 

(B)

En garantie de l’exécution des Obligations Garanties (tel que ce terme est défini ci-après), le Constituant s’est engagé à consentir en faveur des Bénéficiaires un gage de biens meubles corporels portant sur les Stocks (tel que ce terme est défini ci-après).

 

(C)

L’Agent intervient au présent Contrat en qualité de mandataire des Bénéficiaires, conformément à l’article [22.17] (Security) du Contrat de Crédit.

IL A ÉTÉ CONVENU CE QUI SUIT :

 

1.

Définitions et Interprétations

 

1.1

Définitions

Sauf s’il en est disposé autrement, les termes et expressions ci-dessous auront dans le Contrat (tel que ce terme est défini ci-dessous) la signification suivante:

 

 

Paris 12496135.9

Page 2 sur 14

 

“Arrangeur” a le sens qui est attribué en langue anglaise au terme Arranger dans le Contrat de Crédit.

“ Bénéficiaires ” désigne les Bénéficiaires Initiaux et tous leurs successeurs, ayant-droits ou cessionnaires.

“ Bénéficiaires Initiaux ” désigne l’Agent, l’Arrangeur et les Prêteurs Initiaux.

“ Cas de Défaut ” a le sens qui est attribué en langue anglaise au terme Event of Default dans le Contrat de Crédit.

“ Cas de Réalisation ” désigne l’un des évènements suivants (i) la survenance d’un Cas de Défaut qui, conformément à l’article [20.2] du Contrat de Crédit entraîne la déclaration par l’Agent de l’exigibilité anticipée de toutes les sommes dues par le Constituant au titre du Contrat du Crédit et/ou de l’annulation de l’Engagement Global ou (ii) la survenance, à la Date de Maturité Finale, d’un défaut de paiement au titre d’une Obligation Garantie qui perdure.

“Contrat” désigne le présent contrat de gage de biens meubles sans dépossession et ses Annexes, tel qu’il pourra être complété ou modifié à tout moment.

“ Date de Maturité Finale ” a le sens qui est attribué en langue anglaise au terme Termination Date dans le Contrat de Crédit.

“Documents de Financement” a le sens qui est attribué en langue anglaise au terme Finance Documents dans le Contrat de Crédit.

“Emprunteurs” a le sens qui est attribué en langue anglaise au terme Borrowers dans le Contrat de Crédit.

“Engagement de Confidentialité” a le sens qui est attribué en langue anglaise au terme Confidentiality Undertaking dans le Contrat de Crédit.

“Engagement Global” a le sens qui est attribué en langue anglaise au terme Total Commitments dans le Contrat de Crédit.

“Etat des Stocks Gagés” désigne un état des stocks gagés adressé à l’Agent dans la forme prévue à l’Annexe 1 ( Mod è le d’Etat des Stocks Gagés ), émis aux dates prévues à l’Article Error! Reference source not found. par le Tiers Contrôleur, contresigné par le Constituant, contenant la description, la quantité, le montant et la valeur déclarée des Stocks Gagés qui sont des Stocks Eligibles.

“Gage” désigne le gage créé sur les Stocks Gagés en faveur des Bénéficiaires conformément aux articles 2333 et suivants du Code civil et aux articles L 521-1 et suivants du Code de commerce, tel que prévu à l’Article 2 ( Gage ).

“Gage avec Dépossession” désigne le gage avec dépossession créé sur certains stocks du Constituant (autres que les Stocks Gagés) au bénéfice des Bénéficiaires conformément à un contrat de gage avec dépossession en langue anglaise (inventory pledge agreement with dispossession) conclu en date de ce jour entre les Parties.

“Groupe” a le sens qui est attribué en langue anglaise au terme Group dans le Contrat de Crédit.

 

Paris 12496135.9

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“Jour Ouvré” a le sens qui est attribué en langue anglaise au terme Business Day dans le Contrat de Crédit.

“Magasins” désigne les magasins du Constituant situés [ Issoire : rue Lamourdedieu, 63500 Issoire, France / Neuf Brisach : ZIP Rhénane Nord – RD 52, 68600 Biesheim, France] .

“Majorité Qualifiée des Prêteurs” a le sens qui est attribué en langue anglaise au terme Super Majority Lenders dans le Contrat de Crédit.

“Obligations Garanties” désigne toute obligation de paiement, qu’elle soit présente ou future, certaine ou éventuelle, en principal, intérêts ou accessoires, due par le Constituant en qualité d’emprunteur au titre du Contrat de Crédit envers les Bénéficiaires au titre du, ou en relation avec, les Documents de Financement, y compris tout avenant aux Documents de Financement, quelle que soit son importance, notamment tout avenant stipulant une augmentation du montant d’une facilité ou une facilité supplémentaire.

“Parties” désigne les parties au Contrat.

“Période de Garantie” désigne la période débutant à la date du présent Contrat et finissant à la date à laquelle l’Agent confirme par un écrit au Constituant que toutes les Obligations Garanties ont été intégralement et irrévocablement payées et éteintes et les Bénéficiaires n’ont plus d’engagements ( commitment ) envers les Emprunteurs au titre du Contrat de Crédit.

“Prêteurs Initiaux” désigne les prêteurs au titre du Contrat de Crédit à la date des présentes, dont la liste figure en Annexe 2 ( Liste des Prêteurs Initiaux ).

“Stocks” désigne, à tout moment, [ Issoire : l’ensemble des stocks de matières premières, d’encours de production et de produits finis, composés d’aluminium de différents alliages et d’autres métaux additifs sous toutes leurs formes, appartenant au Constituant, qui ne font pas l’objet d’un gage au titre du Gage avec Dépossession (les stocks du Constituant faisant l’objet d’un gage au titre du Gage avec Dépossession étant les stocks du Constituant entreposés dans le magasin automatique MM101 situé chez Constellium Issoire, rue Lamourdedieu, 63500 Issoire, les entrepôts de Multilog situés à Issoire et Clermont-Ferrand et les entrepôts de Alt situés au Havre) / Neuf Brisach : l’ensemble des stocks d’aluminium de différents alliages sous forme de bobines, feuilles et plaques et de vernis et d’additifs, appartenant au Constituant, qui ne font pas l’objet d’un gage au titre du Gage avec Dépossession (les stocks du Constituant faisant l’objet d’un gage au titre du Gage avec Dépossession étant les stocks du Constituant entreposés dans les magasins M1, M2, M3, BLC, L 12 et L 15 situés chez Constellium Neuf-Brisach, ZIP Rhénane Nord – RD 52, 68600 Biesheim, France)].

“Stocks Eligibles” a le sens qui est attribué en langue anglaise au terme Eligible Inventory dans le Contrat de Crédit.

“Stocks Gagés” désigne la partie des Stocks gagée par le Constituant aux termes du présent Contrat dont une liste et une description à la date du [•] 2017 figurent à l’Annexe 3 ( Liste des Stocks Gagés ), et tous les Stocks similaires quelle que soit leur quantité, qualité ou valeur.

“ Tiers Contrôleur ” a le sens qui est attribué en langue anglaise au terme Escrow Agent dans le Contrat de Crédit.

 

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“ Tiers Evaluateur ” a le sens qui est attribué en langue anglaise au terme Independent Appraiser dans le Contrat de Crédit.

“Valeur du Stock” désigne, à tout moment, la valeur des Stocks Gagés qui constituent des Stocks Eligibles.

“Valeur Minimum” désigne [ Issoire : [43.600.000] euros / Neuf Brisach : [14.800.000] euros].

 

1.2

Interprétation

 

  1.2.1

A moins qu’une autre définition n’en soit donnée dans les présentes, les termes en majuscules définis dans le Contrat de Crédit auront la même signification lorsqu’ils seront utilisés dans le présent Contrat.

 

  1.2.2

Le présent Contrat sera interprété conformément aux principes d’interprétation prévus à l’article 1.2 du Contrat de Crédit.

 

  1.2.3

Les titres du présent Contrat figurent pour information seulement et ne doivent pas être pris en considération pour l’interprétation du présent Contrat.

 

2 .

Gage

 

2.1

En garantie du paiement et du remboursement intégral des Obligations Garanties, le Constituant affecte par les présentes en gage les Stocks Gagés au profit des Bénéficiaires conformément aux articles 2333 et suivants du Code civil et aux articles L. 521-1 et suivants du Code de commerce. Le Gage est constitué sans dépossession.

 

2.2

Les Parties conviennent que tout Stock acquis ou constitué par le Constituant à compter de la signature des présentes sera de plein droit et avec effet immédiat inclus dans l’assiette du Gage.

 

3.

Formalités

 

3.1

L’Agent, aux frais du Constituant, inscrira le Gage sur le registre spécial visé à l’article 2338 du Code civil auprés du greffe du Tribunal de commerce de [Clermont-Ferrand / Colmar].

 

3.2

Le Gage est consenti pour une durée de 5 (cinq) ans à compter de son inscription auprès du greffe. Il pourra être renouvelé par l’Agent, aux frais du Constituant, pendant la Période de Garantie.

 

3.3

Tous pouvoirs sont conférés à tout porteur d’un exemplaire original du Contrat afin d’effectuer les formalités d’inscription décrites aux Articles 3.1 et 3.2 ci-dessus.

 

3.4

L’inscription visée ci-dessus sera prise pour sûreté de toutes les obligations dues à tout moment par le Constituant aux Bénéficiaires au titre des Obligations Garanties, à savoir, à la date des présentes, un montant de (i) 100.000.000 Euros en principal et (ii) tous intérêts et tous intérêts de retard au titre du Contrat de Crédit, dus par le Constituant aux Bénéficiaires, ainsi que tous frais et accessoires, tel que ce montant pourra éventuellement être augmenté à la suite de tout avenant au Contrat de Crédit.

 

4.

Valeur Minimum du Gage

 

4.1

Sous réserve des stipulations de l’Article 4.2, la Valeur du Stock doit être au moins égale à la Valeur Minimum à tout moment pendant que le Constituant bénéfice d’un Prêt ( Loan ) en cours au titre du Contrat de Crédit.

 

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4.2

Si, à tout moment pendant cette période, la Valeur du Stock devient inférieure à la Valeur Minimum, alors le Constituant s’engage à compléter les Stocks Gagés dans un délai de 5 Jours Ouvrés afin que la Valeur du Stock soit au moins égale à la Valeur Minimum à l’issue de cette période de 5 Jours Ouvrés. Pour éviter toute ambigüité, aucun Défaut ( Default ) au titre du Contrat de Crédit ne pourra intervenir au motif du non-respect de la condition de Valeur Minimum avant l’issue de la période de 5 Jours Ouvrés susmentionnée.

 

4.3

Les Parties conviennent que, tous les six mois, l’Agent et le Constituant discuteront de bonne foi, s’ils l’estiment nécessaire, afin de revoir la Valeur Minimum. Si l’Agent et le Constituant ne parviennent pas à se mettre d’accord dans un délai de trente jours sur une nouvelle Valeur Minimum, la nouvelle Valeur Minimum sera égale au produit de la valeur moyenne pondérée au cours des six derniers mois des Stocks Gagés telle qu’indiquée dans les comptes du Constituant par 70%. Cette nouvelle Valeur Minimum sera applicable à compter de la date à laquelle le Tiers Contrôleur reçoit une notification de l’Agent l’informant de cette nouvelle Valeur Minimum.

 

5.

Autorisation d’utilisation et de disposition

 

5.1

Sous réserve des stipulations de l’Article 4 ( VALEUR MINIMUM DU GAGE ) et de l’Article 5.2 ci-dessous, les Bénéficiaires autorisent par les présentes le Constituant à utiliser les Stocks Gagés et à en disposer dans le cours ordinaire de ses activités dans la mesure autorisée par les termes du Contrat et des autres Documents de Financement, le Gage passant de plein droit des Stocks Gagés aliénés à ceux qui leur sont substitués.

 

5.2

L’autorisation de disposer des Stocks Gagés visés à l’Article 5.1 ci-dessus prendra fin automatiquement à compter de la notification d’un Cas de Défaut au Constituant par l’Agent, auquel cas l’Agent pourra demander au Constituant de faire conserver et contrôler les Stocks Gagés par le Tiers Contrôleur ou par toute autre société de stockage approuvée par l’Agent, aux frais du Constituant.

 

5.3

Le Constituant s’engage à entreposer tous les Stocks Gagés dans les Magasins.

 

5.4

Le Gage étant un gage sans dépossession, les Bénéficiaires pourront se prévaloir des dispositions de l’article 2344, alinéa 2 du Code civil.

 

6.

Evaluation des Stocks Gagés

 

6.1

Le Tiers Contrôleur pourra réaliser à tout moment, et au moins une fois par mois, des audits des Stocks Gagés aux fins d’en évaluer la valeur.

 

6.2

Le Constituant s’engage à donner accès au Tiers Contrôleur aux Magasins aux fins de réaliser les audits visés à l’Article 6.1 et à fournir au Tiers Contrôleur tout document et information et toute assistance dont il pourrait avoir besoin que ce dernier pourra raisonnablement demander aux fins d’exercer sa mission d’évaluation.

 

6.3

Le Tiers Contrôleur préparera mensuellement un Etat des Stocks Gagés (ou, selon le cas et conformément à l’article 5.5.2 (b) du Contrat de Crédit, tous les 8 Jours Ouvrés), et le soumettra pour approbation au Constituant. Si le Constituant (agissant raisonnablement) n’est pas satisfait que l’Etat des Stocks Gagés a été convenablement préparé, il en informera immédiatement (et dans tous les cas un Jour Ouvré après réception de l’Etat des Stocks Gagés par le Constituant) le Tiers Contrôleur et le Tiers Contrôleur, l’Agent et le Constituant chercheront un accord sur les modifications à apporter à l’Etat des Stocks

 

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Gagés. Si le Constituant et le Tiers Contrôleur ne parviennent pas à un accord sur les modifications à effectuer dans un délai d’un Jour Ouvré, alors les termes finaux de l’Etat des Stocks Gagés seront déterminés par le Tiers Contrôleur et le Constituant contresignera immédiatement l’Etat des Stocks Gagés afin que le Tiers Contrôleur soit en mesure de fournir à l’Agent, le dernier Jour Ouvré de chaque mois calendaire (ou, selon le cas et conformément à l’article 5.5.2 (b) du Contrat de Crédit, tous les 8 Jours Ouvrés) un Etat des Stocks Gagés contresigné par le Constituant.

 

6.4

L’assistance fournie par le Constituant dans le cadre de tout audit ou inspection ne devra interférer de manière déraisonnable avec le fonctionnement habituel de ses activités.

 

6.5

Le Tiers Contrôleur, les employés et agent nommés dans le cadre de tout audit ou inspection au titre de cet Article 6 devront être tenus par un Engagement de Confidentialité conclu avec le Constituant.

 

7.

Déclarations et garanties

 

7.1

Par les présentes, le Constituant déclare aux Bénéficiaires que :

 

  7.1.1

il a tout pouvoir et pleine capacité et a obtenu toute autorisation nécessaire pour signer tout Etat des Stocks Gagés ;

 

  7.1.2

il est le seul propriétaire des Stocks Gagés ; et

 

  7.1.3

à la date de remise de tout Etat des Stocks Gagés, les informations relatives aux Stocks Gagés contenues dans cet Etat des Stocks Gagés et fournies par le Constituant sont exactes.

 

7.2

A moins qu’il ne soit expressément prévu qu’une déclaration soit faite à une date précise, chaque déclaration et garantie prévue à cet Article est faite par le Constituant en faveur des Bénéficiaires à la date de signature du présent Contrat et sera réputée être réitérée conformément aux stipulations de l’article [18.2] du Contrat de Crédit.

 

8.

Engagements

Le Constituant s’engage par les présentes au profit des Bénéficiaires, pendant toute la Période de Garantie, à :

 

8.1

veiller, à ses frais, à la conservation des Stocks Gagés et à s’assurer qu’à tout moment les Stocks Gagés soient assurés, maintenus, gérés et opérés avec soin dans le cours normal de ses activités et que toute réparation, tout remplacement nécessaire ou toute démarche qui s’avérerait raisonnablement nécessaire soient effectués afin d’en prévenir la dépréciation ;

 

8.2

ne pas vendre, transférer ou autrement disposer des Stocks Gagés ou de l’un quelconque de ses droits en rapport avec tout élément des Stocks Gagés à toute personne autre que les Bénéficiaires ou autrement que conformément à l’Article 5 ( Autorisation d’utilisation et de disposition ) ;

 

8.3

signer tout document et prendre toute mesure que l’Agent exige raisonnablement en vue de constituer et de rendre opposable le Gage et, sans préjudice de l’Article 5 ( Autorisation d’utilisation et de disposition ), s’abstenir d’accomplir tout acte susceptible, de l’avis raisonnable des Bénéficiaires, de porter préjudice à la capacité des Bénéficiaires de mettre en œuvre leurs droits et recours au titre du présent Contrat ;

 

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8.4

fournir, à première demande écrite et raisonnable de l’Agent, toute information concernant les Stocks Gagés que l’Agent peut exiger à tout moment pendant la Période de Garantie nécessaire à la protection ou à la mise en œuvre des droits des Bénéficiaires ;

 

8.5

informer immédiatement l’Agent de toute saisie sur les Stocks Gagés ou autre mesure conservatoire sur les Stocks Gagés ; et

 

8.6

informer immédiatement l’Agent de toute dégradation, perte ou vol des Stocks Gagés ou de tout incendie, inondation ou tout autre événement touchant les Magasins pouvant affecter les conditions d’entreposage des Stocks Gagés.

 

9.

Réalisation

 

9.1

A la survenance d’un Cas de Réalisation et sans préjudicier tout autre recours, les Bénéficiaires seront fondés à (i) exercer tous droits et actions qu’ils détiennent en vertu du présent Contrat et dont dispose tout créancier gagiste au titre des dispositions du droit français en vue du remboursement des Obligations Garanties, et (ii) poursuivre la réalisation du Gage.

 

9.2

Pour éviter tout doute, les Bénéficiaires reconnaissent et conviennent que le Gage pourra uniquement être réalisé par l’Agent (agissant sur instruction de la Majorité Qualifiée des Prêteurs) conformément aux articles 9.3 et 9.4 ci-dessous.

 

9.3

L’Agent (agissant au nom et pour le compte des Bénéficiaires) pourra exercer les droits, actions et privilèges qui lui sont conférés par la loi y compris et à son choix :

 

  9.3.1

vendre les Stocks Gagés (en tout ou partie) par voie de vente publique conformément à l’article L. 521-3 du Code de commerce ;

 

  9.3.2

faire ordonner en justice que les Stocks Gagés demeureront en paiement aux Bénéficiaires en application de l’article 2347 du Code civil ; ou

 

  9.3.3

devenir propriétaire des Stocks Gagés conformément à l’article 2348 du Code civil auquel cas la valeur des Stocks Gagés sera déterminée conformément à l’Article 9.4.

 

9.4

Si l’Agent (agissant au nom et pour le compte des Bénéficiaires) choisit de réaliser le Gage par appropriation en application de l’article 2348 du Code civil :

 

  9.4.1

l’attribution des Stocks Gagés interviendra trois (3) jours calendaires après l’envoi par l’Agent d’une mise en demeure adressée au Constituant (la “ Date d’Attribution” ) ;

 

  9.4.2

la valeur commerciale des Stocks Gagés à la Date d’Attribution sera déterminée par le Tiers Evaluateur (la “ Valeur de Réalisation” ) ;

 

  9.4.3

l’évaluation faite par le Tiers Evaluateur sera définitive et liera les Parties ; et

 

  9.4.4

si la Valeur de Réalisation à la Date d’Attribution est supérieure au montant des Obligations Garanties à cette date, l’excèdent sera reversé au Constituant.

 

9.5

L’Agent appliquera les montants reçus de la réalisation du Gage au paiement des Obligations Garanties conformément aux stipulations du Contrat de Crédit.

 

10.

Divers

 

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10.1

Le non-exercice, ou le retard dans l’exercice, par un Bénéficiaire d’un droit ou d’un recours qui lui a été conféré par les présentes, ne constituera en aucun cas une renonciation à ce droit ou à ce recours. De même, l’exercice ponctuel ou partiel de l’un de ces droits ou recours ne saurait empêcher l’exercice ultérieur ou différent de ces droits ou recours. Les droits et recours conférés par les présentes sont cumulatifs et s’ajoutent à tous les autres droits ou recours prévus par la loi.

 

10.2

Dans l’éventualité où une ou plusieurs stipulations du présent Contrat seraient considérées comme illégales, non écrites ou inapplicables, le présent Contrat serait interprété comme s’il ne contenait pas lesdites stipulations et l’invalidité ou le caractère inapplicable desdites stipulations n’affectera pas la validité ou l’exécution des autres stipulations du présent Contrat, qui resteront par ailleurs valables et demeureront pleinement en vigueur.

 

10.3

Le Gage demeurera en vigueur jusqu’au remboursement intégral des Obligations Garanties nonobstant tous paiements intermédiaires ou extinction en tout ou partie.

 

10.4

Le Gage sera en complément de et ne sera en aucune manière affecté par toute autre sûreté bénéficiant à tout moment aux Bénéficiaires et relative aux Obligations Garanties ou à l’une d’entre elles.

 

11.

Successeurs et ayants-droit

 

11.1

Sous réserve de l’Article 11.3, tous les droits, privilèges pouvoirs et actions de chaque Bénéficiaire profiteront à ses successeurs et cessionnaires.

 

11.2

Le Constituant ne pourra céder, transférer, consentir à la novation ou autrement disposer de l’un quelconque de ses droits et/ou obligations en vertu du présent Contrat.

 

11.3

Chaque Bénéficiaire pourra céder, transférer, consentir à la novation ou autrement disposer de l’un quelconque de ses droits et/ou obligations en vertu du présent Contrat, ou de ses intérêts au titre desdits droits et/ou obligations, à un tiers, conformément aux stipulations du Contrat de Crédit.

 

11.4

Dans l’hypothèse d’un transfert par novation ou d’une cession de tout ou partie de ses droits et/ou obligations au titre des présentes par un Bénéficiaire, les Parties conviennent de réserver (et le Constituant y consent expressément) les droits, privilèges, pouvoirs et actions dont ledit Bénéficiaire bénéficie en vertu du présent Contrat en faveur de tout nouveau Bénéficiaire, conformément aux dispositions du Code civil.

 

12.

Engagement de mainlevée

A l’expiration de la Période de Garantie, l’Agent (agissant au nom et pour le compte des Bénéficiaires), à la requête et aux frais du Constituant, prendra tout acte et exécutera toute action nécessaire afin de donner mainlevée du Gage et libérer le Constituant de sa responsabilité au titre du présent Contrat.

 

13.

Notifications

Toute notification en vertu ou en relation avec le présent Contrat devra être adressée, conformément aux stipulations de l’article 27 ( Notices ) du Contrat de Crédit.

 

14.

Loi applicable et juridiction

 

14.1

Le présent Contrat est soumis et sera interprété et mis en œuvre conformément au droit français.

 

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14.2

Tout litige ou toute autre procédure concernant le présent Contrat ou tout document ou acte y afférent sera soumis à la compétence exclusive du Tribunal de commerce de Paris.

 

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ANNEXE 1

M ODELE D ’E TAT DES S TOCKS G AGES

ETAT DES STOCKS GAGES

[Papier à en-tête de [•]]

 

A :        

  

FACTOFRANCE

 

  

18 rue Hoche, Tour Facto, 92988 Paris La Défense Cedex, France

 

  

en qualité d’Agent (tel que défini ci-dessous)

Nous faisons référence au contrat de gage de biens meubles corporels (le Contrat de Gage ) en date du [•] conclu entre Constellium [Issoire / Neuf Brisach] en qualité de constituant (le Constituant ) et FACTOFRANCE en qualité d’agent ( l’Agent ).

Conformément aux stipulations du Contrat de Gage, nous déclarons par le présent état des stocks gagés, en notre qualité de Tiers Contrôleur, que dans les Magasins situés au :

[•]

sont entreposés les Stocks Gagés qui sont des Stocks Eligibles suivants, dont le Constituant déclare par la présente être le propriétaire et qu’ils sont des Stocks Eligibles et qui sont gagés en faveur des Bénéficiaires:

 

 

Nature des

marchandises

 

telle que déclarée par

le

 

CONSTITUANT

  

 

QUANTITE

  

VALEUR

 

telle que déclarée par le

 

CONSTITUANT

 

     

 

      VALEUR UNITAIRE   

VALEUR TOTALE

 

 

    

              

 

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A moins qu’une autre définition n’en soit donnée dans la présente, les termes commençant par une majuscule définis dans le Contrat de Gage auront la même signification lorsqu’ils seront utilisés dans le présent état.

Le présent état est soumis et interprété conformément au droit français. Tout litige ou toute procédure en relation avec le présent état sera soumis à la compétence exclusive du Tribunal de commerce de Paris.

Fait à [ ● ]

Le [ ● ]

En trois (3) exemplaires originaux

 

[•]

    

Constellium                     [Issoire/Neuf

  

                 Brisach]

       

En qualité de Tiers Contrôleur

    

                    En qualité de Constituant

  

(Tampon et signature)

    

                    (Tampon et signature)

  

 

    

 

  

 

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ANNEXE 2

L ISTE DES P RETEURS I NITIAUX

 

1.

BNP PARIBAS , une société anonyme de droit français, dont le siège social est situé 16 boulevard des Italiens, 75009 Paris, France, immatriculée au Registre du Commerce et des Sociétés de Paris sous le numéro 662 042 449 ;

 

2.

FACTOFRANCE , une société par actions simplifiée de droit français, dont le siège social est situé 18 rue Hoche, Tour Facto, 92988 Paris La Défense Cedex, France, immatriculée au Registre du Commerce et des Sociétés de Nanterre sous le numéro 063 802 466 ;

 

3.

CREDIT SUISSE INTERNATIONAL , dont le siège social est situé One Cabot Square, Londres E14 4QJ, Royaume-Uni ;

 

4.

DEUTSCHE BANK AG, SUCCURSALE DE LONDRES , dont le siège social est situé Winchester House, 1 Great Winchester Street, Londres EC2N 2, Royaume-Uni.

 

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ANNEXE 3

L ISTE DES S TOCKS G AGES

[•]

 

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SIGNATAIRES

Fait à Paris, le [•] 2017

en quatre (4) originaux.

 

CONSTELLIUM [ISSOIRE / NEUF BRISACH]

 

Le Constituant

 

Par :

 

 

Nom :

 

 

FACTOFRANCE

L’Agent

 

Par :

 

 

Nom :

 

 

 

Les BENEFICIAIRES INITIAUX

 

représentés par Factofrance en qualité d’Agent

 

Par :

 

 

Nom :

 

 

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[•] 2017

CONSTELLIUM [ISSOIRE / NEUF BRISACH]

as Pledgor

FACTOFRANCE

as Agent

and

the ORIGINAL BENEFICIARIES

 

 

INVENTORY PLEDGE AGREEMENT WITH DISPOSSESSION

 

 

LOGO

Dentons Europe

Association d’Avocats à Responsabilité Professionnelle Individuelle

5 boulevard Malesherbes, 75008 Paris, France

 

Paris 12523781.14

   1

CONTENTS

 

ARTICLE    Page  

1.

 

DEFINITIONS AND INTERPRETATIONS

     3  

2.

 

PLEDGE

     6  

3.

 

MINIMUM VALUE OF THE PLEDGE

     6  

4.

 

WITHDRAWAL AND SUBSTITUTION OF PLEDGED INVENTORY

     6  

5.

 

CONTROL AND AUDITS OF THE PLEDGED INVENTORY

     7  

6.

 

REPRESENTATIONS AND WARRANTIES

     8  

7.

 

UNDERTAKINGS

     9  

8.

 

OBLIGATION TO PERFORM

     9  

9.

 

ENFORCEMENT OF THE PLEDGE

     9  

10.

 

MISCELLEANOUS

     10  

11.

 

SUCCESSORS AND ASSIGNEES

     11  

12.

 

RELEASE

     11  

13.

 

NOTICES

     11  

14.

 

GOVERNING LAW AND JURIDICTION

     11  

SCHEDULE 1.       Form of Escrow Agent Certificate

     12  

SCHEDULE 2.       List of Original Lenders

     14  

 

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   2

INVENTORY PLEDGE WITH DISPOSSESSION AGREEMENT

BETWEEN :

 

1.

[ CONSTELLIUM ISSOIRE , a société par actions simplifiée governed by French law whose registered office is at rue Yves Lamourdedieu ZI les Listes, 63500 Issoire, France, registered with the trade and companies registry of Clermont-Ferrand under number 672 014 081] / [ CONSTELLIUM NEUF BRISACH , a société par actions simplifiée governed by French law whose registered office is at ZIP Rhénane Nord, RD 52, 68600 Biesheim, France, registered with the trade and companies registry of Colmar under number 807 641 360] (the “ Pledgor ”),

 

2.

FACTOFRANCE , a company incorporated under the laws of France as a société par actions simplifiée and licensed as a credit institution (établissement de crédit), whose registered office is located at Tour Facto, 18, rue Hoche, 92988 Paris-La Défense Cedex, France, registered with the Trade and Companies Registry of Nanterre under number 063 802 466, acting in the name and on behalf of the Beneficiaries (the “ Agent ”), and

 

3.

The ORIGINAL BENEFICIARIES (as defined below), represented by the Agent.

WHEREAS

 

(A)

The Original Lenders (as defined below) have agreed to grant to the Pledgor a Euro revolving loan facility pursuant to a French law facility agreement entered into on [•] 2017 between, amongst others, (i) the Original Lenders as lenders, (ii) the Agent as agent, and (iii) the Pledgor as borrower (the “ Facility Agreement ”) for the purpose of financing the working capital and/or general corporate purpose requirements of the Pledgor.

 

(B)

As security for the Secured Obligations (as defined below), the Pledgor agreed to grant to the Beneficiaries a pledge over moveable goods over the Inventory (as defined below).

 

(C)

In accordance with clause [22.17] ( Security ) of the Facility Agreement, the Agent acts as agent ( mandataire ) of the Beneficiaries for the purpose of this Agreement.

IT IS AGREED as follows:

 

1.

DEFINITIONS AND INTERPRETATIONS

 

1.1

Definitions

Unless otherwise defined herein, terms and expressions below shall have in this Agreement (as such term is defined below) the following meaning:

“Agreement” means this inventory pledge with dispossession agreement and its Schedules, as it may be supplemented or amended from time to time.

“ Arranger ” has the meaning given to such term in the Facility Agreement.

“ Beneficiaries ” means the Original Beneficiaries and any of their successors, assigns or transferees.

“ Business Day ” has the meaning given to such term in the Facility Agreement.

 

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“ Confidentiality Undertaking” has the meaning given to such term in the Facility Agreement.

“Eligible Inventory” has the meaning given to such term in the Facility Agreement.

“Enforcement Event” means (i) the occurrence of an Event of Default (as defined in the Facility Agreement), which, in accordance with clause 20.2 of the Facility Agreement results in the Agent declaring all amounts due by the Pledgor under the Facility Agreement to be immediately due and payable and/or cancelling the Total Commitments or (ii) the occurrence on the Termination Date of a default of payment of a Secured Obligation which continues unremedied.

“Escrow Agent” has the meaning given to such term in the Facility Agreement.

“Escrow Agent Certificate” means an escrow agent certificate ( certificat de tierce détention ) substantially in the form set out in SCHEDULE 1 ( Form of Escrow Agent Certificate ), sent to the Agent on the dates specified in Clause 5 ( CONTROL AND AUDITS OF THE PLEDGED INVENTORY) signed by the Escrow Agent and countersigned by the Pledgor, containing the description, quantity, amount and declared value of the Pledged Inventory that is Eligible Inventory and is held in the Warehouses and placed in possession and at the exclusive disposal of the Escrow Agent.

“Event of Default” has the meaning given to the term “Event of Default” in the Facility Agreement.

“Finance Documents” has the meaning given to the term “ Finance Documents” in the Facility Agreement.

“Group” has the meaning given to such term in the Facility Agreement.

“Independent Appraiser” has the meaning given to such term in the Facility Agreement.

“Inventory” means, at any time, all the inventory of [ Issoire : raw material and finished goods made of aluminum and other additional metals, under any form whatsoever, / Neuf Brisach : semi-finished and finished goods made of aluminum in different alloys in the form of coils or sheets and raw material of varnish and additives] belonging to the Pledgor.

“Inventory Value” means, at any time, the value of the Pledged Inventory which is Eligible Inventory as set out in any Escrow Agent Certificate.

“Legal Reservation” has the meaning given to such term in the Facility Agreement.

“Mandate Letters” means the mandate letter sent by the Agent on behalf of the Beneficiaries as principal to the Escrow Agent as agent and the acceptance letter of the mandate sent by the Escrow Agent to the Agent.

“ Material Adverse Effect” has the meaning given to such term in the Facility Agreement.

“Minimum Value” means [ Issoire : [four millions six hundred thousand] euros ( € [4,600,000])/ Neuf Brisach : [sixteen millions six hundred thousand] euros ( € [16,600,000])].

“Occupancy Agreement” means the loan for use (prêt à usage) agreement dated on or about the date hereof entered into pursuant to article 1875 of the French Code civil , between the Pledgor as lender of the Warehouses [other than the Third Party Holder Warehouses]

 

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and the Escrow Agent as beneficiary, whereby the Pledgor consents to the Escrow Agent an exclusive right of occupancy over the Warehouses [other than the Third Party Holder Warehouses].

“Original Beneficiaries” means the Agent, the Arranger and the Original Lenders.

“Original Lenders” means the lenders under the Facility Agreement as at the date hereof, as listed in SCHEDULE 2 ( List of Original Lenders ).

“Parties” means the parties to this Agreement.

“Pledge” means the pledge over the Pledged Inventory granted pursuant to articles 2333 et seq. of the French Code civil and articles L. 521-1 et seq. of the French Code commercial , as provided for in Clause 2 (PLEDGE) .

“Pledged Inventory” means the Inventory which is in any Warehouse on the date hereof and any Inventory that is or will be owned by the Pledgor and put into the possession of the Escrow Agent in any Warehouse after the date hereof.

“Pledge without Dispossession” means the pledge without dispossession granted to the Beneficiaries over certain inventory (other than the Pledged Inventory) of the Pledgor pursuant to a pledge without dispossession agreement ( acte de gage de stocks sans dépossession ) entered into on or about the date hereof between the Parties.

“Secured Obligations” means any payment obligations whether present or future, certain or conditional, in principal, interest or otherwise due by the Pledgor as borrower under the Facility Agreement to the Beneficiaries under or in connection with the Finance Documents, including all amendment to any Finance Document, however important it may be, including any amendment providing for an increase of the facility amount or an additional facility.

“Security Period” means the period beginning on the date of this Agreement and ending on the date on which the Agent confirms in writing to the Pledgor that all the Secured Obligations have been fully and irrevocably paid and discharged and the Beneficiaries have no further commitment towards the Borrowers under the Facility Agreement.

“Super Majority Lenders” has the meaning given to such term in the Facility Agreement.

[“ Third Party Holder Warehouses ” means (i) the warehouses of Multilog located in Issoire and Clermont-Ferrand, France and (ii) the warehouses of Alt located in Le Havre, France.] 1

“Warehouses” means [ Issoire : (i) the automatic warehouse MM101 located at Constellium Issoire, rue Lamourdedieu, 63500 Issoire, France and (ii) the Third Party Holder Warehouses] / [ Neuf Brisach : the warehouses M1, M2, M3, BLC, L 12 and L 16 located at Constellium Neuf-Brisach, ZIP Rhénane Nord – RD 52, 68600 Biesheim, France].

 

1.2

Interpretation

 

  1.2.1

Unless otherwise defined herein, capitalized terms defined in the Facility Agreement shall have the same meaning as set out in this Agreement.

 

 

 

1

Only for Issoire

 

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  1.2.2

This Agreement shall be interpreted in accordance with the principles of interpretation provided for in clause 1.2 of the Facility Agreement.

 

  1.2.3

The titles of this Agreement are for information purposes only and are not to be considered in the interpretation of this Agreement.

 

2.

PLEDGE

 

2.1

As security for the payment and the repayment of all the Secured Obligations, the Pledgor hereby pledges the Pledged Inventory to the benefit of the Beneficiaries in accordance with articles 2333 and seq. of the French Code Civil and articles L. 521-1and seq. of the French Code de Commerce .

 

2.2

On the date hereof, the Pledged Inventory as of the date hereof shall be put in the possession and at the exclusive disposal of the Escrow Agent in the Warehouses, so that they may be held by the Escrow Agent acting as third party holder in the name and on behalf of the Beneficiaries, within the meaning of article 2337 of the French Code Civil and in accordance with the provisions of the Mandate Letters. The Pledged Inventory will be held by and at the exclusive disposal of the Escrow Agent until the expiration of the Security Period.

 

2.3

The Parties agree that the Escrow Agent will (i) install on the date hereof notification panels on the Warehouses to ensure the publicity of the Pledge and (ii) until the end of the Security Period, keep separate the Pledged Inventory from any other inventory using an appropriate locking system in order to ensure that the Pledgor only has no access to the Pledged Inventory subject to the provisions of the Mandate Letters and this Agreement and (iii) perform all acts necessary to ensure that the Pledged Inventory is no longer in the possession of the Pledgor but in its possession.

 

2.4

The Parties agree that any Inventory acquired or constituted by the Pledgor following the signature of this Agreement will be automatically included in the scope of the Pledge upon such Inventory being placed in the Warehouses and in possession and at the disposal of the Escrow Agent, without any such operation constituting in any manner a novation of the rights and security granted to the Beneficiaries hereunder.

 

3.

MINIMUM VALUE OF THE PLEDGE

 

3.1

At any time during the Security Period, the Inventory Value must be at least equal to the Minimum Value.

 

3.2

If, at any time, the Inventory Value becomes inferior to the Minimum Value, the Pledgor undertakes, at the first request of the Agent to complete the Pledged Inventory so that the Inventory Value is at least equal to the Minimum Value.

 

3.3

The Parties agree that, every six months, the Agent and the Pledgor will discuss in good faith in order to review the Minimum Value if they deem it necessary. If the Agent and the Pledgor are not able to reach an agreement as to the new Minimum Value within 30 days, the new Minimum Value will be equal to the product of the weighted average value of the latest six (6) months of the Pledged Inventory as set out in the accounting systems of the Pledgor by 75%. Any such new Minimum Value will be applicable as from the date on which the Escrow Agent receives notification from the Agent of such new Minimum Value.

 

4.

WITHDRAWAL AND SUBSTITUTION OF PLEDGED INVENTORY

 

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4.1

The Pledgor shall not withdraw any Pledged Inventory from the Warehouses without the prior written consent of the Escrow Agent acting under the instructions of the Agent.

 

4.2

Notwithstanding Clause 4.1 and any provision to the contrary, the Beneficiaries undertake to authorise the Escrow Agent, upon request from the Pledgor, 2 to withdraw Pledged Inventory from the Warehouses under the following conditions:

 

  4.2.1

the Inventory Value is at least equal to the Minimum Value; and

 

  4.2.2

no Event of Default has occurred, is continuing unremedied and has been notified by the Agent to the Pledgor and the Escrow Agent.

 

4.3

Notwithstanding Clause 4.1, the Pledgor may at any time during the Security Period replace the Pledged Inventory as long as the Inventory Value is at least equal to the Minimum Value.

 

4.4

In the case of substitution pursuant to Clause 4.3, the new Inventory shall be placed in the Warehouses and in the possession and at the disposal of the Escrow Agent.

 

4.5

If any Pledged Inventory is withdrawn or substituted pursuant to this Clause, the Beneficiaries shall be deemed to have agreed to the release of the Pledge for the part of the Pledged Inventory concerned by this withdrawing or substitution. Upon request and at the expense of the Pledgor, the Agent undertakes to establish any release letter necessary for the confirmation of the automatic release provided for above.

 

4.6

The Pledgor may at any time during the Security Period decide to pledge to the benefit of the Beneficiary any inventory that is not a Pledged Inventory. This new Inventory shall be deemed to be pledged to the Beneficiaries pursuant to this Agreement.

 

5.

CONTROL AND AUDITS OF THE PLEDGED INVENTORY

 

5.1

The Escrow Agent shall exercise permanent control and supervision of the Pledged Inventory stored in the Warehouses in accordance with the provisions of the Mandate Letters and the instructions given to it at any time by the Agent, in particular through inventory and physical controls of Pledged Inventory.

 

5.2

The Escrow Agent will prepare an Escrow Agent Certificate monthly (or, as the case may be in accordance with clause [5.5.2 (b)] of the Facility Agreement, every 8 Business Days) and will submit it for approval to the Pledgor. If the Pledgor (acting reasonably) is not satisfied that the Escrow Agent Certificate has been properly prepared, it shall immediately (and in any case one Business Day after receipt by it of the Escrow Agent Certificate) inform the Escrow Agent and the Agent, and the Escrow Agent and the Pledgor shall seek to reach an agreement on the amendments to be made to the Escrow Agent Certificate. If the Pledgor and the Escrow Agent are not able to agree on the amendments to be made within one Business Day, then the final terms of the Escrow Agent Certificate shall be determined by the Escrow Agent and the Pledgor shall immediately countersign the Escrow Agent Certificate so that the Escrow Agent be able to provide the Agent on the last Business Day of each month (or, as the case may be in accordance with clause [5.5.2 (b)] of the Facility Agreement, every 8 Business Days) with an Escrow Agent Certificate countersigned by the Pledgor.

 

2 Such autorisation will be dealt with in the documents to be entered into with the Escrow Agent.

 

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5.3

The Pledgor undertakes to:

 

  5.3.1

allow the Escrow Agent (or any agent of the Escrow Agent) to have access to the Warehouses and to carry out its control mission of the Pledged Inventory;

 

  5.3.2

provide the Escrow Agent with:

(a) any information related to the Pledged Inventory; and

(b) any assistance in may need in the course of any audit or inspection,

in each case as it may reasonably request.

 

5.4

The Escrow Agent, employees and agent appointed for the purpose of any audit or inspection under this Clause 5 must be bound by a Confidentiality Undertaking entered into with the relevant Borrower.

 

6.

REPRESENTATIONS AND WARRANTIES

 

6.1

The Pledgor hereby represents and warrants to the Beneficiaries that:

 

  6.1.1

it has full power and authority to enter into any Escrow Agent Certificate and the Occupancy Agreement, and no governmental or regulatory consent is required in order for it to enter into the Occupancy Agreement and it has taken all action necessary to authorise the signing of the Occupancy Agreement and the performance of its obligations under the Occupancy Agreement;

 

  6.1.2

subject to the Legal Reservations, each of its obligations under the Occupancy Agreement constitutes a legal, valid and binding obligation enforceable against it in accordance with its terms, to the extent that it may affect the validity or enforceability of the Pledge;

 

  6.1.3

the execution and performance of the Occupancy Agreement does not conflict with, contravene to, or violate any provision of its constitutional documents or any contract binding it, in a manner which is reasonably expected to have a Material Adverse Effect;

 

  6.1.4

it is the sole owner of the Pledged Inventory;

 

  6.1.5

on the date of delivery of any Escrow Agent Certificate, information relating to the Pledged Inventory contained in such Escrow Agent Certificate and provided by the Pledgor is accurate; and

 

  6.1.6

each Warehouse [which is not a Third Party Holder Warehouse]:

 

  (a)

is either the property of the Pledgor, or, if any Warehouse is leased by the Pledgor from a third party, such third party, as lessor, has agreed that the Pledgor sub-leases or lends such Warehouse to the Escrow Agent as sub-lessee for a duration at least equal to the duration of the Facility Agreement (as amended from time to time); and

 

  (b)

is not leased to any third party.

 

6.2

Except if a representation is expressly provided to be made on a specific date, each representation and warranty provided for in this clause shall be made by the Pledgor to the

 

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Beneficiaries on the date of this Agreement and thereafter in accordance with clause [18.2] of the Facility Agreement.

 

7.

UNDERTAKINGS

The Pledgor hereby undertakes to the Beneficiaries, during the Security Period as follows:

 

7.1

it shall not sell, transfer or otherwise dispose of the Pledged Inventory or any of its rights over the Pledged Inventory to any person other than the Beneficiaries, other than in accordance with Clause 4 ( WITHDRAWAL AND SUBSTITUTION OF PLEDGED INVENTORY ) without the prior written consent of the Escrow Agent acting in accordance with the instructions of the Beneficiaries;

 

7.2

it shall sign any document and take any action reasonably required by the Agent, in order to create and enforce the Pledge and, without prejudice to Clause 4 (WITHDRAWAL AND SUBSTITUTION OF PLEDGED INVENTORY) to refrain from any act likely, in the reasonable opinion of the Beneficiaries, to prejudice the Beneficiaries’ ability to implement their rights and remedies under this Agreement;

 

7.3

it shall provide, at the first written and reasonable request of the Agent, any information concerning the Pledged Inventory that the Agent may request at any time during the Security Period, in order to protect or enforce the rights of the Beneficiaries;

 

7.4

it shall immediately inform the Agent of any seizure ( saisie ) on the Pledged Inventory or other conservatory measure ( mesure conservatoire ); and

 

7.5

it shall not enter into any amendment to the Occupancy Agreement which may affect the rights of the Beneficiaries under this Agreement nor terminate the Occupancy Agreement without the prior written consent of the Agent (not to be unreasonably withheld).

 

8.

OBLIGATION TO PERFORM

The Parties expressly agree that, notwithstanding any provisions to the contrary in this Agreement, (i) the Pledgor and the Escrow Agent shall remain responsible for the respect and implementation of all terms and conditions relating to the Pledged Inventory respectively imposed upon it and (ii) the Beneficiaries shall not be bound by any obligation or liability under or in connection with this Agreement. Neither the Beneficiaries, the Agent, nor the Escrow Agent nor a third party evaluator shall be liable for any damage or loss caused to the Pledged Inventory, other than as a result of the gross negligence or wilful misconduct respectively of the Beneficiaries, the Agent, the Escrow Agent, a third party evaluator or one of their attendants and agents. Such damages or losses shall remain the sole responsibility of the Pledgor until the end of the Security Period.

 

9.

ENFORCEMENT OF THE PLEDGE

 

9.1

At any time after the occurrence of an Enforcement Event, and without prejudice to any other remedies, the Beneficiaries shall be entitled to (i) exercise any rights and actions held by them under this Agreement and available to any pledgee under the provisions of French law for the repayment of the Secured Obligations, and (ii) to proceed with the enforcement of the Pledge.

 

9.2

For the avoidance of doubt, the Beneficiaries acknowledge and agree that the Pledge may only be enforced through the Agent (acting upon the instruction of the Super Majority Lenders) in accordance with Clauses 9.3 and 9.4 below.

 

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9.3

The Agent (acting in the name and on behalf of the Beneficiaries) may exercise the rights, actions and privileges under the applicable laws, including (but not limited to) at its choice:

 

  9.3.1

selling the Pledged Inventory (in whole or in part) by public auction in accordance with article L. 521-3 of the French Code de commerce ;

 

  9.3.2

requesting the judicial attribution of the Pledged Inventory in accordance with article 2347 of the French Code civil ; or

 

  9.3.3

becoming the owner of the Pledged Inventory in accordance with article 2348 of the French Code civil , the value of the Pledged Inventory being determined in accordance with Clause 9.4.

 

9.4

If the Agent (acting in the name and on behalf of the Beneficiaries) chooses to enforce the Pledge by appropriation pursuant to article 2348 of the French Code civil :

 

  9.4.1

the transfer of the Pledged Inventory will take place three (3) calendar days after the sending of a notice (mise en demeure) by the Agent to the Pledgor (the “Transfer Date” );

 

  9.4.2

the commercial value of the Pledged Inventory on the Transfer Date will be determined by the Independent Appraiser (the “Enforcement Value” );

 

  9.4.3

the valuation made by the Independent Appraiser shall be final and binding on the Parties; and

 

  9.4.4

if the Enforcement Value on the Transfer Date exceeds the amount of the Secured Obligations due on that date, the surplus shall be returned to the Pledgor.

 

9.5

The Agent will apply the amounts received by it as a result of the enforcement of the Pledge to the payment of the Secured Obligations in accordance with the provisions of the Facility Agreement.

 

10.

MISCELLEANOUS

 

10.1

No failure to exercise, nor any delay in exercising on the part of a Beneficiary any right or remedy granted by this Agreement shall operate as a waiver of any such right or remedy or constitute an election to affirm this Agreement. No election to affirm this Agreement on the part of any Beneficiary shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement and in the Finance Document are cumulative and, subject to clause [30.2] of the Facilities Agreement, not exclusive of any rights or remedies provided by law.

 

10.2

If, at any time, any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

 

10.3

The Pledge will remain in effect until the Secured Obligations are fully repaid notwithstanding any interim payments or cancellation in whole or in part.

 

10.4

The Pledge will be in addition to and in no way be affected by any other security benefiting the Beneficiaries at any time and relating to the Secured Obligations or any of them.

 

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10.5

If at any time during the Security Period the Escrow Agent needs to perform, in accordance with Clause 2.3 new acts or take new steps in order to ensure that the Pledged Inventory is no longer in the possession of the Pledgor but in its possession, the Agent agrees to consult the Pledgor prior to any such new act or new step being taken by the Escrow Agent in order to limit the impact on the Pledgor’s daily operations that such new acts or steps may have. Notwithstanding the foregoing, this Clause shall not affect the right of the Beneficiaries to ensure that the Pledge remains fully effective.

 

10.6

If, at any time during the Security Period, the Escrow Agent needs to perform audits and/or controls in accordance with Clause 5, such audits and/or controls should be made without prejudice to the ability of the Pledgor to withdraw and/or substitute any Pledged Inventory in accordance and subject to Clause 4.

 

11.

SUCCESSORS AND ASSIGNEES

 

11.1

Subject to Clause 11.3, any rights, privileges and actions of the Beneficiaries shall benefit to their successors and assignees.

 

11.2

The Pledgor shall not assign, transfer, novate or otherwise dispose of any of its rights and/ or obligations under this Agreement.

 

11.3

Each Beneficiary may assign, transfer, novate or otherwise dispose of any of its rights and/or obligations under this Agreement, or its interests under such rights and/or obligations, to a third party, in accordance with the provisions of the Facility Agreement.

 

11.4

In the event of a transfer by novation or assignment of all or part of its rights and/or obligations hereunder by a Beneficiary, the Parties expressly reserve (and the Pledgor expressly consents thereto) the rights, privileges, powers and actions under this Agreement of such Beneficiary to its successors, in accordance with the provisions of the French Code civil .

 

12.

RELEASE

When the Security Period expires, the Agent (acting in the name and on behalf of the Beneficiaries) shall, at the request and at the expense of the Pledgor, carry out any necessary steps to release the Pledge and the Pledgor from its liability under this Agreement.

 

13.

NOTICES

Any notice under or in connection with this Agreement shall be addressed, in accordance with the provisions of clause 27 ( Notices ) of the Facility Agreement.

 

14.

GOVERNING LAW AND JURIDICTION

 

14.1

This Agreement is governed by French law.

 

14.2

Any dispute or other legal proceedings under this Agreement or any document or act relating thereto shall be subject to the exclusive jurisdiction of the Tribunal de Commerce de Paris.

 

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SCHEDULE 1.

F ORM OF E SCROW A GENT C ERTIFICATE

Escrow Agent Certificate

[Letterhead of [•]]

 

To :

  

FACTOFRANCE

  

18 rue Hoche, Tour Facto, 92988 Paris La Défense Cedex, France

  

As Agent (as defined below)

We refer to a pledge with dispossession agreement (the “Pledge Agreement” ) dated [•] between [Constellium Issoire / Constellium Neuf Brisach] as Pledgor (the Pledgor ), the Original Beneficiaries, the Original Lenders and Factofrance as Agent (the Agent )

In accordance with the provisions of the Pledge Agreement, we hereby declare, as Escrow Agent, that we hold in the Warehouses located at:

[ address ], France,

the following Pledged Inventory which are Eligible Inventory, of which the Pledgor hereby declares to be the owner and that they are Eligible Inventory, and which are pledged to the Beneficiaries:

 

 

Nature of the goods

 

As declared by the

 

PLEDGOR

 

  

 

QUANTITY

 

  

VALUE

 

As declared by the

 

PLEDGOR

 

         

UNIT VALUE

 

  

TOTAL VALUE      

 

 

    

              

We also declare, as Escrow Agent, that the above Pledged Inventory have been brought into our possession on [•].

Unless otherwise defined herein, capitalized terms defined in the Pledge Agreement will have the same meaning when used in this certificate.

 

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This certificate is governed by French law. Any dispute or other legal proceedings under this certificate shall be subject to the exclusive jurisdiction of the Tribunal de Commerce de Paris .

Executed in [•]

Date [•]

In three (3) original copies

 

[•]

    

[•]

As Escrow Agent

    

As Pledgor

(Stamp and signature)

    

(Stamp and signature)

 

    

 

 

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SCHEDULE 2.

L IST OF O RIGINAL L ENDERS

FACTOFRANCE , a company incorporated under the laws of France as a société par actions simplifiée and licensed as a credit institution ( établissement de crédit ), whose registered office is located at Tour Facto, 18, rue Hoche, 92988 Paris-La Défense Cedex, France, registered with the Trade and Companies Registry of Nanterre under number 063 802 466;

CREDIT SUISSE INTERNATIONAL , whose registered office is located at One Cabot Square, London E14 4QJ, United Kingdom;

BNP PARIBAS , a company incorporated under the laws of France as a société anonyme , whose registered office is located at 16 boulevard des Italiens, 75009 Paris, France, registered with the Trade and Companies Registry of Paris under number 662 042 449;

DEUTSCHE BANK AG, LONDON BRANCH , whose registered office is located at Winchester House, 1 Great Winchester Street, London EC2N 2, United Kingdom.

 

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SIGNATURE PAGE

In Paris, [date]

In three (3) originals.

[CONSTELLIUM ISSOIRE / CONSTELLIUM NEUF BRISACH]

The Pledgor

By:

 

 

Name:

 

FACTORANCE
The Agent

By:

 

 

Name:

 

THE ORIGINAL BENEFICIARIES

represented by the Agent

By:

 

 

Name:

 

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SIGNATORIES

Made in Paris, in nine (9) originals, on 21 April 2017

 

The Borrowers

CONSTELLIUM ISSOIRE

By

 

/s/ Christel Sahyoun

 

Christel Sahyoun

CONSTELLIUM NEUF BRISACH

 

By

 

/s/ Christel Sahyoun

Name

 

Christel Sahyoun

The Parent Company

CONSTELLIUM HOLDCO II B.V.

 

By

 

/s/ Christel Sahyoun

Name

 

Christel Sahyoun

 

95

 

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The Arranger

FACTOFRANCE

By:

 

/s/ Marc Frenkenberg

Name: Marc Frenkenberg

The Agent

FACTOFRANCE

By:

 

/s/ Marc Frenkenberg

Name: Marc Frenkenberg

The Original Lenders

FACTOFRANCE

By:

 

/s/ Marc Frenkenberg

Name: Marc Frenkenberg

 

97

 

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CREDIT SUISSE INTERNATIONAL      

By:

 

/s/ Garrett Lynskey

     

/s/ Brian Fitzgerald                                        

Name:

 

Garrett Lynskey

Authorised Signatory

     

Brian Fitzgerald

Authorised Signatory

 

98

 

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BNP PARIBAS

By

 

/s/ Corporate Signatory

Name Corporate Signatory

 

99

 

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DEUTSCHE BANK AG, LONDON BRANCH

By:

 

/s/ Hoby Buvat

Name:

 

Hoby Buvat

MANAGING DIRECTOR

By:

 

/s/ Ray Dukes

Name:

 

Ray Dukes

VICE PRESIDENT

 

100

 

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Exhibit 10.4

Execution Copy

FIRST OMNIBUS AMENDMENT

This FIRST OMNIBUS AMENDMENT, dated as of June 28, 2016 (this “ Amendment ”) is:

(1)       THE FIRST AMENDMENT to the RECEIVABLES SALE AGREEMENT, between WISE ALLOYS LLC, as seller (the “ RSA Seller ) and WISE ALLOYS FUNDING II LLC, as purchaser; and

(2)       THE FIRST AMENDMENT to the RECEIVABLES PURCHASE AGREEMENT, among WISE ALLOYS FUNDING II LLC, as seller (the “ RPA Seller ”), WISE ALLOYS LLC, as servicer (the “ Servicer ”), HITACHI CAPITAL AMERICA CORP. (together with its successors and permitted assigns), as purchaser (the “ Purchaser ”), and GREENSILL CAPITAL INC., as purchaser agent (the “ Purchaser Agent ”).

RECITALS

WHEREAS, the RSA Seller and the RPA Seller have heretofore entered into the RECEIVABLES SALE AGREEMENT, dated as of March 16, 2016 (as amended, restated, supplemented, assigned or otherwise modified from time to time, the “ Receivables Sales Agreement ”);

WHEREAS, CONSTELLIUM HOLDCO II B.V. (the “ Parent ”) has heretofore entered into a PERFORMANCE UNDERTAKING, dated as of March 16, 2016, in favor of the RPA Seller with respect to obligations under the Receivables Sale Agreement (the “ First Tier Parent Guarantee ”);

WHEREAS, the RPA Seller, the Servicer, the Purchaser and the Purchaser Agent heretofore entered into the RECEIVABLES PURCHASE AGREEMENT, dated as of March 16, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the “ Receivables Purchase Agreement ”; together with the Receivables Sales Agreement, each an “ Agreement ” and collectively, the “ Agreements ”);

WHEREAS, the Parent has heretofore entered into a PERFORMANCE UNDERTAKING, dated as of March 16, 2016, in favor of the Purchaser with respect to obligations under the Receivables Purchase Agreement (the “ Second Tier Parent Guarantee ”, and together with the First Tier Parent Guarantee, the “ Guarantees ”); and

WHEREAS, the parties hereto seek to modify each of the Agreements upon the terms hereof.

NOW, THEREFORE, in exchange for good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged and confirmed), the parties hereto agree as follows:

SECTION 1. Definitions . Unless otherwise defined or provided herein, capitalized terms used herein have the meanings attributed thereto in (or by reference in) the Agreements, as applicable.

SECTION 2. Amendments to the Receivables Sale Agreement . The Receivables Sale Agreement is hereby amended as follows:

(a)       The definition of “Facility Amount” set forth in Exhibit A of the Receivables Sale Agreement is hereby amended by deleting the amount “USD 100,000,000” where it appears therein and substituting the amount “USD 250,000,000” therefor.

(b)       Section  3(q)(i) of the Receivables Sale Agreement is hereby amended and restated in its entirety as follows:

“(i)       Neither Seller nor any Affiliate of Seller nor, to the knowledge of Seller, any Account Debtor (A) is, or is owned or controlled by, a Sanctioned Person; (B) is located, incorporated, organized, or resident in a Sanctioned Country; (C) has any business affiliation or commercial dealings with, or investments in, any Sanctioned Country or Sanctioned Person, except in the case of any Affiliate of Seller who is acting in compliance with all applicable Sanctions Laws and Anti-Money Laundering Laws; or (D) is in breach of or is the subject of any action or investigation under any Sanctions Laws or Anti-Money Laundering Laws.”

SECTION 3. Amendments to the Receivables Purchase Agreement . The Receivables Purchase Agreement is hereby amended as follows:

(a)       The definition of “Facility Amount” set forth in Exhibit A of the Receivables Purchase Agreement is hereby amended by deleting the amount “USD 100,000,000” where it appears therein and substituting the amount “USD 250,000,000” therefor.

(b)       The first sentence of Section  2(e) of the Receivables Purchase Agreement is hereby amended and restated in its entirety as follows:

“The Seller shall pay to the Purchaser, a commitment fee (the “ Commitment Fee ”) on the last business day of each calendar quarter (commencing with the first payment to be made on June 30, 2016) and on the Purchase Termination Date, in an amount equal to: (i) with respect to the first quarterly payment to be made on June 30, 2016, (A) $5,000, plus (B) with respect to the period from the Closing Date through, but not including, June 28, 2016 (the “ First Amendment Closing Date ”), an amount calculated in arrears at a rate of 1% per annum (calculated on a 360-day basis) on $100,000,000, plus (C) with respect to the period from the First Amendment Closing Date through June 30, 2016, an amount calculated in arrears at a rate of 1% per annum (calculated on a 360-day basis) on the Facility Amount, and (ii) with respect to all other payments to be made after June 30, 2016, (A) $5,000, plus (B) an amount calculated quarterly in arrears at a rate of 1% per annum (calculated on a 360-day basis), on the Facility Amount.”

 

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(c)       Section  3(q)(i) of the Receivables Purchase Agreement is hereby amended and restated in its entirety as follows:

“(i) Neither Seller nor any Affiliate of Seller nor, to the knowledge of Seller, any Account Debtor (A) is, or is owned or controlled by, a Sanctioned Person; (B) is located, incorporated, organized, or resident in a Sanctioned Country; (C) has any business affiliation or commercial dealings with, or investments in, any Sanctioned Country or Sanctioned Person, except in the case of any Affiliate of Seller who is acting in compliance with all applicable Sanctions Laws and Anti-Money Laundering Laws; or (D) is in breach of or is the subject of any action or investigation under any Sanctions Laws or Anti-Money Laundering Laws.”

SECTION 4. Consent . The Parent hereby (a) consents to the RSA Seller and the RPA Seller entering into this Amendment, (b) consents to the increase in the Facility Amount of the Receivables Sale Agreement and the Receivables Purchase Agreement as contemplated by Sections 2 and 3 of this Amendment respectively, and (c) confirms and restates its obligations under the First Tier Parent Guarantee and the Second Tier Parent Guarantee with respect to the effectiveness of this Amendment and after giving effect thereto. The parent further confirms and agrees that the First Tier Parent Guarantee and the Second Tier Parent Guarantee have not been annulled, revoked, rescinded or terminated prior to the date hereof.

SECTION 5. Condition to Effectiveness . This Amendment shall become effective on the date on which all of the following conditions have been satisfied:

(a)       each of the parties hereto shall have received counterparts of this Amendment executed by each of the other parties hereto (including facsimile or e-mail signature pages);

(b)       the Purchaser shall have received certificates, authorizing resolutions and opinions from the RSA Seller, the RPA Seller and the Parent and their respective counsel, in each case, in form and substance substantially similar to those delivered under the Agreements; and

(c)       the representations and warranties contained in each of the Agreements and in this Amendment shall be true and correct both as of the date hereof and immediately after giving effect to this Amendment.

SECTION 6. Representations and Warranties . Each of the RSA Seller, RPA Seller and the Parent, on and as of the date hereof, make the following representations and warranties:

(a)       Authority . It has the requisite corporate power and authority to execute and deliver this Amendment and to perform its obligations hereunder and under the Agreements (as amended hereby) and the Guarantees, as the case may be. The execution and delivery and performance by it of this Amendment and the performance of the Agreements (as amended hereby) and the Guarantees, as the case may be, have been duly approved by all necessary corporate action and no other corporate proceedings are necessary to consummate such transactions;

 

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(b)       Enforceability . This Amendment has been duly executed and delivered by it. Each of the Agreements (as amended hereby) and the Guarantees, as the case may be, is a legal, valid and binding obligation enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar laws affecting the rights of creditors and to general principles of equity, and is in full force and effect;

(c)       Representations, Warranties and Covenants . Its representations, warranties and covenants contained in the Agreements and the Guarantees, as the case may be (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the date hereof) are correct on and as of the date hereof as though made on and as of the date hereof; and

(d)       No Termination Event . No Termination Event has occurred and is continuing.

SECTION 7. Effect of Amendment; Ratification .

(a)       Upon the effectiveness of this Amendment, (i) all references in the Receivables Sale Agreement or in any other Transaction Document to “the Receivables Sale Agreement,” “this Agreement,” “hereof,” “herein” or words of similar effect, in each case referring to the Receivables Sale Agreement, shall be deemed to be references to the Receivables Sale Agreement as amended by this Amendment and (ii) all references in the Receivables Purchase Agreement or in any other Transaction Document to “the Receivables Purchase Agreement,” “this Agreement,” “hereof,” “herein” or words of similar effect, in each case referring to the Receivables Purchase Agreement, shall be deemed to be references to the Receivables Purchase Agreement as amended by this Amendment.

(b)       Except as specifically amended hereby, the Agreements and all other Transaction Documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed in all respects.

(c)       The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Purchaser or any of its assignees under the Agreements or any other Transaction Document, instrument, or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein.

SECTION 8. Counterparts . This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, and each counterpart shall be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.

SECTION 9. Governing Law . This Amendment shall be governed by the laws of the State of New York, without giving effect to conflict of laws principles that would require the application of the law of any other jurisdiction.

SECTION 10. Transaction Document . This Amendment shall be a Transaction Document under each of the Agreements.

 

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SECTION 11. Section Headings . The various headings of the Amendment are inserted for convenience only and shall not affect the meaning or interpretation of this Amendment or the Agreements or any provision hereof or thereof.

SECTION 12. Severability . If any one or more of the agreements, provisions or terms of this Amendment shall for any reason whatsoever be held invalid or unenforceable, then such agreements, provisions or terms shall be deemed severable from the remaining agreements, provisions and terms of this Amendment and shall in no way affect the validity or enforceability of the provisions of this Amendment.

[Signatures follow]

 

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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above.

 

WISE ALLOYS LLC, as the RSA Seller and the Servicer
By:  

/s/ Alex Godwin

Name:

 

Alex Godwin

Title:

 

Treasurer

WISE ALLOYS FUNDING II LLC, as the RPA Seller
By:  

/s/ Alex Godwin

Name:

 

Alex Godwin

Title:

 

Treasurer

First Omnibus Amendment

HITACHI CAPITAL AMERICA CORP., as the Purchaser
By:  

/s/ James M. Giaimo

Name:

 

James M. Giaimo

Title:

 

Vice President

Structured Credit & Operations

First Omnibus Amendment

GREENSILL CAPITAL INC., as the Purchaser Agent
By:  

/s/ Jonathan Lane

Name:

 

Jonathan Lane

Title:

 

General Counsel, Authorised Attorney

First Omnibus Amendment

ACKNOWLEDGED AND AGREED:

 

CONSTELLIUM HOLDCO II B.V.

By:  

/s/ Mark Kirkland

Name:

  Mark Kirkland

Title:

 

Authorized Signatory

First Omnibus Amendment

Exhibit 10.5

EXECUTION COPY

THIRD OMNIBUS AMENDMENT

This THIRD OMNIBUS AMENDMENT, dated as of May 12, 2017 (this “ Amendment ”) is:

(1)       THE FOURTH AMENDMENT to the RECEIVABLES SALE AGREEMENT, between WISE ALLOYS LLC, as seller (the “ RSA Seller ) and WISE ALLOYS FUNDING II LLC, as purchaser; and

(2)       THE SECOND AMENDMENT to the AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, among WISE ALLOYS FUNDING II LLC, as seller (the “ RPA Seller ”), WISE ALLOYS LLC, as servicer (the “ Servicer ”), HITACHI CAPITAL AMERICA CORP. (together with its successors and permitted assigns) (“ HCA ”), as a purchaser, INTESA SANPAOLO S.P.A., NEW YORK BRANCH (together with its successors and permitted assigns) (“INTESA”), as a purchaser (and, together with HCA, in such capacity, the “ Purchasers ”), and GREENSILL CAPITAL INC., as purchaser agent (the “ Purchaser Agent ”).

RECITALS

WHEREAS, the RSA Seller and the RPA Seller have heretofore entered into the RECEIVABLES SALE AGREEMENT, dated as of March 16, 2016 (as amended, restated, supplemented, assigned or otherwise modified from time to time, the “ Receivables Sales Agreement ”);

WHEREAS, CONSTELLIUM HOLDCO II B.V. (the “ Parent ”) has heretofore entered into a PERFORMANCE UNDERTAKING, dated as of March 16, 2016, in favor of the RPA Seller with respect to obligations under the Receivables Sale Agreement (the “ First Tier Parent Guarantee ”);

WHEREAS, the RPA Seller, the Servicer, the Purchasers and the Purchaser Agent heretofore entered into the AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of November 22, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the “ Receivables Purchase Agreement ”; together with the Receivables Sales Agreement, each an “ Agreement ” and collectively, the “ Agreements ”);

WHEREAS, the Parent has heretofore entered into an AMENDED AND RESTATED PERFORMANCE UNDERTAKING, dated as of November 22, 2016, in favor of the Purchasers with respect to obligations under the Receivables Purchase Agreement (the “ Second Tier Parent Guarantee ”, and together with the First Tier Parent Guarantee, the “ Guarantees ”); and

WHEREAS, the parties hereto seek to modify each of the Agreements upon the terms hereof.

NOW, THEREFORE, in exchange for good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged and confirmed), the parties hereto agree as follows:

SECTION 1. Definitions . Unless otherwise defined or provided herein, capitalized terms used herein have the meanings attributed thereto in (or by reference in) the Agreements, as applicable.

SECTION 2. Amendments to the Receivables Sale Agreement . The Receivables Sale Agreement is hereby amended as follows:

(a)       Clause (iv)  of the definition of “Eligible Receivable” set forth in Exhibit A of the Receivables Sale Agreement is hereby amended and restated in its entirety as follows:

“(iv) that by its terms has an Invoice Due Date that is no more than 115 days from the original invoice date and such Invoice Due Date has not occurred,”

SECTION 3. Amendments to the Receivables Purchase Agreement . The Receivables Purchase Agreement is hereby amended as follows:

(a)       Clause (iv)  of the definition of “Eligible Receivable” set forth in Exhibit A of the Receivables Purchase Agreement is hereby amended and restated in its entirety as follows:

“(iv) that by its terms has an Invoice Due Date that is no more than 115 days from the original invoice date and such Invoice Due Date has not occurred,”

SECTION 4. Consent . The Parent hereby (a) consents to the RSA Seller and the RPA Seller entering into this Amendment, (b) consents to the increase to 115 days of the maximum receivables tenor set forth in the definition of “Eligible Receivable” as defined in each of the Receivables Sale Agreement and the Receivables Purchase Agreement as contemplated by Sections 2 and 3 of this Amendment, respectively, and (c) confirms and restates its obligations under the First Tier Parent Guarantee and the Second Tier Parent Guarantee with respect to the effectiveness of this Amendment and after giving effect thereto. The parent further confirms and agrees that the First Tier Parent Guarantee and the Second Tier Parent Guarantee have not been annulled, revoked, rescinded or terminated prior to the date hereof.

SECTION 5. Condition to Effectiveness . This Amendment shall become effective on the date on which all of the following conditions have been satisfied:

(a)       each of the parties hereto shall have received counterparts of this Amendment executed by each of the other parties hereto (including facsimile or e-mail signature pages); and

(b)       the representations and warranties contained in each of the Agreements and in this Amendment shall be true and correct both as of the date hereof and immediately after giving effect to this Amendment.

SECTION 6. Representations and Warranties . Each of the RSA Seller, RPA Seller and the Parent, on and as of the date hereof, make the following representations and warranties:

 

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(a)       Authority . It has the requisite corporate power and authority to execute and deliver this Amendment and to perform its obligations hereunder and under the Agreements (as amended hereby) and the Guarantees, as the case may be. The execution and delivery and performance by it of this Amendment and the performance of the Agreements (as amended hereby) and the Guarantees, as the case may be, have been duly approved by all necessary corporate action and no other corporate proceedings are necessary to consummate such transactions;

(b)       Enforceability . This Amendment has been duly executed and delivered by it. Each of the Agreements (as amended hereby) and the Guarantees, as the case may be, is a legal, valid and binding obligation enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar laws affecting the rights of creditors and to general principles of equity, and is in full force and effect;

(c)       Representations, Warranties and Covenants . Its representations, warranties and covenants contained in the Agreements and the Guarantees, as the case may be (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the date hereof) are correct on and as of the date hereof as though made on and as of the date hereof; and

(d)       No Termination Event . No Termination Event has occurred and is continuing.

SECTION 7. Effect of Amendment; Ratification .

(a)       Upon the effectiveness of this Amendment, (i) all references in the Receivables Sale Agreement or in any other Transaction Document to “the Receivables Sale Agreement,” “this Agreement,” “hereof,” “herein” or words of similar effect, in each case referring to the Receivables Sale Agreement, shall be deemed to be references to the Receivables Sale Agreement as amended by this Amendment and (ii) all references in the Receivables Purchase Agreement or in any other Transaction Document to “the Receivables Purchase Agreement,” “this Agreement,” “hereof,” “herein” or words of similar effect, in each case referring to the Receivables Purchase Agreement, shall be deemed to be references to the Receivables Purchase Agreement as amended by this Amendment.

(b)       Except as specifically amended hereby, the Agreements and all other Transaction Documents, instruments and agreements executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed in all respects.

(c)       The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Purchaser or any of its assignees under the Agreements or any other Transaction Document, instrument, or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein.

SECTION 8. Counterparts . This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, and each counterpart shall be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.

 

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SECTION 9. Governing Law . This Amendment shall be governed by the laws of the State of New York, without giving effect to conflict of laws principles that would require the application of the law of any other jurisdiction.

SECTION 10. Transaction Document . This Amendment shall be a Transaction Document under each of the Agreements.

SECTION 11. Section Headings . The various headings of the Amendment are inserted for convenience only and shall not affect the meaning or interpretation of this Amendment or the Agreements or any provision hereof or thereof.

SECTION 12. Severability . If any one or more of the agreements, provisions or terms of this Amendment shall for any reason whatsoever be held invalid or unenforceable, then such agreements, provisions or terms shall be deemed severable from the remaining agreements, provisions and terms of this Amendment and shall in no way affect the validity or enforceability of the provisions of this Amendment.

[Signatures follow]

 

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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above.

 

WISE ALLOYS LLC,

as the RSA Seller and the Servicer

By:  

/s/ Alex Godwin

Name:

 

Alex Godwin

Title:

 

Treasurer

WISE ALLOYS FUNDING II LLC,

as the RPA Seller

By:  

/s/ Alex Godwin

Name:

 

Alex Godwin

Title:

 

Treasurer

 

  S-1    Third Omnibus Amendment

HITACHI CAPITAL AMERICA CORP., as a Purchaser
By:  

/s/ James M. Giaimo

Name:

 

James M. Giaimo

Title:

 

Vice President

Structured Credit & Operations

 

  S-2    Third Omnibus Amendment

INTESA SANPAOLO S.P.A., NEW YORK

BRANCH,

as a Purchaser

By:  

/s/ Antonio DiMaggio

Name:

 

Antonio DiMaggio

Title:

 

FVP

 

  S-3    Third Omnibus Amendment

GREENSILL CAPITAL INC.,

as the Purchaser Agent

By:  

/s/ Jonathan Lane

Name:

 

Jonathan Lane

Title:

 

General Counsel, Authorised Attorney

 

  S-4    Third Omnibus Amendment

ACKNOWLEDGED AND AGREED:

CONSTELLIUM HOLDCO II B.V.

By:  

/s/ Corporate Signatory

Name:

 

Corporate Signatory

Title:

 

Director A

By :  

/s/ Mark Kirkland

Name:

 

Mark Kirkland

Title:

 

Director B

 

  S-5    Third Omnibus Amendment

Exhibit 10.6

19 April 2017

(1) THE COMPANIES LISTED IN SCHEDULE 1, AS SELLERS

(2) CONSTELLIUM HOLDCO II B.V., as Parent Company

(3) CONSTELLIUM SWITZERLAND AG, as Sellers’ Agent

(4) FACTOFRANCE SAS, as Factor

 

 

AMENDMENT AND RESTATEMENT AGREEMENT

 

 

 

LOGO

Dentons Europe

Association d’Avocats á Responsabilité Professionnelle Individuellé

5 boulevard Malesherbes, 75008 Paris, France

 

Paris 12693062.6

 

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CONTENTS

 

Clause    Page  

1. Definitions and Interpretation

     3  

2. Amendment and Restatement of the Existing Factoring Agreement

     4  

3. Representations

     4  

4. Miscellaneous

     4  

5. Effective Global Rate

     5  

6. Governing law and jurisdiction

     5  

SCHEDULE 1. The Sellers

     7  

SCHEDULE 2. Conditions Precedent

     8  

SCHEDULE 3. Amended and Restated Factoring Agreement

     9  

 

Paris 12693062.6

 

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THIS AMENDMENT AND RESTATEMENT AGREEMENT is made on 19 April 2017

BETWEEN:

 

  (i) Each of the ENTITIES LISTED IN SCHEDULE 1 ( The Sellers ) (each of them being referred to as a “ Seller ” and collectively the “ Sellers ”);

 

  (ii) CONSTELLIUM HOLDCO II B.V ., a company incorporated under the laws of the Netherlands as a besloten vennootschap, whose registered office is at Tupolevlaan 41-61, 1119 NW Schipol-Rijk, The Netherlands, registered with the trade and companies registry of the Netherlands under number 34393946 0000, in its capacity as parent company (the “ Parent Company ”);

 

  (iii) CONSTELLIUM SWITZERLAND AG , a company incorporated under the laws of Switzerland as an Aktiengesellschaft, whose registered office is at Max Högger-Strasse 6 8048 Zurich, Switzerland, registered with the trade and companies registry of Zurich under number CH17030058406, in its capacity as sellers’ agent (the “Sellers’ Agent” );

AND

 

  (iv) FACTOFRANCE S.A.S ., a company incorporated under the laws of France as a société par actions simplifiee and licensed as a credit institution (établissement de crédit), whose registered office is located at Tour Facto, 18 rue Hoche. 92988 Paris-La Défense Cedex, France registered with the Trade and Companies Registry of Nanterre under number 063 802 466 (the “Factor” )

(the Sellers, the Parent Company, the Sellers’ Agent and the Factor hereinafter collectively referred to as the “ Parties ” and individually, as a “ Party ”).

WHEREAS :

 

(A) The Parties have entered into on 4 January 2011 a factoring agreement as amended from time to time (including by an amendment and restatement agreement entered into on 3 December 2015) pursuant to which the Factor has made available a factoring facility to the Sellers (the “ Existing Factoring Agreement ”).

 

(B) The Parties have decided to enter into this amendment and restatement agreement in order to amend and restate the Existing Factoring Agreement (the “ Amendment and Restatement Agreement ”).

IT HAS BEEN AGREED AS FOLLOWS :

 

1. DEFINITIONS AND INTERPRETATION

 

1.1 Definitions

 

  1.1.1 In this Amendment and Restatement Agreement

“Amendment Effective Date” means the Amendment Signing Date, subject to the Factor being satisfied that the conditions precedent set out in SCHEDULE 2 ( Conditions Preceden t ) of this Amendment and Restatement Agreement are met

“Amended and Restated Factoring Agreement” means the Existing Factoring Agreement as amended and restated in accordance with this Amendment and Restatement Agreement in the form set out in SCHEDULE 3 (Amended and Restated Factoring Agreement).

 

Paris 12693062.6

 

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  “ Amendment Signing Date ” means the date hereof.

 

  1.1.2 Save as otherwise provided herein, terms used in the above recitals and in this Amendment and Restatement Agreement shall have the respective meanings assigned to them in the Amended and Restated Factoring Agreement.

 

  1.2 General Interpretation

The rules of construction set forth in clause 1 of the Amended and Restated Factoring Agreement shall be applicable to this Amendment and Restatement Agreement.

 

  2. AMENDMENT AND RESTATEMENT OF THE EXISTING FACTORING AGREEMENT

 

  2.1 With effect from the Amendment Effective Date, the Existing Factoring Agreement is amended and restated so as to be in the form set out in SCHEDULE 3 (Amended and Restated Factoring Agreement) hereto.

 

  2.2 The provisions of the Amended and Restated Factoring Agreement shall be substituted to the provisions of the Existing Factoring Agreement, provided that:

 

  2.2.1 such substitution shall not be construed as a novation ( novation ) of the respective obligations of the parties under the Existing Factoring Agreement as prior to the date hereof; and

 

  2.2.2 any provision of the Existing Factoring Agreement which is not modified pursuant to this Amendment and Restatement Agreement remains unchanged.

 

  2.3 In any of the Factoring Facility Documents, any reference to the Existing Factoring Agreement shall, unless the context otherwise requires, be read and construed as a reference to the Amended and Restated Factoring Agreement.

 

  3. REPRESENTATIONS

 

  3.1 On the Amendment Signing Date and on the Amendment Effective Date, each Seller and, as the case may be, the Sellers’ Agent and the Parent Company, make to the Factor, the representations set out in Part 1 of Schedule 4 of the Amended and Restated Factoring Agreement.

 

  4. MISCELLANEOUS

 

  4.1 This Amendment and Restatement Agreement is a Factoring Facility Document

 

  4.2 With effect from the Amendment Effective Date, each Seller confirms that the security interests created under the Collection Account Guarantee Agreement to which such Seller is a party continue in full force and effect in accordance with their terms and extend to its liabilities and obligations under the Amended and Restated Factoring Agreement and under the other Factoring Facility Documents as amended on the Amendment Effective Date, as the case may be.

 

  4.3 With effect from the Amendment Effective Date, the Parent Company irrevocably and unconditionally confirms that its obligations under the Parent Performance Guarantee continue in full force and effect notwithstanding the amendments to the Amended and Restated Factoring Agreement as provided for under this Amendment and Restatement Agreement and extend to the liabilities and obligations of each Seller under the Amended and Restated Factoring Agreement, under the terms and conditions of the Parent Performance Guarantee.

 

  4.4 For the avoidance of doubt, it is specified that the entering into of the Amendment and Restatement Agreement will not give rise to any additional amounts payable to the Factor other than those specifically set out in the Amended and Restated Factoring Agreement or expressly agreed with any member of the Group; and in particular, the Factor expressly agrees that no amount will be payable to it under clause 9.1.2 (Establishment) of the Existing Factoring Agreement.

 

Paris 12693062.6

 

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5. EFFECTIVE GLOBAL RATE

 

5.1 For the application of the provisions of Articles L.314-1 to L.314-5 and R.314-1 et seq of the French Consumer Code and Article L.313-4 of the French Monetary and Financial Code, each Party acknowledges that, taking into account the specificity of the Amended and Restated Factoring Agreement as provided for under this Amendment and Restatement Agreement (in particular the variable nature of the SFC rate), the taux effectif global (the “ Effective Global Rate ”) cannot be calculated on the Amendment Signing Date but an indicative calculation of such rate shall be provided in this clause 5 (Effective Global Rate) .

 

5.2 In application of Articles L.314-1 to L.314-5 and R.314-1 et seq. of the French Consumer Code and Article L.313-4 of the French Monetary and Financial Code, the indicative calculation of the Effective Global Rate applicable to this Amendment and Restatement Agreement for Financing in Euros, on the basis of an arithmetic average of the daily EURIBOR rates for the month of March 2017 being set at 0%, is 1.22% per year as of the Amendment Signing Date.

 

5.3 In application of Articles L.314-1 to L.314-5 and R.314-1 et seq. of the French Consumer Code and Article L.313-4 of the French Monetary and Financial Code, the indicative calculation of the Effective Global Rate applicable to this Amendment and Restatement Agreement for Financing in USD, on the basis of an arithmetic average of the daily LIBOR rates for the month of March 2017 being set at 1.04%, is 2.28% per year as of the Amendment Signing Date.

 

5.4 This rate is calculated, as an indication only, on the basis of a 365 day year (366 days for leap years) during the term of the Amended and Restated Factoring Agreement pursuant to the terms and conditions that normally apply, namely the following assumptions:

 

  (a) a level of Financing under this Amended and Restated Factoring Agreement equal to the Maximum Total Financing Amount;

 

  (b) average delay in payments by the Debtors of fifty-four (54) calendar days;

 

  (c) a Special Financing Commission as specified in Clause 9.2 (Special Financing Commission (SFC)) of the Amended and Restated Factoring Agreement;

 

  (d) the Dilution Reserve as specified in Clause 8.5 (Dilutions Reserve) of the Amended and Restated Factoring Agreement; and

 

  (e) the Non-Utilization Fee as specified in clause 9.4 ( Non-Utilization Fee) of the Amended and Restated Factoring Agreement.

 

5.5 Even if the reference rate of the Special Financing Commission does not vary, the Effective Global Rate may increase or decrease during the term of this Amended and Restated Factoring Agreement depending on changes to the various assumptions set out above and/or contractual parameters.

 

6. GOVERNING LAW AND JURISDICTION

 

6.1 Subject to Clause 6.2 below, the provisions of this Amendment and Restatement Agreement shall be construed in accordance with and shall be governed by French law.

 

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6.2 Each of the Parties to this Amendment and Restatement Agreement agrees that any and all disputes arising out of or in connection with this Amendment and Restatement Agreement and in particular with its validity, interpretation, performance or non-performance, shall be exclusively referred to the competent courts of the Paris Court of Appeals

 

6.3 Each Party to this Amendment and Restatement Agreement irrevocably waives any objection which it might now or hereafter have to the courts referred to in Clause 6.2 being nominated as the forum to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this Amendment and Restatement Agreement and agrees not to claim that any such court is not a convenient or appropriate forum.

 

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SCHEDULE 1. T HE S ELLERS

 

Name

  

Registered Office

  

Registration

Number

  

Jurisdiction

Constellium Issoire    rue Yves Lamourdedleu ZI les Listes 63500 Issoire, France   

672 014 081

RCS Clermont-

Ferrand

   France
Constellium Neuf Brisach   

ZIP Rhénane Nord, RD 52,

68600 Biesheim

  

807 641 360

RCS Colmar

   France
Constellium Extrusions France   

1 Passage Eiffel, CS 40046,

21702 Nuits-Saint-Georges

  

662 032 374

RCS Dijon

   France

 

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SCHEDULE 2.

C ONDITIONS P RECEDENT

Conditions Precedent to the Amendment Signing Date

The following documents must be delivered by each Obligor on the Amendment Signing Date:

 

(a) An original copy or a certified copy of the up-to-date constitutional documents (statuts);

 

(b) An original copy or a certified copy of the certificate of incorporation (Extrait K-bis or, in respect of the Parent Company oprichtingsakte);

 

(c) To the extent required by any applicable law or by its constitutional documents, original copies or certified copies of the resolutions of the competent corporate bodies, approving the terms of, the transactions contemplated by, and the execution, delivery and performance of the Amendment and Restatement Agreement; and

 

(d) An original copy or a certified copy of the power(s) of attorney of the person(s) signing the Amendment and Restatement Agreement.

 

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SCHEDULE 3.

A MENDED AND R ESTATED F ACTORING A GREEMENT

 

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19 April 2017

(1) THE COMPANIES LISTED IN SCHEDULE 2, AS SELLERS

(2) CONSTELLIUM HOLDCO II B.V., as Parent Company

(3) CONSTELLIUM SWITZERLAND A.G., as Sellers’ Agent

(4) FACTOFRANCE SAS, as Factor

 

 

AMENDED AND RESTATED FACTORING AGREEMENT

 

 

 

LOGO

Dentons Europe

Association d’Avocats á Responsabllité Professlonnelle Individuelle

5 boulevard Malesherbes, 75008 Paris, France

 

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CONTENTS

 

1. Definitions and Interpretation

     4  

2. Assignment of Receivables

     6  

3. Financing of Financeable Amounts

     8  

4. Non-Recourse Factoring Facility

     10  

5. Definancing and Transfer-Back of Receivables

     13  

6. Credit Insurance Policy

     15  

7. Servicing of the Transferred Receivables

     17  

8. Factoring Accounts

     27  

9. Remuneration of the Factor

     34  

10. Taxes

     37  

11. Representations, Warranties and Undertakings

     40  

12. Term and Early Termination

     40  

13. Access to Web Services

     46  

14. Costs and Expenses

     47  

15. Confidentiality – Utilisation of Information collected by the Factor – Substitution.

     48  

16. Miscellaneous provisions

     50  

17. Appointment of Sellers’ Agent

     52  

18. Change to the Parties

     52  

19. Applicable Law – Jurisdiction

     54  

SCHEDULE 1. Definitions

     55  

SCHEDULE 2. The Sellers

     73  

SCHEDULE 3. Conditions Precedent

     74  

SCHEDULE 4. Representation, Warranties and Undertakings

     76  

SCHEDULE 5. Value Dates

     83  

SCHEDULE 6. Credit And Collection Procedures

     85  

SCHEDULE 7. Computer Relationship Guide

     92  

SCHEDULE 8. Transferred Receivables Ledgers

     118  

SCHEDULE 9. Form Of Consent Letter

     119  

SCHEDULE 10. Collection Accounts

     120  

SCHEDULE 11. Location Of Records

     121  

SCHEDULE 12. Current Accounts

     122  

SCHEDULE 13. Financing Requests - Factofrance Adressees

     123  

SCHEDULE 14. Jurisdiction Matrix*

     124  

SCHEDULE 15. Accession Form

    
128
 

 

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SCHEDULE 16.

  Schedule Specific to the Sellers      129  

SCHEDULE 17.

  List of Audited Items      139  

SCHEDULE 18.

  List of Airbus Companies      140  

SCHEDULE 19.

  Form of Rexam First Demand Guarantee      141  

SCHEDULE 20.

  Form of Letter of Waiver and Consent      148  

 

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FACTORING AGREEMENT originally dated 4 January 2011, as amended and restated on 3 December 2015 and on     April 2017;

BETWEEN:

 

  (i) Each of the ENTITIES LISTED IN SCHEDULE 2 (The Sellers) (each of them being referred to as a “ Seller ” and collectively the “ Sellers ”);

 

  (ii) CONSTELLIUM HOLDCO II B.V ., a company incorporated under the laws of the Netherlands as a besloten vennootschap , whose registered office is at Tupolevlaan 41—61, 1119 NW Schipol-Rijk, The Netherlands, registered with the trade and companies registry of the Netherlands under number 34393946 0000, in its capacity as parent company (the “ Parent Company ”);

 

  (iii) CONSTELLIUM SWITZERLAND A.G ., a company incorporated under the laws of Switzerland as an Aktiengasellschaft, whose registered office is at Max Högger-Strasse 6 8048 Zürich, Switzerland, registered with the trade and companies registry of Zurich under number CH17030058406, in its capacity as sellers’ agent (the “ Sellers’ Agent ”);

AND

 

  (iv) FACTOFRANCE S.A.S. , a company incorporated under the laws of France as a société par actions simplifiée and licensed as a credit institution (établissement de crédit), whose registered office is located at Tour Facto, 18, rue Hoche, 92988 Paris-La Defénse Cedex, France, registered with the Trade and Companies Registry of Nanterre under number 063 802 466 (the “ Factor ”)

(the Sellers, the Parent Company, the Sellers’ Agent and the Factor hereinafter collectively referred to as the “ Parties ” and individually, as a “ Party ”).

WHEREAS:

 

(A) The Parties have entered into on 4 January 2011 a factoring agreement as amended from time to time (the “ Existing Factoring Agreement ”) pursuant to which the Factor has made available a factoring facility to the Sellers.

 

(B) The Parties have decided to enter into this agreement (the “ Agreement ”) in order to amend and restate the Existing Factoring Agreement.

IT IS HEREBY AGREED AS FOLLOWS:

 

1. DEFINITIONS AND INTERPRETATION

 

1.1 Definitions

In this Agreement, terms and expressions used with a capital letter shall, except where the context otherwise requires, have the meaning given to them in SCHEDULE 1 (Definitions).

 

1.2 Interpretation

 

  (a) The Agreement sets forth all the rights and obligations of the Parties. It replaces and substitutes any and all prior letters, proposals, offers and agreements between the Parties.

 

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  (b) In this Agreement, unless the contrary intention appears, any reference to:

 

  (i) this Agreement includes a reference to its recitals and its Schedules;

 

  (ii) a Clause, a Paragraph or a Schedule is a reference to a clause, a paragraph or a schedule of this Agreement.

 

  (iii) the singular shall include the plural and vice-versa; and

 

  (iv) time in this Agreement refers to local time in Paris (France), unless expressly provided to the contrary.

 

  (c) Words appearing therein in French shall have the meaning ascribed to them under French law and such meaning shall prevail over their translation into English, if any.

 

  (d) Where an obligation is expressed in a Factoring Facility Document to be performed on a date which is not a Business Day, such date shall be postponed to the first following day that is a Business Day unless that day falls in the following calendar month in which case that date will be the first preceding day that is a Business Day.

 

  (e) Unless expressly provided to the contrary in a Factoring Facility Document, any reference in a Factoring Facility Document to:

 

  (i) any agreement or other deed, arrangement or document shall be construed as a reference to the relevant agreement, deed, arrangement or document as the same may have been, or may from time to time be, replaced extended, amended restated, varied, supplemented or superseded;

 

  (ii) any statutory provision or legislative enactment shall be deemed also to refer to any re-enactment, modification or replacement and any statutory instrument, order or regulation made thereunder or under any such re-enactment; and

 

  (iii) any party to a Factoring Facility Document shall include references to its successors, permitted assigns and any person deriving title under or through it, references to the address of any person shall, where relevant, be deemed to be a reference to the location of its then registered office or equivalent as current from time to time.

 

  (f) Unless expressly provided to the contrary, all references made In this Agreement to a day are references to a calendar day.

 

  (g) Unless expressly provided to the contrary, all references made in this Agreement to the term “control” shall have the meaning given to it in Article L. 233-3 of the French Commercial Code (Code de commerce).

 

  (h) A Default or an Event of Default is “continuing” if it has not been remedied (within the applicable grace period, if any) or waived.

 

  (i) “ gross negligence ” means “faute lourde ” .

 

  (j) A “ guarantee ” includes any “ cautionnement ” “ aval ” and any “ garantie ” which is independent from the debt to which it relates.

 

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  (k) A “ merger ” includes any fusion implemented in accordance with articles L.236-1 to L.236-24 of the French Commercial Code

 

  (l) A “ person ” includes any person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality).

 

  (m) “ wilful misconduct ” means “ dol ”.

 

  (n) “ set-off ” shall be construed so as to include analogous and/or corresponding rights in any applicable jurisdiction.

For the avoidance of doubt, the Ordonnance n’2016-131 du 10 tévrier 2016 portant réforme du droit des contrats, du régime général et de la preuve des obligations will be applicable to the Factoring Facility Documents amended and/or restated on, or entered into on or after, the Amendment Signing Date.

 

2. ASSIGNMENT OF RECEIVABLES

 

2.1 Assignment of Eligible Receivables

 

  2.1.1 Conditions Precedent

 

  (a) No Seller shall be entitled to offer to Assign any Eligible Receivable to the Factor and the Factor shall not be obliged to accept any offer to Assign any Eligible Receivable:

 

  (i) until all of the conditions precedent set forth in SCHEDULE 3 (Conditions Precedent) have been fulfilled in a form and substance reasonably satisfactory to the Factor or have been waived by the Factor;

 

  (ii) if a Stop Purchase Event is outstanding;

 

  (iii) if on the relevant Assignment Date, the sum of (x) the Insurance Indemnifications received under the Credit Insurance Policy and (y) the insurance claims filed but not yet indemnified by the Credit Insurer under the Credit Insurer Policy exceeds 80% of the Maximum Insurance Liability;

 

  (iv) if on the relevant Assignment Date, the Maximum Total Financing Amount would be reached (if the Sellers require financing in relation to such Eligible Receivables); and

 

  (v) If such Receivable is not an Eligible Receivable as at its Assignment Date, or if as at such date, an automatic cancellation of coverage (“Stop Automatique de la Couverture”) or any similar concepts under the Credit Insurance Policy has occurred, (otherwise the provisions of Clause 5.2 1 will apply 1 );

Notwithstanding the foregoing, the Parties acknowledge that the conditions precedent set forth in SCHEDULE 3 (Conditions Precedent) Part 1 shall be satisfied or waived at the latest on the Signing Date. The Factor undertakes to

promptly notify the Sellers’ Agent if any condition precedent is not fulfilled in a form and substance reasonably satisfactory to it on the date on which such condition precedent is due to be fulfilled.

 

 

1   Subject to CC’s discussion with Atradius

 

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2.1.2 Offer to Assign Eligible Receivables

 

  (a) Subject to the provisions of Clause 2.1.1 (Conditions Precedent) , each Seller shall be entitled to offer to Assign Eligible Receivables to the Factor no more than twice a week (or any other frequency agreed upon by the Parties) but at least twice a month.

 

  (b) Each Seller may offer to Assign Eligible Receivables, by:

 

  (i) transmitting by tele-transmission to the Factor a “101” electronic file complying with the Computer Relationship Guide (together with the relevant Seller Codes) and identifying the Eligible Receivables purported to be Assigned by setting out, for each Receivable, its Debtor’s name its amount, the reference of the invoice out of which it arises, its location and payment date and the currency in which it is denominated, and

 

  (ii) providing the Factor with a Transfer Document duly signed by a duly empowered signatory specifying the reference of the relevant “101” electronic file (and the related upload date).

 

2.1.3 Payment by the Factor

 

  (a) Subject to the provisions of Clause 2.1.1 (Conditions Precedent ) , upon receipt of an offer to Assign Eligible Receivables from a Seller in accordance with Clause 2.1.2 (Offer to Assign Eligible Receivables) and provided that the relevant Transfer Document has been exchanged or, as appropriate, delivered (manually or electronically) in accordance with the Transfer Mode, the Factor shall, on the Business Day following the receipt of such offer (such date being an “ Assignment Date ” with respect to such Seller), date such Transfer Document in accordance with the Transfer Mode.

 

  (b) Upon completion of the procedure and formalities of the relevant Transfer Mode, each Transfer Document dated by the Factor shall transfer to the Factor absolute title on and full ownership (or, as applicable, the beneficial interest therein) of the Eligible Receivables set out therein.

 

  (c) Subject to the provisions of Clause 2.1.1 (Conditions Precedent) , the Factor shall;

 

  (i) if the relevant Transfer Document is received on an Assignment Date not later than 12.00 noon Paris time on any Business Day, on the Business Day immediately following such receipt; or

 

  (ii) if the relevant Transfer Document on an Assignment Date is received after 12.00 noon Paris time on any Business Day, on the second Business Day following such receipt,

pay the purchase price for the Transferred Receivables set out in such Transfer Document by crediting the Current Account of the relevant Seller with an amount equal to the Face Value of such Transferred Receivables.

 

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2.1.4 Selection of Debtors

 

  (a) As consideration for the services provided by the Factor, each of the Sellers undertakes to transfer title to the Transferred Receivables exclusively to the Factor. Consequently, the Sellers undertake not to enter into any agreement which would grant rights to third parties over such Transferred Receivables which would negatively affect the rights granted to the Factor hereunder over those Transferred Receivables. For the avoidance of doubt, this Clause 2.1.4 ( Selection of Debtors ) does not affect the right for a Seller to grant Reductions or Cancellations Items In respect of a Transferred Receivable.

 

  (b) In addition, once a Transferred Receivable has been assigned to the Factor in relation to a Debtor, the Sellers undertake to subsequently offer to transfer to the Factor all the Eligible Receivables related to such Debtor.

 

  (c) Any Seller may request the Factor in writing to no longer transfer Receivables over any given Debtor by sending a ten (10) Business Days prior notice to the Factor, provided that:

 

  (i) the aggregate amount of Financeable Receivable in respect of Transferred Receivables over such Debtor represent less than fifty per cent (50%) of the total amount of Transferred Receivables over that Debtor, unless such Seller transfers to the Factor Eligible Receivables over one or more new Debtors, the amount of which compensate the loss of the portfolio of Receivables over the existing Debtor; or

 

  (ii) the relevant Seller provides the Factor with reasonable commercial explanations justifying such request (such as for example, the requirement from the relevant Debtor to enter into a reverse factoring program), and to the extent that such withdrawal does not significantly affect (taking into account previous withdrawals of Debtors pursuant to this Clause 2.1.4(c)) the Financeable Amount.

 

3. FINANCING OF FINANCEABLE AMOUNTS

 

3.1 Financing

 

  3.1.1 Upon request from the relevant Seller (or the Sellers’ Agent acting on its behalf) sent to the addressees specified in SCHEDULE 13 ( Financing Requests - Factofrance Adressees ) by e-mail (a “ Financing Request ”) specifying (i) the Financeable Amount in respect of which such Seller is requesting a Financing (the “ Requested Amount ”) and (ii) identifying the Financeable Receivables to be Financed in the relevant currency from the Factor and setting out for each of such Financeable Receivable, the Expected Financing Period per Receivable (the “ Requested Financed Receivables ”), and provided that:

 

  (a) each Requested Financed Receivable shall be fully Financed, and therefore, the sum of the Face Value of each Requested Financed Receivables shall be equal to the Requested Amount; and

 

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  (b) the Requested Amount does not exceed the Financeable Amount for the Seller on the date of the relevant request the Factor shall, until the Transaction Settlement Date, make available to the relevant Seller the Requested Amount by debiting such amounts from the available balance of the relevant Current Account (after, as the case may be, having transferred all or part of this amount from the Available Financing Account of the relevant Seller) and paying them to the relevant Seller by way of wire transfer ( virement ) to the Bank Account or to such other account as the relevant Seller may from time to time specify, provided that if a Financing Request is sent by the relevant Seller (or the Sellers’ Agent acting on its behalf) to the Factor (i) before 10 a.m. on a given Business Day, Financing will be made available by the Factor to such Seller on the same Business Day, or (ii) after 10 a.m. on a given Business Day, Financing will be made available by the Factor to such Seller on the following Business Day.

 

  3.1.2 On any day on which a Seller transfers Financeable Receivables to the Factor, if such Seller (or the Sellers’ Agent acting on its behalf) does not make a Financing Request or if the Financing Request it makes is for a Requested Amount lower to the Financeable Amount credited on the Current Account of such Seller on such date, the Factor will transfer the Financeable Amount credited on such Current Account to the Available Financing Account of such Seller in accordance with in Clause 8.2 (Available Financing Account).

 

  3.1.3 On any Assignment Date, should the sum of (x) the Insurance Indemnifications received under the Credit Insurance Policy and (y) the insurance claims filed but not yet indemnified by the Credit Insurer under the Credit Insurer Policy exceed 80% of the Maximum Insurance Liability, the Seller shall be entitled to cease to offer to Assign Eligible Receivables and the Parties agree to discuss the consequences of this event. If sixty (60) days after such Assignment Date, the Parties have not agreed to continue the Factoring Facility, the Commitment Period shall terminate

 

3.2 Financeable Amounts

The amounts which are, at any time (until the Transaction Settlement Date), financeable to each Seller by the Factor (the “ Financeable Amounts ”) shall correspond to the credit balance at such time on the Current Account of such Seller (including, on any Assignment Date, the Face Value of the Financeable Receivables Assigned by such Seller on such Assignment Date, less (i) the sum of the credit balance of the Reserve Accounts of such Seller and the amounts of the Dilution Reserve and (ii) as the case may be any outstanding debit position of the relevant Current Account as at such date)

 

3.3 Maximum Total Financing Amount

 

  3.3.1 The Financeable Amount for all Sellers on any date cannot exceed the Maximum Total Financing Amount less the aggregate Financed Amounts for all Sellers as at such date and the Financed Amounts for all Sellers shall never exceed the Maximum Total Financing Amount.

 

  3.3.2 Should the aggregate Financeable Amounts for all Sellers potentially exceed the Maximum Total Financing Amount less the aggregate Financed Amounts for all Sellers, the maximum Financeable Amount shall be reduced pro rata up to the Maximum Total Financing Amount less the aggregate Financed Amounts for ail Sellers.

 

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  3.3.3 As from the date falling 12 months after the Signing Date, or at any time after the occurrence of a Factor Change of Control, the Parent Company shall be entitled to request in writing to the Factor that the Maximum Total Financing Amount be reduced in all or in part. Such reduction shall enter into force ten (10) Business Days after the receipt by the Factor of the aforementioned request.

 

  3.3.4 Should the Factor identify on any date that the aggregate amount of Financeable Receivables to be purchased by the Factor on the following Assignment Date is likely to cause the Maximum Total Financing Amount to be exceeded, the Factor will notify the Seller’s Agent and the Parties undertake to discuss in good faith about a potential increase in the Maximum Total Financing Amount to avoid causing the Maximum Total Financing Amount to be exceeded.

 

3.4 Transfer of Non-Financeable Amounts to a Deferred Availability Account

The Factor shall debit the relevant Non-Financeable Amounts from the Current Account applicable to the relevant Seller and credit them to the applicable Deferred Availability Account.

 

3.5 Request for transfer of collections relating to Non-Financeable Receivables and Definanced Receivables.

 

  3.5.1 For each Seller, collections received under Non-Financeable Receivables will be credited by the Factor to the available balance of such Seller’s Current Account. The payment of such collections to each relevant Seller shall be made by the Factor as soon as practicable after receipt of such collections and in any case within two (2) Business Days.

 

  3.5.2 Any payment made under this Clause shall be made available by the Factor to the relevant Seller by debiting such amounts from the available balance of the relevant Current Account and paying them to such Seller by way of wire transfer ( virement ) to the Bank Account or to such other account as the Seller may from time to time specify.

 

4 . NON-RECOURSE FACTORING FACILITY

 

4.1 Non Recourse Factoring Facility

 

  4.1.1 The Factoring Facility made available to the Sellers in respect of Approved Receivables under this Agreement is a non-recourse facility. As a result the Factor shall not be entitled to exercise any recourse against the Sellers by reason of a payment default by a Debtor under an Approved Receivable, provided that:

 

  (a) such Receivable is a Financeable Receivable;

 

  (b) the Seller of such Receivable has complied with its obligations under Clause 6 ( Credit Insurance Policy ) in respect of such Receivable, has complied with its obligations under the Credit Insurance Policy and has filed all relevant claims in a timely manner and in form acceptable by the Credit Insurer, otherwise the provisions of Clause 5.1.1 will apply;

 

  (c) the non-payment of such Receivable does not result from such Receivable being a Disputed Receivable, otherwise the provisions of Clause 5.1.1 will apply;

 

  (d) there is no credit notes not disclosed to the Factor that affect the value of a Transferred Receivable, otherwise the Factor will debit the Current Account of the relevant Seller from the corresponding unpaid amount in accordance with Clause 8.1.3(b);

 

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  (e) there is no adjustment items accounted for by the Seller which are not transferred to the Factor and which affect the value of a transferred receivable, otherwise the Factor will debit the Current Account of the relevant Seller from the corresponding unpaid amount in accordance with Clause 8.1.3(b); and

 

  (f) the non-payment of such Receivable does not result from the occurrence of an exclusion event set out in the Credit Insurance Policy allowing the Credit Insurer to refuse to indemnify such Receivable, otherwise the Factor will debit the Current Account of the relevant Seller from the corresponding unpaid amount in accordance with Clause 8.1.3(b).

 

  4.1.2 Subject to Clause 4.1.1, the Factor hereby expressly waives:

 

  (a) any Seller’s guarantee pursuant to article L.313-24 of the French Code monétaire et financier in respect of any Approved Receivable Assigned by a Seller;

 

  (b) any right of recourse (including any recours cambialre under, inter alia, articles L 511-6, L 511-7, L 511-10, L 511-21, L 511-44, L 512-3 and L 512-4 of the French Code de commerce) It may have against any Seller under any bills of exchange, negotiable instrument, promissory note related to any Approved Receivable that has been endorsed to its benefit by such Seller and the Factor further undertakes to obtain a similar waiver not to exercise any of the rights of recourse referred to in this paragraph (b) from any third party transferee of any Approved Receivable;

 

  (c) and more generally any and all rights of recourse it may have against the Seller with respect to unpaid Approved Receivables (including, for the avoidance of doubt, with respect to the non-insured portion ( quotité non-assurée ) relating to such Receivables) and in particular shall not be entitled to debit the Current Account in an amount corresponding in full or in part to the non-payment of such Approved Receivables (other than expressly contemplated in Clause 4.1.1 above) or to request the payment of such amount (or any indemnity resulting from the relevant Debtor’s failure) from the relevant Seller).

 

  4.1.3 The Factor hereby undertakes:

 

  (a) not to claim any payment pursuant to a guarantee (aval) granted by the relevant Seller or any third party under a negotiable instrument (including, without limitation, promissory note ( billet á ordre ) and bill of exchange (lettre de change )) related to any Approved Receivable that has been endorsed to its benefit by a Seller; and

 

  (b) without prejudice to the provisions of Clause 7.10.2(b) ( Power of Attorney ), not to endorse any negotiable instrument (including, without limitation, promissory note ( billet à ordre ) and bill of exchange ( lettre de change )) related to any Approved Receivable that has been endorsed to its benefit by a Seller.

 

  4.1.4 On the Indemnification Maximum Payment Date applicable to such Approved Receivable, the Factor will automatically credit the Current Account of the relevant Seller with the Outstanding Amount of any Approved Receivable which is not a Financed Receivable and which is a Defaulted Receivable. Upon receipt from the Credit Insurer of the Insurance Indemnification relating to such Approved Receivable, the Factor will reduce the amount of the Asset Account of the relevant Seller with the Outstanding Amount of such Approved Receivable

 

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4.2 Approval of Transferred Receivables Assigned by the Seller

 

  4.2.1 Approval by the Factor

 

  (a) Subject solely to the provisions of Clause 4.1.1 above, the Factor agrees to bear the credit risk under all Approved Receivables (VAT Included) assigned by the Seller up to an amount in respect of each Debtor of the Seller (the “ Factor Approval Limit ”).

 

  (b) Subject to paragraph (d) below, with respect to each Debtor the Factor Approval Limit (including VAT) on any Assignment Date shall be equivalent to the Credit Insurer Approval Limit (including VAT) applied at such relevant time under the Credit Insurance Policy in respect of that Debtor.

 

  (c) Any reduction or cancellation of approval being made by the Credit Insurer shall result in an automatic and pro tanto reduction or cancellation of the Factor Approval Limit in respect of any Debtor as from the date on which such reduction or cancellation of approval takes effect, it being agreed that such automatic and pro tanto reduction or cancellation of the Factor Approval Limit shall not affect the Receivables held against such Debtor that had already given rise to the issue of an invoice and that were falling within the Factor Approval Limit as at such date.

 

  (d) Notwithstanding paragraph (b) above, the Factor may, at any time, in its discretion, reduce or set the Factor Approval Limit with respect to any Debtor below the corresponding Credit Insurer Approval Limit;

 

  (i) without prior notice, with respect to the Approval Limit applicable to a new Debtor which was not a Debtor on the Signing Date;

 

  (ii) without prior notice, upon the increase by the Credit Insurer of the Credit Insurer Approval Limit of any Debtor, with respect to the Approval Limit applicable to such Debtor provided that the Factor Approval Limit following such increase of the Credit Insurer Approval Limit shall not be lower than the Factor Approval Limit immediately before such increase; and

 

  (iii) otherwise, subject to a fifteen-day prior notice to the relevant Seller,

provided that such reduction shall not affect Receivables held against such Debtor that had already given rise to the issue of an invoice.

 

  (e) The Parties further acknowledge and agree to convene and discuss in good faith the way the Factor Approval Limit is determined under the Agreement should regulatory requirements currently, directly or indirectly, applicable to the Factor be lifted at any time during the continuation of the Agreement.

 

  (f) The Factor will provide through the Web Services to each Seller the Factor Approval Limit applicable to each Debtor

 

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  4.2.2 Approved Receivables

 

  (a) When (i) a payment is made to the Factor under or in connection with an Approved Receivable (including any payment by the relevant Seller of any Dilution, Indirect Payment or any indemnity paid by the Seller as discharge for any non-payment by the relevant Debtor of any Approved Receivable) or (ii) the Credit Insurer and the Factor increases the Approval Limit in relation to a Debtor, the available amount under the Approval Limit in respect of such Debtor will automatically increase, as the case may be (x) from the amount paid under or in connection with such Approved Receivable or (y) from the amount by which the Approval Limit has been increased by the Credit Insurer and the Factor, and such additional available amount will be automatically applied to Transferred Receivables which are not Approved Receivables as that time (if any).

 

  (b) For the avoidance of any doubt, any Approved Receivable referred to in this Clause 4.2.2 shall immediately benefit from a full transfer of risks to the Factor in accordance and subject to Clause 4.1.1 as if such Approved Receivable had fallen within the Factor Approval Limit on the relevant Assignment Date.

 

5. DEFINANCING AND TRANSFER-BACK OF RECEIVABLES

 

5.1 Disputed Receivables and Defaulted Receivables

 

  5.1.1 The Factor will be entitled to:

 

  (a) Definance any Financed Receivable or to recharacterize any Financeable Receivable into Non-Financeable Receivable if such Receivables:

 

  (i) becomes a Defaulted Receivable (a) in respect of which no claim has been filed with the Credit Insurer within the filing period set out in the Credit Insurance Policy or (b) which does not give rise to any indemnification by the Credit Insurer after the maximum indemnification period ( délaid’indemnisation ) under the Credit Insurance Policy, to the extent, in both cases, that such non-payment by the Credit Insurer is the direct consequence of a failure by the Seller to perform its obligations or exercise its rights under the Credit Insurance Policy (in which case the definancing or recharacterization shall be in an amount equal to the claim unpaid by the Credit Insurer), provided that if such non-payment by the Credit Insurer results in or from a dispute between the relevant Seller and the Credit Insurer and such dispute is definitively resolved in favour of the Seller before the Transaction Settlement Date and the Credit Insurer has to pay such claim, the relevant Receivable shall be Financed (or Financeable) again by the Factor by debiting from the relevant Deferred Availability Account and crediting the relevant Current Account with an amount equal to the Outstanding Amount of such Receivable, together with interests equal to the product of the Outstanding Amount of such Receivable by the sum of the Euribor and the Margin as at such date and the number of days elapsed between the Definancing of such Receivable and the new Financing of such Receivable divided by 360; or

 

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  (ii) has been a Disputed Receivable for more than forty-five (45) Business Days as (i) from the issuance of a notice of Dispute by the relevant Seller to the Factor or (ii) from the date on which the Factor identifies a Dispute, based on the elements provided to it pursuant to Clause 7.5.4, provided that if such Dispute proves further to a definitive and binding court decision before the Transaction Settlement Date to be unfounded, or is determined in favour of the Seller or gives right to a settlement before the Transaction Settlement Date, the relevant Financed Receivable or Financeable Receivable shall be Financed again by the Factor by debiting from the relevant Deferred Availability Account and crediting the relevant Current Account with an amount equal to the Outstanding Amount of such Receivable, together with interests equal to the product of the Outstanding Amount of such Receivable by the sum of the Euribor and the Margin as at such date and the number of days elapsed between the Definancing of such Receivable and the new Financing of such Receivable divided by 360.

 

  5.1.2 If a Dispute affecting a Financeable Receivable is about the existence of the Transferred Receivable or if the Transferred Receivable is subject to a court proceeding in relation to a Dispute, such Transferred Receivable may be immediately Definanced (or recharacterized as a Non-Financeable Receivable) by the Factor; provided that, in case of a Definancing of an Approved Receivable (or recharacterization as a Non-Financeable Receivable), if the legal action referred to above proves to be unfounded, is determined in favour of the Seller further to a definitive and binding court jurisdiction before the Transaction Settlement Date or gives right to a settlement the relevant Approved Receivables shall be Financed (or, as the case may be, recharacterized as Financeable Receivable) again by the Factor by debiting such amount from the relevant Deferred Availability Account and by crediting the relevant Current Account by an amount equal to the Outstanding Amount thereof, together with interests equal to the product of the Outstanding Amount of such Receivable by the sum of Euribor and the Margin as at such date and the number of days elapsed between the Definancing of such Receivable and the new Financing of such Receivable divided by 360.

 

5.2 Transfer-Back

 

  5.2.1 Any Transferred Receivable which was not an Eligible Receivable at the time of its Assignment may be Transferred-Back at any time by the Factor or at the request of the relevant Seller (or the Sellers’ Agent acting on its behalf).

 

  5.2.2 At any time, the Factor shall be entitled to request any Seller to repurchase any Transferred Receivable which is owed by a Debtor which is subject to a Debtor Insolvency, to the extent that such Receivable is irrecoverable and the ownership by such Seller of such Transferred Receivable is required in order to obtain a reclaim or refund of VAT or any other taxes billed by such Seller in relation to such Transferred Receivable which may be refundable from the relevant authorities or levying body.

 

  5.2.3 At any time, any Seller shall be entitled to request in writing the retransfer of any Definanced Receivable or any Non-Financeable Receivable, provided that upon request from the Credit Insurer, any Defaulted Receivable shall be, in accordance with the Credit Insurer’s instructions either;

 

  (a) Transferred-Back to the relevant Seller in order for such Seller to transfer such Receivable to the Credit Insurer; or

 

  (b) directly transferred from the Factor to the Credit Insurer, in accordance with the Credit Insurance Policy.

 

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5.3 Procedure for the Transfer-Back of Transferred Receivables - Retransfer Modes

 

  5.3.1 The Parties agree that:

 

  (a) the Transfer-Back of any relevant outstanding Transferred Receivables originated by the relevant Seller which have been assigned to the Factor and that are to be Transferred-Back to it pursuant to this Agreement (the “ Affected Receivables ”); and

 

  (b) the payment of the relevant purchase price for the Transfer-Back of such Affected Receivables which shall be equal to, subject to Clause 5.3.4 below, (i) the amount of any payment made by the Factor to the relevant Seller in respect of such Affected Receivables less (ii) the collections, the Reduction or Cancellation Items and any Insurance Indemnification relating thereto (the “ Transfer-Back Price ”),

shall take place in accordance with and pursuant to the Retransfer Mode being applicable to the relevant Seller, provided that (i) the credit balance of the relevant Current Account shall be at least equal to such Transfer-Back Price on the date of the Transfer-Back, and (ii) if such purchase price is due pursuant to a Transfer-Back made in accordance with Clause 5.2.2, the payment of such purchase price shall be made in accordance with Clause 5.3.4.

 

  5.3.2 Notwithstanding any provision to the contrary, immediately before debiting the Transfer-Back Price of any Affected Receivable which is a Definanced Receivable, the Factor will credit the Current Account of the relevant Seller with the Outstanding Amount of such Affected Receivable.

 

  5.3.3 Upon completion of the applicable Retransfer Mode and full payment of the agreed Transfer-Back Price, the relevant Seller shall be the owner of the relevant Affected Receivables which have been Transferred-Back.

 

  5.3.4 In case of a Transfer-Back made pursuant to Clause 5.2.2:

 

  (a) the relevant Seller undertakes to promptly fulfill all relevant formalities in order to obtain from the relevant tax administration the repayment of the VAT amount previously paid in relation to the relevant Transferred-Back Receivable and shall immediately inform the Factor upon such VAT amount being paid or set-off by the relevant tax administration; and

 

  (b) the Transfer-Back Price of such Transferred-Back Receivable shall be equal to the amount of VAT that the relevant Seller actually recovers (including by way of set-off) from the relevant tax authorities in relation to such Transferred-Back Receivable (provided that such Transfer-Back Price will be payable promptly upon receipt by the Seller of the relevant recovery).

 

6. CREDIT INSURANCE POLICY

 

6.1 Management of the Credit Insurance Policy

 

  6.1.1 Each Seller shall be responsible for managing the Credit Insurance Policy and its obligations thereunder. In particular, each Seller will seek to obtain the Credit Insurer Approval Limits by providing the Credit Insurer with a list of Debtors. All costs, fees, commissions or expenses in respect of the Credit Insurance Policy shall be borne by the Sellers.

 

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  6.1.2 Each Seller undertakes not to amend the Credit Insurance Policy without obtaining the prior written approval of the Factor unless such amendment relates to minor changes which do not adversely affect the Factor’s rights and obligations under the Credit Insurance Policy, provided that for the avoidance of doubt, the Sellers’ Agent or the Parent Company shall be entitled to request the exclusion of any country or any Debtor from the scope of the coverage of the Credit Insurance Policy, to the extent that such exclusion would not significantly affect the Financeable Amounts under the Factoring Facility. For the avoidance of doubt, any such exclusion will be subject to (i) the terms of Clause 2.1.4(c) In the case of a Debtor, and (ii) to updating the list of the Relevant Country in the case of a country.

 

  6.1.3 Each Seller undertakes to provide the Factor, promptly upon first request with (i) a copy of its turnover statements ( déclarations de chiffre d’affaires ), (ii) evidence of payment of any premium or any another amount owed to the Credit Insurer under the Credit Insurance Policy, (iii) evidence of filings of insurance claims ( déclarations de sinistre ) with the Credit Insurer, (iv) evidence of any Credit Insurer Approval Limit applicable to a Debtor or (iv) more generally, any other correspondence between the Credit Insurer and such Seller relating to the Credit Insurance Policy generally.

 

  6.1.4 To the extent that the Seller is deficient in doing so. the Factor shall be entitled following a five (5) Business Days prior written notice to the relevant Seller (or the Sellers’ Agent acting on its behalf), to step in and act in the name and on behalf of the relevant Seller under the Credit Insurance Policy in order to:

 

  (a) produce and manage statements of factored turnover;

 

  (b) send notifications relating to litigation and extensions of payment due date,

 

  (c) send any claim for indemnification to the Credit Insurer, and

 

  (d) pay the premium, if:

 

  (i) such payment is then strictly necessary to ensure that:

 

  (1) the Credit Insurance Policy is not terminated or otherwise expires or is cancelled; or

 

  (2) no event qualified as a “déchéance de garantie” under the Credit Insurance Policy will occur as a result of the failure by the Seller to pay the premium; and

 

  (ii) the Factor has given the Seller a five (5)-Business-Day notice of such intention to pay and the relevant premium remains unpaid at the end of such period.

 

  6.1.5 Notwithstanding Clause 15 (Confidentiality - Utilisation of information collected by the Factor - Substitution), each Seller expressly authorises the Factor to provide the Credit Insurer with any information relating to the portfolio of Transferred Receivables.

 

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  6.1.6 In case claims (déclarations d’intervention contentieuse) are filed with the Credit Insurer in respect of Transferred Receivables, any Insurance Indemnification amounts received from the Credit Insurer in respect of such Transferred Receivables shall be applied as follows:

 

  (i) first, in accordance with the terms of the Credit Insurance Policy;

 

  (ii) absent any specific allocation rule in the Credit Insurance Policy, to the Receivable(s) indicated in writing by the Credit Insurer; or

 

  (iii) absent any valid indication from the Credit Insurer, in chronological order by allocating such amounts starting with the Receivables having the oldest maturity,

provided that any amount (if any) to be repaid by the Factor to the relevant Seller shall be repaid by the Factor to the relevant Seller as soon as possible and in any event within seven (7) Business Days from receipt thereof by the Factor. Similarly, if any insurance proceeds in respect of a Receivable not purchased by the Factor are paid directly to the Factor, the Factor shall as soon as reasonably practicable and in any event within seven (7) Business Days from receipt thereof transfer such moneys to the relevant Seller.

 

  6.1.7 In accordance with the terms of the Credit Insurance Policy, any recovery whatsoever received by the Factor with respect to a Transferred Receivable which has been subject to an indemnification under the Credit Insurance Policy shall be distributed between the Factor, the Credit Insurer and the relevant Seller pro rata the loss supported by each of them vis-à-vis the Debtor such recovery relates to. Any such amount due to any Seller shall be paid by the Factor to the relevant Seller by way of credit to the Current Account within five (5) Business Days upon receipt of such amount.

 

  6.1.8 The Factor hereby undertakes to:

 

  (a) transfer to the Credit Insurer any Transferred Receivable that the Credit Insurer has requested to transfer in accordance with the terms of the Credit Insurance Policy;

 

  (b) pay to the Credit Insurer such portion of any recovery received by, or paid to, the Factor which are payable to the Credit Insurer pursuant to the terms of the Credit Insurance Policy; and

 

  (c) Inform the Seller and the Credit Insurer within five (5) Business Days upon receipt by the Factor of any such recovery.

 

7. SERVICING OF THE TRANSFERRED RECEIVABLES

 

7.1 Servicing Mandate

 

  7.1.1 The Factor hereby appoints each Seller as its agent ( mandataire) for the servicing and collection of the Transferred Receivables Assigned by such Seller. The terms and conditions of such appointment (hereinafter, the “Servicing Mandates ”) are set out in this Clause 7 (Servicing of the Transferred Receivables).

 

  7.1.2 As long as a Seller remains appointed by the Factor to service, administer and collect Transferred Receivables in accordance with this Clause 7, the Factor shall refrain from taking any step with a view to collecting such Transferred Receivable.

 

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  7.1.3 The Seller may sub-contract or delegate any part of the servicing, administration and collection services to be provided by it under this Agreement to any third party with the prior approval, not be unreasonably withheld, of the Factor (unless such third party is an Affiliate of such Seller) (the “ Agent ”) provided that:

 

  (i) the appointment of such Agent by the Seller shall not release or discharge the Seller from liability under this Agreement, and

 

  (ii) the Factor shall have no liability to the Agent in relation to any fees, costs, or expenses suffered or incurred by such Agent,

 

  7.1.4 Notwithstanding paragraph 7.1.3 above, the Servicer may sub-contract or delegate any part of the servicing, administration and collection services to the Credit Insurer (or any Affiliate of the Credit Insurer) in accordance with the terms of the Credit Insurance Policy.

 

  7.1.5 Notwithstanding any provision herein to the contrary, a Seller shall not be required to do or cause to be done anything which it is prevented from doing by any regulatory direction, requirement of law or contractual undertaking and no legal, financial or technical advisor appointed by the Servicer shall be considered as an Agent for the purpose of this Clause.

 

7.2 Common interest

Each Servicing Mandate is stipulated in the joint interest (intérét commun) of both Parties Consequently, the Parties agree that each Servicing Mandate is not without consideration, since each Seller has an essential commercial interest in keeping control of the servicing and collection from its Debtors and the terms and conditions of each Servicing Mandate has been considered by the Parties in the context of the global economy of this Agreement. In particular the remuneration to be paid by the Sellers to the Factor takes into account the fact that there is no collection fee to be paid by the Factor to the Sellers in consideration for the collection of the Transferred Receivables.

 

7.3 Collection of the Transferred Receivables

 

  7.3.1 Collection Accounts

 

  (a) Each Seller shall instruct the Debtors of Transferred Receivables to pay the amount they owe under any Transferred Receivable to the credit of a Collection Account. Each Seller shall as part of its Servicing Mandate transfer or ensure that all collections received on its Collection Accounts regarding Transferred Receivable be transferred on a daily basis to an account of the Factor as notified in writing by the Factor to each Seller.

 

  (b) Each Collection Account opened under the name of a Seller shall be subject to a Collection Account Guarantee Agreement in a form and substance satisfactory to the Factor.

 

  (c) The Factor shall be entitled to require any Seller to open a new Collection Account with a new Bank if (i) the Bank in the books of which the existing Collection Account is opened does not fulfil its material obligations (if any) under the relevant Collection Account Guarantee Agreement (to the extent such breach is not remedied within 30 days from the notification of the relevant Bank and the

 

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  Seller’s Agent) or (ii) the credit rating assigned to the short term unguaranteed and unsubordinated obligations of such Bank falls below “ A1 ” (for Standard & Poor’s or Fitch Ratings) and “ P1 ” (for Moody’s). In accordance with Clause 7.3.1(b) the new Collection Account will have to be subject to a Collection Account Guarantee Agreement before receiving any collection under any Transferred Receivable.

 

  (d) If a Debtor continues to pay amounts owed under Transferred Receivables on another bank account than a Collection Account for more than four (4) months from its receipt of the initial written request by the relevant Seller to pay on a Collection Account, the Seller may be requested by the Factor to send to the relevant Debtors monthly reminders of such new payment instructions, provided that, if further to the sending of two of such monthly reminders such request remains without effect, the Factor shall also be entitled to:

 

  (i) exclude the relevant Debtor from the Factoring Facility until such time as such Debtor effectively pays the proceeds of the Transferred Receivables into the relevant Collection Account: or

 

  (ii) with the prior consent of the relevant Seller, disclose the purchase and assignment of the Transferred Receivables to the relevant Debtor by sending a notice of assignment to the relevant Debtor.

 

  7.3.2 Notification to Debtors

 

  The Assignments of Transferred Receivables shall remain confidential, and shall therefore remain un-notified to the relevant Debtors, provided that if the appointment of the Servicer is terminated in accordance with:

 

  (a) Clause 7.9.1 ( Debtor Termination Event ), notifications may be made by the Factor to the relevant Debtor(s) only; and

 

  (b) Clause 7.9.2 ( Servicer Termination Event ), notifications may be made by the Factor to all Debtor(s) of the affected Seller.

 

7.4 Diligence and general obligations of each Seller as agent of the Factor

 

  7.4.1 Each Seller undertakes to identify and individualise the Transferred Receivables outstanding, both in its computer systems and accounting ledgers, as from the entry into force of this Agreement. Each Seller will forward the Transferred Receivables Ledgers to the Factor at the latest ten (10) Business Days after the end of each quarter, for the purposes of the reconciliation of the relevant Asset Account with the Transferred Receivables Ledgers.

 

  7.4.2 Each Seller undertakes to exercise its duties under the Servicing Mandate in a wise and prudent manner as if it were managing its own Receivables and if it were handling the servicing and collection of its own Receivables, the preservation of its rights related thereof and, more generally, to perform its obligations under the Servicing Mandate in the manner of a careful, diligent and informed agent (mandataire) . Furthermore, each Seller undertakes to comply with its Credit and Collection Procedures.

 

  7.4.3 Each of the Sellers will promptly inform the Factor of any change made or to be made in the Credit and Collection Procedures which is likely to have a Material Adverse Effect.

 

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7.5 Report on the performance of the Servicing Mandate

Each Seller undertakes to.

 

  7.5.1 report on the performance of the Servicing Mandate to the Factor by providing to the Factor (i) on a monthly basis, the relevant extracts of the aged debtors balance (balance clients agée) in respect of, for each Debtor, the details on the Transferred Receivables and the other Receivables (to the extent not already provided during annual audits), (ii) on a monthly basis, detailed statements setting out the year-end rebates and commercial discounts granted to the Debtors in relation to Transferred Receivables and (iii) on a weekly basis, to the extent such information has not already been transmitted to the Factor as part of the Assignments of Eligible Receivables made during that week, with the” 102”, “103” and“ 104” files and in case the relevant Seller is technically unable to provide the above files to the Factor within the requested delay, any information relating to the management of the Transferred Receivables that may be reasonably requested by the Factor;

 

  7.5.2 as soon as reasonably practicable, after becoming aware of them, notify the Factor, by any written means or any other support approved by the Parties, of the occurrence of any demand for extension on payment terms (to the extent that such extension is due to financial difficulties of the relevant Debtor), litigation relating to the Transferred Receivables or Debtor Insolvency in relation to any Debtor (such notice to include reasonable details on the event described therein);

 

  7.5.3 inform the Factor of any change affecting the terms and conditions governing its contractual relations with its Debtors, to the extent such change may have a Material Adverse Effect;

 

  7.5.4 provide the Factor promptly upon request with a file setting out all Transferred Receivables which are Defaulted Receivables on the date of the request; and

 

  7.5.5 provide the Factor, In relation to a Defaulted Debtor who is one of the thirty (30) largest Debtors of all Sellers (based at any time on the aggregate Outstanding Amount of all Transferred Receivables at such time), promptly upon request (i) information as to the proceedings implemented by the Seller to recover such Receivables, and (ii) if requested by the Factor, the correspondence between the Seller and such Debtor.

 

7.6 Direct payments, Credit Notes

 

  7.6.1 Payment to the Sellers

When any Indirect Payment is made in the hands of any Seller, such Seller may only receive such Indirect Payment as agent of the Factor, and an equivalent amount shall be paid by such Seller to the Collection Account or to such other account as the Factor may designate in advance in writing. Failing such repayment being made within five (5) Business Days after receipt of such Indirect Payment (to the extent that the Seller has received on such date all information allowing the identification (lettrage ) of such collections), the Factor shall be entitled to debit the corresponding amount from the Current Account, without prejudice to any other recourse.

 

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  7.6.2 Compliant Credit Notes

Each Seller agrees not to change the scope of the rights attached to a Transferred Receivable in a manner that would negatively affect the Factor’s rights thereunder, without the Factor’s approval to do so. Notwithstanding the foregoing, the Factor shall be deemed to have accepted such change if it is (i) a Credit Note or adjusted invoice issued in the normal course of business and in accordance with normal trade practices or (ii) an extension on payment terms within the limit set forth under the Credit Insurance Policy or subject to the Factor’s approval. In any event, the Sellers agree to deliver to the Factor all information on Credit Notes or extensions on payment terms related to Transferred Receivables by no later than five (5) Business Days (or any longer period agreed upon between the Parties) after their issuance or granting.

 

  7.6.3 Non-compliance of Credit Notes

Credit Notes that are not issued by the Sellers in accordance with usual business practices or issued in fraud of the Factor’s rights shall be deemed unenforceable against the Factor even if they have been recorded as credit to the Asset Account, and in such case the Factor shall be entitled to exercise a recourse as set out in Clause 4.1.1(b).

 

7.7 Factor’s controls and audits

 

  7.7.1 The Factor shall be entitled to carry audits or financial reviews on any of the Sellers or any party to which a Seller has subcontracted or delegated all or part of its Servicing Mandate, by itself or through a third party appointed by the Factor in consultation with the relevant Seller. In that respect, each Seller shall permit the Factor and its agents or representatives, upon reasonable written notice, to visit its operational offices for field audits during normal office hours (and which shall not unreasonably interfere with its usual daily operating needs):

 

  (a) until the occurrence of an Event of Default, twice a year; and

 

  (b) upon the occurrence of an Event of Default, one additional audit as required by the Factor, completed as necessary by complementary audits to be carried out in order to investigate issues identified during such additional audit;

 

  7.7.2 in order (A) to carry out a specific review of financial, accounting or other relevant Items as set out in SCHEDULE 17 (List of Audited Items) relating to potential liabilities of any Seller in the course of its business which may have an adverse impact on the rights of the Factor under the Factoring Facility and/or a review of the portfolio of Transferred Receivables, the Debtors and related items (such as bank statements), (B) to examine, make and take away copies to examine of the Records that are in its possession or under its control Including any Contracts related to the Transferred Receivables, and to discuss matters relating to the Transferred Receivables or its performance under the Factoring Facility Documents or the Credit Insurance Policy with any of the officers or employees designated by it as having knowledge of such matters, (provided that if the delivery of any document is not possible or may, in such Seller’s reasonable opinion, affect the best commercial interests of the relevant Seller, then the Sellers undertake to make available any such document for inspection by the Factor or its agents in every instance (provided that each Seller is entitled not to disclose the parts of the documents that it in good faith considers as (a) commercially sensitive information and (b) not necessary for the purpose of the Factor preserving or exercising its rights under the Transferred Receivables and the Factoring Facility Document)).

 

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  7.7.3 The cost of each such audit (except the financial review, which shall be free of charge) shall be borne by each Seller and is established at a maximum of three thousand Euros (EUR 3,000) per audit and per Seller, excluding VAT and reasonable and justified out-of-pocket expenses and travel disbursements, provided that the cost of all the audits or specific reviews on any Seller shall not exceed six thousand Euros (EUR 6,000) per year.

 

  7.7.4 Each Seller undertakes to fully cooperate with the Factor for the implementation of these audits and controls including by allowing the Factor, without contacting any Debtor, to make random selected checks and audits of the amounts owed by the Debtor under the Transferred Receivables.

 

  7.7.5 Upon request of the Factor, the relevant Seller or the Parent Company shall provide the Factor with a copy of the letters sent by its auditor to any Debtor in relation with, inter alia, the amounts owed by such Debtor under the Transferred Receivable and the answers of the Debtors to such letters (as redacted by Constellium if necessary with respect to any information not relating to the outstanding amount of the Receivables against such Debtors).

 

  7.7.6 Each Seller undertakes to maintain all IT and accounting records in respect of the Transferred Receivables accurate in all material respects and, for the purposes of the audits, to maintain all back-up systems relating to the Transferred Receivables accessible (upon reasonable request and subject to any constraints imposed by external IT services providers) to the Factor.

 

7.8 Undue amounts

 

  7.8.1 Any amount received or recovered by the Factor (including any Insurance Indemnification) relating to (i) Receivables that have been Definanced or Transferred-Back by the Factor in accordance with this Agreement or (ii) Receivables which have not been Assigned to the Factor or (iii) any amounts unrelated to the Factoring Facility (an “Undue Amount’’) will be turned over to the relevant Seller, following reconciliation of the relevant Seller’s debtor files with the Factor’s debtor files, such reconciliation to be initiated by the relevant Seller.

 

  7.8.2 Such Undue Amounts, shall be paid by the Factor to the relevant Seller (i) to such bank account opened in the name of any Seller, as the relevant Seller (or the Sellers’ Agent acting on its behalf) may designate in writing to the addressees specified in SCHEDULE 13 (Financing Requests -Factofrance Adressees) and (ii) within five (5) Business Days following the sending by the relevant Seller of the relevant Seller’s debtor file.

 

7.9 Termination of Servicing Mandate

 

  7.9.1 Debtor Termination Event

 

  (a) Each of the following events constitutes a Debtor Termination Event (each, a “Debtor Termination Event” ):

 

  (i) a Financeable Receivable Assigned by such Seller over such Debtor is overdue by more than ninety (90) calendar days;

 

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  (ii) the percentage of Financeable Receivables Assigned by such Seller over such Debtor overdue by more than thirty (30) calendar days (and for which the Seller has not provided the Factor with information as to the proceedings implemented by the Seller to recover such Receivables within five (5) Business Days from a request to that effect from the Factor) exceeds ten per cent (10%) of the total aggregate Outstanding Amount of all Transferred Receivables Assigned by such Seller;

 

  (iii) provided that, notwithstanding the provisions of paragraphs (i) and (ii) above;

 

  (1) the relevant Seller and the Factor shall discuss in good faith during five (5) calendar days (the “ Discussion Period ”) a proposed course of action to recover the relevant Transferred Receivables owed by such Debtor. Absent any agreement on such course of action, the Factor (acting reasonably) shall be entitled at the expiry of the above discussion period to request the relevant Seller to take additional servicing measures with respect to such Transferred Receivables;

 

  (2) if the relevant Seller agrees with the Factor on any course of action or to follow the requested servicing measures, then the Servicing Mandate shall continue as if no Debtor Termination Event had occurred and the relevant Seller shall fulfill the agreed course of action or servicing measures;

 

  (3) if however:

(A) the relevant Seller refuses to fulfill the servicing instructions given by the Factor at the expiry of the Discussion Period, or

(B) ten (10) calendar days after the expiry of the Discussion Period the relevant Seller has failed to take any necessary step (i) to implement any agreed course of action or (ii) to fulfill the servicing instructions it has accepted to fulfill,

then a Debtor Termination Event shall occur and the provisions of paragraph (b) below shall apply;

 

  (iv) a Receivable against such Debtor is a Defaulted Receivable and the relevant Seller has not provided relevant information to the Factor in accordance with Clause 7.5.4; or

 

  (v) the event referred to in Clause 7.3 1(d)(ii) occurs

 

  (b) Upon the occurrence of a Debtor Termination Event in relation to a Debtor, the Factor shall be entitled to, with a two (2) Business Days prior notice to the relevant Seller:

 

  (i) notify the relevant Debtor of the Assignment of the Transferred Receivables Assigned by the relevant Seller and owed by such Debtor by sending it the applicable Form of Notification and instruct it to stop paying such Seller In respect of the Transferred Receivables Assigned by such Seller; and/or

 

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  (ii) request the relevant Seller to make available to it such Records, originals, second original if applicable or copies of the invoices relating to the Transferred Receivables Assigned by such Seller and owed by the relevant Debtor as the Factor will need in order to allow the Factor to enforce in accordance with any applicable law its rights under such Assigned Receivables against the relevant Debtor; and/or

 

  (iii) cease to Finance any Receivable owed by such Debtor and which has been Assigned by the relevant Seller after the occurrence of such Debtor Termination Event (provided, for the avoidance of doubt, that as from such date, the relevant Seller shall also cease to be obliged to assign any new Receivable against such Debtor to the Factor),

and the provisions of Clause 7.10.2 (Management of the Debtors positions) will apply in respect of the Transferred Receivables Assigned by the relevant Seller against such Debtor.

 

  (c) Notwithstanding the foregoing should the Credit Insurer (or any Affiliate of the Credit Insurer) be appointed to service, administer and collect any Transferred Receivable in accordance with the terms of the Credit Insurance Policy, to the extent it has not been terminated before pursuant to Clause 7.9.1 or 7.9.2, the appointment of the Seller hereunder shall be automatically terminated in respect of such Transferred Receivables in relation to all servicing duties to be carried out by the Credit Insurer (or its Affiliate); and

 

  (d) The Factor shall not be entitled to terminate the appointment of the relevant Seller in relation to receivables that are not Financeable Receivables or are Definanced Receivables if the relevant Seller purchases back such Non- Financeable Receivable and Definanced Receivable.

 

  7.9.2 Servicer Termination Event

 

  Each of the following events constitutes a Servicer Termination Event (each, a “Servicer Termination Event” ):

 

  (a) any of the events referred to in Paragraphs (i) to (ii) below, being calculated monthly by the Factor for each Seller in respect of each Test Period on the Test Date being applicable thereto (together, the “ Seller Receivables Performance Triggers ”):

 

  (i) during three (3) consecutive Test Periods, the percentage of Transferred Receivables Assigned by such Seller overdue by more than thirty (30) calendar days exceeds ten per cent (10%) of the total aggregate Outstanding Amount of all Transferred Receivables Assigned by such Seller; or

 

  (ii) during three (3) consecutive Test Periods, the Dilution Rate (excluding rebate and re-invoicing on a given Debtor) exceeds ten per cent (10%);

 

  (b) the occurrence of any Event of Default which is continuing (subject to appropriate grace periods, notice periods, qualifications applicable thereto) in relation to the relevant Seller, provided, for the avoidance of doubt, that the occurrence of a Stop Purchase Event shall not constitute a Servicer Termination Event;

 

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  (c) any failure by the relevant Seller to comply with any material aspect of the Credit and Collection Procedures having a Material Adverse Effect on the Transferred Receivables or to request the payments of Transferred Receivables in the relevant Collection Account in accordance with Clause 7.3.1(a);

 

  (d) any material change in the Credit and Collection Procedures which has not been approved by the Factor, unless such change results from a change in law or a request from the Credit Insurer;

 

  (e) the repeated occurrence of seizures or attachments from creditors of the relevant Seller (such as inter alia avis à tiers détenteurs or saisies of all types or any similar or analogous event, but excluding any conservatory measure) for an aggregate amount in excess of five million Euros (EUR 5,000,000) unless such seizure or attachment is finally dismissed or discharged within forty-five (45) days;

 

  (f) the event referred to in Clause 12.2(d) occurs; or

 

  (g) the statutory auditor of any Seller requests that a general meeting of the shareholders of the relevant Seller, or as the case may be, the Parent Company, be convened in accordance to article L 234-2 et seq. of the French Code de commerce, or any similar applicable law, unless the Factor and the Parent Company have agreed, within 10 Business Days of the relevant convening notice, on the implementation of satisfactory measures to remedy such situation (including, for instance, on the withdrawal of the relevant Seller from the Factoring Facility),

provided that, in any case, the Factor reasonably believes, that the occurrence of such event materially and adversely affects the ability of the Seller to service and collect the Transferred Receivables in the manner provided for under this Agreement.

 

7.10 Consequences of the revocation of the Servicing Mandates

 

  7.10.1 Information of the Debtors, collection by the Factor

 

  (a) Upon the occurrence of a Servicer Termination Event, the Factor shall be entitled to terminate the Servicing Mandate of the relevant Seller with ten (10) Business Days prior notice to such relevant Seller and the Parent Company and the Factor shall be entitled thereafter, with notice to such relevant Seller and the Parent Company to:

 

  (i) notify the Debtors of the Assignment of the Transferred Receivables Assigned by any Seller whose Servicing Mandate has been terminated by sending them the applicable Form of Notification and instruct them to stop paying such Seller; and/or

 

  (ii) charge an additional fee of five thousand Euros (EUR 5,000) per Seller whose Servicing Mandate has been terminated, by debit of the relevant Current Account; and/or

 

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  (iii) As soon as the revocation of the Servicing Mandate becomes effective, in relation to any new Receivable which is purported to be Assigned by any Seller to the Factor in accordance with this Agreement, each relevant Seller shall include the following wording in the invoices relating to those Receivables: “La créance relative à la présente facture a été cédée à FACTOFRANCE dans le cadre des articles L. 313-23 à L. 313- 35 du Code monétaire et financier. Le paiement doit étre effectué directement à I’ordre de FACTOFRANCE, Tour FACTO-18 nie Hoche-Cedex 88 - 92988 LA DEFENSE CEDEX TEL: 01.46. 35.70.00-par virement du compte FACTOFRANCE (IBAN FR76 3000 3049 7000 0010 7920 058 - SWIFT BIC : SOGEFRPP pour les palements en EURO; IBAN FR76 3007 6023 5210 3841 0020 062-SWIFT BIC: NORDFRPP pour les palements en autre devise ou tout autre IBAN indiqué par le Factor).

 

  (b) Notwithstanding the above, the Factor shall not be entitled to terminate the Servicing Mandate of any Seller in relation to receivables that are not Financeable Receivables or are Definanced Receivables if the relevant Seller purchases back such Non-Financeable Receivable and Definanced Receivable.

 

  (c) Upon the termination of the Servicing Mandate in accordance with this Agreement and if the Purchaser exercises its step in right under the Credit Insurance Policy, the Purchaser agrees to exercise its rights under the Credit Insurance Policy in good faith in accordance with the terms of the Credit Insurance Policy in order to avoid the suspension or early termination of the Credit Insurance Policy by the Credit Insurer.

 

  7.10.2 Management of the Debtors positions

 

  (a) Ordinary Collection

 

  (i) As from the termination of any Servicing Mandate and as long as it remains the owner of the Transferred Receivables, the Factor (or its agent, as the case may be) shall have the exclusive right to manage the collection and recovery thereof. The Factor shall manage the relevant accounts, grant or refuse any postponements, extensions or arrangements, with or without discounts, as may be requested by the Debtors. Subject to actual collection, the Factor (or its agent, as the case may be) shall record payments as credit to the relevant Asset Account.

 

  (ii) Each Seller agrees to provide its reasonable assistance to the Factor and to provide in particular any and all documents, correspondence and special powers of attorney that may be reasonably requested in writing by the Factor for the purpose of collecting the Transferred Receivables (subject to confidentiality undertaking). For the Non-Financeable Receivables which are also Disputed Receivables, the Factor shall not bear any collection fee or expense incurred after their maturity date. If the Factor prepays any such fee and expense, it shall be entitled to debit the relevant amounts from the relevant Current Account.

 

  (b) Power of Attorney

As from the termination of any Servicing Mandate and as long as it remains the owner of the Transferred Receivables, in order to enable the Factor to cash without delay any payment instrument or negotiable instrument relating to a Transferred Receivable, each Seller hereby appoint the Factor as its attorney

 

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(mandataire) in order to affix any indication or signature necessary onto such instrument. If any payment made to the Factor is not related to any Transferred Receivable, the Factor shall be deemed to have cashed the same in its capacity as an agent, even after the termination of this Agreement. Amounts so cashed shall be credited to the Current Account of the relevant Seller and the provisions of Clause 7.8 (Undue amounts) shall apply. The powers of attorney mentioned in this Clause are stipulated in the joint interest of both relevant Parties.

 

  (c) Where a special proxy or a power of attorney is necessary for the performance by a Seller of any duties under this Agreement (in particular, in connection with any legal or court proceedings or actions, any other action before any official or administrative authority or any action under the Credit Insurance Policy), the Factor may, at its discretion and upon request of the Seller, grant the same forthwith.

 

  (d) Penalties and late payment interest

Each Seller shall remain entitled to waive its rights to any penalties and late payment interests payable by the Debtors in relation to the Transferred Receivables and to make corresponding adjustments to its books.

 

8. FACTORING ACCOUNTS

The Factor shall open and manage a Current Account for each Seller (as well as all related Sub-Accounts detailed below) in order to record the amounts paid or payable by the Factor to each Seller pursuant to this Agreement and those which are due for any reason whatsoever by each Seller to the Factor.

 

8.1 Current Account

 

  8.1.1 Single Account

 

  (a) The purchase price of the Transferred Receivables and the liabilities of each Seller towards the Factor (and vice-versa) shall be reflected as respective credit and debit items under the Current Account and shall therefore be subject to set-off when due for payment.

 

  (b) On the Signing Date, the Current Account of each Seller as well as the related Sub-Accounts for the relevant Transferred Receivables, denominated in their respective Approved Currency, are listed in SCHEDULE 12 ( Current Accounts ).

 

  (c) Each Current Account and the related Sub-Accounts shall form an indivisible whole and single account between the relevant Seller and the Factor and the overall balance thereof after set-off of credits and debits shall be considered at all times, and, in particular, after the termination of the factoring transactions arising hereunder on the Transaction Settlement Date, as the final balance ( solde définitif ) of such Current Account.

 

  (d) Subject to Clause 8.5.3 (Utilisation), at any time, if any of the Sub-Accounts (denominated in different currencies) relating to the Current Account of a Seller has a debit balance, the Factor shall be entitled to:

 

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  (i) request the relevant Seller to transfer to its Current Account within five (5) Business Days an amount sufficient to compensate such debit balance; and

 

  (ii) if the relevant Seller does not comply with such request in the above time frame, to set-off the credit and debit balances of all Sub-Accounts (denominated in different currencies) relating to the Current Account of such Seller.

 

  (e) In no event shall the Factor be entitled to use the credit balance of any Current Account opened with a Seller to discharge the debit balance of any Current Account opened with another Seller.

 

  8.1.2 Overdraft

No Current Account shall have a debit balance at any time. Notwithstanding the foregoing, if at any time a Current Account has a debit balance, the Factor shall be entitled to request the relevant Seller to transfer to the Factor an amount sufficient to allow such Current Account to no longer have a debit balance. Upon receipt of such a request, the relevant Seller shall make the requested cash payment within five (5) Business Days. In any case, any debit balance of a Current Account shall bear interest at the rate of the Special Financing Commission until full reimbursement.

 

  8.1.3 Transactions

 

  (a) The Current Account shall be credited by the Factor:

 

  (i) with the Face Value of the relevant Transferred Receivables on the relevant Assignment Date;

 

  (ii) with amounts due to the relevant Seller in accordance with Clause 7.8 ( Undue amounts ) and Clause 7.10.2(b) (Power of Attorney);

 

  (iii) with collections, insurance proceeds and other amounts received under Non-Financeable Receivables in accordance with Clause 3.5.1 or under any Definanced Receivable;

 

  (iv) with the aggregate amount of all collections, insurance proceeds and other amounts received by the Factor in relation to Receivables not transferred to the Factor (if any) (such amount to be credited immediately, and at the latest, within 3 Business Days of receipt)

 

  (v) with amounts payable by the Factor in accordance with Clauses 5.1.1 and 5.1.2;

 

  (vi) with any amount due to the Seller in accordance with Clause 4.1.4;

 

  (vii) with recoveries due to the relevant Seller in accordance with Clause 6.1.7;

 

  (viii) with debits from the Sub-Accounts, and

 

  (ix) with the amount of any downward adjustment of the Dilution Reserve.

 

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  (b) The Current Account shall be debited by the Factor:

 

  (i) with the amounts corresponding to the Financing made available by the Factor to the relevant Seller in accordance with Clause 3 ( Financing of Financeable Amounts );

 

  (ii) with any Transfer-Back Price due by the relevant Seller;

 

  (iii) with the amounts transferred to the credit of the Sub-Accounts;

 

  (iv) with collections received under Non-Financeable Receivables in accordance with Clause 3.5.1;

 

  (v) unless billed separately to the relevant Seller or the Sellers’ Agent with any fees and costs due by the relevant Seller to the Factor in accordance with Clause 7.9.1 (a)(ii), Clause 7.9.2(a)(ii), Clause 9 ( Remuneration of the Factor) and Clause 14 ( Costs and Expenses );

 

  (vi) with premiums due under the Credit Insurance Policy actually paid by the Factor in accordance with Clause 6.1.4;

 

  (vii) with the amounts due by the relevant Seller to the Factor under Clause 4.1.1(f) and Clause 7.6.1 ( Payment to the Sellers );

 

  (viii) with the amount of any Indirect Payments which are not repaid by the relevant Seller to the Factor within three (3) Business Days after receipt of such Indirect Payment;

 

  (ix) with the amount of any Dilution

 

  (x) with the amount of any credit notes not disclosed to the Factor that affect the value of a Transferred Receivable;

 

  (xi) with the amount of any adjustment items accounted for by the Seller which are not transferred to the Factor and which affect the value of a Transferred Receivable;

 

  (xii) upon closing of the Current Account in accordance with Clause 8.1.6 ( Closing ); and

 

  (xiii) with the amount of any upward adjustment of the Dilution Reserve.

 

  8.1.4 Payment of credit balance

Provided that no Assignment is made by a Seller to the Factor during any calendar week, such Seller shall be entitled to request at any time during such week the payment in cash of any credit balance of its Current Account (until the Transaction Settlement Date). The Factor shall:

 

  (a) if the relevant request is received not later than 12.00 noon Paris time on any Business Day, on the Business Day immediately following such receipt; or

 

  (b) if the relevant request is received after 12.00 noon Paris time on any Business Day, on the second Business Day following such receipt,

pay the relevant amount to the relevant Seller by wire transfer to its bank account.

 

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  8.1.5 Statements

The Factor shall promptly, upon written request of any Seller or the Parent Company, deliver to the latter any information or justification relating to any credit or debit entry.

 

  8.1.6 Closing

After the termination of this Agreement and the occurrence of the Transaction Settlement Date, the Current Accounts in respect of all Sellers shall be closed and the remaining credit balances (if any) shall be refunded to each relevant Seller at the latest ten (10) Business Days following such date. The Parties agree that this Clause 8.1.6 ( Closing) shall survive the termination of this Agreement.

 

8.2 Available Financing Account

 

  8.2.1 The available financing account (the “ Available Financing Account ”) is a Sub-Account of each Seller’s Current Account on which the Financeable Amount for the relevant Seller which has not been subject to a Financing will be credited.

 

  8.2.2 On any date on which the Current Account of any Seller is credited with a Financeable Amount, if the relevant Seller does not send a Financing Request regarding this Financeable Amount or if it sends a Financing Request for an amount lower than this Financeable Amount, the Factor will transfer from the Current Account of such Seller to its Available Financing Account the Financeable Amount or, as the case may be, the portion of the Financeable Amount which was not subject to the Financing Request.

 

  8.2.3 Any amount credited to the Available Financing Account of a Seller shall be part of the Financeable Amount for such Seller and may therefore be subject to a Financing Request at any time in accordance with Clause 3 (Financing of Financeable Amounts).

 

  8.2.4 On any day on which a Seller makes a Financing Request for an amount exceeding the Financeable Amount credited on its Current Account on such day, the Factor will transfer from the Available Financing Account of such Seller to its Current Account the amount required in order to answer to the relevant Financing Request up to the credit balance of the Available Financing Account and subject to the Maximum Total Financing Amount.

 

8.3 Asset Account

 

  8.3.1 Outstanding Amounts of Transferred Receivables shall be recorded by the Factor as debit items under the Asset Account. Any payments related to Transferred Receivables are recorded as credit items under the Asset Account. For the avoidance of doubt, the Asset Account is not a Sub-Account.

 

  8.3.2 Each Seller’s Asset Account statement will be updated on a daily basis and may be consulted by the relevant Seller through Web Services.

 

8.4 Offset and Adjustment Account - OAA

 

  8.4.1 In order to enable an accounting follow-up of the performance of the Servicing Mandate of each Seller, the following operations will be recorded in a Sub-Account of such Seller designated as the Offset and Adjustment Account or OAA:

 

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  (a) the collections received under the Transferred Receivables will be recorded as credit on the OAA,

 

  (b) information on transfers (images de reéglement), cheques for cashing and bills due as itemised in the “settlements situation” files forwarded by such Seller will be recorded as debit from the OAA in accordance with the technical methods approved by the Parties.

 

  8.4.2 In principle, the balance of the Offset and Adjustment Account should be zero. In practice, this will not be the case due to the time difference of operations. If there are credit balances relating to payments of amounts which are not related to Transferred Receivables or which are related to Non-Financeable Receivables, such balances will thus be reimbursed to the Current Account after reconciliation of the relevant Seller’s debtor files with the Factor’s debtor files in accordance with Clause 7.8 (Undue amounts ) or in accordance with Clause 3.5.1. In case of a debit balance of the Offset and Adjustment Account, such balance may be applied to a Deferred Availability Account.

 

  8.4.3 The OAA of each Seller will be closed upon the termination of the Servicing Mandate of such Seller.

 

8.5 Dilution Reserve

 

  8.5.1 Purpose

The dilution reserve (the “ Dilution Reserve ”) is a Sub-Account of each Seller’s Current Account the purpose of which is to protect the Factor against Dilution risks relating to the Financeable Receivables transferred by such Seller.

 

  8.5.2 Constitution

 

  (a) The Dilution Reserve Required Amount shall be:

 

  (i) until the occurrence of a Stop Purchase Event or the sending of a Termination Notice, an amount equal for each Seller to the product of (A) the higher of (aa) the sum of the Dilution Rate applicable to such Seller and three (3) percent and (bb) five (5) percent and (B) the Outstanding Amount at that time of all Financeable Receivables Assigned by such Seller (including VAT); and

 

  (ii) upon the sending of a Termination Notice or the occurrence of a Stop Purchase Event, an amount equal for each Seller to the higher of the product of (A) the higher of (aa) the sum of the Dilution Rate applicable to such Seller and three (3) percent and (bb) ten (10) percent, and (B) the Outstanding Amount at that time of all Financeable Receivables Assigned by such Seller (including VAT) and the Minimum Dilution for such Seller,

and shall be funded by way of direct debit of the Current Accounts. On each Assignment Date or at least once per calendar week, downward or upward adjustments to the Dilution Reserve shall be calculated by the Factor and shall be made by the Factor by crediting (or debiting, respectively) the Current Account at that date each in an amount necessary to maintain the Dilution Reserve at a level equal to the Dilution Reserve Required Amount.

 

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  (b) Any event taken into account in determining the amount of the Dilution Reserve shall be taken into account only once and only in respect of such reserve.

 

  8.5.3 Utilisation

 

  (a) The Factor may draw from the Dilution Reserve of a Seller the sums necessary to cover a debit balance of such Seller’s Current Account to the extent that such debit position results from a Dilution relating to Financeable Receivables.

 

  (b) Following the Transaction Settlement Date, each Seller shall ensure that its Current Account has a credit balance. Should this be the case, upon transfer from the Dilution Reserve to the Current Account of any remaining amount in excess of the Dilution Reserve Required Amount, the Factor will transfer in cash by wire transfer the amount of such excess to each relevant Seller.

 

  (c) As from the Transaction Settlement Date, the remaining balance (if positive) of the Dilution Reserve of such Seller shall be returned to the relevant Seller at the latest ten (10) Business Days following such date This Clause 8.5.3 ( Utilisation ) shall survive the termination of this Agreement.

 

8.6 Deferred Availability Account

 

  8.6.1 The deferred availability account (the “ Deferred Availability Account ”) is a Sub-Account of each Seller’s Current Account opened to facilitate the monitoring of Reserves which shall consist in (i) Non-Financeable Amounts, (ii) Disputed Receivables which have been Definanced in accordance with Clause 5.1 ( Disputed Receivables and Defaulted Receivables), (iii) Defaulted Receivables which have been Definanced in accordance with Clause 5.1 ( Disputed Receivables and Defaulted Receivables) and (iv) the debit balance of the Offset and Adjustment Accounts.

 

  8.6.2 The relevant Deferred Availability Account of any Seller will be credited with the amount of any Reserve (such amount being transferred from such Seller’s Current Account) and will be debited with the amount of any such Reserve upon the event having justified the constitution of Reserves having ceased to exist (and the amount so debited shall be transferred to the credit of such Seller’s Current Account).

 

8.7 Set-Off Reserve

 

  8.7.1 The set-off reserve (the “ Set-Off Reserve ”) is a Sub-Account of each Seller’s Current Account the purpose of which is to cover the risk of:

 

  (a) set-off arising from Tolling or Pseudo Tolling in respect of the Financeable Receivables transferred by the relevant Seller unless non set-off agreements satisfactory to the Factor are entered into between the Sellers and their relevant Debtors (for the avoidance of doubt, such agreements shall be fully enforceable by the Factor against the relevant Debtors);

 

  (b) set-off arising from any sale of goods or provision of services by any Debtor to the relevant Seller in respect of which such Seller owes to such Debtor any payment, prepayment, contribution or similar arrangement (other than the Airbus Advance), unless the relevant Debtor has written to the relevant Seller and the Factor in terms satisfactory to the Factor agreeing that it will not set-off any such payment, prepayment, contribution or similar arrangement due to it from the Seller against monies payable by it in respect of that Receivable to the Factor; and

 

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  (c) as from the occurrence of the Airbus Reserve Trigger only, set-off between Transferred Receivables owed by Airbus and the Airbus Advance, until the earlier of receipt by the Factor of evidence:

 

  (i) of a waiver satisfactory to the Factor from the relevant Airbus entities of their right to set-off any amount owed under the Airbus Advance; or

 

  (ii) that any Airbus Advance has been repaid to the relevant Airbus entity or allocated to any project between Airbus and any entity of the Group and is therefore no longer due to the relevant Airbus entity, in which case the restitution shall be made up to the amount so repaid or allocated.

 

  8.7.2 Upon the occurrence of any set-off arising pursuant to paragraphs 8.7.1(a), 8.7.1(b) or 8.7.1(c) and affecting a Financeable Receivable, the Factor shall be entitled to debit the Set-Off Reserve with the amount of such set-off. For the avoidance of doubt, any risk and event taken into account in the Set-Off Reserve shall be taken into account only once and only with respect to such reserve (to the exclusion of the Dilution Reserve).

 

  8.7.3 The amounts of each Set-Off Reserve will be adjusted upward or downward on a monthly basis according to the evolution of data regarding (i) Tolling, Pseudo Tolling or (ii) the sales of goods and provisions of services mentioned in paragraph 8.7.1(b) and (iii) the amount of the Airbus Advance, provided by each Seller to the Factor and shall be paid by debit or credit of the Current Account of the relevant Seller on the relevant Assignment Date. The Factor will notify in writing the relevant Seller of any such adjustment.

 

8.8 Devaluation Reserve

 

  8.8.1 As from the date on which the relevant Seller transfers to the Factor Receivables held against Airbus arising from any commercial contract other than an airware contract (the “ Airbus Receivables ”), a devaluation reserve (the “ Devaluation Reserve ”) shall be constituted by the Factor in respect of such Airbus Receivables in order to cover the Factor against additional set-off risk if, with respect to any calendar month during which Airbus Receivables have been transferred to the Factor, the Metal Floating Price is below the Metal Invoicing Price (the positive difference between the Metal Floating Price and the Metal Invoicing Price being referred to herein as the “ Metal Price Devaluation ”).

 

  8.8.2 Within five (5) Business Days (the “ Devaluation Reserve Calculation Date ”) following the last Business Day of each calendar month during which the Devaluation Reserve is required to be constituted pursuant to sub-paragraph (a) above (the “ Devaluation Reserve Reference Month ”), the relevant Seller shall communicate to the Factor (i) the Metal Floating Price and (ii) the turnover (chiffres d’affaires) and related metal tonnage carried out by the relevant Seller with Airbus (excluding those corresponding to supplies under the airware contracts) during the Devaluation Reserve Reference Month, as well as the Metal Invoicing Price on the basis of which such turnover has been invoiced to Airbus. To the extent a Metal Price Devaluation appears on the Devaluation Reserve Calculation Date, the Factor shall constitute the Devaluation Reserve on such date by way of debit from the relevant Current Account by an amount equal to the Metal Price Devaluation, as applied to the metal tonnage communicated by the relevant Seller for the relevant Devaluation Reserve Reference Month.

 

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  8.8.3 The Devaluation Reserve shall be restituted to the relevant Seller by way of credit from the relevant Current Account on the immediately following Devaluation Reserve Calculation Date (at which date the Devaluation Reserve (if any) for the following Devaluation Reserve Reference Month shall be calculated and constituted in accordance with the foregoing).

 

  8.8.4 Any event taken into account in any Reserve constituted pursuant to this Clause 8.8 shall be taken into account only once, and only in respect of such reserve (to the exclusion of the Dilution Reserve or the Specific Reserve (as the case may be)).

 

9. REMUNERATION OF THE FACTOR

 

9.1 Factoring Commission

 

  9.1.1 Purpose

Each Seller shall pay to the Factor, with respect to any Approved Receivables originated by it a factoring commission (the “ Factoring Commission ”) in consideration of the services provided by the Factor under this Agreement. For the avoidance of doubt the Factoring Commission does not include any costs, fees, commissions or expenses in respect of the Credit Insurance Policy, which shall be borne by each Seller.

 

  9.1.2 Amount and calculation

The rate of the Factoring Commission is set at zero point ten per cent. (0.10%) of the aggregate Face Value of each Approved Receivable (VAT included).

 

9.2 Special Financing Commission (SFC)

 

  9.2.1 Principle

 

  (a) Each Seller shall pay to the Factor a special financing commission equal to the sum of Financing Commissions per Receivables for all Financeable Receivables included in the relevant Financing Request (the “ Special Financing Commission ”) in respect of the amounts Financed by the Factor to such Seller on any Assignment Date by way of debit of the Current Account of each Seller on such date.

 

  (b) The Financing Commission per Receivable is calculated upfront for the relevant next following Adjusted Expected Financing Period per Receivable on a Receivable-by-Receivable basis by applying the SFC Rate to the Financing Commission Assessment Base per Receivable The Financing Commission Rate is calculated as follows:

FCPR = FCABR x SFC Rate x (AEPR /360)

Where:

FCPR is the Financing Commission per Receivable,

FCABR is the Financing Commission Assessment Base per Receivable; and

 

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AEPR is the Adjusted Expected Financing Period per Receivable.

And where:

Actual Average Financing Period is calculated for each batch of Financeable Receivables contained in any Financing Request as the weighted average of all Actual Financing Periods per Receivable of all Receivables contained in the previous Financing Request addressed to the Factor.

Actual Financing Period per Receivable is the actual number of calendar days from (and including) the Financing Date to (and excluding) the day communicated by the Seller (to be tested and confirmed from time to time by way of samples taken by the Factor) of actual repayment of each Financeable Receivable set out in any Financing Request.

Adjustment means the positive difference (if any) between the Actual Average Financing Period and the Average Expected Financing Period for a batch of Financeable Receivables contained in a Financing Request.

Adjusted Expected Financing Period per Receivable for the first Financing under this contract is the Expected Financing Period per Receivable. For subsequent Financing the Adjusted Expected Financing Period per Receivable is equal to the Expected Financing Period per Receivable plus the Adjustment calculated for the relevant previous batch of Financeable Receivables Financed, provided that the Adjusted Expected Financing Period per Receivable shall, for the purposes of the calculation of the Financing Commission per Receivable, never be less than 10 calendar days.

Average Expected Financing Period is the weighted average of Expected Financing Periods per Receivable for all Financeable Receivables set out in any Financing Request.

Expected Financing Period per Receivable means, with respect to any Financeable Receivable the expected number of calendar days from (and including) the relevant Financing Date to (and excluding) the relevant maturity date.

Financing Commission Assessment Base per Receivable means at any time an amount equal to the Financed Amount originated by the relevant Seller divided by the number of outstanding Financed Receivables.

Financing Date means, with respect to any Financeable Receivable, the date on which such Financeable Receivable becomes a Financed Receivable.

 

  9.2.2 Value Dates

Any credit and debit made from or to the Current Account, or recorded on the Asset Account, shall be made for value in accordance with the provisions of SCHEDULE 5 (Value Dates).

 

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9.3 Arrangement Fee

The Sellers shall pay on the Signing Date to the Factor an arrangement fee (the “ Arrangement Fee ”) equal to EUR 150.000, calculated pro rata of the allocation of the average Outstanding Amount of Transferred Receivable over the last 12 months preceding the Signing Date between the Sellers.

 

9.4 Non-Utilization Fee

So long as the Commitment Period is outstanding the Sellers shall pay the Non-Utilization Fee on a yearly basis on each anniversary date of the Signing Date, calculated pro rata of the allocation of the average Outstanding Amount of Transferred Receivable over the preceding last 12 months between the Sellers.

 

9.5 VAT

The Factoring Commission, the Special Financing Commission, the Arrangement Fee and the Non-Utilization Fee are expressed VAT excluded.

 

9.6 Specific pricing and collection or transfer charges

 

  9.6.1 All additional services of the Factor other than those set out in Clauses 2 ( Assignment of Receivables) and 3 (Financing of Financeable Amounts) shall be subject to a specific price determination detailed in the Client Guide or, otherwise, in a quotation submitted to the Sellers’ Agent for their approval.

 

  9.6.2 The Current Accounts shall be debited by the amount of specific collection or transfer charges relating to those additional services, all of which shall be entirely borne by the Sellers.

 

9.7 Effective Global Rate

 

  9.7.1 For the application of the provisions of Article R.313-1-1 of the French Monetary and Financial Code, each Party acknowledges that, taking into account the specificity of this Agreement (in particular the variable nature of the SFC rate), the taux effectif global (the “Effective Global Rate ”) cannot be calculated on the Signing Date but an indicative calculation of such rate shall be provided in this Clause 9.7 ( Effective Global Rate ).

 

  9.7.2 In application of Article R.313-1-1 of the French Monetary and Financial Code, the indicative calculation of the Effective Global Rate applicable to this Agreement for Financing in Euros, on the basis of an arithmetic average of the daily EURIBOR rates for the month of December being set at 0%, is 1,62% per year as of the Signing Date.

 

  9.7.3 In application of Article R.313-1-1 of the French Monetary and Financial Code, the indicative calculation of the Effective Global Rate applicable to this Agreement for Financing in USD, on the basis of an arithmetic average of the daily LIBOR rates for the month of December being set at 0,37%. is 2,00% per year as of the Signing Date.

 

  9.7.4 This rate is calculated, as an indication only, on the basis of a 365 day year (366 days for leap years) during the term of this Agreement, pursuant to the terms and conditions that normally apply, namely the following assumptions:

 

  (a) a level of Financing under this Agreement equal to the Maximum Total Financing Amount;

 

  (b) an average delay in payments by the Debtors of:

 

  (i) fifty-nine (59) calendar days for Constellium Issoire,

 

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  (ii) forty-five (45) calendar days for Constellium Neuf Brisach; and

sixty-five (65) calendar days for Constellium Extrusions France.

 

  (c) a Special Financing Commission as specified in Clause 9.2 (Special Financing Commission (SFC));

 

  (d) the Dilution Reserve as specified in Clause 8.5 (Dilution Reserve); and

 

  (e) the Non-Utilization Fee as specified in clause 9.4 (Non-Utilization Fee).

 

  9.7.5 Even if the reference rate of the Special Financing Commission does not vary, the Effective Global Rate may increase or decrease during the term of this Agreement depending on changes to the various assumptions set out above and/or contractual parameters

 

10. TAXES

 

10.1 All duties, taxes and similar levies (except those already covered in other provisions of this Agreement) which are due in connection with the transfer of Receivables contemplated in this Agreement and any Transfer Documents shall be borne by the relevant Seller.

 

10.2 Tax gross-up

All payments to be made by each Seller under this Agreement shall be made free and clear of and without deduction or withholding for or on account of all duties, taxes and levies (a “ Tax ”) unless a payment is subject to the deduction or withholding of Tax pursuant to an applicable law, in which case the sum payable by the relevant Seller in respect of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making of the required deduction or withholding, such party receives and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which it would have received and so retained had no such deduction or withholding been made or required to be made.

 

10.3 Tax indemnity

 

  10.3.1 Without prejudice to the provisions of Clause 10.2 (Tax gross-up) if the Factor is required to make any payment of or on account of Tax to any taxing authority on or in relation to any sum received or receivable by the Factor under a Factoring Facility Document (including, without limitation, any sum received or receivable under this Clause 10 ( Taxes ), each Seller shall, upon demand of the Factor, indemnify the Factor against such payment or liability, together with any interest, penalties and expenses payable or incurred in connection therewith.

 

  10.3.2 If all or part of a Tax which caused a Seller to pay a Tax indemnity pursuant to Clause 10.3.1 was not correctly or legally imposed or asserted and is, as a result, subsequently refunded to the Factor by the relevant Tax authority, the Factor will repay to the relevant Seller such Tax indemnity up to the amount of such refund, but after deducting therefrom the after-tax amount of any non tax-related loss or expense suffered thereon in the hands of the Factor, to the extent that such loss or expense has not been refunded to the Factor pursuant to Clause 14 (Costs and Expenses) of this Agreement.

 

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10.4 Claims by the Factor

If the Factor intends to make a claim pursuant to Clause 10.3 ( Tax indemnity) it shall, promptly upon becoming aware of such Tax being imposed notify the relevant Seller of the event by reason of which it is entitled to do so, (which notice shall include reasonable details of the amount claimed and the basis of calculation of such amount) provided that nothing herein shall require the Factor to disclose any confidential information relating to the organization of its affairs.

 

10.5 Exclusions to Tax gross-up and Tax indemnities

The provisions of Clause 10.2 ( Tax gross-up) and Clause 10.3 ( Tax indemnity) shall not apply:

 

  10.5.1 with respect to any Tax assessed or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by the Factor under the law of the jurisdiction in which the Factor is incorporated;

 

  10.5.2 with respect to any Tax assessed as a direct result of the breach by the Factor of its express obligations hereunder or under any other Factoring Facility Document, or the wilful misconduct or gross negligence of the Factor;

 

  10.5.3 with respect to any Tax that would not have arisen but for:

 

  (a) the failure by the Factor to file any relevant Tax return. Tax computation or other statement or document which the Factor was obliged to file by any law of its jurisdiction of incorporation, or

 

  (b) any failure by the Factor to provide in due time to any Seller any document necessary for the application of any relevant or applicable double taxation treaty, including certification of tax residence of the Factor issued by the tax administration competent for the Factor which any Seller may reasonably have requested the Factor in writing to provide (to the extent any such request being made in a timely manner and containing all necessary details to enable the Factor to comply with the terms thereof),

 

  except:

 

  (i) where any such failure was directly or indirectly caused by the relevant Seller (Including, without limitation, failure to provide the Factor with any necessary information) or by any event or circumstance outside the reasonable control of the Factor, or

 

  (ii) where it would be illegal or contrary to any applicable law for the Factor to do so.

 

  10.5.4 with respect to any Tax assessed as a result of a payment being made to a bank account opened in a financial institution located in a Non-Cooperative Jurisdiction or to a beneficiary that is incorporated, domiciled, or acting through an office located, in a Non-Cooperative Jurisdiction; and

 

  10.5.5 to any assignee of the rights and obligations of the Factor under the Agreement in accordance with Clause 18 Change to the Parties), to the extent that such gross-up payment or indemnities referred to in Clause 10.2 (Tax gross-up) or 10.3 (Tax indemnity) would not have been due by the relevant Seller if the Factor had not assigned or transferred its right or obligations to the relevant third party.

 

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10.6 Tax receipts

 

  10.6.1 Notification of requirement to deduct Tax

If, at any time, a Seller is required to make any deduction or withholding from any sum payable by it hereunder (or if thereafter there is any change in the rates at which or the manner in which such deductions or withholdings are calculated), such Seller shall promptly notify the Factor of the same.

 

  10.6.2 Evidence of payment of Tax

If a Seller makes any payment hereunder in respect of which it is required to make any deduction or withholding it shall pay the full amount required to be deducted or withheld (being the minimum amount which it is legally required to pay) to the relevant taxation or other authority within the time allowed for such payment under applicable law and shall deliver to the Factor within thirty (30) days after receipt thereof, an original receipt (or a certified copy thereof) issued by such authority (if any such receipt is issued) evidencing the payment to such authority of all amounts so required to be deducted or withheld in respect of such payment.

 

  10.6.3 Tax and other affairs

No provision of this Agreement shall interfere with the right of the Factor to arrange its Tax or any other affairs in whatever manner it thinks fit oblige the Factor to claim any other credit, relief, remission or repayment in respect of any payment under Clause 10 ( Taxes ) in priority to any credit relief, remission or repayment available to it nor oblige the Factor to disclose any information relating to its Tax or other affairs or any computations in respect thereof

 

  10.6.4 Tax credit payment

If an additional payment is made under Clause 10 ( Taxes ) by a Seller for the benefit of the Factor, the Factor shall use reasonable efforts to recover or obtain any credit against, relief or remission for, or repayment of, any Tax, that it may be entitled to on account of such withholding or deduction, then, if obtained, the Factor shall, to the extent that it can do so without prejudice to the retention of the amount of such credit, relief, remission or repayment notify the relevant Seller of such determination and pay to the relevant Seller such amount up to the amount which will leave the Factor (after such payment) in no worse after-Tax position than it would have been in had the additional payment in question not been required to be made by the relevant Seller. The Factor agrees that in determining (in its sole opinion) whether any such credit against relief or remission for, or repayment of, any Tax is in respect of or calculated with reference to the additional payment made pursuant to Clause 10 ( Taxes ) (as aforesaid) it shall not discriminate against the relevant Seller as compared with entities which the Factor considers (in its sole and absolute discretion) are comparable as at the relevant time to the relevant Seller in the context of determining the availability and application of realised tax credits, reliefs, remissions or repayments of Taxes unless required to do so by any applicable law. regulation or policy.

 

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  10.6.5 Tax credit claw back

If a Seller makes any payment to the Factor pursuant to Clause 10 (Taxes) and the Factor subsequently determines that the credit, relief, remission or repayment in respect of which such payment was made was not available or has been withdrawn or that it was unable to use such credit, relief, remission or repayment in full, such Seller shall reimburse the Factor the amount necessary to place it in the same after-Tax position as it would have been in if such credit, relief, remission of repayment had been obtained and fully used and retained by the Factor.

 

  10.6.6 Mitigation

 

  (a) Each Party shall, in consultation with each other, agree to discuss in good faith any reasonable steps that could be taken in order to mitigate any circumstances which may arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to Clause 10 ( Taxes ).

 

  (b) Paragraph (a) above does not in any way limit the obligations of any Seller under this Agreement

 

  (c) The relevant Seller shall promptly indemnify the Factor for all costs and expenses reasonably incurred by the Factor as a result of steps taken by it under this Clause 10.6 6 ( Mitigation ).

 

  (d) The Factor is not obliged to take any steps under Clause 10.6.6 ( Mitigation) if, in the opinion of the Factor (acting reasonably), to do so might be prejudicial to it

 

  (e) The affected Seller shall be entitled to stop assigning the relevant Receivable(s) as from the date on which it is required to make a gross-up or indemnity payment

 

11. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS

 

11.1 Representations and warranties of the Sellers, the Sellers’ Agent and the Parent Company

Each Sellers, and as applicable the Sellers’ Agent and the Parent Company make the representations, warranties set out in sections 1.1 ( Representations and warranties relating to the Sellers) and 1.2 ( Representations and warranties relating to the Receivables) of SCHEDULE 4 ( Representation , Warranties).

 

11.2 Undertakings of the Sellers and the Parent Company

Each Sellers, and as applicable the Sellers’ Agent and the Parent Company undertakes as set out in section 2 (Undertakings) of SCHEDULE 4 ( Representation , Warranties)

 

12. TERM AND EARLY TERMINATION

 

12.1 Term

 

  12.1.1 During the Commitment Period, and subject to the application of Clauses 12.3 and 12.4, the Factor and each of the Sellers agree not to terminate the Agreement.

 

  12.1.2 As from the end of the Commitment Period, this Agreement will be deemed to be of indeterminate duration, with each of the Factor and the Sellers having the right to terminate the Agreement at any time, subject to a three (3) month prior notice, by sending a registered mail, return receipt requested. Upon the expiry of such three (3) month prior notice period, the Factor shall no longer purchase Eligible Receivable under this Agreement.

 

  12.1.3 This Agreement shall terminate on the Transaction Settlement Date.

 

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12.2 Stop Purchase Event

Upon the occurrence of any of the following events, the Factor shall be entitled to refuse to purchase any Receivable in relation to the relevant affected Seller(s) (each, a “ Stop Purchase Event ”):

 

  (a) a change of control occurs in respect of the Parent Company, pursuant to which any person or group of persons acting in concert (a) holds directly or indirectly more than 10% of the share capital or the voting rights of the Parent Company or (b) owns the right to determine the composition of the majority of the board of directors (or equivalent) of the Parent Company (a “ Parent Change of Control ”), unless the new shareholder of the Parent is subject to, or affected by, Sanctions in which case an Event of Default shall be deemed to have occurred,

 

  (b) a change of control occurs in respect of any Seller, pursuant to which any person or group of persons acting in concert (other than the Parent Company and, the Sellers’ Agent) (a) holds directly or indirectly more than 50% of the share capital or the voting rights of such Seller or (b) owns the right to determine the composition of the majority of the board of directors (or equivalent) of such Seller (a “ Seller Change of Control ”) unless the new shareholder of the Seller is subject to, or affected by, Sanctions in which case an Event of Default shall be deemed to have occurred

 

  (c) the non-renewal or termination of a Credit Insurance Policy or any other circumstance that may result in the Factor no longer benefitting from the Insurance Indemnification under the Credit Insurance, that is not promptly notified to the Factor, resulting in the Factor being not informed in due time by the Sellers, provided that if within sixty (60) Business Days of such non-renewal or termination, another Credit Insurance Policy approved by the Factor is entered into, such Stop Purchase Event shall be deemed to be cured and the Factor will resume purchasing Eligible Receivable unless such delay in informing the Factor was caused by the wilful misconduct of the relevant Seller;

 

  (d) any Seller repeatedly fails to comply with the material terms and conditions of the Credit Insurance Policy, to the extent such failure adversely affects the rights of the Factor under the Credit Insurance Policy;

 

  (e) the non-renewal or termination of a Credit Insurance Policy, with effect as of such termination date or non-renewal date and such terminated Credit Insurance Policy having not been replaced, as of such termination date, by another Credit Insurance Policy approved by the Factor, provided that if within sixty (60) Business Days of such non-renewal or termination, another Credit Insurance Policy approved by the Factor is entered into, such Stop Purchase Event shall be deemed to be cured and the Factor will resume purchasing Eligible Receivable,

 

  (f) the Credit Insurer no longer qualifies as an Acceptable Credit Insurer and within sixty (60) Business Days of the Factor notifying the relevant Seller of the downgrading, the relevant Seller (or the Sellers’ Agent acting on its behalf), does not find a successor Acceptable Credit Insurer, it being understood that, during that sixty (60) Business Days, the Factor may Finance new Receivables from the relevant Sellers at its entire discretion;

.

 

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  (g) any Party becomes aware that any of the Collection Account Guarantee Agreements ceases to be legal, valid, binding and enforceable ( opposable ) in its entirety, unless within fifteen (15) Business Days from the sending of a Cure Notice, the relevant Seller instructs all its Debtors to pay the amounts they owe under any Receivable to the credit of an account opened under the name of the Factor;

 

  (h) any Party becomes aware that any Transfer Document ceases to be legal, valid, binding or would prove to be unenforceable under French law after appropriate notification is made to the Debtor, unless within ten (10) Business Days from the sending of a Cure Notice, such illegality, invalidity or unenforceability is cured; or

 

  (i) the statutory auditor of any Seller requests that a general meeting of the shareholders of the relevant Seller, or as the case may be, the Parent Company, be convened in accordance to article L. 234-2 et seq. of the French Code de commerce, or any similar applicable law, unless the Factor and the Parent Company have agreed, within 10 Business Days of the relevant convening notice, on the implementation of satisfactory measures to remedy such situation (including, for instance, on the withdrawal of the relevant Seller from the Factoring Facility),

Further to the occurrerce of a Stop Purchase Event with respect to any Seller, the Maximum Total Financing Amount may be reduced by the Factor up to the Financed Amount in relation to such Seller, at the date on which such Stop Purchase Event occurred.

 

12.3 Default

To the best of its knowledge, upon the relevant Seller or the Parent Company becoming aware of the occurrence of an event occurring under this Clause 12 3 and constituting a Default, It shall promptly notify the Factor of the occurrence of such Default by sending a default notice to the Factor (the “ Default Notice ”).

 

  12.3.1 Occurrence of a Default regarding all Sellers and the Parent Company

 

  (a) Upon receiving a Default Notice from the relevant Seller or the Parent Company in respect of a Default referred to in this Clause 12.3.1, or upon becoming aware of a Default referred to in this Clause 12.3.1, the Factor may send a cure notice to the Sellers and the Parent Company (a “ Cure Notice ”) setting forth the relevant Default(s) and the applicable grace period(s) (if any).

 

  (b) If the relevant Default(s) referred to in the Cure Notice is(are) not cured or waived within applicable grace period (if any), the Factor may, after due consideration of the impact of such event on the situation of the Sellers (taken as a whole), upon the expiry of a three (3) Business Day prior notice sent to the Sellers and the Parent Company (a “ Termination Notice ”):

 

  (i) if such event occurs before the end of the Commitment Period, terminate the Commitment Period and the Factor will continue to purchase Eligible Receivables for an undetermined length provided that any Party shall be entitled to stop the purchasing of Receivables under this Agreement subject to a three (3) month prior notice (sent by registered letter with acknowledgement of receipt) to the other Party; and/or

 

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  (ii) stop purchasing any new Receivables, provided however that the provisions of this Agreement in relation to Transferred Receivables Assigned prior to the occurrence of such event will remain in full force and effect; and/or

 

  (iii) terminate the Servicing Mandate and take immediately any of the actions set out in Clauses 7.10.1(a)(i) to 7.10.1(a)(iii) in relation to the Sellers; and/or

 

  (iv) exercise any or all of its rights, remedies, powers or discretions under the Factoring Facility Documents (including under the Collection Account Guarantee Agreements) with respect to all the Sellers.

 

  (c) Each of the following events constitutes an Event of Default in respect of the Sellers and the Parent Company, whether or not the occurrence of the relevant event is outside the control of any entity of the Group or any other person:

 

  (i) the Parent Company (i) becomes insolvent for the purposes of any insolvency law; or (ii) by reason of its actual or anticipated financial difficulties, suspends making payments on all or a substantial part of its debts;

 

  (ii) steps have been taken by the Parent Company or, so far as the Parent Company is aware, by any other person, that would constitute, or already constitutes, an Insolvency Proceeding in respect of the Parent Company (or any other equivalent proceeding under any applicable law) unless, in relation to such steps or procedures effectively taken or started, such steps or procedures are (i) promptly contested by the Parent Company and (ii) are finally dismissed within twenty (20) days from the sending of the Cure Notice;

 

  (iii) the occurrence of a Cross-Acceleration;

 

  (iv) the occurrence of an Event of Default referred to in Clause 12.3 2(c) below with respect to all Sellers;

 

  (v) the occurrence of the Event of Default referred to in Clause 12.2(a) or Clause 12.2(b); or

 

  (vi) (A) any party to the Agreement, (other than the Factor) challenges the validity or enforceability ( o pposabilité) of any material right or obligation thereunder or under the Parent Performance Guarantee; (B) the Agreement or the Parent Performance Guarantee, ceases to be legal, valid, binding and enforceable ( opposable ) in its entirety (including the provisions relating to Servicing Mandate).

 

  12.3.2 Occurrence of a Default regarding any Seller

 

  (a) Upon receiving a Default Notice from the relevant Seller in respect of a Default referred to in this Clause 12.3.2, or upon becoming aware of a Default referred to in this Clause 12.3.2, the Factor may send a Cure Notice to the relevant Seller setting forth the relevant Default(s) and the applicable grace period(s) (if any).

 

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  (b) If the relevant Default(s) referred to in the Cure Notice is(are) not cured or waived within applicable grace period (if any), the Factor may, after due consideration of the impact of such event on the situation of the Sellers (taken as a whole):

 

  (i) if such event occurs before the end of the Commitment Period, terminate the Commitment Period with respect to the affected Seller (only) and the Factor will continue to purchase Eligible Receivables from such Seller for an undetermined length provided that any Party shall be entitled to stop the purchasing of such Receivables from such Seller under this Agreement subject to a three (3) month prior notice (sent by registered letter with acknowledgement of receipt) to the other Party; and/or

 

  (ii) stop purchasing any new Receivables originated by the affected Seller(s), provided however that the provisions of this Agreement in relation to Transferred Receivables Assigned prior to the occurrence of such event will remain in full force and effect; and/or

 

  (iii) take any of the actions set out in Clause 7,10 (Consequences of the revocation of the Servicing Mandates) in relation to the relevant Seller, and/or

 

  (iv) exercise any or all of its rights, remedies, powers or discretions under the Factoring Facility Documents (including under the Collection Account Guarantee Agreements) with respect to the affected Seller(s) (only).

 

  (c) Each of the following events constitutes an Event of Default in respect of the relevant Seller, whether or not the occurrence of the relevant event is outside the control of any entity of the Group or any other person:

 

  (i) steps have been taken by such Seller or, so far as such Seller is aware, by any other person, that would constitute, or already constitutes any in respect of such Seller, any proceeding (other than an Insolvency Proceeding) under Livre VI of the French Commercial Code, as amended from time to time (or equivalent proceeding under any applicable law) unless, in relation to such steps or procedures effectively taken or started, such steps or procedures are (i) promptly contested by such Seller and (ii) are finally dismissed within twenty (20) days from the sending of the Cure Notice to the relevant Seller;

 

  (ii) such Seller fails to comply with its obligations under the Factoring Facility Documents (other than resulting from Clause 11 (Representations, Warranties and Undertakings)) to the extent such failure has a Material Adverse Effect and, if capable of remedy, continues unremedied for a period of five (5) Business Days from the sending of the Cure Notice to such Seller;

 

  (iii) such Seller is in breach of any of the representations, warranties and undertakings given in Clause 11 (Representations, Warranties and Undertakings) to the extent such failure has a Material Adverse Effect, and, if capable of remedy, continues unremedied for a period of:

 

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  (1) five (5) Business Days, for the events referred to in SCHEDULE 4, Clauses 1.1(e), 1.2(a), 1.2(c), 2(a), to 2(c), 2(e), 2(g) to 2(m), and 2(n) to 2(q); or

 

  (2) seven (7) Business Days, for the events referred to in SCHEDULE 4, Clauses 1.1(a) and 1.1(d); or

 

  (3) ten (10) Business Days, for the events referred to in SCHEDULE 4, Clauses 1.1(b), 1.1(c), 1.1(f) to 1.1(i), 1.1(j), 1.1(l), 2(d), and 2(f); or

 

  (4) fifteen (15) Business Days, for the event referred to in SCHEDULE 4, Clause 1.1(j); or

 

  (5) up to the next Assignment date, for the undertaking set out in Clause 2.1.4(b);

 

  from the sending of the Cure Notice to such Seller;

 

  (iv) the occurrence of any of the following events: (A) the auditor of any Seller and of the Parent Company raises reservations as to the accounts of such Seller or the Parent Company to the extent such reservation reflects serious deficiencies in accounting (which excludes any observation in the auditor’s report in connexion with the implementation of new accounting standards or with major accounting estimates that would trigger going concern issues (as defined in the relevant Accounting Principles)); or (B) significant delays or any aggravation of delays for payment in respect of suppliers and unsecured or secured creditors (such as inter alia the French Trésor Public , Urssaf, caisses de retraite etc) of such Seller (other than resulting from the normal course of such Seller’s business) which, individually or collectively, would have a Material Adverse Effect;

 

  (v) such Seller challenges the validity or enforceability ( opposabilitè ) of any material right or obligation under any Factoring Facility Document (other than the Agreement or the Parent Performance Guarantee); or

 

  (vi) such Seller has knowingly omitted or concealed material information or has knowingly made false statements to the Factor regarding any material information to be provided by such Seller upon the signature of any of the Factoring Facility Documents or during the course of the performance thereof.

 

12.4 Voluntary Withdrawal

 

  12.4.1 As from the date falling 12 months after the Signing Date, the Parent Company shall be entitled to request the Factor by sending it a thirty (30) day prior notice, that any Seller withdraw from the Agreement.

 

  12.4.2 Upon the withdrawal of any Seller pursuant to paragraph 12,4.1 above the Factor shall be entitled to reduce the Maximum Total Financing Amount provided that:

 

  (a) the amount of such reduction shall not exceed an amount corresponding to the product of (a) the Maximum Total Financing Amount, and (b) the average share over the last 12 months of the aggregate outstanding Transferred Receivables which were transferred by the withdrawing Seller in the aggregate outstanding Transferred Receivable;

 

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  (b) The Factor shall send a ten (10) Business Days prior notice of such reduction (including the amount by which it reduces the Maximum Total Financing Amount) to the Parent Company: and

 

  (c) If as a result of a request from the Parent Company pursuant to Clause 3.3.3 all the Sellers are to withdraw from the Agreement, the Maximum Total Financing Amount shall be reduced to zero.

 

12.5 Preservation of parameters

Upon the sending of a Termination Notice with respect to a Seller arising under Clause 12.3.2 or the withdrawal of a Seller arising under Clause 12.4, the Parties agree to negotiate in good faith on any amendment to the Agreement or the Factoring Facility Documents which would be required or desirable to ensure the economic and financial parameters of the Transaction, as originally set out on the date of signature of the Agreement, are preserved.

 

13. ACCESS TO WEB SERVICES

 

13.1 General

 

  13.1.1 In order to enable the Sellers to access all management information in connection with this Agreement, the Factor has created Web Services (FACTONET) the content and mode of operation whereof are described in the Client Guide. Web Services provide detailed online information regarding the Seller’s factoring accounts and those of its Debtors, which the Sellers may download onto its micro-computer. The Sellers shall bear all related costs, including the costs of telecommunications. Access to the Web Services is only possible through confidential codes, an identification code and a password, which shall be communicated to each Seller upon the signature of this Agreement.

 

  13.1.2 Web Services as a whole will be free of charge for the Sellers. Any additional information services namely documentation in paper form, will be subject to the specific pricing outlined in the Client Guide or, failing this, in a quotation submitted to the Sellers’ Agent’s approval. Such remuneration will be drawn on the Current Account.

 

13.2 Intellectual property rights—Granting of a license

 

  13.2.1 All intellectual property rights and copyright concerning the Web Services, their presentation, contents (software, visual, sound functionalities, Clauses and generally all information contained in relation to such services) are works protected by the French Intellectual Property Code and international agreements concerning copyright, that exclusively belong to the Factor, in their former current and future versions. Any complete or partial reproduction or broadcast by whatever means, is strictly forbidden without the prior written agreement of the Factor.

 

  13.2.2 The Factor grants to each Seller a non-exclusive license to use the specific software referred to in Clause 13.1 ( General) exclusively for its own use and for the sole purpose of carrying out, in connection with the performance of this Agreement, the transactions which are described in the Client Guide. Each Seller shall comply with the conditions of the license contract which shall be given to it with the software. It agrees to return the said software to the Factor promptly upon the Transaction Settlement Date and to destroy all copies thereof which it may have made.

 

 

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  13.3 Liabilities

The Parties shall not be liable for the malfunction of the telephone lines and equipment necessary for using the Web Services, for the use which is made thereof or for the results obtained. Moreover, subject to reasonable prior information the Factor may interrupt or update at any time the operation of the Web Services, in particular in order to maintain the quality, reliability, safety and/or performance thereof, in no event shall the Parties be liable for the consequences, in particular, loss of data, operational losses or any other financial loss which may result from any of the events above.

 

  13.4 Confidentiality - Liability

The Factor has taken all necessary measures in order to protect the confidentiality of access to information. Each Seller agrees that the access codes shall remain secret. It shall be solely responsible for such codes, including their conservation, confidentiality and use. The Factor shall in no event be liable in the event of abusive or fraudulent use thereof, due to a voluntary or involuntary disclosure of the confidential codes by each Seller to any person whatsoever. Each Seller guarantees that it will at all times comply with all laws and regulations applicable to the use of Web Services Each Seller undertakes that its employees shall comply with the provisions of this Clause.

 

  14. COSTS AND EXPENSES

 

  14.1 Subject to Clause 14.2, each Seller and the Parent Company shall bear all reasonable external costs and expenses reasonably incurred and duly documented by the Factor, if any (including external counsel’s cost and other third parties costs), in connection with (i) the due diligences carried out in relation to the Factoring Facility Documents (including the audits referred to in Clause 7.7 ( Factor’s controls and audits) up to the amounts referred to under Clause 7.7.3), (ii) the preparation, negotiation, execution, completion and implementation of the Factoring Facility Documents (including in connection with the issuance of any legal opinion), in each case to the extent accepted in advance by the Parent Company on the basis of a detailed fee proposal.

 

  14.2 Each Seller and the Parent Company shall bear all costs and expenses (including legal fees) reasonably incurred and duly documented by the Factor in connection with:

 

  14.2.1 the formalities required to be carried out for the enforceability or to enforce the transfer of Receivables transferred to the Factor pursuant to the Factoring Facility; or

 

  14.2.2 any amendment, waiver or consent relating to any of the Factoring Facility Documents requested by the Parent Company;

 

  14.2.3 the protection or enforcement of any provision, security or guarantee benefitting to the Factor under the Factoring Facility Documents; or

 

  14.2.4 any translation into English of any Factoring Facility Document drafted in a local language and vice versa.

 

  14.3 To the extent amounts (i) are due by a Seller and/or the Parent Company under any Factoring Facility Document in respect of services provided by the Factor to them and are substantiated by an invoice, and (ii) remain unpaid on the relevant due date indicated therein, (a) a late penalty interest equal to the rate of the Special Financing Commission shall accrue, to the

 

 

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  fullest extent permitted by law, on the amounts due under such invoice from the date following the due date up to the date of actual payment and (b) a fixed fee for collection charges (indemnitè forfaitaire pour frais de recouvrement) of forty Euro (40€) may be charged by the Factor to the relevant Seller and/or the Parent Company (as applicable).

 

14.4 All fees and other amounts payable hereunder are exclusive of any value added tax.

 

15. CONFIDENTIALITY - UTILISATION OF INFORMATION COLLECTED BY THE FACTOR - SUBSTITUTION

 

15.1 Confidentiality

 

  15.1.1 Each Party agrees that both prior to the end of the Commitment Period and thereafter until the expiry of a twenty four (24) month period therefrom (the “ Confidentiality Period ”) it will (i) keep confidential and not divulge or disclose to any individual, person or entity whatsoever, in whole or in part, neither orally nor in writing nor in whatever other form, any information of whatever nature obtained in the context of the Factoring Facility relating to the Sellers, the Sellers’ Agent, the Debtors, the Receivables and the Factor or any other matters communicated by a Party to another in the context of the Factoring Facility or of which it may otherwise have come in possession in the context of the Factoring Facility (including the Factoring Facility Documents and any information concerning the identity of any Debtors) (the “ Confidential Information ”) and (ii) take all the steps necessary to avoid any such disclosure or use so as to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information and not use, in whole or in part, any Confidential Information for any purpose other than the purpose for which it is disclosed.

 

  15.1.2 At any time until the end of the Confidentiality Period, upon request of a Party, the recipient shall promptly return to such Party, or confirm in writing to such Party, the intervened destruction of any documents containing Confidential Information with the exception of copies (i) that have become a part of the recipient’s corporate records and which shall be required for audit, legal, regulatory or internal compliance purposes as set out below or (ii) that the relevant Party reasonably needs for the protection or enforcement of any of its rights under this Agreement, insofar as such disclosure is expressly permitted by the provisions of the Factoring Facility Documents or strictly necessary for the purpose of discharging its obligations under or in connection with the Factoring Facility Documents Such return or confirmation of destruction, shall be not only of all such documents, but also of any copies thereof made by the recipient and any other documents in the possession of the recipient incorporating Confidential Information,

 

  15.1.3 The relevant recipient will be responsible for making its own evaluation of, and enquiries in respect of, the Confidential Information, A Party does not make any representation as to the accuracy or completeness of the Confidential Information and shall have no liability as a result or use of, or reliance on, any information delivered to the recipient in accordance with this Agreement.

 

  15.1.4 The provisions of this Clause 15.1 ( Confidentiality) shall not prevent the Sellers or the Parent Company from:

 

  (a) disclosing the Factoring Facility Documents on a strict “need-to-know” and confidential basis for the purposes of:

 

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  (i) any financing or refinancing transaction occurring at the level of the Obligors; or

 

  (ii) any acquisition merger or corporate reorganization (or any transaction having a similar effect) affecting directly or indirectly the Sellers, the Parent Company or the Sellers’ Agent.

 

  (b) disclosing the existence of the Factoring Facility and its main characteristic in any prospectus or other offering document relating to any securities issued or applied by any member of the Group, provided that the commercial and financial terms (such as the pricing of the Factoring Facility) shall not be disclosed.

 

  15.1.5 Any Party may, subject (where applicable) to Article L 511-33 of the French Monetary and Financial Code disclose the Confidential Information:

 

  (a) to its employees, direct or indirect shareholders, officers or, subject to prior notice thereof provided by the Factor to the Parent Company pursuant to this Agreement, any permitted assignee of the Factor under any Factoring Facility Document (provided that such persons undertake to keep Confidential Information confidential);

 

  (b) in connection with any proceedings arising out of or in connection with any Factoring Facility Document or the preservation or maintenance of its rights thereunder;

 

  (c) if required to disclose Confidential Information by an order of a court of competent jurisdiction whether in pursuance of any procedure for discovering documents or otherwise, provided that the person to whom Confidential information is given is informed of its confidential nature unless, in the opinion of that Party, it is not practicable to do so;

 

  (d) pursuant to any law or regulation or requirement of any governmental agency in accordance with which that party is required or accustomed to act (including for the purpose of filing the Form 20-F of the US Securities and Exchange Commission or as required by the rules of any stock exchange where any Seller, the Parent Company or any of their Affiliates is listed);

 

  (e) to any governmental, regulatory, banking or taxation authority having jurisdiction over that party, provided that the person to whom Confidential Information is given is informed of its confidential nature unless, in the opinion of that Party, it is not practicable to do so.

 

  (f) to its auditors or legal or other professional advisers on a “need-to-know basis” only (provided that such third party owe a duty of confidentiality to that party); or

 

  (g) to any sub-contractor assisting the Factor in the collection of the Receivables, subject to a confidentiality undertaking.

 

15.2 Utilisation of information collected by the Factor

 

  15.2.1 For the purpose of internal control, the Factor is expressly authorised by the Sellers and the Parent Company to provide the information referred to in Article L.511-34 al. 1 of the French Monetary and Financial Code, to Its shareholders.

 

 

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  15.2.2 Any information to which the Factor may have access to in the context of the performance of this Agreement may be provided to:

 

  (a) any majority-owned entity of the Factor Group, for statistical, commercial or risk purposes, subject to a confidentiality undertaking;

 

  (b) the Banque de France or any regulatory or banking authority, for statistical purposes only, or

 

  (c) agents (mandataires) of the Factor for the performance of this Agreement, subject to a confidentiality undertaking.

 

15.3 Collection of personal data

 

  15.3.1 In compliance with the provisions of French Data Protection Law No. 78-17 of 6 January 1978 (as amended), the Factor automatically processes personal information relating to the corporate officers of the Sellers, the Parent Company and the Sellers’ Agent and some of their employees, including the Factor’s contact persons or the representatives who sign the Factoring Facility Documents, the Transfer Documents and any related document.

 

  15.3.2 Personal data is processed and kept strictly to provide the services hereunder. However, the Factor may need to provide such data to other companies of the group to which it belongs, in particular, in the United States of America, in accordance with applicable law or regulations in this regard each of the Sellers, the Parent Company and the Sellers’ Agent acknowledge and agree that its corporate officers and employees have agreed that the information referred to in this Clause may be transferred.

 

  15.3.3 Such individuals may have access to their personal data and request that any errors relating to them be rectified or deleted by contacting the Factor’s sales department at the address mentioned in Clause 16.1 (Notices between the Parties).

 

16. MISCELLANEOUS PROVISIONS

 

16.1 Notices between the Parties

 

  16.1.1 Notices shall be deemed to have been given on the date of the receipt of a registered letter, or on the date of the document attesting the receipt of an e-mail by the duly authorised representative of the other Party. In the event that contractual provisions provide for notification without specifying the form thereof, the said notification may be made by electronic mail, normal letter mailed or hand delivered, registered letter or registered letter with acknowledgement of receipt.

 

  16.1.2 The address (and the department or officer, if any, to whose attention the communication is addressed) of each Party for any communication or document to be made or delivered under or in connection with this Agreement is, in the case of each Party that identified with its name below, or any substitute address or department or officer as the Party may notify to the other Party by not less than five (5) Business Days’ notice:

 

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Party

  

Name

  

Details

    
Parent Company    Constellium Holdco II B.V.    Address:   

(c/o Constellium Paris)

40-44, rue Washington, 75008 Paris, France

      Attention:    Laurent Schmitt
      e-mail:    laurenl.schmitt@constellium.com
      Copy:    Jeremy Leach, VP and General Counsel Constellium
      e-mail:    Jeremy.leach@constellium.com
Sellers’ Agent    Constellium Switzerland AG    Address:    Max-Högger-Strasse 6 - 8048 Zurich
      Attention:   

Mr. Mark Kirkland, Director Treasury &

Enterprise Risk Management

      e-mail:    Mark.Kirkland@constellium.com
Seller    Constellium Issoire    Address:    Zl des Listes - 63502 Issoire
      Attention:    Marc Monaco
      e-mail:    marc.monaco@constellium.com
Seller    Constellium Neuf Brisach    Address:   

ZIP Rhenane Nord-RD 52

68600 Bisheim

      Attention:    Attention: Thierry Malraison
      e-mail:    thierry.malraison@constellium.com
Seller    Constellium Extrusions France    Address:   

Site de Nuits-Saint-Georges, 1 pas

Eiffel, BP 46 Nuits-Saint-Georges,

21702 Nuits-Saint-Georges Cedex

      Attention:    Matthieu Tardi
      e-mail:    Matthieu.Tardi@constellium.com
Factor    Factofrance    Address:   

Factofrance

Tour Facto, 18, rue Hoche

92988 Paris La Défense

France

      Attention:    Christine Vadon
      e-mail:    Christine. Vadon@factofrance.com
      Fax:    + 33 (0)1 46 35 17 04

 

16.2 Rights of the Parties

No failure to exercise, nor any delay in exercising, on the part of any Party, any right or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

 

16.3 Amendments

Any amendment of the terms of this Agreement shall be made in writing by all the Parties.

 

16.4 Partial invalidity

If, at any time, any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

 

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16.5 No joint obligations.

The obligations of each Seller under the Factoring Facility Documents are several (conjointles at non solidaires). No Seller is responsible for, or in any manner guarantor of, the obligations of any other Seller under the Factoring Facility Documents.

 

17. APPOINTMENT OF SELLERS’ AGENT

 

17.1 Each Seller hereby appoints the Sellers’ Agent as its lawful agent ( mandataire) in order to do all such things that may be specifically delegated to it under this Agreement for and on behalf of such Seller.

 

17.2 The Sellers’ Agent hereby accepts its appointment to act as lawful agent (mandataire) of each Seller in respect of the foregoing tasks.

 

17.3 Subject to sub-paragraph (f) below, the appointment, duties and authority of the Sellers’ Agent shall be valid and effective as from the date of its appointment and remain in full force and effect until the Transaction Settlement Date.

 

17.4 The Sellers’ Agent shall have such rights, powers and authorities and discretions as are conferred on it by this Agreement, together with such rights, powers and discretions as are reasonably incidental thereto.

 

17.5 The performance of its obligations by the Sellers’ Agent shall release and discharge the relevant Seller with respect to, and to the extent of, the obligations, duties and liabilities so performed by the Sellers’ Agent.

 

17.6 The Sellers’ Agent may be replaced by another member of the Group (a “ Substitute Sellers’ Agent ”) upon written request sent by all Sellers to the Factor subject to 30 days’ prior written notice and provided that such Substitute Sellers’ Agent has accepted in writing to perform all obligations of the Sellers’ Agent hereunder.

 

17.7 The Sellers’ Agent shall not be liable to any person for any breach by any Seller of this Agreement (or any other document) or be liable to any Seller for any breach by any other person of this Agreement or any other document.

 

17.8 The Sellers’ Agent shall not be remunerated.

 

18. CHANGE TO THE PARTIES

 

18.1 Assignment and transfers by the Sellers

No Seller shall be entitled to assign or transfer any of its rights and/or obligation under any Factoring Facility Document without the Factor’s prior written consent.

 

18.2 Assignment and transfer by the Factor

 

  18.2.1 The Factor may assign or transfer its rights and obligations in full under any Factoring Facility Document if such assignment or transfer:

 

  (a) is to an Affiliate of the Factor;

 

  (b) is made at a time when an Event of Default is continuing; or

 

  (c) otherwise, has received the previous written consent of the Parent Company, provided that such assignment or transfer:

 

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  (a) shall not cause the Parent Company or any of the Sellers to incur any additional costs;

 

  (b) shall not affect the rights of the Parent Company or of any of the Sellers under any Factoring Facility Documents; and

 

  (c) shall not affect the validity of the Jurisdiction Matrix set out in SCHEDULE 14 (Jurisdiction Matrix)

 

  18.2.2 Notwithstanding the provision of Clause 18.2.1 above, the Factor shall be entitled, to assign, transfer or pledge any Transferred Receivable, if the following conditions are met;

 

  (a) the aggregate amount of Receivables transferred directly or indirectly to a transferee shall not exceed at any time fifty per cent (50%) of the aggregate amount of all Transferred Receivable;

 

  (b) the Parent Company shall be previously informed in writing of such transfer and be provided with reasonable details about the identity of the relevant transferee;

 

  (c) the relevant transferee shall not be a competitor of the Parent Company (or any of its Affiliate);

 

  (d) the relevant transferee shall have undertaken to the benefit of the Seller (in terms reasonably satisfactory to the relevant Seller), (i) not to disclose any information relating to the Parent Company, the Group, the Seller, this Agreement or any terms of any Receivable, (ii) not to assign or transfer by any means such right or receivable, in each case without the prior consent of the relevant Seller (not to be unreasonably withheld) and (iii) not to disclose the relevant assignment unless expressly permitted in the Agreement;

 

  (e) the transfer to the relevant transferee shall not have any effect on the rights (including, for the avoidance of doubt, the right of the Seller to buy-back certain Receivables as and when provided for in this Agreement) and/or obligations of any Seller and will not cause any Seller to bear any additional taxes, costs or expenses; and

 

  (f) the relevant transferee is not a person (i) whose business includes arms, weapons, weapon components or military equipment or any goods or services the supply or receipt of which is contrary to applicable law (including without limitation applicable national and international export control, trade sanction and embargo laws, regulations, treaties and conventions) or (ii) otherwise subject to any Sanction.

 

18.3 Substitution

Without prejudice to the provisions of Clause 7.1 (Servicing Mandate) and Clause 17.6, unless agreed in writing by the Factor, any Seller, the Sellers’ Agent, and the Parent Company shall not in any way whatsoever be substituted by another party for the performance of its rights and obligations under any Factoring Facility Document.

 

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  18.4 Accession of Additional Sellers

 

  18.4.1 The Parties agree that, from time to time and subject to Clauses 18.4.2 and 18.4.3, the Parent Company may request that any of its subsidiaries located in France accede to this Agreement as additional seller (an “ Additional Seller ”).

 

  18.4.2 Promptly upon receipt of that request subject to compliance with Clause 18.4.3, the Parties shall determine and agree in good faith the timing for the accession of such Additional Seller.

 

  18.4.3 The accession of such Additional Seller shall be subject to:

 

  (a) execution and delivery by the Additional Seller of an Accession Form to the Factor;

 

  (b) the prior approval of the credit committee of the Factor;

 

  (c) the conduct of appropriate audits and due diligence (on the Additional Seller, its Receivables the agreements pursuant to which its Receivables are originated, its Credit and Collection Procedures, and its IT systems), the results and conclusions of which are confirmed by the Factor as being reasonably satisfactory;

 

  (d) the satisfaction of conditions precedent for the accession being substantially similar to the conditions precedent applicable to the Sellers as set out in SCHEDULE 3 (Conditions Precedent) (to the extent such conditions are applicable) but without prejudice to the right for the Factor to subject its internal approval process to the delivery of satisfactory analysis or advice on potential conflicts of laws issues; and

 

  (e) the Additional Seller, the Parent Company, the Sellers or the Sellers’ Agent agreeing to bear all costs and expenses (including legal fees) reasonably incurred and duly documented by the Factor in connection with (i) any audits/due diligence required for the purposes of the accession of such Additional Seller and (ii) the negotiation and drafting of any amendment to a Factoring Facility Document or credit insurance policy required for the purposes of such accession, including, inter alia, any agreed increase of the Maximum Total Financing Amount.

 

19. APPLICABLE LAW - JURISDICTION

 

19.1 Subject to Clause 19.2 below, the provisions of this Agreement shall be construed in accordance with and shall be governed by French law.

 

19.2 Each of the Parties to this Agreement agrees that any and all disputes arising out of or in connection with this Agreement and in particular with its validity, interpretation, performance or non-performance, shall be exclusively referred to the competent courts of the Paris Court of Appeals

 

19.3 Each Party to this Agreement irrevocably waives any objection which it might now or hereafter have to the courts referred to in Clause 19.2 being nominated as the forum to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this Agreement and agrees not to claim that any such court is not a convenient or appropriate forum.

 

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SCHEDULE 1.

D EFINITIONS

In this Agreement, the following expressions used with a capital letter shall, except where the context otherwise requires, have the following meanings:

“ 2017 Amendment and Restatement Agreement ” means the amendment and restatement agreement entered into by the Parties on 19 April 2017.

“ Acceptable Credit Insurer ” means a credit insurer:

 

(i) which is a credit insurer being incorporated in a country of the OECD;

 

(ii) whose long term obligation are rated at least BBB- by Standard & Poor’s or Fitch Ratings or Baa3 by Moody’s;

 

(iii) which is capable of, and agrees to, enter into credit insurance policies governed by French law (or any other law approved by the Parties); and

 

(iv) which is capable of making electronic data transfers in a manner satisfactory to the Factor,

provided that should a credit insurer not comply with one or more of the above criteria, such other credit insurer shall be approved by the Factor (such approval not to be unreasonably withheld).

“ Accession Form ” means an accession form substantially in the form of SCHEDULE 15 (Accession Form).

“ Accounting Group ” means Constellium N.V. and its Affiliates.

“ Accounting Principles ” means in relation to the Parent Company and any Seller, generally accepted accounting principles in its jurisdiction of incorporation, and used in the financial statements or accounts to be remitted by the Parent Company and the Sellers to the Factor pursuant to this Agreement.

“ Additional Seller ” has the meaning ascribed to such term in Clause 18.4 (Accession of Additional Sellers).

“ Affected Receivables ” has the meaning ascribed to such term in Clause 5.3.1.

“ Affiliate ” means as to a specified entity, an entity that directly or Indirectly through one or more Intermediaries controls or is controlled by, or is under common control with, the entity specified.

“ Agreement ” means this factoring agreement.

“ Airbus ” means the companies listed in SCHEDULE 18 (List of Airbus Companies).

“ Airbus Advance ” means (i) the eight millions euros (EUR 8,000,000) advance currently made by Airbus to Constellium Issoire, or (ii) any other advance made at any time by Airbus to any Seller.

 

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“ Airbus License ” means the specific license granted on 21 November 2016 under number IA- 2016-326444-1 and the specific license granted on 20 September 2016 under number IA-2016- 325648-1 by the Office of Foreign Assets Control of the US Department of Treasury to Airbus with respect to the sale and delivery of goods and the performance of services in the territory of the Islamic Republic of Iran.

“ Airbus Receivable ” has the meaning ascribed to such term in Clause 6.8.1

“ Airbus Reserve Trigger ” means any of the following events

 

(i) on 1 st  July 2016, the Factor has not received a waiver satisfactory to it from any relevant Airbus entity of its right to set-off any amount owed under the Airbus Advance; and

 

(ii) the creditor of the Airbus Advance is a Debtor of any Transferred Receivable, unless the relevant Airbus entities have provided a waiver, satisfactory to the Factor, of their right to set-off any amount owed under the Airbus Advance.

“ Amendment Signing Date ” shall have the meaning given to that term in the 2017 Amendment and Restatement Agreement.

“ Approval Limit ” means in relation to any Debtor the lesser of (i) the Credit Insurer Approval Limit applicable to such Debtor and (ii) the Factor Approval Limit applicable to such Debtor.

“ Approved Currency ” means Euros (EUR) and US Dollars (USD) or any other currency on which the Factor has given its prior approval from time to time.

“ Approved Debtor ” means a Debtor in réspect of which the Crédit Insurer has agreed under the Credit Insurance Policy, to cover the non-payment of all or part of the Receivables owed by such Debtor to any Seller.

“ Approved Receivable ” means in respect of any Seller on any Assignment Date, any Transferred Receivable (i) the sum of the Face Value of which, together with the Face Value of all outstanding Financeable Receivables held against the same Debtor on such date, does not exceed the Approval Limit applicable to such Debtor, and (ii) which is indemnifiable under the Credit Insurance Policy (quotité assurée) for at least ninety per cent (90%) of its Outstanding Amount.

“ Arrangement Fee ” has the meaning ascribed to such term in Clause 9.3 (Arrangement Fee).

“ Asset Account ” means the account of each Seller recording the relevant Outstanding Amounts of the Transferred Receivables

“ Assignment ” means any assignment sale or transfer of receivables made by each Seller to the Factor in accordance with the Transfer Mode and this Agreement and to “Assign” means the making of an Assignment pursuant to this Agreement and the applicable Transfer Mode.

“ Assignment Date ” shall have the meaning given to that term in Clause 2.1.3(a).

“ Available Financing Account ” has the meaning ascribed to such term in Clause 8.2 (Available Financing Account).

“ Average Dilution Rates ” means, at any time, in relation to any Seller, as observed over the last three (3) calendar months, the average rate of the Dilutions calculated by the Factor on a monthly basis as a percentage of the aggregate amount of all Transferred Receivables relating to that Seller.

 

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“ Ban on Assignment ” means, with respect to any Receivable, any ban or restriction on assignment, sale, transfer or requirement of any prior consent from the relevant Debtor or from any third parties which would validly prevent the legal transfer of such Receivable or any Related Security or the enforceability of such transfer towards the relevant Debtor if such consent is not obtained.

“ Bank ” means the credit institutions in the books of which the Collection Accounts identified in SCHEDULE 10 ( Collection Accounts) are opened, that is, BNP Paribas, HSBC and Deutsche Bank, together with any other credit institution that may be agreed from time to time between the Factor and the relevant Seller.

“ Bank Account(s) ” means in relation to any Seller, the bank account(s) of such Seller the details of which will be notified to the Factor at the latest on the First Assignment Date and on which Financings will be made available to it, or such other bank account opened in the name of any Seller as such Seller (or the Sellers’ Agent acting on its behalf) may from time to time specify in writing to the Factor.

“ Business Day ” means a day (other than a Saturday or a Sunday) on which banks are generally open for normal business in Paris, New York and Amsterdam.

“ Change of Control ” means, as the case may be, a Parent Change of Control and/or a Seller Change of Control.

“ Client Guide ” means the guide which has been given by the Factor to the Sellers and which is also accessible through Web Services.

“ Collection Accounts ” means:

 

(i) the bank account(s) listed in SCHEDULE 10 ( Collection Accounts) (as amended from time to time) opened in the name of each Seller in the books of the Bank(s); or

 

(ii) any other bank account that may be opened after the date hereof, at the request of the relevant Seller, for the purposes of receiving the settlements under the Transferred Receivables, as agreed from time to time between the relevant Seller and the Factor (provided, in each case, that a Collection Account Guarantee Agreement shall have been entered into and shall be in force in respect thereof).

“ Collection Account Guarantee Agreements ” means (i) the agreements entered into between a Seller, the Factor and, as the case may be, the relevant Bank and which provide, as the case may be, for the pledge or security trust for the benefit of the Factor over such account or its credit balance, or for the assignment by way of security for the benefit of the Factor of the receivable constituted by the positive balance of the Collection Accounts and, (ii) as the case may be, the acknowledgement letters by the relevant Bank in respect of such pledge or security trust for the benefit of the Factor and fulfilling the requirement of Clause 7.3 ( Collection of the Transferred Receivables).

“ Commitment Period ” means, subject to the provisions of Clause 12 ( Term and Early Termination) a period starting on the Signing Date and ending on the earlier of:

 

(i) 29 October 2021(as such date may be postponed from time to time by the Parties),

 

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(ii) if the Maximum Total Financing Amount is reduced to zero in accordance with Clause 3.3 (Maximum Total Financing Amount) before 29 October 2021, the date on which the Maximum Total Financing Amount is reduced to zero in accordance with Clause 3.3 (Maximum Total Financing Amount);

 

(iii) in relation to any Seller, the date on which a Termination Notice is sent in relation to such Seller in accordance with Clause 12.3 ( Default) or such Seller is effectively withdrawn from the Factoring Facility in accordance with Clause 12.4 (Voluntary Withdrawal) (as applicable); and

 

(iv) in relation to any Seller, the date on which a Stop Purchase Event occurs in relation to such Seller.

“ Computer Relationship Guide ” means the procedures and outlines set out in SCHEDULE 7 SCHEDULE 7 (Computer Relationship Guide).

“ Concentration Limit ” means, on any Assignment Date with respect to any Debtor and its Affiliates, the maximum amount of Transferred Receivables (including VAT) owed by such Debtor and its Affiliates that the Factor may Finance and which may not exceed at any time forty per cent (40%) of the Outstanding Amount of Transferred Receivables assigned by all Sellers.

“ Confidential Information ” has the meaning ascribed to such term in Clause 15.1.1.

“ Constellium Issoire ” means a company incorporated under the laws of France as a société par actions simplifiée whose registered office is located at rue Yves Lamourdedieu, Zone Industrielle Les Listes, 63500 Issoire, France registered with the Trade and Companies Registry of Clermont-Ferrand under number 672 014 081; and

“ Contract ” means in relation to any Receivable, any and all contracts, instruments, agreements, invoices (including, as the case may be, any purchase order, certificate of transport (bon du transporteur or equivalent documents), expedition certificate (bon d’expedition or equivalent documents) delivery certificate (bon de livraison or similar document) or similar document) pursuant to or under which a Debtor becomes or is obligated to make payments on or in respect of such Receivable.

“ Credit and Collection Procedures ” means the Sellers’ own credit collection procedures and processes as amended from time to time, provided that the initial Credit and Collection Procedures are set out SCHEDULE 6 ( Credit And Collection Procedures).

“ Credit Insurance Policy ” means each of:

 

(i) the credit insurance policy entered into on or about the Signing Date pursuant to which the Transferred Receivables denominated in Euro to be transferred by the Sellers to the Factor; and

 

(ii) the credit insurance policy entered into on or about the Signing Date pursuant to which the Transferred Receivables denominated in USD to be transferred by the Sellers to the Factor,

are credit insured for an aggregate amount equal at least to the Maximum Insurance Liability, or any other credit insurance policy entered into from time to time by the Sellers and the Factor with any Acceptable Credit Insurer.

“ Credit Insurer ” means:

 

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(a) Atradius Credit Insurance NV, a company located 44 avenue George Pompidou, 92596 Levallois Perret cedex, France, registered under number 417 498 755 with the Registre du commerce et des sociétés of Nanterre, branch of Atradius Credit Insurance NV headquartered at David Ricardostraat 1 – 1066 JS Amsterdam (NL), Trade Register 33024388; or

 

(a) any other credit insurer which is an Acceptable Credit Insurer.

“ Credit Insurer Approval Limit ” means in relation to any Debtor, the amount up to which the Credit Insurer has accepted to insure Receivables owed by such Debtor at the request of the relevant Seller, as such amount may be adjusted from time to time by the Credit Insurer in accordance with the Credit Insurance Policy, provided that any such adjustment will apply only to Eligible Receivables to be originated after such adjustment.

“ Credit Note ” means any credit note issued by a Seller to a Debtor in respect of a Transferred Receivable.

“ Cross-Acceleration ” means, in respect of any Financial Indebtedness (other than any financial indebtedness owed to another member of the Group) of the Parent Company, any Seller, the aggregate outstanding amount of which exceeds fifty million Euros (EUR

50,000,000) any event of default (however described):

 

(i) with respect to any Financial Indebtedness other than the ones referred to in paragraph (vii) of the definition of Financial Indebtedness, which has led the relevant lenders or financing parties to notify, as applicable, the Parent Company, or the relevant Seller of the acceleration of such relevant Financial Indebtedness; or

 

(ii) with respect to any Financial Indebtedness referred to in paragraph (vii) of the definition of Financial Indebtedness, which has led any counterparty to early terminate such Financial Indebtedness further to a breach of the Parent Company or the relevant Seller of its obligations thereunder.

“ Cure Notice ” has the meaning ascribed to such term in Clause 12.3.1(a).

“ Current Account ” means, in relation to any Seller, the current account ( compte courant) opened in the Factor’s books in the name of such Seller in accordance with Clause 8.1. ( Current Account) As at the Signing Date, the Current Accounts of the Sellers are listed in SCHEDULE 12( Current Accounts).

“ Debtor ” means, in respect of each Transferred Receivable, any legal entity being primarily obliged to pay any amount due thereunder, as clearly identified at any time in the Records of each Seller.

“ Debtor Insolvency ” means,

 

(a) in respect of any Debtor incorporated in France, the opening of any of the proceedings specified in Book VI of the French Commercial Code, as amended from time to time, including (i) a safeguard (sauvegarde), (ii) accelerated safeguard (sauvegarde accélérée) (iii) express financial safeguard (sauvegarde financiére accélérée), (iv) judicial restructuring (redressement judiciaire), or (v) judicial liquidation (liquidation judiciaire) proceeding;

 

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(b) with respect to any other Debtor, any analogous proceedings in any other relevant jurisdictions; and

 

(c) with respect to any Debtor, any of the events set out in the Credit Insurance Policy under the definition of “Insolvency” (“Insolvabilité”) as set out in the section entitled Stop Automatique de la Couverture of each Credit Insurance Policy.

“ Default ” means any event or circumstance set out in Clause 12.3 (Default), which would, with the expiry of a grace period, the giving of notice, the making of any determination or combination of the foregoing, constitute an Event of Default.

“ Default Notice ” has the meaning ascribed to such term in Clause 12.3 (Default).

“ Defaulted Debtor ” means the Debtor of a Defaulted Receivable.

“ Defaulted Receivable ” means any Transferred Receivable remaining unpaid in whole or in part by a Debtor for more than sixty (60) calendar days after its due date and which is not a Disputed Receivable.

“ Deferred Availability Account ” has the meaning ascribed to such term in Clause 8.6 (Deferred Availability Account).

“ Definance ” means with respect to any Financed Receivable or Financeable Receivable the fact of debiting, from the relevant Current Account the Outstanding Amount of that Transferred Receivable and of crediting such amount to the relevant Deferred Availability Account.

“ Definanced Receivables ” means any Transferred Receivable which has been Definanced.

“ Devaluation Reserve ” has the meaning ascribed to such term in Clause 8.8.1.

“ Devaluation Reserve Calculation Date ” has the meaning ascribed to such term in Clause 8. 8 . 2 .

“ Devaluation Reserve Reference Month ” has the meaning ascribed to such term in Clause 8.8.2.

“ Dilution ” means in respect of the Transferred Receivables originated by any Seller, the amount of any Reduction or Cancellation Item, other than any set-off relating to

 

(i) Tolling, Pseudo Tolling;

 

(ii) to the sales of goods and provisions of services mentioned in paragraph 8.7.1(b); or

 

(iii) as applicable, any set-off between Transferred Receivables owed by Airbus and the Airbus Advance

“ Dilution Rate ” means, at any time, in relation to any Seller, the rate of the Dilutions which arose during the previous calendar month, calculated by the Factor as a percentage of the aggregate amount of all Transferred Receivables Assigned by that Seller during such month.

“ Dilution Reserve ” has the meaning ascribed to such term in Clause 8.5 1 (Purpose).

“ Dilution Reserve Required Amount ” means at any time the amount which has to be credited on the Dilution Reserve on such time.

 

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“ Discussion Period ” has the meaning ascribed to such term in Clause 7.9.1(a).

“ Disposal ” has the meaning ascribed to such term in SCHEDULE 4 (Representation, Warranties) .

“ Dispute ” means, in relation to any Receivable,

 

(iv) the refusal by the relevant Debtor to pay all or part of the Outstanding Amount of such Receivable to the relevant Seller on the grounds that (for a reason other than it being subject to a Debtor Insolvency, and excluding any stalling tactic) it is not liable to make the relevant payment (including by refusing to pay in the designated currency), such refusal to be evidenced by mail or email from such Debtor to the relevant Seller, or, after the termination of the Servicing Mandate of such Seller, the Factor, provided that the termination of the Dispute will be evidenced through a written statement from the relevant Debtor or a definite decision of justice recognising the existence of the Receivable and all amounts due in respect thereof; or

 

(v) in the context of a Debtor Insolvency against the Debtor of such Receivable, any decision rendered by the relevant competent insolvency officer or judge rejecting the existence or the amount of such Receivable, unless such rejection is caused by an improper filing of any relevant claim by the Factor, and provided that if the event which constitutes a Dispute affects only a part of the a Transferred Receivable, only that part shall be deemed to be a Disputed Receivable.

“ Disputed Receivable ” means any Receivable which is subject to a Dispute.

“ Effective Global Rate ” has the meaning ascribed to such term in Clause 9.7 (Effective Global Rate) .

“ Eligible Receivable ” means any Receivable which fulfils on the relevant Assignment Date the following criteria:

 

(i) it is fully owned by the relevant Seller;

 

(ii) it results from the firm sale of products (or the related provision of services) by the relevant Seller in the ordinary course of its business;

 

(iii) it has been originated and monitored pursuant to the Credit and Collection Procedures;

 

(iv) it is either (a) governed by French law and is owed by an Approved Debtor located or incorporated in a Relevant Country or (b) the combination of the jurisdiction of its Debtor and of its governing law is set out in the Jurisdiction Matrix;

 

(v) it is denominated in an Approved Currency;

 

(vi) it is not an Excluded Receivable;

 

(vii) it does not arise out of an invoice issued by a Seller in respect of a Debtor which is a member of the Group;

 

(viii) it exists and constitutes legal, valid, binding and enforceable payment obligations of the relevant Debtor;

 

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(ix) it is fully capable of transfer and it shall not be subject to any Ban on Assignment, unless prior written consent to the Assignment from its Debtor has been obtained in a form and substance substantially similar to the consent letter set out in SCHEDULE 9 (Form Of Consent Letter) ;

 

(x) it is not subject to legal or contractual restrictions on confidentiality affecting the validity of its Assignment;

 

(xi) it is not in the public knowledge that its Debtor, at the time of the Assignment, is subject to any Debtor Insolvency;

 

(xii) its Debtor is not a Public Entity or an individual;

 

(xiii) it does not arise from a public procurement contract;

 

(xiv) it is free from any security interest, rights of third parties or adverse claims, and has not been previously discounted (escomptie) or assigned, transferred or pledged to third parties or as the case may be, such security interest, rights of third parties or adverse claims have been waived to the satisfaction of the Factor prior to the Assignment of the Eligible Receivable;

 

(xv) under the contract pursuant to which it arises, it is not payable by means of cash (en espéces) or credit card;

 

(xvi) it does not arise under a contract which is a regulated agreement under the French Consumer Code (Code de la consommation) ;

 

(xvii) it is not owed by a Debtor in respect of which the Factor is prohibited to purchase receivables pursuant to applicable regulation as notified twenty (20) Business Days in advance by the Factor to the relevant Seller;

 

(xviii) its maturity date falls after the date of the contemplated Assignment to the Factor;

 

(xix) it has a maximum maturity date equal to the lesser of (A) the maximum maturity permitted by any applicable law (or by any applicable business agreement (accord de branche ) duly endorsed by way of ordinance ( décret )), (B) the maximum maturity provided under the Credit Insurance Policy and (C) one hundred and fifty (150) days (including any extension request);

 

(xx) unless such Transferred Receivable is a Transferred Receivable on a Debtor offered for the first time to the Factor, the invoice relating to such Transferred Receivable has been issued less than thirty (30) days before it was Assigned to the Factor;

 

(xxi) with respect to Rexam Egypt Receivable only, it fulfills the Rexam Egypt Eligibility Criteria.

“ EURIBOR ” means on any day:

 

(i) the euro interbank offered rate administered by the Banking Federation of the European Money Markets Institute (or any person which takes over the administration of that rate) for Euros on such day and for a three month term, as displayed on the page EURIBOR01 of the Thomson Reuters screen or any replacement Thomson Reuters page which displays that rate (it being specified that if the relevant page or service is replaced or ceases to be available, the Factor, in consultation with the Parent Company or the Sellers’ Agent may specify another page or service displaying the relevant rate); or

 

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(ii) (if no such rate is available) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Factor at its request quoted by HSBC France, Crédit Agricole and Crédit Mutuel (or any other credit institution selected by the Factor in consultation with the Parent Company or the Sellers’ Agent) to leading banks in the European interbank market;

at such time as is customary for fixing the rate applicable to such term for the offering of deposits in Euro for a period comparable to that term provided that, if any such rate is below zero, EURIBOR will be deemed to be zero.

“ Euro ” or “ EUR ” means the single currency of the member states of the European Union that adopt or have adopted the Euro as their lawful currency in accordance with the legislation of the European Community relating to Economic and Monetary Union.

“ Event(s) of Default ” means any event referred to in Clause 12.3.1(c) and 12.3.2(c),

“ Excluded Receivables ” means any Receivable which fulfils on the relevant Assignment Date any of the following criteria:

 

(i) It is arising from a contract the performance of which has been wholly or partly subcontracted, including pursuant to French law n 75-1334 of 31 December 1975 or any similar applicable law or regulation granting to the subcontractor a direct claim against the relevant Debtor for the payment owed to such subcontractor by the relevant Seller under the subcontract (save if, to the reasonable satisfaction of the Factor, bank guarantees (to guarantee payments to the relevant subcontractors) or other relevant arrangements have been implemented in advance in accordance with the above laws and regulations so as to avert the exercise of any such direct claim);

 

(ii) its payment remains subject on the date on which such Receivable is purported to be Assigned to (A) the verification of the performance of an obligation of the relevant Seller, by the relevant Debtor or any third party or (B) the completion of additional services deliveries or other milestones;

 

(iii) it is owed by a Debtor (or a Debtor’s Affiliate) that is at the same time a supplier (or a member of the same group as the supplier) of the relevant Seller or that is an Affiliate of the Seller, unless if it arises in connection with a Tolling relationship;

 

(iv) it solely corresponds to penalties or late payment interest.

 

(v) it is a Disputed Receivable in all or in part.

 

(vi) it is owed by a Debtor which is mentioned on any official list which is binding on the Factor as being subject to Sanctions;

 

(vii) it is a Receivable which relates to the delivery of goods or performance of services by the relevant Seller directly in the territory of the Islamic Republic of Iran or to any Iranian entity; or

 

(viii) it is a Receivable subject to the Airbus License and the relevant Seller does not comply with the requirements of the Airbus License, the Airbus License is modified or cancelled or the relevant Seller is no longer identified as a supplier under the Airbus License.

 

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“ Face Value ” means, in respect of any Receivable, the nominal amount of such Receivable as at the date of its Assignment to the Factor, including any VAT applicable thereto.

“ Factor Approval Limit ” shall have the meaning given to that term in Clause 4.2.1 (Approval by the Factor).

“ Factor Change of Control ” means a change of control pursuant to which any person or group of persons acting in concert or as of their affiliates (a) holds directly or indirectly more than 50% of the share capital or the voting rights of the Factor or (b) owns the right to determine the composition of the majority of the board of directors (or equivalent) of the Factor.

“ Factor Group ” means the Factor and any entity which is an Affiliate of the Factor.

“ Factoring Commission ” has the meaning ascribed to such term in Clause 9.1.1 ( Purpose).

“ Factoring Facility ” means the undisclosed non-recourse factoring facility made available by the Factor to the Sellers under the Factoring Facility Documents.

“ Factoring Facility Documents ” means (i) this Agreement, (ii) the Collection Account Guarantee Agreements, (iii) the Parent Performance Guarantee, (iv) any document, instrument or agreement entered into between the Parties for the purposes of a Transfer Mode or Retransfer Mode, (v) any Accession Form, (vi) the Transferred Receivables Ledgers, (vii) the reports or certificates transmitted by the Parent Company or the Sellers to the Factor pursuant to SCHEDULE 4 (Representation, Warranties), or (viii) any document, instrument or certificate designated as such by the Parties.

“ Finance Lease ” means the leases, financial leases (locations avec option d’achat) or hire- purchase contracts which would, in accordance with the relevant Accounting Principles, be treated as a finance or capital leases.

“ Finance/Financed ” means the fact, for the Factor, of making a Financing available to the Sellers pursuant to the terms of Clause 3 ( Financing of Financeable Amounts) of this Agreement.

“ Financeable Amounts ” has the meaning ascribed to such term in Clause 3.2 (Financeable Amounts).

“ Financeable Receivable ” means an Approved Receivable which fulfils all the following criteria:

 

(i) it is not a Disputed Receivable in all or in part;

 

(ii) the Financing of such Transferred Receivable will not trigger a breach of the applicable Concentration Limit (for the avoidance of doubt, the Factor will monitor compliance with the Concentration Limit); and

 

(iii) it is not yet a Financed Receivable.

“ Financed Amounts ” means, in relation to any Seller, amounts debited from the Current Account of such Seller and paid in cash by the Factor to such Seller in accordance with Clause 3.1 (Financing) .

“ Financed Receivable ” means any Financeable Receivable which has been Financed in accordance with Clause 3 (Financing of Financeable Amounts).

 

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“ Financial Indebtedness ” means, without double-counting, any indebtedness for or in respect of:

 

(i) monies borrowed and debit balances at banks or other financial institutions;

 

(ii) any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;

 

(iii) any amount raised pursuant to any note purchase facility or the issue of bonds (other than Trade Instruments) notes, debentures loan stock or any similar instrument,

 

(iv) the amount of any liability in respect of any Finance Lease;

 

(v) receivables sold or discounted (except off balance sheet transfers of receivables);

 

(vi) any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the financial effect of a borrowing;

 

(vii) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);

 

(viii) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;

 

(ix) any amount raised by the issue of redeemable shares which are redeemable (other than at the option of the issuer) before the Transaction Settlement Date or are otherwise classified as borrowings under the Accounting Principles;

 

(x) in respect of the Sellers only, the amount of any liability in respect of any guarantee for any of the items referred to in Paragraphs (i) to (ix) above, and in respect of the Parent Company the amount of any liability in respect of any guarantee for any of the items referred to in Paragraphs (i) to (ix) above, to the extent the payment of any such liability would jeopardize the Parent Company’s ability to face its other Financial Indebtedness.

“ First Assignment Date ” means, with respect to any Seller, the first Assignment Date regarding such Seller on or following the Signing Date.

“ Form of Notification ” means any notice of assignment to Debtors of Transferred Receivables transferred by any Seller substantially in the form of SCHEDULE 16, Part 3.

“ Financing ” means the amounts made available by the Factor to the Sellers out of Financeable Amounts pursuant to the terms of Clause 3 (Financing of Financeable Amounts ) of this Agreement (it being understood, for the avoidance of doubt that the Financing shall not constitute a loan to be repaid by the Sellers to the Factor).

“ Financing Request ” has the meaning ascribed to such term in Clause 3.1.1.

“ Group ” means Constellium N.V., the Parent Company, and the Sellers

 

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“ Indemnification Maximum Payment Date ” means, in relation to any Transferred Receivable which is an Approved Receivable, the date immediately falling one hundred and eighty (180) days after the initial maturity date of the relevant Transferred Receivable (or any other date as may be agreed upon among the relevant Seller, the Factor and the Credit Insurer).

“ Indirect Payment ” means any payment by a Debtor in respect of a Transferred Receivable which is not remitted to a Collection Account

“ Insolvency Proceeding ” means in respect of the Parent Company and the Sellers any of the following events:

 

  (i) any corporate action, legal proceedings or other procedure or step is taken in relation to the suspension of payments, a moratorium of any indebtedness, dissolution, the opening of proceedings for sauvegarde (including sauvegarde financiére accélérée or sauvegarde accélérée), redressement judiciaire or liquidation judiciaire or reorganisation of such entity other than a solvent liquidation or reorganisation of such entity;

 

  (ii) it commences proceedings for the appointment of a mandataire ad hoc (on the grounds of financial difficulties) or for a conciliation in accordance with articles L.611-3 to L.611-15 of the French Code de commerce other than with the Factor;

 

  (iii) a judgement for sauvegarde (including sauvegarde financiére accélérée or sauvegarde accélérée), redressement judiciaire or liquidation judiciaire or for cession totale ou partielle de I’entreprise is rendered in relation to such entity under articles L.620-1 to L.670-8 of the French Code de commerce; and

 

  (iv) it is in a state of cessation des paiements within the meaning of article L.631-1 of the French Code de commerce.

“ Insolvency Regulations ” has the meaning ascribed to such term in SCHEDULE 4 ( Representation, Warranties).

“ Insurance Indemnification ” means any indemnification under the Credit Insurance Policy.

“ Jurisdiction Matrix ” means the list of combinations of Relevant Laws and Relevant Countries set out in SCHEDULE 14 ( Jurisdiction Matrix) as such list may be amended at any time by the Parties.

“ Legal Reservations ” means any legal reservations that are inserted in the legal opinions delivered in relation to this Agreement.

“ Letter of Waiver and Consent ” means an original copy of a letter substantially in the form set out in SCHEDULE 20 ( Form of Letter of Waiver and Consent).

“ Margin ” means 1.20 % per annum.

“ Material Adverse Effect ” means a material adverse effect on: (I) the ability of the Parent Company or the Sellers to perform their payment or other material obligations (including with respect to their obligations pursuant to the Servicing Mandates) under the Factoring Facility Documents; or (ii) the collectability of the Transferred Receivables (taken as a whole), on a Seller by Seller basis; or (iii) the validity or the enforceability of any of the Factoring Facility Documents.

 

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“ Maximum Insurance Liability ” means the global limit of the Credit Insurer’s yearly maximum liability (limite maximum de decaissement) under the Credit Insurance Policy, applicable only to Receivables assigned by the Sellers, set out on the Signing Date at one hundred and ninety-five million euros (EUR 195,000,000), as such limit may be adjusted downward following the occurrence of one or several indemnification events throughout the year.

“ Maximum Total Financing Amount ” means two hundred and thirty five million Euros (EUR 235,000,000) available collectively to the Sellers, as this amount may be decreased pursuant to Clauses 3.3 (Maximum Total Financing Amount) 12.2 and 12.4 or increased pursuant to Clause 18.4.3(e).

“ Metal Floating Price ” means, in respect of any Devaluation Reserve Reference Month, the amount expressed in US Dollars equal to the relevant LME (London Metal Exchange) average price of metal three (3) months prior to such Devaluation Reserve Reference Month, as calculated in accordance with the terms of the contract entered into between the relevant Seller and Airbus.

“ Metal Invoicing Price ” means, In respect of any Devaluation Reserve Reference Month, the price per ton of metal expressed in US Dollars actually invoiced, to Airbus by the relevant Seller during such Devaluation Reserve Reference Month.

“ Metal Price Devaluation ” has the meaning ascribed to such term in Clause 8.8.1.

“ Minimum Dilution ” means, at any time after the sending of a Termination Notice or the occurrence of a Stop Purchase Event, but before the Transaction Settlement Date, with respect to any Seller the lower of (i) the aggregate Outstanding Amount at that time of Financeable Receivable transferred by such Seller to the Factor, (ii) the amount of the Dilution Reserve of such Seller on the termination date of the Agreement or on the date of occurrence of a Stop Purchase Event, and (iii);

 

(a)    With respect to Constellium Neuf Brisach ,    EUR 4,500,000
(b)    With respect to Constellium Issoire ,    EUR 1,500,000; and
(c)    With respect to Constellium Extrusions France ,    EUR 500,000

“ Non-Cooperative Jurisdiction ” means a “non-cooperative state or territory” (Etat ou territoire non cooperatif), as set out in the list referred to in Article 238-0 A of the French Tax Code (Code Gènèral des Impots), as such list may be amended from time to time.

“ Non-Financeable Amounts ” means, at any time, the sum of (i) the Outstanding Amount of the Non-Financeable Receivables as at such time and (ii) the difference between the Face Value of the Financeable Receivables as at such time and the Financeable Amounts.

“ Non-Financeable Receivable ” means any Transferred Receivable which is not a Financeable Receivable.

 

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“ Non-Utilization Fee ” means on any anniversary date of the Signing Date comprised during the Commitment Period a fee equal to zero point forty per cent (0.40%) of the difference between (i) the Maximum Total Financing Amount and (ii) the average Financed Amounts during the previous year.

“ Obligors ” means the Parent Company, the Sellers and the Sellers’ Agent, from time to time.

“ Offset and Adjustment Account ” or “ OAA ” means in relation to any Seller a Sub-Account of its Current Account the characteristics of which are set out in Clause 8.4 ( Offset and Adjustment Account - OAA).

“ Outstanding Amount ” means on any date with respect to any Receivable, the outstanding amount owed by the relevant Debtor under such Receivable being equal to the difference (if any) between the Face Value of such Receivable, any Reduction or Cancellation Items affecting such Receivable and any payment made by the relevant Debtor or any other party (including any agreements or credit insurances) to discharge such Receivable, provided that the Outstanding Amount shall be equal to zero in respect of any Receivable which has been written off.

“ Parent Change of Control ” has the meaning ascribed to such term in Clause 12.2(a).

“ Parent Performance Guarantee ” means the performance guarantee agreement (a cte de cautionnement solidaire) entered into on 4 January 2011 between the Parent Company and the Factor.

“ Pseudo Tolling ” means any repurchase by the relevant Seller of inventory from any Debtor

“ Public Entity ” means any State (Étaf), any local authorities ( coilectivités locales) or similar foreign law entities or any public-law entity whether in France or abroad.

“ Quarter Date ” means 31 March, 30 June, 30 September and 31 December of each calendar year respectively.

“ Receivable ” means any receivable payable by a Debtor to a Seller as a result of sales of goods or performance of services by such Seller in the ordinary course of such Seller’s business and any VAT amount invoiced by such Seller in relation to such receivable, together with:

 

(i) to the extent applicable and permitted under applicable law, all Records related to such Receivable;

 

(i) any Related Security;

 

(ii) the right to demand payment of principal, interest (except late payment interest) and any other sum howsoever due in respect of such Receivable and all proceeds at any time howsoever arising out of the resale, redemption or other disposal of (net of collection costs) such Receivable; and

 

(iii) to the extent applicable and permitted under French law, such Seller’s rights to refunds from the relevant tax authorities on account of, if applicable, value added tax in respect of any goods sold or services rendered to a Debtor.

“ Records ” means with respect to any Receivable, all Contracts, credit files and other agreements, documents, books, records (including records relating to billing and collection matters) and other media for the storage of information (including tapes, disks, punch cards computer software and databases) related to such Receivable, the Related Security or the related Debtors.

 

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“ Reduction or Cancellation Items ” means, with respect to the Transferred Receivables, all reductions or cancellations materialized by Credit Notes or materialized in the relevant Seller’s account as miscellaneous entry (opérations diverses), granted by a Seller or by valid and enforceable offset resulting inter alia from invoicing error, volume rebates, bonuses, premiums or monthly discounts.

“ Related Security ” means with respect to any Receivable, all of the Sellers’ right, title and interest in, to and under any guarantee, mortgage, retention of title, pledge, lien or any other security interest purporting to secure the payment of such Receivable.

“ Relevant Country ” means any country set out in the Relevant Country column of the Jurisdiction Matrix, as such list may be amended at any time by the Factor subject to a ten (10) Business Days prior notice to the Sellers, on the basis of a change on the legal, economic or political situation of the listed countries.

“ Relevant Law ” means the law of any jurisdiction set out in the Relevant Law column of the Jurisdiction Matrix as such list may be amended at any time by the Factor on the basis of a legal analysis demonstrating that, as a result of a change in law (including a change in the interpretation of the law), the legal analysis carried out initially for the purpose of the Jurisdiction Matrix has become inaccurate and consequently the assignment of the receivables governed by such Relevant Law cannot be effected and perfected in the manner contemplated hereunder.

“ Requested Amount ” has the meaning ascribed to such term in Clause 31.1.

“ Requested Financed Receivables ” has the meaning ascribed to such term in Clause 3.1.1.

“ Reserves ” means the sums standing to the credit of the relevant Reserve Account.

“ Reserve Accounts ” means the Deferred Availability Account, the Set-Off Reserve, and the Devaluation Reserve.

“ Retransfer Mode ” means the Transfer-Back procedure set out in SCHEDULE 16.

“ Rexam UK ” means Rexam Beverage Can Europe Ltd, a company incorporated under the laws of England as a limited liability company, whose registered office is located at 100 Capability Green, Luton, LU1 3LG Bedfordshire, United Kingdom, registered with the Companies House under number 02554348.

“ Rexam Egypt ” means Rexam Beverage Can Egypt S.A.E a joint stock company incorporated under the laws of Egypt, whose registered office is located at 3rd Industrial Zone, 6th October City, Cairo, Egypt, registered in the Commercial Register under number 101693

“ Rexam Egypt Receivable ” means any Receivable owed over Rexam Egypt.

“ Rexam Egypt Eligibility Criteria ” means with respect to any Rexam Egypt Receivable the following criteria:

 

(i) the Factor has received a Letter of Waiver and Consent with respect of such Rexam Egypt Receivable; and

 

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(ii) the sum of the Face Value of such Receivable and of the Outstanding Amount of all Transferred Receivables owed by Rexam Egypt and transferred during the same Rexam First Demand Guarantee Period does not exceed the amount of the Rexam First Demand Guarantee issued during such Rexam First Demand Guarantee Period, and

 

(iii) the Factor has received a legal opinion from an external counsel of Rexam UK issued in a form satisfactory to the Factor as to the capacity of Rexam UK to issue the Rexam First Demand Guarantee guaranteeing the payment of such Rexam Egypt Receivable; and

 

(iv) on the relevant Assignment Date, the purchase of such Rexam Egypt Receivable does not cause the aggregate amount of the outstanding Rexam Egypt Receivables which are Financed Receivables to exceed ten millions euros (EUR 10.000.000).

“ Rexam First Demand Guarantee ” means any first demand guarantee ( garantie autonome) governed by French law to be issued from time to time by Rexam UK for a duration of nine (9) months, substantially in the form set out in SCHEDULE 19 ( Form of Rexam First Demand Guarantee).

“ Rexam First Demand Guarantee Period ” means with respect to any Rexam First Demand Guarantee, the period during which such Rexam First Demand Guarantee is valid.

“ Sanctions ” means any sanctions, embargoes, freezing provisions, prohibitions or other restrictions relating to trading, doing business, investment, exporting, financing or making assets available (or other activities similar to or connected with any of the foregoing):

 

(a) enacted, administered, enforced or imposed by law or regulation of the United Kingdom, the Council or the Commission of the European Union, the United Nations or its Security Council, the United States of America, France or the respective governmental institutions and agencies of any of the foregoing, including, without limitation, the Office of Foreign Assets Control of the US Department of Treasury, the United States Department of State, Her Majesty’s Treasury and the French Treasury, or

 

(b) imposed by the United States Comprehensive Iran Sanctions, Accountability and Divestment Act of 2010; or

 

(c) otherwise imposed by any law or regulation applicable to the Factor (to the extent disclosed in writing by (he Factor to the Seller’s Agent).

“ Seller Change of Control ” has the meaning ascribed to such term in 12.2(b).

“ Seller Codes ” means the seller codes (codes vendeur) to be used by each Seller to record the invoices relating to the relevant Transferred Receivables appearing in SCHEDULE 12 ( Current Accounts), or any other code communicated by the Factor to the relevant Seller.

“ Seller Receivables Performance Triggers ” has the meaning ascribed to such term in 7.9.2(a).

“ Servicer Termination Event ” means any event referred to in Clause 7.9.2.

“ Servicing Mandate ” has the meaning ascribed to such term in Clause 7.1 ( Servicing Mandate).

“ Set-Off Reserve ” has the meaning given to that term in Clause 8.7 (Set-Off Reserve).

 

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“ SFC Rate ” means the sum of (i) the arithmetic average of the daily EURIBOR rates of the preceding two months (or zero if such average is negative) and (ii) the Margin.

“ Signing Date ” means the date hereof.

“ Special Financing Commission ” or “SFC” has the meaning ascribed to such term in Clause

9.2 (Special Financing Commission (SFC)).

“ Stop Purchase Event ” has the meaning given to that term in Clause 12.1 (Term)

“ Sub-Account(s) ” means any sub-account(s) opened by the Factor under each of the Current Accounts.

“ Subsidiary ” means, in relation to any company, another company which is controlled by it within the meaning of article L. 233-3 of the French Code de commerce.

“ Substitute Sellers’ Agent ” has the meaning ascribed to such term in Clause 17.6.

“ Tax ” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

“ Tax Deduction ” means a deduction or withholding for or on account of Tax from a payment under any Factoring Facility Document.

“ Termination Notice ” has the meaning ascribed to such term in Clause 12.3.1(b).

“ Test Date ” means, in respect of any Test Period, the tenth (10 th ) Business Day following the end of such Test Period.

“ Test Period ” means any calendar month.

“ Three Month Dilution Percentage ” means, at any time, with respect to any Seller, the ratio of (i) the aggregate amount of all Dilutions regarding such Seller for the three preceding months, by (ii) the aggregate amount of all Transferred Receivables Assigned by such Seller for the three preceding months.

“ Tolling ” means any provision of services by the relevant Seller to any Debtor out of inventory owned by such Debtor.

“ Trade Instruments ” means any performance bonds or advance payment bonds issued in respect of the obligations of any member of the Group arising in the ordinary course of trading of that member of the Group.

“ Transaction Settlement Date ” means the date of definitive settlement of all transactions in respect of the Factoring Facility, occurring on the later of (i) the Indemnification Maximum Payment Date of the Transferred Receivable having the latest due date or (ii) the date on which all amounts or liabilities due (or owed) by all Obligors towards the Factor and by the Factor to all Obligors, pursuant to the Factoring Facility Documents have been fully paid (or irrevocably extinguished).

 

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“Transfer Document” means any deed of transfer (acte de cession de créances professionnelles) of Eligible Receivables to be Assigned by each Seller to the Factor pursuant to the provisions of Article L. 313-23 et seq of the French Monetary and Financial Code, in the form described in SCHEDULE 16, Part 1.

“ Transfer Mode ” means the procedure and mechanics of transfer (including the relevant Transfer Document) set out in SCHEDULE 16, Part 1.

“ Transfer-Back ” means any retransfer or, as the case may be, rescission of any Transferred Receivable by the Factor to the relevant Seller in accordance with the procedure set forth in Clause 5.3 ( Procedure for the Transfer-Back of Transferred Receivables - Retransfer Modes ) and the relevant Retransfer Mode and to “Transfer-Back” means the action of making a Transfer-Back.

“ Transfer-Back Price ” has the meaning ascribed to such term in Clause 5.3.1.

“ Transferred Receivables Ledgers ” means a report substantially in the form of SCHEDULE 8 (Transferred Receivables Ledgers ).

“ Transferred Receivable ” means any Eligible Receivable transferred to the Factor pursuant to this Agreement and which has not been Transferred-Back.

“ VAT ” means

 

(i) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

(ii) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in Paragraph (i) above, or imposed elsewhere.

“ Web Services ” has the meaning ascribed to such term in Clause 13 ( Access to Web Services ).

 

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SCHEDULE 2.

T HE S ELLERS

 

Name

  

Registered Office

   Registration
Number 		   Jurisdiction
Constellium Issoire   

rue Yves Lamourdedieu Zl les

Listes 63500 Issoire, France

   672 014 081
RCS Clermont-
Ferrand 		   France
Constellium Neuf Brisach   

ZIP Rhénane Nord, RD 52,

68600 Biesheim

   807 641 360
RCS Colmar 		   France
Constellium Extrusions France   

1 Passage Eiffel, CS 40046,

21702 Nuits-Saint-Georges

   662 032 374
RCS Dijon 		   France

 

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SCHEDULE 3.

C ONDITIONS P RECEDENT

Part 1

Conditions Precedent to the Signing Date

 

1. The following documents must be delivered by each Obligor on the Signing Date:

 

  (a) An original copy or a certified copy of the up-to-date constitutional documents (statuts);

 

  (b) An original copy or a certified copy of the certificate of incorporation (Extrait K-bis or, in respect of the Parent Company oprichtingsakte );

 

  (c) To the extent required by any applicable law or by its constitutional documents, original copies or certified copies of the resolutions of the competent corporate bodies, approving the terms of, the transactions contemplated by, and the execution, delivery and performance of the Factoring Facility Documents including, with respect to the Parent Company, confirmation that the Parent Performance Guarantee complies with the corporate benefit principle applicable to it;

 

  (d) An original copy or a certified copy of the power(s) of attorney of the person(s) signing the Factoring Facility Documents as well as the powers of attorney for all persons signing all documents, instruments or agreements required under the relevant Transfer Mode (and Transfer Document) or Retransfer Mode on an ongoing basis during the life of the transaction or any notice or certificate under the Factoring Facility Documents;

 

2. Legal Opinions to be provided on the Signing Date:

 

  (a) Legal opinion by Clifford Chance Europe LLP in respect of the legal existence, the absence of insolvency proceedings, capacity and authority of the Sellers in connection with the execution and performance of the Factoring Facility Documents to which they are a party;

 

  (b) Legal opinion by Stibbe B.V. in respect of the legal existence, the absence of insolvency proceedings, capacity and authority of the Parent Company in connection with the execution and performance of the Factoring Facility Documents to which they are a party; and

 

  (c) Legal opinion by Dentons Europe in respect of the validity of this Agreement.

 

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Part 2

Conditions Precedent to the First Assignment Date

 

  (a) Evidence that all costs and expenses (including the Factor’s legal costs, to the extent invoiced in due time) then due and payable by each of the Sellers and the Parent Company under the Transaction Documents have been paid.

 

  (b) The Credit Insurance Policy as amended in a manner satisfactory to the Factor is in full force and effect.

 

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SCHEDULE 4.

R EPRESENTATION , W ARRANTIES AND U NDERTAKINGS

 

1. Representations and warranties

Each Seller and, as the case may be, the Sellers’ Agent and the Parent Company represents and warrants for itself to the Factor that:

 

  1.1. Representations and warranties relating to the Sellers

 

  (a) Status: it is a company validly incorporated and existing under the laws of its place of incorporation, it is in compliance with all of the applicable laws and regulations relating to its incorporation;

 

  (b) Powers, authorisations and consents: it has full power and authority to enter into the Factoring Facility Documents to which it is a party, and no governmental or regulatory consent is required in order to enter into the Factoring Facility Documents to which it is a party, and it has taken all action necessary to authorise the execution, delivery and performance by it of the Factoring Facility Documents to which it is a party;

 

  (c) Non-violation: the execution, delivery and performance of the Factoring Facility Documents to which it is a party do not contravene or violate (i) its memorandum and articles of association, (ii) any law, rule, regulation or orders applicable to it, (iii) any restrictions under any agreement, contract, deed or instrument to which it is a party or by which it or any of its property is bound, or (iv) any order, writ, judgement, award, injunction or decree binding on or affecting it or its property, and do not result in the creation or imposition of any adverse claim on or with respect to any of its assets or undertakings to the extent that such contravention, violation or result would have a Material Adverse Effect;

 

  (d) Legal validity: Subject to the Legal Reservations, its obligations under the Factoring Facility Documents currently in force to which it is a party constitute legal, valid and binding obligations enforceable against it in accordance with their respective terms;

 

  (e) Accounts: each of the Sellers’ most recent audited annual accounts, and the Group’s most recent non audited consolidated quarterly accounts and audited consolidated annual accounts, copies of which have been furnished to the Factor pursuant to the Agreement, respectively (i) present a true and fair view of each of the Sellers’ and the Group’s financial condition (for the audited accounts) or (ii) have been prepared in good faith by the Group pursuant to the Group’s accounting policy and practice (for the unaudited accounts), as applicable, as at that date and of the results of their operations for the period then ended, all in accordance with applicable accounting standards consistently applied;

 

  (f) No litigation: there are to its knowledge no current material actions, suits or proceedings pending against or affecting it, in or before any judicial or administrative court, arbitrator or regulatory authority, which, based on information provided by it as well as any public information relating to such actions, suits or proceedings, which has a Material Adverse Effect;

 

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  (g) No default : it is not in default with respect to any order of any court, arbitrator or governmental body, or under any contractual or other obligation, which is material to its business or operations and which has a Material Adverse Effect;

 

  (h) Accuracy of Information : to its best knowledge, all information furnished in writing by it to the Factor (excluding the accounts mentioned in section 1.1(e) of SCHEDULE 4 and including the information provided in connection with each Assignment) for the purposes of or in connection with the Factoring Facility Documents, is true and accurate in every material respect on the date such information is stated or certified and does not contain any material misstatement of fact,

 

  (i) Principal place of business : in relation to the Sellers only, its principal place of business and main executive office and the offices where it keeps all its books, records and documents evidencing the Transferred Receivables and the related contracts are located at the addresses stated in SCHEDULE 11;

 

  (j) Capacity to identify and Individualise : in relation to the Sellers only, it has operating systems capable of identifying and individualising in a clear and precise manner each Transferred Receivable and all collections received in respect thereof;

 

  (k) Records : in relation to the Sellers only, all IT and accounting records are accurate in all material respects and all back-up systems are accessible to the Factor and are regularly updated in light of the Group’s current business practices;

 

  (l) No VAT : in relation to the Sellers only, no VAT or equivalent tax is applicable in respect of any sale of Transferred Receivables by it to the Factor.

 

  1.2. Representations and warranties relating to the Receivables

 

  (a) No fraud, etc : such Receivables has not been offered for Assignment to the Factor as a result of fraud, gross negligence or wilful misconduct (dol) from the relevant Seller and (ii) the relevant Seller has not knowingly offered Receivables for Assignment that are not Eligible Receivable, at the time of the relevant offer and assignment date, or are Excluded Receivables and to the extent only that such offer affect a material portion of the outstanding amount of Transferred Receivables in respect of such Seller (for the avoidance of doubt, it is specified that the Factor shall not be responsible for verifying such compliance);

 

  (b) No Violation : upon any Assignment of Receivables, such Transferred Receivables will not be available any longer to the creditors of the relevant Seller in the context of an Insolvency Proceeding or any other procedure under Livre VI of the French Commercial Code, as amended from time to time; and

 

  (c) Transfer of title : subject to the Legal Reservations, upon the assignment of any Transferred Receivables, the Factor will have all the rights, interests and title of the relevant Seller in respect thereof as well as, under French law, the related and accessory security then existing in respect thereof.

 

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  1.3. Repetition

The representations and warranties in sections 1.1 and 1.2 of this SCHEDULE 4 are made by the Sellers, the Sellers’ Agent and the Parent Company as of the Signing Date, and they shall be repeated in the frequency set out below, in each case, by reference to the facts and circumstances existing on that date, as long as any amount or any obligation is outstanding towards the Factor under the Agreement:

 

  (a) the representations and warranties set out in sections 1.1 (i) and 1.1(l) shall not be repeated after the Signing Date;

 

  (b) the representation and warranty set out in sections 1.1(e) shall be repeated on each date of remittance to the Factor of the relevant annual or quarterly or accounts;

 

  (c) the representations and warranties set out in sections 1.1(f), 1.1(g), 1.1(h), 1.1(j) shall be repeated on the first Business Day of each calendar month; and

 

  (d) the representations and warranties set out in sections 1.1(a), 1.1(b), 1.1(c), 1.1(d), 1.1(j), and 1.2(a) to 1.2(c) shall be repeated on each date of Assignment of Eligible Receivables.

 

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2. Undertakings

Each of the Sellers, and to the extent applicable the Sellers’ Agent and the Parent Company (each only for itself) undertakes to the Factor as follows. These undertakings are to be complied by each of the Sellers, the Sellers’ Agent and the Parent Company as long as any amount or any obligation is outstanding towards the Factor under the Agreement.

 

  (a) Delivery of documents, obligation of Information and access : (i) it shall supply to the Factor (or to any person appointed by the Factor) such documents and information with respect to itself, to the Credit Insurance Policy, to the Transferred Receivables and to the Related Security as the Factor may reasonably request, notably, in order to verify each of the Sellers’ compliance with its obligations under the Agreement or the Credit Insurance Policy; and (ii) it shall, as soon as possible upon becoming aware of such facts or events, notify the Factor of any facts or events concerning:

 

  (i) the Transferred Receivables or the Credit Insurance Policy which has a Material Adverse Effect;

 

  (ii) any increase in the amount of the Airbus Advance; and

 

  (iii) upon being informed of any transfer of or pledge over the Airbus Advance, details of such transfer or pledge.

 

  (b) Collection: as far as each Seller is concerned, it shall maintain and implement the Credit and Collection Procedures, and procure that they are maintained and implemented (including, without limitation, an ability to recreate records in the event of their destruction), and it shall keep and maintain, all documents, computer discs, books, records and other information necessary for the collection of all Transferred Receivable, and procure that they be kept and maintained (including, without limitation, records adequate to permit the daily identification of all collections):

 

  (c) Payment of taxes (Transferred Receivables): It shall pay punctually all amounts of VAT, if any, and other taxes in connection with any Transferred Receivables or any related contract and shall comply with all obligations with respect thereto;

 

  (d) No assignment: it shall not (otherwise than in accordance with the Agreement) (a) sell, assign, pledge, lien, charge or otherwise dispose of, or create or suffer to exist any adverse claim or security interest upon or in respect to any Transferred Receivable or any contracts relating thereto, nor (b) assign any right to receive payment in respect thereof and it shall defend the title and interest of the Factor in, to and under any of the foregoing property relating to any Transferred Receivable, against all claims of third parties as if it were the owner of such Transferred Receivable;

 

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  (e) No change in business : it shall not make any change in its business which might materially and adversely impair the operation of the Agreement or which might materially and adversely decrease the credit quality of the Transferred Receivables (taken as a whole) or otherwise materially and adversely affect the rights or remedies of the Factor (provided that, if such event occurs, the Factor shall first notify in writing the Seller and propose the exclusion of new Debtors relating to such new business in order to limit the effect of such change in business and remedy such breach);

 

  (f) Preservation of corporate existence : it shall preserve and maintain its corporate existence and shall maintain all licences, authorizations and certifications necessary to the performance of its business, where failure to maintain or preserve would have a Material Adverse Effect;

 

  (g) Safe-keeping of documents : it shall hold in a reasonably secure and safe from damage location all documents relating to Transferred Receivables;

 

  (h) No amendment to the contracts: it shall not modify the terms and conditions of any contract relating to any Transferred Receivable, which adversely affect the eligibility or the collectability thereof, unless it has received the prior written approval of the Factor (not to be unreasonably withheld);

 

  (i) No change in place of storage: it will not change any office or location mentioned in SCHEDULE 11 ( Location Of Records) where books, records and documents evidencing the Transferred Receivables are kept without prior notifying the Factor at the latest thirty (30) calendar days before making such change of the new location of such books, record and documents;

 

  (j) Notification: it will notify the Factor within ninety (90) calendar days prior to changing its name, identity or corporate structure or relocating its registered office.

 

  (k) No merger: it shall not, if it would have a Material Adverse Effect, operate a legal reorganization, merge or consolidate with or into, or contribute, transfer or otherwise dispose of (whether in one transaction or in a series of transactions, and except as otherwise contemplated herein) all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets of, any person, it being understood that should a voluntary reorganization or restructuration of companies of the Group (including by a way of amalgamation, merger, demerger, spin-off or voluntary liquidation) involving one or more Sellers is intended to take place, the relevant Sellers shall notify the Factor of any such event as soon as possible after all internal corporate approvals have been obtained and being legally entitled to do so;

 

  (l) Provision of financial information:

 

  (i) Upon request of the Factor, to the extent such information are publicly available and otherwise without prior request of the Factor, each of the Sellers and the Parent Company, as applicable, will deliver to the Factor.

 

  (1) annually, as soon as reasonably practicable and no later than one hundred and eighty (180) days from its year-end) the audited statutory annual financial statements (balance sheet and related income statement) of each Seller together with the relevant auditors’ reports;

 

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  (2) annually, as soon as reasonably practicable and no later than one hundred and eighty (180) days from its year end, copies of the audited consolidated annual financial statements (balance sheet, related income statement and cash flow statement) of the Accounting Group together with the relevant auditors’ reports;

 

  (3) quarterly, and no later than sixty (60) days after each Quarter Date, copies of the Accounting Group’s consolidated quarterly management accounts;

 

  (4) monthly, (except for the month of January of each year), and no more than thirty (30) days after its month end (and forty-five (45) days for the first six (6) monthly statements to be remitted as from the Signing Date), the unaudited and unreviewed monthly financial statements (balance sheet and related income statement) for each Seller;

 

  (5) monthly, and no more than thirty (30) days after its month end, aged supplier balances for each Seller;

 

  (6) monthly, and no more than thirty (30) days after its month end, detailed statement of year-end rebates, commercial discounts, Tolling. Pseudo Tolling and scrap report for each Seller;

 

  (7) (A) the Transferred Receivables Ledgers in the manner set out in Clause 7.4 (Diligence and general obligations of each Seller as agent of the Factor), (B) the servicing reports referred to in Clause 7.5 ( Report on the performance of the Servicing Mandate ) and in the manner set out in Clause 7.5 (Report on the performance of the Servicing Mandate) and (C) the monthly rebate and other reports referred to in Clause 2(o) below in the manner set forth in Clause 2(o) below;

 

  (ii) promptly, upon request of the Factor, such documentation and other evidence as reasonably requested by the Factor in order to carry out and be satisfied that it has complied with all necessary “Know Your Customer” requirements as per Factofrance policy or other similar checks under any applicable laws or regulations;

 

  (m) Authorisations : it will promptly obtain, maintain and comply with the terms of, any authorisation required under any law or regulation (i) to enable it to perform its obligations under, or (ii) for the validity or enforceability of, the relevant Factoring Facility Documents;

 

  (n) Financial records : it will record the Assignment of a Transferred Receivable pursuant to the Agreement in its financial records;

 

  (o) Rebates : it shall supply to the Factor, (i) prior to the First Assignment Date (if applicable) and (ii) thereafter on a monthly basis, no more than thirty (30) days after the relevant month end, reports listing the accrued rebates or rebate payments remaining due to the Debtors;

 

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  (p) Information on Insolvency Proceedings : subject to applicable law, and as soon as becoming aware of such event, it undertakes to inform the Factor of the commencement or taking of any step relating to it that would constitute or already constitutes an Insolvency Proceeding (or any other procedure under Livre VI of the French Commercial Code, as amended from time to time, or any equivalent proceeding under any applicable law);

 

  (q) Use of proceeds : each of the Sellers and the Parent Company undertakes to use the proceeds arising from the Factoring Facility in a manner compliant with applicable laws by using such proceeds in particular, for the avoidance of doubt, for the refinancing of working capital facilities; and

 

  (r) Airbus License : it shall inform the Factor in the event the Airbus License is modified, cancelled, or if it is no longer identified as a supplier under the Airbus License, as soon as it is aware of the same.

 

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SCHEDULE 5.

V ALUE D ATES

PART 1

PAYMENTS FROM THE CURRENT ACCOUNT

 

Payment type                                    Value date                                 
Check to the relevant Seller    Issue date
Wire transfer to the relevant Seller    Issue date

 

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PART 2

PAYMENTS TO THE ASSET ACCOUNT

 

Payment type

  

Value date

Check payable by a bank located in Paris    Date on which the payment is recorded by the Factor plus one (1) Business Day
Check payable by a bank in France out of Paris    Date on which the payment is recorded by the Factor plus one (1) Business Day
Fixed maturity negotiable instrument (effet de commerce payable à échéance)    Instrument’s maturity date
Bearer negotiable instrument (effet de commerce payable à vue)    Paying date of the instrument plus one (1) Business Day
Bank or postal wire transfer    Transferee’s bank value date
Foreign wire transfer    Date on which the payment is recorded by the Factor

 

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SCHEDULE 6.

C REDIT A ND C OLLECTION P ROCEDURES

 

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Global Credit Risk Management

 

Concerned accounts:

 

Sales, Availabilities, Customers, Other invoices, Customers accounting provisions

   GLOBAL CM contact : Michel BERARDI

IT applications:

SAP FI (V4.6c): accounting transactions

SAP SD (V4.6c): sales monitoring module & SAP specific “credit risk projection” transaction Ellipro/Creditsafe/Atradius: Customers statements database

Start and end process:

General credit policy definition

Doubtful accounts transfer decision

Objective and description:

Customer risk is managed by the site Credit Management referring to site and corporate Finance Controlling and corporate Credit Management

The sub-process is outlined below:

1/ Definition and implementation of a general credit policy

2/ Credit lines granted to customers fixing

3/ Securing customer risk

4/ Monitoring of critical delinquencies for risk and compliance with credit lines

5/ Management of financial disputes and litigation

19.4 Interlocutors:

19.5 BU CFOs

Global Credit management: Michel BERARDI

19.6

19.7

19.8

19.9 Input:

19.10 Customer information and trade issues in particular as a result of customer visits, financial press,

 

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Investigations requested information from specialized agencies,

Guarantees by the credit insurer

Output:

For each customer: credit lines setting

Provided instruction for doubtful customers

1/ Definition and application of a general credit policy

Corporate Credit Management and Finance participates in the definition of the general policy of the Business Unit Credit. This policy is consistent with business practices:

 

  •   Definition of allowed payment period (between 30 and 90 days with exceptions),

 

  •   Fixing of default interest rate,

 

  •   Fixing the discount rate in case of early settlement,

 

  •   Identification of preferential payment methods

 

  •   Fixing guarantees

 

  •   Ceiling powers in arbitration

The first three rules are part of the terms and conditions listed on the back of invoices. Trade must ensure their proper implementation.

To be noticed::

 

  •   Currently the default interests are not routinely charged: Credit Management takes the financial and commercial situation of the customer. It was after discussion with Credit Management as Sales decide to issue an invoice. This one following the usual process of other bills.

 

  •   In case of early settlement, a discount rate could be proposed.

2/ Credit lines granted to customers fixing:

Fixing a credit line follows the request to open an account or a credit line by a commercial. This request is sent to Credit Management by email.

 

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Credit lines are defined by company and industry. They take business objectives and are set after analyzing the customer’s creditworthiness performed either by the credit insurer or by Credit Management (particularly if the insured amount is less than the amount of the requested credit line or credit insurer refused warranty).

If requested, the commercial service to the end customer must request the last financial items that are not yet in the database in order to update the risk.

A line of credit is however not blocking to record a new command, load sales department careful not to exceed the amount of the authorized line (when exceeding a request to increase must be made at the Credit Management)

Principle of securing credit lines:

Credit Management assess the creditworthiness of customers and prospects preventive and systematic manner. This assessment is based at amounts on one or more of the following background information:

 

  •   The guarantee granted by credit insurance,

 

  •   Analysis of the most recent financial statements,

 

  •   Business information from specialized agencies

 

  •   The “economic” before (regular monitoring of the economic and financial press)

 

  •   Possibly a visit to the customer with the Sales

 

  •   Granted guarantees (bank, parent ...)

This study helps to fix a credit line for each customer.

Important Notes:

 

  •   When no credit line has been granted to a customer. Credit Management requires that payments are made before shipment. Sales are liable for non-compliance with this rule, the control can be done by Credit Management in the current management of the file (Sales administration responsibility which in this case must ensure that the customer payment to be made prior to release merchandise and charge).

Maintenance of customer database:

The administration of customer files in SAP is ensured by people dedicated in on sites.

If a customer create request, the employee responsible for the administration of the customer file checks in SAP that the customer does not already exist to avoid duplicates. The control is operated in SAP on the search key, the name, the locality, country and VAT identifier or any kind of registration number. This ensures the absence of duplicates.

Principles of credit lines review:

The credit line may be reviewed by Credit Management for the following reasons;

 

  •   The client’s financial situation deteriorated,

 

  •   Credit Insurer changes (modify, reduce, cancel) its cover,

 

  •   At the request of Sales (needs updated),

 

  •   Following payment incidents,

 

  •   The credit line is limited in time (time limit insurer or domestic arbitration).

 

 

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These events may increase or decrease in credit lines (for prevention).

All credit lines revisions are followed by Credit Management, which shall inform the Sales Services.

Adequacy of financial constraints and trade;

In order to reconcile trade and financial requirements on a customer, arbitration may be requested by Credit Management of each site or the Corporate Credit Management formalized by an email explaining the reasons for such request for arbitration with the latest financial information to facilitate decision making according to the procedure of each site. This arbitration decision is taken, following Group DOA, gradually by BU Controller, BU CFO, and BU President, formalized by e-mail.

A request for arbitration shall in no event be performed on a client with delays (overdue), Credit Management and Sales are responsible to ensure the customer’s creditworthiness before making an application for arbitration.

Follow-up:

Each arbitration is saved chronologically with the site, the customer’s name, the amount of the accepted line, date of expiry and name of the decision maker. This monitoring is done by Corporate Credit Management and sent each quarter end to Group Treasury, BU CFOs with the overdue rate, DSO and credit risk spread per BU.

DSO, overdue rate, main Receivables (over or equal 2.5 M€), main Overdue (over or equal 250 K€), per sites and per BU are recorded each month end into “Constellium Credit Report” and sent to the Senior Management (Finance & Sales).

3/ Securing Customer Risk

If the customer is risky (insufficient insurance or denied), the Credit Manager of the site or Corporate Credit Manager could promote security instruments to determine a line of credit (letter of credit, surety, guarantee parent ...). Anyway each cases are under Group Treasurer submission and authorization, following Group DOA.

If these security elements cannot be obtained, a regulation “cash before delivery” will be required.

Corporate Credit Management participate as key user and expert in the negotiations conducted by the Group with the Credit Insurer for Credit Insurance contracts.

A premium rate is generally negotiated at each renewal of the contract with the Credit Insurer based on the evolution of its loss ratio (premiums allowances) and amount of coverage requested.

Other security instruments (irrevocable and confirmed letter of credit, bank guarantees, and corporate guarantees) are subject to specific negotiations undertaken or supervised by the site Controller, BU CFO, Group Treasury. Corporate Credit Management playing his part as facilitator, requesting if and as necessary Corporate Legal Counsels.

 

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4/ Monitoring compliance with credit lines and critical delinquencies for risk:

The Business Services each site must meet the credit lines in place and are responsible for any overruns. Control of credit lines overtaking is performed on each site by the Credit Manager with the IT tools available and is a “second look”.

For Neuf -Brisach & Issoire. if the registration of new orders by Sales Administration causes a credit limit is exceeded (overshoot control or financial assets), the system “userbatch” automatically sends a warning to Sales Administration responsible, Sales and Controller site at Day + 1, informing them of exceeding the credit limit. Corporate Credit Management receives a copy of these alerts and governs accordingly.

The measures taken may be (non-exhaustive list):

 

  •   A request to increase credit insurance

 

  •   In case of refusal or partial agreement, the following proposals may be made to commercial services:

 

  •   Request for Arbitration under the procedure of each site concerned, if the Credit Management deems feasible

 

  •   request advance payment

 

  •   reducing payment terms

 

  •   demand for bank guarantees (standby / letter of credit)

 

  •   parent company guarantees for subsidiaries

 

  •   restriction or blocking deliveries

 

  •   In the case of late payments, after telephone reminder and if the reminder letters had no effect, a pre-litigation sentence will be launched by Credit Management or local Credit Responsible after consulting business services and recovery.

5/ Management of financial disputes and litigation:

In case of non-payment, Corporate Credit Management and/or Sales Administration on site

 

  •   Made proceed with the recovery of the customer or send a letter of formal notice

 

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  •   Made proceed with an order to pay by bailiff after informing the BU Sales Management and Controlling

 

  •   Implements the retention of title clause (if written in the contract)

 

  •   Does the follow up of disaster declaration to the Credit Insurer (Corporate Credit Management)

Once it is found that debt will not be paid by the customer (e.g. in case of bankruptcy),

Corporate Credit Manager or Site Credit Manager sends an email to the site Financial Controller for scripture as “doubtful customers”, specifying the amount of the provision. Corporate Credit Manager is not able to pass the scriptures.

The calculation is based on the claim that is the subject of a payment default. The calculation is made by the Corporate Credit Manager or Site Credit Manager; depending on the repayment made by the credit insurer if the claim is secured.

 

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SCHEDULE 7.

C OMPUTER R ELATIONSHIP G UIDE

 

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Cahier des charges information Confidential Agreement Line for line GE Capital Factofrance

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Interface for optimised management Pages Functioning of the agreement 3 Dear Sir/Madam, Recording of transactions (examples) 4-5-6 To strengthen the efficiency of our relations, we are offering you the ability to send File creation us your data electronically. There are numerous benefits: easy to use, saves time, speed of sending information via the internet and the reliability of information. Our “Invoices, credit notes website GE Factofrance Net has an area for sending and receiving files. This gives Payment assignment (clearing) you instant access to any transactions that have taken place in your account and 7 _ access to downloadable management documents. The information exchanged is “Adjustments” completely secure due to a data encryption system. Only users with a specific _ “Guarantee requests” 8 password can access the information available on this site. Please do not hesitate to contact your usual representative for further information. Appendices If you wish, we can also put you in contact with one of our partners that has developed an interface for creating files: refer to the appendices “List of interface Your contact representatives 16 software” on page 21 and “Your contact representatives” on page 16 for any Example file 18-19 questions. Methods of communication 20 Thank you for your business. List of interface software 21 List of currency codes 22 List of country codes 23-24-25

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5 Electronic files -payment assignments 2Debt transfer (clearing) (Invoices and credit notes) -adjustments Your company (1) Invoices-credit Your customers 1. Sending invoices and credit notes 2. Electronic files —invoice and credit note data (1) GE Factofrance 3- dancing. Sending payment methods (cheques, bills of y exchange, promissory notes, transfers) to the 5. Electronic files-payment assignments (clearing) adjustments 6. Increase in funds . Dedicated bank account : (1) during the operational phase, you are advised to group any invoices, credit notes, payment assignments and adjustments in a single file.

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Information on the functioning of the agreemnt agreement The dedicated bank account: The agreement specifies the terms of functioning of the account and the role of the bank, your company and the Factor. Any invoices transferred to the Factor must include the bank details (RIB) of the dedicated account only. A parameter card dedicated to the factor is also required: this should be specified for the bank so that it can be viewed separately. THE MAIN ACCOUNTS for the Factor The CCA (Offsets and Adjustments Account (account which mirrors the dedicated bank account) This account reconciles Debits: payment assignments Credits: increases in funds in the dedicated account. The CCV (Vendor Current Account) This records any transactions in relation to the purchasing of debts, financing and fictitious assets throughout the duration of the agreement The CAF (French Purchasers Account) and/or CAE (International Purchasers Account) This records any debts and credit notes transferred by the vendor and any payments sent which have been received from purchasers and miscellaneous transactions. The FDG (Guarantee Fund) This records withdrawals in accordance with the particular terms of the agreement. The PTF (Portfolio) This records the instruments sent which are not yet due and is balanced on the due date.

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Recording of transactions Transferor’s (vendor) transactions Files to be Factor’s transactions 1- Sales and customer billing Factor’s transations The main aooounte 411 Customers not transferred 7Ox Sales CCV Vendor Current Account 500 980 100 life CAF French Purchases Account header : CCA Offsets and Adjustments Account ‘ PTF Portfolio 2- Debt transfer 2- Debt transfer Creation of mirror “Factoi” in customer and ® debt transfer accounts 411xx Customers transferred 411x Mirror oustomers CCV CAF Other r&lated accounts Factor account CCV CAF 50(2) 344 (3) Transfer 467 Oltiar debtors fRESI 500 (3b) Available reserve (3b) 500 | (3) Payment 344 2 (5) financing commission (4)100 | (4) FDG 100 (relecfion of outstanding debt) 3 (8) factoring oommlslon 868 A. financing caste CCS FI (6) CSF 2 RES 1 (7) deductible VAT (5) 2| (8) COM 3 500 (3b) 6225 Fa donna ftmuneiatlon (7) VAT 1 <P) 31 Continued on the next page File Continued on the next page continued on the nexd page

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Recording of transactions (continued) Continued on the previous page Continued on the previous page 4. Customer payment and increase in funds in the if revteu page a cash payment and an instrunent dedicated account (13) 35 170 (14) (13) 90 20 (13) 170 (14) (14) 205 35 (14) (1) 50 1000 (1) aojusuiienis 950 (9) (14) 35 100 (11) (13) 20 100 (12) 90 (13) (14) 35 205 (14) 35 (14) (8) Record of customer payment€850 (9) Increase in funds S50 (10) Instruments in portfolios not yet due €150 (11) Instruments due €100 (12) Increase in funds from instruments due €100 (example) The CCA Account should always be the same as the (13) Record of customer payment €70 with clearing of a credit note €20 balance ofthe dedicated account and the balance of (14) Record of customer paymerrt€170 with deduction of €35 199 —end of file instruments in portfolios

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File containing invoices, credit notes, payments and adjustments CONDITIONS PRECEDENT STRUCTURE AND CHARACTERISTICS A) Ensure that the file is feasible and that the mandatory data requested Record length 360 characters with “ CR - LF ” at the end (encoded “0D0A”). has been extracted Numeric fields are right justified and space filled with zeros. If any mandatory data cannot be extracted, obtain the approval of your invoice and credS note iQta!s are expressed in cents and currencies with no decima . places should not be space filled with zeros, contact representative (1) before prepanng your nterface. Alphanumeric fields are left justified and space filled. If you Wish, we can put you in contact With one of our partners to set this up. Characters are in upper case, with no punctuation signs brackets quotation marks You may also refer to the existing list of interface software (2) apostrophes or accented characters B) Identify your customers “the purchasers”. Dates are written in the format YYYYMMDD. (year month day) French customers: Identifying your customers is via essential prerequisite. ei page 7 The most reliable method of identifying your customers is via the SIRET 101 _ For |nv0|Ces ; customer inf0rmat<on and data) page 8 database—14 digits. (Siren (9 digits) + Nic (5 digits), which corresponds to 102—For Credit notes (customer information and data) page 9 the address of the billed customer. This is essential for important 103. For’adjustments’ page 10 management aspects. A customer’s siret number may be validated internally page 11 or through contact with one of our partners which has agreed to do this (1). page 13 This sen/ice depends on the currency and is billed directly by our partner. International customers: the identifier may be the export insurance “France” Agreement company’s number, the E.C. VAT number or the internal customer number. If currency and for each debtor type for each agreement the identifier is not the export insurance company n°, before initially _.French’* debtors “euro” currency = 1 file sending the invoices and depending on the number of invoices to be sent, .“French overseas departments and territories” debtors “euro’* currency = 1 you should deckle the format in which you would like to send your details (full fi|e address with your internal customer code) (1). -“International” debtors “euro” and “dollars” currency = 2 files. C) Choose the official transmission method (appendix 6 page 22) “Export” agreement The same as for international debtors. D) Prepare a TEST file which contains all the records using real data. As r soon as the test file is deemed satisfactory by your contact representative, A|| jnvojce fj(es 5houtd be subject t0 a subrogation recejpt you will receive confirmation that you can send operational files (1). Example receipts page 17 (1) Refer to appendix 1 “Your contact representatives” page 16 Example file containing invoice-credit note-payment-adjustmentdata (2) Refer to appendix 6 “List of interface software” page 21 page -18

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Guarantee request file CONDITIONS PRECEDENT STRUCTURE AND CHARACTERISTICS When the agreement begins, if the insurance company is the factor, guarantee Record length: 360 characters with “CR-LF” at the end (encoded “0D0A”). requests may be made on-line via our website. Numeric fields are right justified and space filled with zeros. If there is a high number of requests, an exceptional file is accepted for invoice and credit note totals are expressed in cents and currencies with no decimal French customers when the agreement begins. Alphanumeric fields are left justified and space filled. A) Identify your customers “the purchasers”. Identifying your customers is Characters are in upper case, with no punctuation signs, brackets, quotation marks, an essential prerequisite. The most reliable method of identifying your apostrophes or accented characters. customers is via the SIREN database. This number allows you to make a Dates are written in the format YYYYMMDD.) guarantee request, which wiil be sent to the customer’s registered office to cover all your outstanding debts, for all companies (same SIREN) therefore only one request for each SIREN. For “public” customers (town halls, local 00—File header authorities), a guarantee request is not necessary as debts are guaranteed by 07—For Guarantee requests’ 15 B) Determine the amount of a request The amount of your request should be expressed in KE and should correspond one flle for each agreement to the maximum credit limit for commercial relations with your customer. (Registered office + secondary offices = same siren). E.g. Achieved or estimated turnover for 12 months = 200 K Euros. Turnover: 60 days = Maximum credit limit = 200 x 60/365 = 33 K Euros. (Obtain the Factor’s prior agreement for guarantee requests for international Example File page 19 customers) C) Choose the official transmission method (appendix 5 page 20) D) Prepare a TEST file which includes real requests (1). As soon as the test file is deemed satisfactory by your contact representative, you will receive confirmation that you can send operational files (1).

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Structure for record “101” File header Field Name length Position Type (1) M/O(2) Comments Notes Record code 3 1 N M Value =100 (1) Type: N = numeric A = alphanumeric Vendor code (Transferor) 6 4 N M agrament code allocated (2) Content: M = mandatory O = optional Transferor’s name (vendor) 40 10 A M (3) For the file “Invoices-credit notes”: File creation date 8 50 N M YYYYMMDD (e.g. 20090125) Value of the retained identifiers: 1 = SIRET (siren+nic) Contact name 40 58 A O 2 = Export insurer’s number Transferor’s telephone no. 10 98 A 4 = VAT number Contact fax no. 10 108 A O Important: Debtor’s identifier type (3) 1 118 N M Choice 1; (mandatory identifier for French purchasers) Customer’s country codification (4) 1 119 N M Choice “2”; (mandatory identifier for International Vendor’s VAT number (transferor) 16 120 A M purchasers) Choice 3 ; allocated by the transferor: Get approval Transfer number (receipt) (5) 3 136 N M beforehand. Currency of the amounts (6) 3 352 A M appendix 8 pages 23 to 25) (5) For the file Invoices—credit notes—the transfer number” (or subrogation receipt n°) is mandatory. It should be unique and incremented by 1 for each file. (6) see appendix 7 page 22.

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Structure for record “100” File header Field Name length Position Type (1) M/O(2) Comments Notes Record code 3 1 N M Value =101 (1) Type :N = numeric -A = alphanumeric File creation date 8 4 N M Same as record “100” (3) Depending on the type of identifier selected (“record 100”). If 1 is selected, Vendor code (transferor) 6 12 N M the SIRET (Siren+Nic) should correspond to the address of the billed Common identifier (2nd field) (3) 5 27 N M nic or continuation of VAT n° Abbreviations should be fallowed by the full name. Billed customer’s company name (4) 40 32 A M (5) Important: for large cities, not entering the fields “n”. road, address” in . A _ full may lead to the record being rejected. Customer brand 400 72 A° if Known French departments, space fill the left of the Reid Road name and number (5) 40 112 A M using a zero (e.g. 02000 LAON) and the right of the field using blank spaces; 4n 159 a o use this field for international post codes, even if the country standardisation Additional address 40 152 A O locality involves inserting the post rode to the right of the distributor office, (if Postcode (6) 6 192 A M >truncateto (6). Distributor office 34 198 A M Locality or Town (7) Example: for France = F (PTT standards) FR (ISO standards) depending Country Code (7) Important: If the country code and currency fields are filled Debtor’s telephone no. 10 235 A O in incorrectly (see appendices on pages 22 to 25), the record will be rejected. Debtor code (8)The number should be the same as the number stated on the physical invoice. At present, the Factor only includes eight alphanumeric allocated by the transferor 10 245 A O M, if VAT n° . or nothing in characters; These should not be duplicated. If the number Is > eight position 18 characters, only the last eight (from right to left) will be Included. Document date B 255 N M YYYYMMDD e.g. the n° “001109B00020Q” becomes “98000200”. . For staggered payments, generate an invoice record for each due date Document number (7) 15 263 A M using the same number followed by a letter (a, b, c, etc. (see 9). Document currency (8) 3 278 A M “EUR” for Euros (9) Net total of the Invoice. For staggered payments (see 8), state the net Document sign 1 281 A M ,,+” for invoices total which corresponds to each due date. ^ , || (10) Payment methods: Document total (9) 15 282 N M no decimal place LCR = RIB bill of exchange accepted—LCM = Electronic bill Payment method (10) 3 297 A M of exchange not accepted Due date 8 300 N M YYYYMMDD accepted Debtor’s order N® (11) 10 308 A M BOR = promissory note- CHQ = cheque—V1R = transfer— which your customer may ask you to repeat In any letters sent (either use the 10 character field or the 40 character field, or both fields after position 308)

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Structure for record “102” credit notes Field name length position type(1) m/o(2) Comments Note Record code 3 1 N M Value=102 File creation date 8 4 N M same as record ‘100’ Vendor code (transferor) 6 12 N M same as record ‘101’ invoices Common identifier (1st field) (3) 9 18 A M same as record‘101’ Common identifier (2nd field) (3) 5 27 N M same as record’101’ (8) Enter the credit note number, unless the credit note cancels Billed customer’s company name (4)40 32 A M an invoice completely, enter the associated invoice number. Customer brand 40 72 A O At present, the Factor only includes eight alphanumeric Road name and number (5) 40 112 A M characters; They should be meaningful and should not be Additional address 40 152 A O If the number is > eight characters, only the last eight (from right Postcode (6) 6 192 A M to left) will be included. Distributor office 34 198 A M e.g. “0011098000200” becomes “98000200”. Country Code (7) 3 232 A M Debtor’s telephone no. 10 235 A O (9) If the country code and currency Fields (7) are filled in Debtor code 10 245 A O same as record 101 incorrectly (see appendices on pages 22 to 25), the record will be Document date 8 255 N M YYYYMMDD rejected. Initial credit note N° (10) Always state the credit note number. or the associated invoice n° (8) 15 263 A M Document currency (9) 3 278 A M Document sign 1 281 A M for credit note Document total 15 282 N M no decimal place Free text field 11 297 A M spaces Credit note number (10) 15 308 A M Comments-reason 35 323 A O Document type 3 358 A M Value=“AVO”

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Structure for record “103” Payment assignment File header Field Name length Position Type (1) M/O(2) Comments Notes Record code 3 1 N M Value=103 Up to position 255 File creation date 8 4 N M same as record‘100’ Notes (01) to (07) same as record’101’invoices Transferor code (vendor) 6 12 N M (8)Enter the invoice number or credit note number in question which Common identifier (1 st field) 9 18 A M same as record 101 is the same as the number transferred in record 101 or 102 Common identifier (2nd field) 5 27 N M same as record‘1011 Customer’s company name 40 32 A M (9) Important; the currency should be the currency on Customer brand 40 72 A O if known the corresponding invoice. number 40 112 A M no) if the payment balances several invoices: generate as many Additional address 40 152 ty, p “103” records as there ore invoices and credit notes to Postcode 6 192 A M be covered. Distributor office 34 198 A M If several payments with the some due date balance Country Code 3 232 A M the same Debtor’s telephone no. 10 235 A O same as record ‘101’ invoice, you con generate a single “103” record for the Debtor code 10 245 A O P ^ Specific cases : Non-payment credit note, progress Payment accounting date 8 255 N M poyment (see appendix 3 on page 18) Invoice or credit note N° in question (8) 15 263 A M Document currency (9) 3 278 A M (ll)For instruments, specify the actual due date land not the due date Document sign (10) 1 281 A M if invoice V if credit note of the associated invoice or the date in the customer’s payment terms). Payment amount (10) 15 282 N M no decimal place For cheques and transfers, mention the payment accounting date. Payment due date (11) 8 297 N M YYYYMMDD (position 255) Free text fields 13 305 A M (12) State the Payment type: Comments-reason 40 318 O M LCR _ R)B bj|| of exchange occepted-LCM = electronic bill of Transaction type (12) 3 358 A M exchange not accepted PRE = Direct debit-LCN = RIB bill of exchange not accepted BOR = promissory note- CHQ = cheque—VIR = transfer MAD = Administrative money order PAG = Pagare—RIB = Riba—REC = Recibo

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Structure for record “104” Adjustments Field Name length Position Type (1) M/O(2) Comments Notes Record code 3 1 N M Value=104 Up to position 255 File creation date 8 4 N M same as record’100’ Notes (01) to (07) same as record ‘101’ invoices Transferor code (vendor) 6 12 N M (8)Enter the invoice number or credit note number. If several Common identifier (1st field) 9 18 A M same as record 101 invoices or credit notes are affected by the same customer payment, Common identifier (2nd field) 5 27 N M same as record’101’ generate a single record on one of the invoices for the total Customer’s company name 40 32 A M adjustment amount. Customer brand 40 72 A O if known Road name and number 40 112 A M (9) If the country code and currency fields are filled in incorrectly Additional address 40 152 A O locality, place append.ces on pages 22 to 25). the record will be rejected. Postcode 6 192 A M (10) the document sign and the transaction type (11) Distributor office 34 198 A M should be compatible. Country Code 3 232 A M Customer telephone no. 10 235 A O 111} “AJD” = debtor adjustment, wil increase the amount owed on Debtor code 10 245 A O same as record ‘101’ an invoice. Document accounting date 8 255 N M YYYYMMDD Overpayments, difference in currency exchange rate upon Associated invoice N” (8) 15 263 A M paymen Document currency (9) 3 278 A M “AJC” = creditor adjustment, will decrease the amount owed on Document sign (10) 1 281 A M “ +” if “AJD” if “AJC” an invoice. Examples (debit note, discount. Advertising Document total 15 282 N M no decimal place contribution deducted, customer/supplier offsets) Free text fields 21 297 A M spaces Comments-reason 40 318 A O Transaction type (11) 3 358 A M Value = “AJD” = debit “AJC” = credit

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Structure For record “107” Gaurantee requests Field Name Length Position Type(1) M/O(2) Comments Notes Record code 3 1 N M Value=107 File creation date 8 4 N M same as record ‘100’ Vendor code (transferor) 6 12 N M Common identifier (1st field) (3) 9 18 A M SIREN Notes (01) to (07) same as record’101’invoices Common identifier (2nd field) (3) 5 27 N M NIC Customer’s company name (4) 40 32 A M (B) Express the request in the currency; preferably round to the Customer brand 40 72 A O important, if known highest thousand). Road name and number (5) 40 112 A O The request total should correspond to the maximum credit limit for commercial relations with your customer (Registered office + Additional address 40 152 A O secondary offices = sae siren). Post code (6) 6 192 A M Example: Estimated or achieved turnover Distributor office 34 198 A M for 12 months = 200K Euros Country Code (7) 3 232 A M letter “F” (France) Turnover: 90 days Customer telephone no 10 235 A O Maximum credit limit = 200 x 90/365 = a maximum of Customer code 10 245 A O allocated by the transferor 50 K Euros for commercial relations with your customer (registered Date of the request 8 255 N M creation date office + secondary offices = same siren). Total requested (8) 15 263 N M in thousands of the currency (9) Important: The RIB and the name of the case manager at the Guarantee currency 3 278 A M “EUR” for Euros bank are useful information in the event that any additional Validity date 8 281 A O if specific request investigations are deemed necessary. Bank Code (9) 5 289 N O French standard Branch code 5 294 N O French standard Account number 11 299 A O French standard RIB key 2 310 N O French standard Bank name 24 312 A O French standard Bank country code 3 336 A O letter “F’ (France) Manager name to contact 19 339 A O Transaction type 3 358 A M Value = “DGA”

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Structure For record “199” End of file Field Name Length Position Type (1) M/O(2) Comments Record code 3 1 N M Value =199 Vendor code (transferor) 6 4 N M Vendor name (transferor) 40 10 A M File creation date 8 50 N M same as record ‘100’ Number of invoice records “101“(3) 4 58 N O for “invoices” Invoice total 15 62 N O in the currency stated in position 352 Number of credit note records “102”(4) 4 77 N O for “credit notes” Credit note total 15 81 N O in the currency stated in position 352 Number of “payment” records “103”(5) 4 96 N O for “invoices” Total payments 15 100 N O in the currency stated in position 352. Number of “Adjustment” records “104”(6) 4 115 N O for “credit notes” Adjustment total 15 119 N O in the currency stated in position 352. Number of records “107”(7) 4 134 N O for “guarantee requests” Guarantee request total 15 138 N O in the currency stated in position 352. Free text field 199 153 N O spaces Currency of the amounts 3 352 A O RIV type version 6 355 N M Content = “000000” For record “199” End of file Notes (1) Type : N = numeric -A = alphanumeric (2) Content : M = mandatory -0 = optional (3) , (4), (5), and (7) if > 4 digits enter 9999 If the record is missing from the file, enter zeros in the field.

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Your Conatct representatives šSending a-“test” file. GE Commercial Finance (Send your file to the email address given) Service Télématique Sending a file containing International customers’ details. (Send your file to the email address given once you have T+33 (O ) 1 .46 . 35.70.06 received prior approval) š Choosing another method of transmission. T +33 (O)1 .46.35.73 51 (Contact us) š Contact with one of our partners. F+33 (O)1.46.35.17 .00 (Send the details of the person to contact to the email address given) E support@facto.fr š Questions, missing mandatory data, additional information. (Contact us)

 

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Receipt template “only for information pusposes” (only the French version will have to be forwarded to the factor”). Appendix 2 This document attests the debt transfer by means of stipulated subrogation in favour of the Factor. GE COMMERCIAL FINANCE Factofrance Vendor code Abbreviation Subrogation receipt Receipt number We, the ccrapaty lamt.rinaddifit ofcompanyttmp undersigned, The creditors of the debtors appearing in the list of invoices associated with the subrogation receipt acknowledge that they have received on this date from the company GE stat Facto, 92988 Paris La Defense cedecc, payment In full of ou- debts, i.e. the sum of: Through the entry of a credit to OLT cu-rert account with this Financial Institution. As a result of such payment. we subrogerte GE Facto off ancc In any rights, ections, preferential rights or mortgages (Including the benefit of the retention of title stipulated In our General Terms and. Conditions of Sale) concerning each of the debtors mentioned in the list of Invoices associated with the subrogation receipt, in accordance with the provisions of Article 1250-1 * at the Civil Code, In addition, we certify that all debts result from the delivery of goods or the provision of services in accordance with the crders received, that they are not subject to set-off and that they are free of any secixtty Signed in Paris La Defense, on Handwritten note before the si nature “Bon pOLT SLfrogation” payment method company stamp The two invoice lists associated with subrogation release Include: Reference amount in clear text Invoices edited on pages, for a total of: Amended by GE F : Reference amount In clear text fcr a total of lea total amount of: Do not date the receipt (it will be dated at the time of the purchase), state the desired method of financing in the “payment method” section. Sign and enter the handwritten note “Bon pour subrogation” (“Good for subrogation”) (authorised person).

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Examples of “invoice, credit note, payment assignment and adjustment” files At the same time that you hand over your customers’ payment methods for collection in the dedicated account, you will send us a faithful copy Appendix 3 of the payments posted in your ledgers. You are advised to group invoices, credit notes and payment assignments in the same file. (1) Issue of 2 invoices and 1 credit note for customer C41004 (F100 for (2) Record of a payment by cheque for €1548.72 with a 2% discount received from customer C41001 for the invoices (F81 for 980.15, F82 for 600.18 (the discount is deducted from one of the invoices for the balance). (3) Record of a non-payment (payment due on 15/09/2008) for €1810.50 for customer C41004 for invoice F45 for €1810.50. (4) Record of a payment by transfer for €1200 for customer C41018 (this is a progress payment for an invoice which will be issued at the end of the month). The progress payment should be recorded either using a conventional document number (e.g. AC1.AC2 (2nd progress payment).etc.) or the internal customer number followed by AC1.etc. , When an invoice is issued, it will be cancelled using the same conventional document number (103 with the + sign), then recorded using the actual invoice n”. (103 with—sign) in accordance with the example in point (5) (5) Issue of invoice F102 for customer C41018 for €3600.00 and progress payment of €1200 already received, (assuming that the file is sent at the end of the month). (In ontor of the Getd names shown in the records (In ttus example, the field length is not observed) 100(19998 DEMO 20081015MONSI EUR DU PONT 12 001 EUROOOOOO fl) 1012008101500999831400770900046FRANCE 3 7 ALLEE HD 75015 PARIS FR 0156223030C41004 20081012F100 EUR+000000000300040CHQ20081030CDE N 2 REF 791 FAC (1) 1012008101500999832718171501280FRANCE 3 7 ALLEE HD 75015 PARIS FR 0156223030C41004 20081012F101 EUR+000000000700010CHQ20081030CDE352 REF 921 FAC (1) 101200810150099983271B171501280FRANCE 3 7 ALLES HD 75015 PARIS FR 0156223030C41004 20081012A11 EUR-0000000000001050 A11 AVO (2) 1032008091500999832596220700016LECLERC BP 821 17416 ANGE LY FR 0546321183C41001 20081011F81 EUR-000000000009801520081011 CHQ (1) 1032008001500999832596220700016LECLERC BP 821 17416 ANGE LY FR 0546321183C41001 20081011F82 EUR-0000000000056B5720081011 CHQ (21 1042008091500999832596220700016LECLERC BP 821 17416 ANGE LY FR 0546321183C41001 20081011F82 EUR-0000000000003161 2% discount S/Fac81 and F82 AJC (2) 103200809150099984509556120020CHANI PION RUEDESX 21715 LE NOUV FR 0323971205C41004 20081005F45 EUR+000000000018105020081005 Unpaid instrument 150908 LCR (3) 1032008091500999878692030600160CORA BP 196 B105STDIE FR 0329550031C410018 20081011CF003AC1 EUR-0000000000120000VIR200810118 Progress payment VIR (4) 1012008091500999878692030600168CORA BP 196 88105STDIE FR0329550031C410018 20081031F102 EUR+0000000000360000VIR20081110 FAC (5) 1032008091500999878692030600168CORA BP 196 88105STDIE FR0329550031C410018 20081011CF003AC1 EUR-0000000000120000VIR200810118 Progress paymt cancelled 10/11 VIR (5) 1032008091500999878692030600168CORA BP 196 88105 ST DIE FR 0329550031C410018 20081011F102 EUR-0000000000120000VIR200810118 Progress payment VIR Other possibility for the record of payment by cheque for €1548.72 with 2% discount (2) 1032008091500999832596220700016LECLERC BP821 17416ANGELY FR 0546321183C41001 20081011F81 EUR-0000000009801520081011 CHQ (1) 1032008091500999832596220700016LECLERC BP821 17416 ANGE LY FR 0546321183C41001 20081011F82 EUR-000000000006001820081011 CHQ (1) 103200891500999832596220700016LECLERC BP 821 17416 ANGE LY FR 0546321183C41001 20081011FB2 EUR+000000000000003161281011 cancels discount (*) CHQ (2) 1042008091500999832596220700016LECLERC BP 821 17416 ANGE LY FR 0548321183C41001 20081011F82 EUR-0000000000003161 2% discount allocated Fac81 and F82 AJC
I cancels the discount deducted (in accordance with the total payment amount). A different conventional document n° for each adjustment (e.g. internal adjustment nlhe same on both records 103 and 104) is accepted if association with the invoice n° (‘F82’ in this example) affected by the payment is not possible. As soon as a file fs sent, a summary of the amounts transmitted remotely, invoices, credit notes, adjustments and payment “Images” should be sent in a message via our website ‘GE Factofrance Net*. ‘Messagerie’ tab, select “Contactez vos correspondants Example: Re: Transfer on 15/10/2008 sent via the internet 3 Invoices Tot 13600.50 1 Credit note Tot 10.50 6 Payment Tot 938,22 1 Adjustment Tot 31.61

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Example of a “Guarantee Request” file Appendix 4 (In order of the field names shown in the records (in this example, the field length is not observed) 100009998STE DEMO 20081005MME SANDRA 0476517014047351701112FR86305B23403 001 EUROOOOOO 10720081005009998X241222600011SOCIETE SEB POLE METAL 21260 SELONGEY FR 0380754444C000800 20081OO5OOOOOOOOOOOOOIOEUROOOOOOOOOOOOOOOOOO 00 DGA 1072008100500999B350B3170700020FILLARDET FILLARDET ZILEUOUX 01590 DORTAN FR 0474758304C00350B 20081005000000000000010EUR0000000010096180400001364420136 DGA 1072008100500999857568035000015ARC 41 AV GENERAL DE GAULLE 62510 ARQUES FR 0321954647C002300 200B1005000000000000010EUR0000000030001007610000K11001833 DGA 1072006100500999895650338700O46SANTOS 140.150 AVENUE ROGER 69120 VAULX FR 0472373529C001900 2OO8IOO5OOOOOOOOOOOOOIOEUROOOOOOOOOOOOOOOOOO 00 DGA 107200810050099983345592B300042SIMA 14 RUE BECQUEREL 93275 SEVRAN FR 0143836001C004404 20081005000000000000015EUR0000000030066109480001001390139 DGA 1072008100500999864200784300021 ROBOT C 12 AVENUE MAL LECLERC 71305 MONTCEAU FR 0385895033C000400 20081005000000000000100EUR0000000030003033300002053973984 DGA 199009998STE DEMO 20081005000000000000000000000000000000000000000000000000000000000000000000000000000000060000000000001550000000000000000QM DO0000 COOODEURDOOOOO

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Transmission method Appendix 5 GE Factofrance Net: website for managing accounts and vendor transactions. It allows files to be sent which may or may not have been signed electronically. (security during the transfer and data INTERN ET via our website “Factonet” encryption) If your files of invoices and credit notes are very large (> 6 MB (2000 invoices), we recommend that you use the SFTP protocol Secure File Transfer Protocol; security during transfer and data encryption. If you choose to use the SFTP protocol, a qualification test is SFTP (Internet network) mandatory in order to define the log-in parameters and to send a test file using temporary data: refer to page 16 “Your contact representatives” to send us the name of the person to contact and we will send that person the configuration procedure. Other Protocols: Contact us: refer to page 16 “Your contact representatives”.

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Non-exhaustive list of the interface and/or editor software on which our partners can generate a file in accordance with the Factor’s standards Appendix 6 If you would like to be put in contact with one of our partners that has already developed an interface, refer to appendix 1 “Your contact representatives” on page 16 ADONIX V3 NAVI SION ADONIX X3 SQL NAVISION SQL ANAEL DB2 ORLIWEB-CEGID API SOFT A PGI . CEGID CCMX QUADRATUS CEGID S SAGE 30 CERI PICK SAGE 100 CETRAFACT SAGE 100 CIEL SAGE 500 Intégrate V10 DAISIR SAGE 500 Intégrate V4DYNAMICS AX SAGE 500 Intégrate UNIX DIVALTO SAGE 500 Modulaire EBP SAGE 500 Modulaire SQLEVOLIA.CEGI SAGE 1000 Oracle FACTOPACK. CEGI SAGE 1000 SQL FCLIC SAP R3 SQL GENERIX SAP Business One SQL INTEREOGICAL TARGET IRIS FINANCE DB2 TRANSMAGIC. INFOVISA ID Edwards DB2 WINFACT-SOREGOR LEFEBVRE Software LD COMPTA DB2 LD COMPTA SQL

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Structure for record “100” File header Field Name length Position Type (1) M/O(2) Comments NotesTable of ISO standard currency codes Appendix 7 code A03 AUD DOLLAR AUSTRALIEN 32I XAF FRANC CFA(*) 05 GBP LIVRE STERLING 33 TND DINAR TUNISIENO 6 TWD DOLLAR TAIWANAIS 35 ZAR RAND 08 PHP PESO PHILIPPIN (*) 36 MYR RINGITT MALAISIE 12 BGN LEV BULGARE 37 CZK COURONNE TCHEOUE (*) 15 ARS PESO ARGENTIN (*) 39 RON LEU ROUMAIN 16 EUR EURO 40 MXN PESO MEXICAIN 17 SEK COURONNE SUEDOISE 41 THB BATH THAILANDAIS 19 HKD DOLLAR HONG KONG 42 PLN ZLOTY POLONAIS 20 DKK COURONNE DANOISE 43 SAR RIAL SAOUDIEN 21 NOK COURONNE NORVEGE 44 AED DIRHAM EMIRATS ARABES UNIS 22 SGD DOLLAR SINGAPOUR 45 INR ROUPIE INDIENNE 25 NZD DOLLAR NEO-ZELANDAIS 46 HUF FORINT HONGROIS 26 CHF FRANC SUISSE 47 CNY YUAN RENMIBI 28 JPY YEN (*) 29 HRK KUNA CROATE 30 MAD DIRHAM MAROCAIN (*) Currency with no decimal places Example: structure = 100 €uros = [000000000010000] 100 Yens = [000000000000100] Please contact your representative (appendix 1 on page 16) if a currency is not listed in this table

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ABU DHABI AD AE BERMUDES BMR BM DANEMARK DK DK AFGANISTAN AFG AF BOLIVIE BOL BO DJIBOUTI DB DJ AFRIQUE DU SUD (ZUID AFRIKA) ZA ZA BOSNIE HERZEGOVINE YBH BA DOMINIQUE WD DM AJMAN AJM AE BOTSWANA RB BW DUBAI DU AE ALBANIE AL AL BOUTHAN BT BT EGYPTE ET EG ALGERIE( EL DJEZAIR) DZ DZ BRASIL BR BR EL SALVADOR ES SV ALLEMAGNE ‘ D DE BRUNEI DARUSSALAM (NEGARA) BRU BN EMIRATS ARABES UNIS (U.A.E.) FEA AE ANDORRE AND AD BULGARIE BG BG EQUATEUR EC EC ANGOLA AG AO BURKINA FASSO HV BF ERYTREE ERY ER ANTIGUA BARBUDA ANT AG BURUNDI BI BI ESPAGNE E ES ANTILLES NEERLANDAISES NWI AN CAMEROUN TC CM ESTONIE EE EE ARABIE SAOUDITE AS SA CANADA CDN CA ETATS UNIS D’AMERIQUE DU NORD USA US ARCHIPELS WALLIS ET FUTUNA FW WF CAP VERT CV CV ETHIOPIE ETH ET ARGENTINE RA AR CENTRAFRIQUE RCA CF FIDJI FJI FJ ARMENIE ARM AM CHILI RCH CL FINLANDE SF FI ARUBA AW AW CHINE (REPUBLIQUE POPULAIRE) RC CN FRANCE F FR AUSTRALIE AUS AU CHYPRE CY CY FUJAIRAH FUJ AE AUTRICHE A AT COLOMBIE CO CO GABON GAB GA AZERBAIJAN AZE AZ COMORES CMR KM GAMBIE WAG GM BAHAMAS BS BS CONGO RCB CG GEORGIE GEO GE BAHREIN BRN BH CONGO (REP.DEMOCRAT.) EX ZAIRE ZRE CD GHANA GH GH BANGLA DESH BD BD COREE DU NORD (REP. POP DEM.) COR KP GIBRALTAR GBZ GI BARBADE BDS BB COREE DU SUD ROK KR GRANDE BRETAGNE (ROYAUME UNI) GB GB BELARUS (BIELORUSSIE) BY BY COSTA RICA CR CR GRECE (REP. HELLENIQUE) GR GR BELGIQUE B BE COTE D’IVOIRE CIT CI GRENADE WG GD BELIZE BH BZ CROATIE (HRVATSKA) YCR HR GUATEMALA GCA GT BENIN DY BJ CUBA C CU GUINEE GUI GN

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GUINEE BISSAU GIB GW KAZAKHSTAN KZ KZ MOLDAVIE MOL MD GUINEE EQUATORIALE GEQ GQ KENYA EAK KE MONACO MC MC GUYANA GY GY KIRGHIZISTAN KGZ KG DEMOCRATIQUE) MON MN GUYANE FY GF KIRIBATI (ILES GILBERT) KIR Kl MONTENEGRO YMO ME HAITI RH HT KOWEIT KWT KW MAZAMBIQUE MZ MK HONDURAS HON HN LAOS LAO LA MYANMAR (BIRMANIE) BUR IMM HONGKONG HK HK LESOTHO LS LS NAMIBIE SWA NA HONGRIE H HU LETTONIE LT LV NAURU NRU NR ILE DE LA GUADELOUPE FG GP LIBAN RL LB NEPAL NP NP ILE DE LA MARTINIQUE FM MQ LIBERIA LB LR NICARAGUA NIC N ILE DE LA REUNION F R RE LIBYE (JAMAHIRIVA ARABE) LAR LV NIGER RN NE ILES COOK WCK CK LIECHTENSTEIN (FUERSTENTUM) FL LI NIGERIA WAN NG ILES MARSHALL (REPUBLIQUE DES) M HL MH LITUANIE LIT LT NORVEGE N NO ILES SALOMON DU SUD SAL SB LUXEMBOURG L LU NOUVELLE CALEDONIE FN NC ILES TURKS ET CAIQUES TCA TC MACAO MKO MO NOUVELLE ZELANDE NZ NZ INDE IND IN MACEDOINE YM A MK OMAN ET MASCATE OM OM INDONESIE IRI ID MADAGASCAR IRM MG OUGANDA EAU UG IRAK IRQ IQ MALAISIE (LABUAN) MAL MY OUZBEKISTAN UZB UZ ) IRAN IR IR MALAWI MW MW PAKISTAN PAK PK IRLANDE (EIRE) IRL IE MALDIVES (REPUBLIOUE DES ILES) M MV PANAMA PA PA ISLANDE IS IS MALI RMM ML IPAPOUASIE-NOUVELLE-GUINEE PNG PG ISRAEL IL IL MALTE M MT PARAGUAY IPY PV TAUE I MAROC MAL MA PAYS BAS NL NL JAMAIQUE JA JM MAURICE MS MU PEROU PE PE JAPON J JP MAURITANIE RIM MR PHILIPPINES RP IPH JORDANIE HKJ JO MAYOTTE COMORES F C YT POLOGNE PL PL KAMPUCHEA K KH MEXIQUE MEX MX POLYNESIE FRANCAISE F P PF

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POS.TUKAMER. (CAYMAN, MONTSERRAT) RUA VG SLOVENIE YSL SI VATICAN V VA POSS. USA PACIFIQUE (PALAU) PUP PW SOMALIE SP SO VENEZUELA YV VE POSS. NLE ZELANDE NIUE, TOKELAU PNZ NU SOUDAN SUD SD VIETNAM VN VN POSS. USA AMERIQUE (PUERTO RICO) PUA PR SRI LANKA CL LK YEMEN NORD (REPUBLIQUE ARABE) RY (YE POSSESS. DANOISES (ILES FEROE) PAU FO ST PIERRE & MIQUELON F S PM YEMEN SUD(REP DEM. PQP.) ADN YE POSSESSIONS AUSTRALIENNES PAU CC SUEDE S SE ZAMBIE Z ZM QATAR QT QA SUISSE CONFEDERAT. HELVETIQUE) CH CH ZIMBABWE RHODESIE) RSRZW RAS-EL-KHAIMAH RK AE SURINAM SME SR REPUBLIQUE DOMINICAINE DOM DO SWAZILAND (NGWANE) SD SZ REPUBLIQUE TCHEOUE CST CZ SYRIE SYR SY ROUMANIE R RO TADJIKISTAN TJK TJ RUSSIE (FEDERATIONDE) RUS RU TAIWAN TW TW RWANDA RWA RW (TANZANIE EAT TZ SAINT KITTS ET NEVIS SKN KN TCHAD TCD TD SAINT MARN RSM SM TERRITOIRE PALESTINIEN OCCUPE ILT PS SAINT VINCENT-GRENADINES NORD WV VC THAILANDE T TH SAINTE LUCIE WL LC TOGO TG TG SAMOA OCCIDENTALES WS WS TONGA(ROYAUME DES ) TON TO SAO TOME ET PRINCIPE STP ST TRINIDAD TOBAGO TT TT SENEGAL SN SN TUNISIE TN TN SERBIE YUN RS TURKMENISTAN TKM TM SEYCHELLES SY SC TURQUIE TR TR SHARJAH SHA AE UKRAINE UA UA SIERRA LEONE WAL SL UMM-AL-QAYWAYN UAQ AE SINGAPOUR SGP SG URUGUAY U UY

SCHEDULE 8.

T RANSFERRED RECEIVABLES LEDGERS

PNS CLIENTS ELIGIBLES (GE FACTO)

 

Société

   Domaine Activité    Client    Nom    Code cession    Pays    Exercice    N° plèce    Date comptable    Date plèce    Salsie le
[•]    [•]    [•]    [•]    [•]    [•]    [•]    [•]    [•]    [•]    [•]

 

Devise plèce

   Type plèce    CC (signe de la pléce)    D/C (Débit/Crédit    Montant Devise Plèce    Montant Devise Inierne    Devise    Taxta
[•]    [•]    [•]    [•]    [•]    [•]    [•]    [•]

 

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SCHEDULE 9.

F ORM O F C ONSENT L ETTER

[Letterhead of Seller]

Date: [•]

From: [•]

To: [•]

Dear Sirs,

We refer to the [supply/purchase] agreement dated [•] between [Name of Debtor] and [Seller] (the “ Agreement ”). [Insert any relevant background information. If needed].

We write to inform you that we will be seeking to raise finance for our general corporate purposes and that we will obtain such financing by way of transferring, assigning or collateralizing receivables payable to us by our customers, including [Name of Debtor] , notably pursuant to the Agreement.

In this context, we will be assigning, pledging, transferring or otherwise disposing of by way of sale, security or otherwise, some or all of our receivables arising (whether in the past, now or in the future from the Agreement to one or more persons (which will be entities providing financing to [Seller]. being either (a) financial institutions or (b) special purpose entities funded by (i) financial institutions and/or (ii) the capital markets, in each case in the context of factoring/sale arrangements, which are in line with general market standards) in connection with any such proposed financing and we kindly ask you (on your own behalf and for and on behalf of your affiliates from time to time party to the Agreement (together, from time to time, your “ Affiliates ”) to consent and agree to us doing so, if and to the extent such consent and agreement is required by the Agreement.

We also kindly ask you to confirm that by your signature of this letter, each of your Affiliates from time to time party to the Agreement will also have consented and agreed to and be bound by the matters contemplated by this letter.

Your (including those of your Affiliates) and our rights and obligations under the Agreement otherwise remain unchanged. If you have any questions concerning this letter, please contact us at [•].

Yours faithfully,

[Seller]

We hereby consent, on our own behalf and for and on behalf of our Affiliates (as defined above), whose consent and agreement to be bound we are duly authorized to give, to [ Seller ] assigning, pledging, transferring or otherwise disposing of, by way of security or otherwise, some or all of its receivables arising under the Agreement (as described above).

[Debtor]

duly authorized for and on behalf of [ Name of Debtor ] acting on our own behalf and for and on behalf of our Affiliates (as defined in the above letter)

 

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SCHEDULE 10.

C OLLECTION A CCOUNTS

 

Name

  

Jurisdiction

  

Location of the Collection Account

  

Bank

  

Number

Constellium

Issoire

   France   

BNP Paribas

Centre d’affaires de la Défense Entreprises 5 bis place de la défense

92974 Paris la Défense

   BNP Paribas   

FR 76 3000 4013 2800 0127 2301 004 (euro account)

 

FR 76 3000 4013 2800 0101 6232 741 (USD account)

Constellium Neuf Brisach    France   

BNP Paribas

Centre d’affaires ile de

France Ouest

Entreprises

85-93 rue des 3

Fontanot,

92 000 Nanterre

   BNP Paribas   

30004 01328 00012723107 04
(euro account)

 

30004 01328 00010162424 41
(UDS account)

Constellium

Extrusions

France

   France   

BNP Paribas,

85 Rue des 3 Fontanot 92729 NANTERRE

  

BNP PARIBAS

LA DEFENSE ENTREPRISES

  

RIB: 30004 01328 00010664185 04 IBAN : FR76 3000 4013 2800 0106 6418 504

BIC: BNPAFRPPPTX

 

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SCHEDULE 11.

L OCATION O F R ECORDS

 

Seller

 

Registered office

 

Location of records and documents

the Transferred Receivables

Constellium Issoire   As indicated in Schedule 2  

Constellium Issoire, Zl des Listes, Rue

Yves de Lamourdedieu, 63500 Issoire

Constellium Neuf Brisach   As indicated in Schedule 2  

Constellium Neuf Brisach, ZIP Rhénane

Nord RD52, 68 600 Biesheim

Constellium Extrusions France   As indicared in Schedule 2  

Constellium Extrusions France, 1, Voie

Gustave Eiffel, 21702 Nuits Saint

Georges

 

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SCHEDULE 12.

C URRENT A CCOUNTS

 

Name of Seller

   Jurisdiction      Currency      Number / Seller Code  

Constellium Issoire

     France       

EUR

USD

 

 

    

024862

029565

 

 

Constellium Neuf Brisach

     France       

EUR

USD

 

 

    

026934

029568

 

 

Constellium Extrusions France

     France        EUR        024865  

 

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SCHEDULE 13.

F INANCING R EQUESTS -F ACTOFRANCE A DRESSEES

timothee.hanicotte@factofrance.com

qefacto-dge2@ge.com

 

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SCHEDULE 14.

J URISDICTION M ATRIX *

 

No.

  

Relevant Law

 

Governing Law of

the Transferred Receivable

  

Relevant Country

 

Jurisdiction of incorporation of

the Debtor

1.    Austrian Law    European Union
2.    Austrian Law    Turkey
3.    Austrian Law    Canada (Ontario)
4.    Austrian Law    Jordan
5.    Austrian Law    UAE (Dubai)**
6.    Austrian Law    USA (Tennessee)
7.    Austrian Law    Australia
8.    Austrian Law    Switzerland
9.    Belgian Law    European Union
10.    Belgian Law    Turkey
11.    Belgian Law    Canada (Ontario and Quebec)
12.    Belgian Law    Jordan
13.    Belgian Law    UAE (Dubai)**
14.    Belgian Law    USA (State of Tennessee)
15.    Belgian Law    Australia
16.    Belgian Law    Switzerland
17.    Dutch Law    European Union
18.    Dutch Law    Turkey
19.    Dutch Law    Canada (Ontario and Quebec)
20.    Dutch Law    Jordan
21.    Dutch Law    UAE (Dubai)**
22.    Dutch Law    USA (State of Tennessee)

 

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No.

  

Relevant Law

 

Governing Law of

the Transferred Receivable

  

Relevant Country

 

Jurisdiction of incorporation of

the Debtor

23.    Dutch Law    Australia
24.    Dutch Law    Switzerland
25.    English Law    European Union
26.    English Law    Turkey
27.    English Law    Canada (Ontario and Quebec)
28.    English Law    Jordan
29.    English Law    South Korea
30.    English Law    UAE (Dubai)**
31.    English Law    USA (State of Tennessee)
32.    English Law    Australia
33.    English Law    Switzerland
34.    French Law    European Union
35.    French Law    Turkey
36.    French Law    Canada (Ontario and Quebec)
37.    French Law    Jordan
38.    French Law    South Korea
39.    French Law    UAE (Dubai)**
40.    French Law    USA (State of Tennessee)
41.    French Law    Australia
42.    French Law    Switzerland
43.    Italian Law    European Union
44.    Italian Law    Turkey
45.    Italian Law    Canada (Ontario and Quebec)
46.    Italian Law    Jordan

 

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No .

  

Relevant Law

 

Governing Law of

the Transferred Receivable

  

Relevant Country

 

Jurisdiction of incorporation of

the Debtor

47.    Italian Law    UAE (Dubai)**
48.    Italian Law    USA (State of Tennessee)
49.    Italian Law    Australia
50.    Italian Law    Switzerland
51.    New York Law    European Union
52.    New York Law    Turkey
53.    New York Law    Canada (Ontario and Quebec)
54.    New York Law    Jordan
55.    New York Law    UAE (Dubai)**
56.    New York Law    USA (State of Tennessee)
57.    New York Law    Australia
58.    New York Law    Switzerland
59.    Swiss Law    European Union
60.    Swiss Law    Turkey
61.    Swiss Law    Canada (Ontario and Quebec)
62.    Swiss Law    Jordan
63.    Swiss Law    UAE (Dubai)**
64.    Swiss Law    USA (State of Tennessee)
65.    Swiss Law    Australia
66.    Swiss Law    Switzerland
67.    Laws of Quebec    European Union
68.    Laws of Quebec    Turkey
69.    Laws of Quebec    Canada (Ontario and Quebec)
70.    Laws of Quebec    Jordan

 

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No.

  

Relevant Law

 

Governing Law of

the Transferred Receivable

  

Relevant Country

 

Jurisdiction of incorporation of

the Debtor

71.    Laws of Quebec    UAE (Dubai) **
72.    Laws of Quebec    USA (State of Tennessee)
73.    Laws of Quebec    Australia
74.    Laws of Quebec    Switzerland

 

* Based on the memorandum from Clifford Chance Europe LLP to Apollo Management International LLP (with a copy to the Factor) entitled “Jurisdiction Matrix” and dated 16 December 2010.
** Subject to consent from any relevant Debtor(s) located in Dubai other than Crown.

 

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SCHEDULE 15.

A CCESSION F ORM

To: Factofrance SAS, acting as Factor

From: [•] [the “Additional Seller”]

Date: [•]

Factoring Agreement between, among others, [•] as the Parent Company and the Factor dated [•].

We refer to the Agreement. Terms defined in the Agreement shall have the same meaning when used in this form. This is an Accession Form.

[Name of company] [address/registered office] agrees to become an Additional Seller and to be bound by the terms of the Agreement as an Additional Seller and Seller.

Moreover, we confirm that:

 

  (i) All the conditions referred to in Clause 18.4.3 of the Agreement are satisfied as of the date of this Accession Form, and

 

  (ii) the representations and warranties set out in Clauses 11.1 ( Representations and warranties of the Sellers, the Sellers’ Agent and the Parent Company) of the Agreement, as applicable to the Additional Seller, are correct as of the date of this Accession Form by reference to the facts and circumstances existing at the date of this Accession Form.

This Accession Form is governed by French law. Any and all disputes arising out of or in connection with this Accession Form and in particular with its validity, interpretation, performance or non-performance, shall be exclusively referred to the competent courts of the Paris Court of Appeals.

We would also appreciate if you could acknowledge accession of [•] as an Additional Seller and Seller under the Agreement.

[•]

As Additional Seller

By:

Agreed and accepted

Factofrance SAS as Factor

By:

 

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SCHEDULE 16.

S CHEDULE S PECIFIC TO THE S ELLERS

PART 1

T RANSFER MODE

 

1. LEGAL MEANS OF ASSIGNMENT

Each Assignment of Eligible Receivables from any French Seller to the Factor shall be performed by way of a deed of transfer (acte de cession de créances professionnelles) governed by, and complying with, the provisions of Article L. 313-23 et seq. of the French Monetary and Financial Code and Article R. 313-15 et seq. of the French Monetary and Financial Code (a “ French Transfer Document ”).

 

2. PROCEDURE FOR ASSIGNMENT

 

2.1 Upon the frequency set out in Clause 2.1.2 (Offer to Assign Eligible Receivables) , each Seller may offer to Assign (and the Factor undertakes to purchase) all Eligible Receivables arising from time to time, by providing (either by a manual remittance or through electronic transmission) to the Factor a duly completed and signed Transfer Document, together with the information and files (and, as the case may be, the documents evidencing such Eligible Receivables) on such Eligible Receivables as required under Clause 2.1.2 ( Offer to Assign Eligible Receivables) and Clause 2.1.3 (Payment by the Factor).

 

2.2 Each Transfer Document shall be prepared in compliance with the model form set out in paragraph 4 below of this SCHEDULE 16 and shall (i) clearly identify the Eligible Receivables intended to be Assigned (together with the relevant Seller Code) and incorporate all specific requirements of Article L. 313-23 et seq of the French Monetary and Financial Code and all regulations in force relating thereto, (ii) be signed by an authorised representative of the relevant French Seller and (iii) set out the Factor as assignee.

 

2.3 On the same Business Day upon delivery to it of the Transfer Document the Factor shall date the French Transfer Document and shall hold such Transfer Document during the course of the Factoring Facility. It being understood that such date shall constitute the Assignment Date for the purposes of the Eligible Receivables referred to in the French Transfer Document.

 

3. LEGAL CONSEQUENCES

 

3.1 The Assignments of Eligible Receivables carried out in accordance with this Agreement shall constitute outright assignments (cessions á titre d’escompte) under Article L. 313-23 et seq. of the French Monetary and Financial Code in favour of the Factor.

 

3.2 In respect of each Eligible Receivable, the transfer of ownership thereof shall operate as at the Assignment Date relating to each such Eligible Receivables,

 

3.3 In accordance with Article L. 313-23 et seq of the French Monetary and Financial Code:

 

  3.3.1 the delivery or transmission of any Transfer Document pursuant to the terms and conditions of this Agreement shall transfer absolute title and full ownership to the Factor of (i) the Face Value of the Transferred Receivables which are transferred by way of such Transfer Document; and (ii) the interest and all other accessory rights (accessoires), guarantees and security interests existing in respect of these Transferred Receivables (including any Related Security); and

 

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  3.3.2 as from that Assignment Date, the Factor shall have absolute title to, and shall remain the sole owner of any Transferred Receivable so assigned, even in the event that the relevant Current Account is debited and until such Transferred Receivable have been actually Transferred-Back to the Seller pursuant to the terms of this Agreement and the Transfer-Back Price has been fully paid to the Factor.

 

3.4 Notwithstanding Article L. 313-24 of the French Monetary and Financial Code, none of the French Sellers shall be jointly and severally liable with the Debtor’s for the payment of the relevant Transferred Receivables. The Factor hereby expressly waives the French Sellers’ guarantee pursuant to Article L 313-24 of the French Monetary and Financial Code.

 

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4. FORM OF FRENCH TRANSFER DOCUMENT

ACTE DE CESSION DE CREANCES PROFESSIONNELLES SOUMIS AUX DISPOSITIONS DES ARTICLES L.313-23 A L.313-34 DU CODE MONETAIRE ET FINANCIER

 

A. ACTE DE CESSION

Le présent acte de cession de créances professionnelles est soumis aux dispositions des articles L.313-23 â L.313-34 du Code monétaire et financier et est établi en application des stipulations d’un contrat en langue anglaise intitulé Factoring Agreement conclu le [•] entre, le Cédant (Seller) et Factofrance SAS (Factor) (le “ Contrat ”).

 

B. IDENTIFICATION DU CEDANT

[•] société [•] de droit français ayant son siège social[•], immatriculée au Registre du commerce et des sociétés sous le numéro [•] RCS [•] (le Cédant ).

 

C. IDENTIFICATION DU CESSIONNAIRE

FACTOFRANCE , société par actions simplifiée de droit français ayant le statut détablissement de crédit, dont le siège social est situé Tour Facto, 18. rue Hoche, 92988 Paris-La Défense Cedex France, immatriculée au Registre du commerce et des sociétés sous le numéro 063 802 466 RCS Nanterre (le “ Cesslonnalre ”).

 

D. DESIGNATION DES CREANCES

Le Cédant cède au Cessionnaire les créances qu’ll détient au titre des factures dont la liste figure dans le fichier informatique transmis au Cessionnaire par le Cédant concomitamment à la remise du présent acte de cession.

Conformément à l’Article L. 313-23 du Code monétaire et financier, le fichier ainsi transmis permet l’identification des créances cédées au titre du présent acte. En outre:

 

  (i) le nombre total de créances cédées au titre du présent acte est de [•]; et

 

  (ii) le montant global des créances cédées au titre du présent acte est de [•].

NB: II est nécessaire de remettre, concomitamment á la remise du bordereau ci-dessus, le fichier informatique comprenant la fiste des créances cédées au titre du bordereau, telles d’identifiées par les enregistrements “101” (avec, dans la mesure du possible, l’indication du débiteur cédé, du montant de la créance, de la référence ou du numéro de facture, du Heu et de l’échéance de paiement), Ce fichier doit permettre l’identification des créances cédées.

Conformément à l’article L. 313-24 du Code monétaire et financier, le Cédant n’est pas garant solidaire du paiement des créances cédées au titre du présent acte.

Fait à                                   , le                                                , en 1 (un) exemplaire 2 .

[Dénomination sociale du Cédant] en sa qualité de Cédant

Pair [Non du signataire autorisé]

Conformément au Contract, le Présent acte de cession est stipulé à order, transmissible par endos au profit d’un autre ètablissement de crédit.

 

2   Data a apposer par Factofrance

 

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(TRANSLATION FOR INFORMATION PURPOSES ONLY)

FORM OF ASSIGNMENT OF PROFESSIONAL RECEIVABLES PURSUANT TO ARTICLES L.313-

23 TO L.313-34 OF THE FRENCH MONETARY AND FINANCIAL CODE

 

A. FORM OF ASSIGNMENT

This form of assignment of professional receivables is subject to the provisions of the articles L.313-23 to L.313-34 of the French Monetary and Financial Code and is made pursuant to the agreement encaptioned “ Factoring Agreement ” entered into on [•] by and between the Assignor (as Seller) and Factofrance SAS (as Factor) the “Agreement” ).

 

B. ASSIGNOR

[•], a company incorporated under the laws of France as a [•], whose registered office is located at [•], registered with the Trade and Companies Registry of [•] under number [•] (the “Assignor”).

 

C. ASSIGNEE

FACTOFRANCE SAS , a company incorporated under the laws of France as a société par actions simplifiée and licensed as a credit institution (établissement de crédit) , whose registered office is located at Tour Facto, 18, rue Hoche 92988 Paris-La Défense Cedex, France registered with the Trade and Companies Registry of Nanterre under number 063 802 466 (the “Assignee” ).

 

D. IDENTIFICATION OF THE RECEIVABLES

The Assignor assigns to the Assignee the receivables owed to it under the invoices listed and identified in the electronic file transmitted to the Assignee by the Assignor on the date this assignment form has been remitted to the Assignee.

Pursuant to Article L. 313-23 of the French Monetary and Financial Code, the file so transmitted will allow for the identification of the receivables transferred hereunder.

Moreover,

  (i) the total number of the receivables transferred hereunder is [•]; and

 

  (ii)     

 

  (iii) the total amount of the receivables transferred hereunder is [•] €.

Note: It is necessary to hand, at the same time the assignment form is remitted to the Assignee, an electronic file listing and identifying the receivables transferred hereunder as identified pursuant to the “101” records (with, if possible, the debtor’s name, the amount of the receivable, the reference of the invoice, the location and date of payment). This file will allow the identification of the assigned receivables.

Pursuant to Article L. 313-24 of the French Monetary and Financial Code, the Assignor shall not be jointly and severally liable for the payment of the receivables transferred hereunder.

Executed In [•], on [•], in one original. 3

 

3   Date to be inserted by Factofrance

 

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[Insert Name of Assignor] As Assignor

Name: [Insert name of authorised signatory]

In accordance with the Agreement, this assignment form may be transferred to any financial institution by endorsement.

 

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PART 2

RETRANSFER MODE

Any Transfer-Back of Affected Receivables shall take place through an automatic rescission (résolution de plein droit) of the Assignment having taken place over such Affected Receivables between the relevant French Seller and the Factor, which Transfer-Back shall take place and occur pursuant to the following procedure:

 

  (i) if the Transfer-Back is requested by a Party pursuant to this Agreement, by no later than 10.00 a.m. on a Business Day, that Party shall deliver to the other Party a transfer-back file containing the list of all outstanding Affected Receivables;

 

  (ii) by no later than 10.00 a.m. on the immediately following Business Day, the Factor shall notify to the Seller the details of the calculations of the Transfer-Back Price which shall be equal to (i) the amount of any payment made by the Factor to the relevant Seller in respect of such Affected Receivables less (ii) the collections, the Reduction or Cancellation Items and any Insurance Indemnification relating thereto,

 

  (iii) by no later than 10.00 a.m. on the immediately following Business Day, the relevant Seller shall instruct the Factor to make the payment of the relevant Transfer-Back Price by way of debit of such relevant Transfer-Back Price from its relevant Current Account and credit of such amount to its relevant bank account, provided that the payment of such Transfer-Back Price shall only be deemed to occur once the rule set forth in Clause 5.3 (Procedure for the Transfer-Back of Transferred Receivables - Retransfer Modes) has been complied with.

Upon full payment of the agreed Transfer-Back Price, the Assignment of the Transferred Receivables shall be automatically rescinded (résolu de plein droit) without any further formality and, as from that date, the relevant French Seller shall be the owner of the relevant Affected Receivables which have been Transferred-Back to it.

 

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PART 3

FORM OF NOTIFICATION

[ Papier à en-tete de Factofrance SAS ]

Acte de Notification de Cession de Créances Professionnelles

Lettre recommandée avec accusé de réception

Le [•]

[Identification du débiteur cédé]

Messieurs,

Réf: Acte de notification de cession de créances professionnelles

Dans les conditions prévues par les articles L.313-23 à L. 313-35 du Code monétaire et financier, la société [•], société de droit français ayant son siège social [•], immatricuiée au Registre du commerce et des sociétés sous le numéro [•] RCS [•] (le “Cédant”) nous a cédé des créances identifiées ci-après dont vous êtes débiteur envers elle.

Les créances dont la cession est lobjet de la présente notification sont identifiées et individualisées par leur numéro, montant et date de facture énumérées dans la liste figurant en Annexe 1 de la présente lettre (les “Créances”).

Conformément aux dispositions de l’article L. 313-28 du Code monétaire et financier, nous vous demandons de cesser, à compter de la présente notification, tout paíment au titre de ces Créances au Cédant.

En conséquence, le règlement de votre dette devra être effectué à l’ordre de Factofrance par virement bancaire au crédit du compte dont les coordonnées figurent ci-après : [ Insérer références IEAN du numéro de compte].

Par ailleurs, conformément à l’article R. 313-16 du Code monétaire et financier, nous vous demandons de faire figurer sur toute facture présente ou future relative à toute Créance qui ne serait pas en notre possession les mentions obligatoires suivantes: “ La créance relative à la présente facture a été cédée a Factofrance SAS dans le cadre des articles L. 313-23 à L 313-35 du Code monétaire et financier. Le paiement doit être effectué directement é l’ordre de FACTOFRANCE, Tour FACTO-18 rue Hoche - Cedex 88 - 92988 LA DEFENSE CEDEX TEL: 01.46.35.[•], par virement au compte n °[Insérer références IBAN du numéro de compte] chez [Insérer nom de la banque teneuse de compte].

Cette lettre, ainsi que toute annexe y attachée, fait partie intégrant de la présente notification.

Cordialement,

Factofrance

Par: [•]

 

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Annexe 1

Créances

[A compléter]

 

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(TRANSLATION FOR INFORMATION PURPOSES ONLY)

[Letterhead of Factofrance SAS]

Notice of Assignment of Professional Receivables

Registered letter with acknowledgement of receipt

[Date]

[Identification of Assigned Debtor]

Dear Sirs,

Re: Form of Notice of Assignment of Professional Receivables

In compliance with the terms and conditions set out in Articles L. 313-23 to L. 313-35 of the French Monetary and Financial Code, [•], a company incorporated under the laws of France as a [•], whose registered office is located at [•], registered with the Trade and Companies Registry of [•] under number [•] (the “ Assignor ”) has assigned to us the receivables identified below owed by you to the Assignor.

The receivables whose assignment are subject to this notification are identified and individualized by their number, amount, and invoice date, as mentioned in the list appended as Annex 1 hereto (the “ Receivables ”).

In accordance with the provisions of Article L. 313-28 of the French Monetary and Financial Code we hereby request you to cease to make as of the date hereof, any payment in respect of the Receivables to the Assignor.

As a consequence, payment of these Receivables shall be in made to Factofrance by wire transfer to the credit of the bank account with number: [Insert IBAN references].

Moreover, pursuant to Article R. 313-16 of the French Monetary and Financial Code, we hereby request you that ail present and future invoice(s) not in our possession relating to the Receivables include the following compulsory wording: “The receivable arising out of the present invoice has been assigned to Factofrance SAS pursuant to Articles L. 313-23 á L . 313-35 of the French Monetary and Financial Code. Payment must be made to FACTOFRANCE, Tour FACTO - 18 rue Hoche - Cedex 88 - 92988 LA DEFENSE CEDEX TEL: 01.46.35.[•] by wire transfer to the following account No. [Insert IBAN references] with [Insert name of bank account].

This letter, as well as any schedule appended thereto, shall be an integral part of this notification.

Truly yours,

 

                                         

Factofrance

By: [•]

 

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Annex 1

Receivables

[To be completed]

 

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SCHEDULE 17.

L IST OF A UDITED I TEMS

Etats comptables :

 

  1. Balance générale

 

  2. Balances auxiliaire clients et fournisseurs

 

  3. Balances ágée clients et fournisseurs triées par date d’échéances

 

  4. Grand-livre client lettré et non lettré au jour de l’audit

Documentations tiers :

 

  5. Déclarations URSSAF et TVA couvrant les 3 derniers mois + justificatifs de paiement

 

  6. Factures de primes d’assurance-crédit + justificatifs de paiement

 

  7. Dernière liasse fiscale + rapport des CAC général et spécial

Données sur chiffre d’affaires :

 

  8. Montant cumulé des avoirs pour l’exercice en cours et leurs répartitions par motif (si possible avec distinction des avoirs de RFA)

 

  9. Montant du CA interco sur l’exercice en cours.

 

  10. Détail du compte « 419 Avoirs á établir » en date de l’audit.

 

  11. Détail des FNP (factures non parvenues).

 

  12. Montant cumulé des RFA (remises de fin d’année) et PP (participations publicitaires et assimilées), leurs détails et le solde restant dû y compris sur les exercices antérieurs.

 

  13. Détail du poste sous-traitance; liste des sous-traitants et montant des achats (avec distinction du groupe)

 

  14. Avances et acomptes : Liste des clients cédés concernés avec montant des avances et acomptes facturés et encours sur affaires non soldés

 

  15. Stocks déportés/consignation (“Etat C10 Stock Tiers”): liste des clients concernés CA et valorisation

 

  16. Marchandise mise à disposition (Doc “SAB 101”) : liste des clients concernés, CA et valorisation

 

  17. Tolling (« Pseudo Tolling » et « Transformation » ): Montant des achats (avec répartition par fournisseurs) et valorisation du stock

 

  18. Pour les relations croisées clients/fournisseurs sur le périmètre cédé: soldes clients et fournisseurs

 

  19. Montant de la dotation aux provisions pour créances douteuses sur le dernier exercice et sur l’exercice en cours

 

  20. Liste des 10 principaux clients sur l’exercice avec pourcentage du CA annuel, encours actuel et couvertures d’assurance-crédit

 

  21. Règlements reçus hors compte dédié sur les clients cédés (liste des clients concernés, liste des règlements et dates de remboursement) le cas échéant sur l’exercice en cours

Pièces et documents sur une sélection de créances :

 

  •   Contrat de vente

 

  •   Facture

 

  •   Bon de commande du client

 

  •   Document du transporteur et bon de livraison émargé par le client

 

  •   Justificatif de règlement de la facture (bordereau de remise en banque ou avis de crédit ou extrait de compte si virement)

Pièces et documents sur une sélection d’avoirs :

 

  •   Avoir avec motif identifié

 

  •   Facture ayant donné lieu á i’avoir

 

  •   Pour les avoirs suivis d’une refacturation, refacturation

 

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SCHEDULE 18.

L IST OF A IRBUS C OMPANIES

 

Division

  

Airbus Group Entity

  

Country of

Incorporation

Airbus    Airbus SAS    France
   Airbus Operations SAS    France
   Airbus Operations GmbH    Germany
   Airbus Operations SL    Spain
   Airbus Operations Ltd    United Kingdom
   Premium Aerotec GmbH    Germany
   Stelia Aerospace SAS    France
Helicopters    Airbus Helicopters Deutschland GmbH    Germany
   Airbus Helicopters SAS    France
   Airbus Helicopters UK Ltd    United Kingdom
   Airbus Helicopters Espana SA    Spain
Defence & Space    Airbus Military SL    Spain
   Airbus Military UK Ltd    United Kingdom
   Airbus Military France SAS    France
   Airbus Military Deutschland GmbH    Germany
   Airbus Defence & Space SAS    France
   Airbus Defence & Space UK Ltd    United Kingdom
   Airbus ATR SAS    France
   Elbe Flugzeugwerke GmbH (“EFW”)    Germany
   EADS CASA Espacio SL    Spain
   Compagnie Industrielle des Lasers CILAS SA    France
   MBDA Deutschland GmbH    Germany
   MBDA France SAS    France

 

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SCHEDULE 19.

F ORM OF R EXAM F IRST D EMAND G UARANTEE

 

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GUARANTEE

(Garantie Autonome)

THIS GUARANTEE (the “ Guarantee ”) is dated     June 2015 and made by:

 

(1) REXAM BEVERAGE CAN EUROPE LTD , a limited liability company organized and existing under the laws of England, registered under number 2554348 and having its registered office at 100 Capability Green, Luton, LUI 3LG Bedfordshire, United Kingdom (the “ Guarantor ”);

in favour of

 

(2) FACTOFRANCE S.A.S., a company incorporated under the laws of France as a société par actions simplifiec and licensed as a credit institution (établissement de credit), whose registered office is located at Tour Facto, 18, rue Hoche, 92988 Paris-La Défenso Cedex, France, registered with the Trade and Companies Registry of Nanterre under number 063 802 466 (the “ Bencficiary ”).

BACKGROUND:

 

(A) On [•] November 2011, the Guarantor entered into an English law purchase agreement (the “ Purchase Agreement ”) with Constellium Issoire SAS (a company incorporated under the laws of France as a société par actions simplifiée, whose registered office is located at rue Yves Lamourdcdicu, Zone Industrielle Les Lisles, 63500 Issoire, France, registered with the Trade and Companies Registry of Clermont-Ferrand under number 672 014 081 “ Constellium Issoire ”), to which its subsidiary of the Rexam Group of companies, Rexam Beverage Can Egypt (a company organized under the laws of Egypt and having its registered office at 6 th  October City, 3 rd Industrial Zone, Plot 2, Giza, Egypt, “ Rexam Egypt ”) has uccedcd.

 

(B) Pursuant to a factoring agreement dated 4 January 2011 (as amended from time to time) and entered into between, inter alios, the Beneficiary as factor, Constellium Holdco II B.V. as parent company, certain French entities of the Constellium group (including Constellium Issoire) as French sellers, and Constellium Switzerland AG as sellers’ agent, the Beneficiary has agreed to provide a factoring facility to those relevant French entities of the Constellium group (including Constellium Issoire) by purchasing receivables from them in order to finance their general corporate and working capital needs (the “ Factoring Facility ”).

 

(C) On 31 March 2015, Constellium Issoire contributed its activities located in Neuf Brisach, France, to its wholly owned subsidiary, Constellium Neuf Brisach SAS (a company incorporated under the laws of France under the form of a societe par actions simplifiee  & associe unique, whose registered office is at ZIP Rhenane Nord, RD 52, 68600 Biesheim, France, registered with the trade and commercial registry (registre du commerce et des sociétés) of Colmar under number 807 641 360“ Constellium Neuf Brisach ”), which activities included its rights and obligations under the Purchase Agreement and the Factoring Facility. By way of consequence, Constellium Neuf Brisach formally acceded to the Factoring Facility on 31 March 2015 as a new French seller.

 

(D) Constellium Neuf Brisach is contemplating adding Rexam Egypt as a new debtor to the Factoring Facility in order for the commercial receivables arising or to arise from the Purchase Agreement to be included in the Factoring Facility.

 

(E) It is a condition precedent to the addition of receivables over Rexam Egypt to the Factoring Facility that the Guarantor execute this autonomous and independent guarantee in favour of the Beneficiary in relation to invoices issued by Constellium Neuf Brisach to Rexam Egypt under the Purchase Agreement transferred to the Beneficiary between [•] and [•]. (the ‘‘ Guarantee ”).

 

(F) The Guarantor acknowledges that the description of the transactions above is only for explanatory purposes and shall in no way undermine the independence and autonomy of this Guarantee.

 

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IT IS AGREED that:

 

1. GUARANTEE PAYABLE ON FIRST DEMAND

 

1.1 Undertaking to pay

 

  (a) In accordance with article 2321 of the French civil code ( Code civil) and the terms of this Guarantee, the Guarantor hereby unconditionally and irrevocably undertakes to pay upon first demand of the Beneficiary, as a primary and independent obligation, any amount (to be expressed in US Dollars (USD)), the “Requested Amount”) set out in any payment request delivered by the Beneficiary to the Guarantor in accordance with Clause 1.2 (Payment Request ) below substantially in the form of Schedule 1 ( Form of Payment Request) (a “Payment Request”) .. Any Payment Request received after the expiry date in Clause 3 ( Duration ) below shall be considered null and void.

 

  (b) For the avoidance of doubt, the maximum liability of the Guarantor hereunder may not exceed [•] dollars (USD [•]), (the “Guarantee Amount”) . This Guarantee may be called upon one or several times. All payments made by the Guarantor under this Guarantee will automatically and proportionately reduce the Guarantee Amount payable under this Guarantee.

 

1.2 Payment request

 

  (a) The obligation of the Guarantor to pay any Requested Amount hereunder is subject to the receipt by the Guarantor of a Payment Request sent by the Beneficiary by registered letter with acknowledgment of receipt ( lettre recommandée avec accusé de réception) requested or fax.

A Payment Request shall be deemed received, as applicable, (i) on the date when the relevant letter is presented for the first time to the Guarantor with respect to a registered letter with acknowledgment of receipt ( lettre recommandée avec accusé de réception) or (ii) on the date indicated on the relevant fax transmission confirmation.

 

  (b) The Beneficiary may deliver any number of Payment Requests as required or necessary to the Guarantor provided that the aggregate amount of the Requested Amounts shall not exceed the Guarantee Amount.

 

1.3 Payment

The Guarantor shall pay the Requested Amount in USD within two (2) business days of receipt of the Payment Request to such account as (he Beneficiary shall designate in the Payment Request.

A business day means a day (other than a Saturday, Sunday or holiday scheduled by law) on which banks are open far business in London and Paris.

 

1.4 Independent obligation

 

  (a) The obligation of the Guarantor hereunder is autonomous and independent and the Guarantor expressly waives any discounts, grace periods, defences, set-off/off-set rights or counterclaims resulting from or based on any other agreement. Therefore, this Guarantee shall continue to be in full force and effect notwithstanding termination (for any reason) or amendment of the Purchase Agreement.

 

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  (b) This Guarantee shall remain in full force and effect notwithstanding any merger, acquisition or de-merger of the Guarantor and/or the Beneficiary. In addition, this Guarantee shall remain in full force and effect and benefit any successors and assignees of the Beneficiary.

 

  (c) The Guarantor further waives any right to claim novation or any other legal means of settlement or transfer of obligations as a defence to its obligations hereunder in the event that (these provisions applying mutatis mutandis to any successor of the Beneficiary):

 

  (i) the legal form of the Beneficiary is modified;

 

  (ii) the Beneficiary merges with another entity, even if this merger leads to the creation of a new legal entity;

 

  (iii) (by way of exception to the last sentence of article 2321 of the French civil code) the Beneficiary transfers its rights or obligations under Factoring Facility to a third party;

 

  (iv) the Beneficiary transfers its rights or obligations under this Guarantee to a third party.

 

  (d) The Beneficiary shall not be required to have first exhausted any rights of recourse it may have against the Guarantor or Rexam Egypt.

 

  (e) This Guarantee shall be in addition to, independent of and is not in any way prejudiced by any other assignment of indemnification rights (for the purposes of the applicable credit insurance policy) or security interest which the Beneficiary may now or at any time in the future hold or take for or in respect of the Guarantor or Rexam Egypt or its obligations under the Purchase Agreement or the obligations of Constellium Neuf Brisach or the relevant entities of the Constellium group under the Factoring Facility.

 

  (f) The Guarantor acknowledges that Rexam Egypt will remain bound to perform all its obligations under the Purchase Agreement other than any payment obligation which has given rise to a payment made by the Guarantor hereunder, notwithstanding any exercise, attempted exercise or non-exercise of the Beneficiary’s rights hereunder.

 

2. REPRESENTATIONS AND WARRANTIES

The Guarantor represents and warrants to the Beneficiary that:

 

  (a) the Guarantor is a corporation duly organised and validly existing in good standing under the laws of England and has the corporate power and authority to carry on its business as it is being conducted;

 

Paris 12693063.10

 

144

  (b) the Guarantor has the corporate power to enter into and perform, and has taken all necessary corporate action to authorise the entry into, performance and delivery of this Guarantee and this Guarantee will upon execution by all Parties thereto constitute valid and legally binding and enforceable obligations of the Guarantor;

 

  (c) the execution and delivery of, the performance of its obligations under, and compliance by the Guarantor with the provisions of, this Guarantee will not (i), (ii) conflict with, or result in any breach of any of the terms of, or constitute a default under, any agreement or other instrument to which the Guarantor is a party or is subject or by which it or any of its property is bound, (iii) contravene or conflict with any provision of the Guarantor’s constitutional documents or (iv) result in the creation or imposition of, or oblige the Guarantor to create, any security interest over its undertaking or any of its assets, rights or revenues;

 

  (d) the Guarantor is not in a state of insolvency and is not subject to any insolvency proceedings;

 

  (e) the giving of this Guarantee is of commercial benefit to the Guarantor group of companies and in that group’s commercial interests;

 

3. DURATION

This Guarantee shall expire on the date falling nine (9) months after its signature. After this date, this Guarantee will expire automatically and as of law, without prejudice to the rights of the Beneficiary for any Payment Request received in the period during which this Guarantee was still in force and in accordance with the terms and conditions of this guarantee.

This Guarantee shall lapse upon the Beneficiary granting express written release of this Guarantee.

 

4. TAXES AND OTHER CHARGES

 

  (a) All payments to be made by the Guarantor under this Guarantee shall be made free and clear of and without deduction or withholding for on account of tax unless the Guarantor is required by law to make any such payment subject to any such deduction or withholding, in which case the sum payable by the Guarantor in respect of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Beneficiary receives and retains (free from any liability in respect of any such deduction or withholding) a net sum equal to the sum which it would have received and so retained had no such deduction or withholding been made or required to be made.

 

  (b) All sums payable by the Guarantor under or pursuant to this Guarantee are exclusive of any applicable value added tax.

 

Paris 12693063.10

 

145

5. GOVERNING LAW - JURISDICTION

 

5.1 Governing law

This Guarantee is governed by French law.

 

5.2 Jurisdiction

The Parties irrevocably agree that any dispute arising out of, relating to or in connection with this Guarantee shall be brought before the competent courts of the Court of Appeals (Cour d’Appel ) of Paris.

Executed in one (1) original on     June 2015.

 

 

 

Rexam Beverage Can Europe Ltd. (Guarantor)

By:

 

Paris 12693063.10

 

146

FORM OF PAYMENT REQUEST

[ date ]

BY REGISTERED MAIL/FAX

Rexam Beverage Can Europe Ltd

[ Note; full notice details to be provided ]

Fax: [•]

For the attention of [        ]

Dear Sirs

Guarantee (garantie autonome) dated             2015

We refer to the guarantee (garantie autonome ) dated                 June 2015 issued by Rexam Beverage Can Europe Ltd in favour of Factofrance SAS (the “Guarantee” ). Terms used therein with a capital letter and not defined in this letter shall have the meaning ascribed to such term in the Guarantee.

We confirm that Rexam Egypt owes us the following amount [•] (USD [•]), owed on [date] (the “Requested Amount”) .

We therefore hereby request that you pay to us to our account reference number                     .

Yours faithfully,

 

 

FACTOFRANCE

 

Paris 12693063.10

 

147

SCHEDULE 20.

F ORM OF L ETTER OF W AIVER AND C ONSENT

[Date]

TO: FACTOFRANCE

Dear Sirs

We, [•] acknowledge that we are in receipt of goods specified in various orders (and for which the invoices are specified in the Annex to this letter);

We have inspected the goods which are held at our own risk; they appear to be of satisfactory merchantable quality and fit for purpose.

Without prejudice to our rights against Constellium under our Supply Agreement with Constellium, we can confirm that as of today’s date, we are not aware of any grounds for bringing any claim against Constellium and you, Factofrance SAS, in relation to the quality of such goods. We further acknowledge that the receivables arising from the invoices specified in the Annex to this letter will be assigned to you by Constellium and as a result irrevocably confirm that we will pay an amount of USD [•]; and Euro [•], related to such invoices, in full without set off, deduction or counterclaim on Constellium into collection accounts n• FR76 [•] with [for the payment of Euro [•]); and n° FR76 [•] with [for the payment of USD[•]), in each case, by no later than [•].

This letter is governed by English law and the court of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this letter.

Executed in [•], on [•], in one original.

 

 

Rexam Egypt

By: [•]

 

Paris 12693063.10

 

148

Annex

 

Paris 12693063.10

 

149

SIGNATORIES

 

Made in Paris on 19 April 2017,      
In 6 originals      

CONSTELLIUM HOLDCO II B.V.

as Parent Company

     

CONSTELLIUM NEUF BRISACH

as Seller

/s/ Christel SAHYOUN

     

/s/ Christel SAHYOUN

By: Christel SAHYOUN       By: Christel SAHYOUN
Capacity: Attorney       Capacity: Attorney

CONSTELLIUM ISSOIRE

as Seller

     

CONSTELLIUM EXTRUSIONS FRANCE

as Seller

/s/ Christel SAHYOUN

     

/s/ Christel SAHYOUN

By: Christel SAHYOUN       By: Christel SAHYOUN
Capacity: Attorney       Capacity: Attorney

CONSTELLIUM SWITZERLAND AG

as Sellers’Agent

     

FACTOFRANCE

as Factor

/s/ Christel SAHYOUN

     

/s/ Tare Frenkenberg

By: Christel SAHYOUN       By: Tare Frenkenberg
Capacity: Attorney       Capacity: Attorney

 

Paris 12693063.10

 

150

Exhibit 10.7

 

LOGO

Long Term Incentive Award Agreement

Terms and Conditions

Effective as from July 31, 2017

1. SCOPE OF THIS AWARD AGREEMENT

The Units awarded under this Award Agreement entitle the Participant receiving such Units to receive Constellium Shares or a cash equivalent, subject to the terms and conditions of the 2013 Constellium Equity Incentive Plan, this Award Agreement and any additional terms specified in the Award Letter relating to such Units. In particular, the vesting of the Restricted Stock Units and the delivery of Shares to the Participants is subject to the satisfaction of the Continued Service Condition. The vesting of the Performance Share Units and the delivery of Shares to the Participants is in addition subject to the level of achievement of the Performance Condition.

The Company’s shareholders have authorized the issuance of up to 7,292,291 Shares under the 2013 Constellium Equity Incentive Plan (pursuant to corporate decisions taken on May 16, 2013 and June 11, 2014). This Award Agreement has been adopted by the Board of Directors under the 2013 plan pursuant to such authorization.

 

2. DEFINITIONS

The terms and conditions set forth in the Constellium N.V. 2013 Equity Incentive Plan are incorporated by reference. Terms used herein shall have the meaning ascribed thereto in such Plan unless otherwise defined herein.

Award Agreement: This Long Term Incentive Award Agreement of the Company, as amended and restated from time to time.

Award Letter: A letter provided by the Company to the Participant in respect of each Grant, specifying the number of Restricted Stock Units and/or Performance Share Units granted, the Grant Date, the Index or Indices (if applicable), the Vesting Period and/or Performance Period (if applicable), the Vesting Date and any other terms and conditions applicable. Award Letters will be in substantially the form attached, subject to such modifications and additional provisions decided by the Board or the Committee in its discretion.

Base Amount: For each Unit, one Share, unless otherwise specified in the Award Agreement.

Board: The Board of Directors of the Company or, if delegated by the Board, the Human Resources and Remuneration Committee of the Board, any successor committee thereto, or any other committee appointed from time to time by the Board to administer awards under this Award Agreement.

Change in Control: Change in Control has the meaning defined in Section 10(b) of the Plan, except that for purposes of this Award Agreement to the extent permitted by applicable law:

(i)    the 50% threshold in Section 10(b)(i) shall be replaced by 35%,

(ii)    the 50% threshold in Section 10(b)(iii)(A) shall be replaced by 65%,

(iii)    the 50% threshold in Section 10(b)(iii)(B) shall be replaced by 35%, and

(iv)    the majority threshold in Section 10(b)(iii)(C) shall be replaced by 65%.

 

2

and a new Section 10(b)(v) shall be added:

(v)    any Person with beneficial ownership of 5% or more of either the Outstanding Company Shares or Outstanding Company Voting Securities shall have nominated for election by the Company’s stockholders (without the approval of at least a majority of the Incumbent Board), directors representing 35% or more of the Board and such persons shall have been elected.

Company: Constellium N.V. or any successor thereto.

Constellium Group: The Company together with the companies in which the Company holds directly or indirectly more the 50% of the outstanding shares and which are included in the consolidated financial statements of the Company. References to the Constellium Group shall be to all such companies or any one or group of them, as the context requires.

Continued Service Condition: The condition referred to in Section 5 of this Award Agreement.

Delivery Date: A day that is both a trading day on the New York Stock Exchange and a banking day in the city in which the Company has its headquarters, falling as soon as practicable after the Vesting Date, as determined by the Company.

Grant: The issuance of Units to a Participant in accordance with this Award Agreement.

Grant Date: The date on which a Grant of Units is made by the relevant corporate body of Constellium. The Grant Date applicable to each Unit will be specified in the Award Letter.

Index or Indices: The Index or Indices will be specified in the Award Letter.

Participant: Employee of the Constellium Group who has received a Grant of Units under this Award Agreement.

Performance Condition: Such performance condition or conditions as shall be specified in the Award Letter.

Performance Period: The period over which the Performance Condition shall be measured. For each Performance Share Unit, this period will be specified in the Award Letter. The period will be of three years, unless otherwise specified in the Award Letter.

Performance Share Unit (PSU): Each PSU shall be a “Performance Unit” within the meaning of Section 8 of the Plan and represents a conditional right to receive a certain number of Shares or, at the Company’s election, their cash equivalent upon settlement, subject to the fulfilment of the Performance Condition, the Continued Service Condition and the other terms and conditions of this Award Agreement.

Permanent Disability : (i) For Participants covered by the long term disability plan of the Constellium Group, disability as defined in such plan, (ii) for French-resident Participants, a disability falling within the second and third categories of article L.341-4 of the French Social Security Code and, (iii) for all other Participants, a physical or mental condition of the Participant resulting from bodily injury, disease or mental disorder which renders the Participant incapable of continuing the Participant’s usual or customary employment with the Participant’s employer for a period of not less than six consecutive months, as determined by

 

3

the Board in its discretion. Notwithstanding the foregoing, for U.S. taxpayers, such occurrence must also constitute a disability within the meaning of Section 409A of the Internal Revenue Code.

Plan: The Constellium N.V. 2013 Equity Incentive Plan, as amended and restated from time to time.

Restricted Stock Unit (RSU): Each RSU shall be a “Restricted Stock Unit” within the meaning of Section 7 of the Plan and represents a conditional right to receive a certain number of Shares or, at the Company’s election, their cash equivalent upon settlement, subject to the fulfilment of the Continued Service Condition and the other terms and conditions of this Award Agreement.

Retirement: Defined by the Participant’s employer in accordance with applicable local law or, in the absence of such law, under the conditions provided for in the employer’s retirement or early retirement plan, or in the absence of such a plan, at the minimum age of 65 (to the extent permitted by law).

Total Shareholder Return or TSR : With respect to any share or Index, the variation in stock price of such share or the value of such Index, as the case may be, measured by comparing the price or value at the beginning of the relevant Performance Period with the price or value at the end of such period plus, in the case of a share, dividends and distributions paid, declared or made in respect of such share during the Performance Period, which shall be deemed to have been reinvested, expressed as a percentage return, in each case expressed as a percentage of the beginning point. TSR will be measured as of the first and last day of the relevant Performance Period, by reference to the closing price of the relevant share or index on the 20 trading days up to and including such day.

Units: PSUs and RSUs.

Vesting Date: The Vesting Date of each Unit will be the third anniversary of the Grant Date, unless otherwise specified in the Award Letter. On the Vesting Date, Participants become entitled to the delivery of Shares under the Award Agreement, subject to the satisfaction of the Continued Service Condition and, in respect of the PSUs, the Performance Condition.

Vesting Period: The period from the Grant Date through and including the Vesting Date. The period will be of three years, unless otherwise specified in the Award Letter.

 

3. GRANT OF UNITS

Grants of Units will be made by decision of the Board or, to the extent permitted by applicable law, by the Committee acting under the authority granted to it under Section 2 of the Plan.

An Award Letter will be entered into with each Participant setting forth the specific terms and conditions of his or her Grant.

As a precondition for a valid Grant, the Participant must be employed by a company of the Constellium Group on the Grant Date.

 

4

The Participant will be required to accept the terms and conditions of the Grant and to provide such information as may be required by the Company and its service providers for the administration of the Grant.

 

4. VESTING OF UNITS

The level of vesting of the Units and the resulting Share entitlement shall be determined on the Vesting Date subject to the achievement of the Continued Service Condition as set forth under Section 5 below and, in respect of the PSUs, based on the level of achievement of the Performance Condition as set forth under Section 6 below.

To the extent that vesting is achieved under these conditions, the Participant will be entitled to receive Shares in the numbers determined according to such conditions.

To the extent that vesting is not achieved or is partially achieved on the Vesting Date, any unvested Units or portions of Units shall immediately lapse without further notice, entitlement or right of indemnity.

Prior to the Delivery Date, the Participant does not have any legal ownership or any other rights relating to the Shares. The Participant shall not be entitled to any dividend or have any voting rights or any other rights as a shareholder to the Shares until and unless the Shares have been transferred to the Participant.

 

5. CONTINUED SERVICE CONDITION

As a condition to the vesting of the Units, the Participant must remain an active employee of the Constellium Group from the Grant Date through the Vesting Date, without interruption, unless one of the exceptions listed below shall apply. Any interruption in the Participant’s employment with the Constellium Group that does not result from such an exception shall result in the immediate termination of any Units of such Participant that have not previously vested without further notice, entitlement or right of indemnity.

The Continued Service Condition shall not be deemed to be breached if the Participant’s termination of employment within the Constellium Group results from one of the following exceptional events:

 

  (a) Permanent Disability, the Participant retains the right to settlement and the original Vesting Date and conditions will continue to apply;

 

  (b) Death of the Participant, in which case outstanding Units will be settled at the Base Amount as soon as practicable after the date of death, constituting full and final settlement of such Units;

 

  (c) Retirement, the Participant retains the right to settlement and the original Vesting Date and conditions will continue to apply, and the number of Shares to be delivered will be prorated by multiplying (i) the number of Shares the Participant would otherwise have received for the Vesting Period by (ii) a fraction, the numerator of which is the number of full months in the period that begins with the month that contains the Grant Date and ends with (and includes) the month in which the Participant’s employment with the Constellium Group terminates due to the Participant’s Retirement, and the denominator of which is the total number of full months in the period that begins with the month that contains the Grant Date and ends with the month that contains the Vesting Date.

 

5

If the Participant’s last day of employment with the Constellium Group occurs before the last day of the Vesting Period for any reason other than those mentioned above, then, unless the Board determines otherwise in its sole discretion, any Units of such Participant that have not previously vested shall be immediately cancelled without further notice, entitlement or right of indemnity.

 

6. PERFORMANCE CONDITION

The vesting of the PSUs and the delivery of the related Shares shall be subject to the level of achievement of the Performance Condition in respect of the relevant Performance Period, as specified in the Award Letter.

 

7. MEASUREMENT AND CALCULATION OF ACHIEVEMENT

The measurement of the achievement of the Performance Condition shall be made after the end of the relevant Performance Period. The number of Performance Shares to be settled as Shares or the equivalent amount of cash shall be calculated by the Company based on this measurement.

The Company shall carry out the measurement and calculation in its discretion.

The Board may in its discretion decide to amend the targets initially set and/or the composition of the list of companies referred to if it reasonably believes that changes in the business of the Company and/or any of the listed companies have had an adverse effect on their comparability for purposes of measuring the Company’s relative performance. Such changes may include a change in accounting method, a change in scope of consolidation following a merger, sale, acquisition, or the creation of a material new business entity or the discontinuation of an existing material business entity, or any other changes in circumstances that it shall deem material and pertinent.

The calculation of the number of Shares to be settled shall not result in fractional Shares. The number of Shares shall be rounded to the nearest whole Share.

 

8. SETTLEMENT

Following the Vesting Date, the Company will complete the settlement by transferring the applicable number of Shares or, in its discretion, their cash equivalent to the Participant’s brokerage or other bank account, as applicable on the Delivery Date. Completion of settlement is dependent on the Participant’s compliance with the terms and conditions of the Plan, this Award Agreement and the relevant Award Letter and providing all necessary instructions and actions to enable the Company to facilitate the settlement. If the Participant has not performed all necessary actions to enable the Company to complete the settlement, the Company may, in its sole discretion, sell the Shares on behalf of the Participant and remit the proceeds to the Participant.

The Company may, in its sole discretion, use one or more of the following instruments to settle Units: newly issued Shares, treasury Shares held by the Company, Shares purchased from the open market, or, in lieu of Shares, cash (without adjustment for change in tax or social treatment).

 

6

The Participants shall not be entitled to any dividend or have any voting rights or any other shareholder rights until and unless the Shares have been transferred to the Participant.

On each Delivery Date, the Company shall pay to the Participant a cash amount equal to the product of (x) all cash dividends or other distributions (other than cash dividends or other distributions pursuant to which the Units were adjusted pursuant to Section 3(c) of the Plan or Section 13(a) below), if any, paid on a Share from the Grant Date to such Delivery Date and (y) the number of Shares delivered to the Participant on such Delivery Date (including for this purpose any Shares that would have been delivered on such Delivery Date but for being withheld to satisfy tax withholding obligations).

 

9. NO EFFECT ON TERMS OF EMPLOYMENT

The Grant or settlement of Units and/or Shares does not constitute a term or a condition of the Participant’s employment with any company of the Constellium Group under applicable local laws and the rights and obligations arising from a Participant’s employment with the Group are separate from, and are not affected by, the Participant’s participation in the Award Agreement. The Units, the Shares or their cash equivalent under the Award Agreement do not form a part of the Participant’s salary or benefit of any kind.

The Grant or settlement of Units and/or Shares does not create any right for that Participant to be offered participation in the Award Agreement in the future or to be granted any additional Units or Shares on any particular terms or in any particular amounts.

By Participating in the Award Agreement, a Participant waives all rights to compensation for any loss in relation to the Award Agreement, including:

 

  (i) any loss or reduction of any rights or expectations under the Award Agreement in any circumstances or for any reason;

 

  (ii) any exercise of a discretion or a decision taken in relation to any Units or Shares, and/or to the Award Agreement, or any failure to exercise a discretion or take a decision; and

 

  (iii) the operation, suspension, termination or amendment of the Award Agreement.

 

10. TAXES AND OTHER OBLIGATIONS

The Participant is responsible for paying all personal taxes and personal social security charges associated with the Units and the Shares delivered upon settlement. This includes responsibility for any and all personal tax liabilities in multiple countries, if the Participant has resided in more than one country during the Performance Period and/or Vesting Period. Participants are advised to consult their own financial and tax advisers (at their own expense) before accepting the Grant in order to verify their tax position.

Units and Shares before delivery must not be used as security for any liability, be transferred or otherwise disposed of (except in the event of the Participant’s death, to his personal representatives) and will lapse immediately on any attempt to do so.

 

7

Pursuant to applicable laws, the Constellium Group is or may be required or may deem it appropriate to withhold taxes, social security charges or fulfil employment related and other obligations upon Grant, vesting or settlement of Shares, or payment of any cash-equivalent, or when the Shares are disposed of by a Participant. The Constellium Group shall have the right to determine how such collection, withholding or other measures will be arranged or carried out, including but not limited to salary withholding, a settlement of a net amount remaining after the completion of such measures or a sale of the Shares on behalf of a Participant for the completion of such measures.

 

11. BREACH OF THESE TERMS AND CONDITIONS

The Participant shall comply with the terms and conditions set forth in this Award Agreement and in the Award Letter, as well as any administrative instructions given by the Company regarding the Award Agreement from time to time. If the Participant breaches the terms and conditions set forth in this Award Agreement and/or in the Award Letter and/or any administrative instructions given by the Company, the Company may in its discretion, at any time prior to the Delivery Date, rescind the Grant of Units.

 

12. AMENDMENTS

Amendments of this Award Agreement and of any Grant made hereunder shall be governed by Section 12 of the Constellium 2013 Equity Incentive Plan.

 

13. RIGHTS OF PARTICIPANTS IN CORPORATE EVENTS

 

(a) The Board may in its discretion choose to adjust the number of Shares underlying each Unit in accordance with applicable law in the event that it shall deem such adjustment to be necessary and equitable to protect the interests of the Participants following certain corporate transactions affecting the share capital of the Company. These events may include (i) capital reduction, (ii) modification of the means of sharing of profits, (iii) grants of free shares to all existing holders, (iv) a capital increase by incorporation of reserves, profits or issuance premiums, (v) distribution of reserves and (vi) any issuance of capital securities or financial instruments that give right to allocation of capital securities with preferential subscription rights reserved to shareholders. For the avoidance of doubt, the Company’s decision to cancel existing shares held by the Company, to grant stock or stock options to employees or to issue shares to selected investors prior to the settlement of the Units will not give rise to such adjustments.

 

(b) Should the Company, during the Vesting Period, resolve to merge with another existing company or merge with a company to be formed, or should the Company resolve to be demerged, the Board may determine, in its sole discretion, whether the Units may be settled prior to the merger or demerger (i) at the Base Amount or (ii) for the PSUs, if the occurrence is after the end of the Performance Period, the number of Shares actually determined based on the level of achievement of the Performance Condition. Any settlement will be within such period as resolved by the Board. The Board may determine, in its sole discretion, whether the Units should be converted into similar equity rights issued by the other company. In such circumstances, the Board shall determine the terms and the period applicable to the vesting of such new rights.

 

(c)

This Award Agreement and the Grants made hereunder shall not in any way infringe or limit the ability of the Company to register as a European Company ( Societas Europaea ),

 

8

  to register in or transfer to another member state in the European Economic Area or, after registration as a European Company to register a transfer of its domicile into another member state. Such registration or transfer shall not have any impact on the rights and obligations of the Participants under this Award Agreement and in respect of any Grant, except to the extent resulting from a change in applicable law and/or as decided by the Board in its sole discretion.

 

(d) In the event of a Change in Control occurring before the Vesting Date:

 

  (i) the date of such occurrence will become the Vesting Date of any then outstanding Units,

 

  (ii) any RSUs that have not previously lapsed will fully vest at the Base Amount upon such occurrence,

 

  (iii) any PSUs that have not previously lapsed will vest at the higher of (I) the Base Amount and (II) the amount determined on the basis of the actual TSR, measured for such purposes as of the date of occurrence of such Change in Control which, for such purposes, will become the last day of the Performance Period, and

 

  (iv) to the extent permitted by applicable law, the Delivery Date of the Units that have vested in accordance with the foregoing will be accelerated to occur on or as soon as practicable after the occurrence of the Change in Control, provided that (A) for French-resident Participants and for Grants that are subject to Article L. 225-197-1 of the French Commercial Code the Board may choose to defer the Delivery Date until the earliest date permitted under such Article, and/or to impose a mandatory holding period for any duration required under such Article and (B) for Participants who are U.S. taxpayers the originally scheduled Delivery Date will be maintained unless (x) a Change of Control occurs at the 50% threshold originally provided in Section 10(b) of the Plan or (y) the Board determines that the acceleration of the Delivery Date provided for above would be permissible under Section 409A of the Code and would not result in the imposition of any additional tax, penalty or surcharge on Participants under such Section. For the avoidance of doubt, any limitation on the acceleration of delivery resulting from the foregoing clauses (A) or (B) shall have no effect on the acceleration of vesting provided for under clauses (i), (ii) and (iii) above.

 

(e) In the event of a Disaffiliation (as defined in Section 1 of the Plan) of a Subsidiary occurring before the Vesting Date, with respect to the Participants who are employees of the disaffiliated Subsidiary at the time of such occurrence:

 

  (i) the date of such occurrence will become the Vesting Date of any then outstanding Units,

 

  (ii) any RSUs that have not previously lapsed will fully vest at the Base Amount upon such occurrence,

 

  (iii) any PSUs that have not previously lapsed will vest at the higher of (I) the Base Amount and (II) the amount determined on the basis of the actual TSR, measured for such purposes as of the date of occurrence of such Disaffiliation which, for such purposes, will become the last day of the Performance Period, and

 

9

  (iv) to the extent permitted by applicable law, the Delivery Date of the Units that have vested in accordance with the foregoing will be accelerated to occur on or as soon as practicable after the occurrence of the Disaffiliation, provided that for French-resident Participants and for Grants that are subject to Article L. 225-197-1 of the French Commercial Code the Board may choose to defer the Delivery Date until the earliest date permitted under such Article, and/or to impose a mandatory holding period for any duration required under such Article.

 

(f) In any situation described above providing for the delivery of Shares, the Board may in its discretion choose to cause shares from other sources to be delivered or shall cause the Company to pay an equivalent value in cash (without adjustment for change in tax or social treatment). The amount to be paid out would be determined based on the number of Shares to be delivered to Participants concerned, valued on a given date or according to an average of share prices calculated over the course of a period preceding the payment date retained by the Board.

 

14. GOVERNING LAW AND INTERPRETATION

With respect to each Unit granted, this Award Agreement and the relevant Award Agreements are governed by the corporate law applicable to the Company on the Grant Date of such Unit. To the extent that any discretionary action or interpretation of this Award Agreement and any Award Letter is taken or made by the Company or the Board, such action or interpretation shall be taken or made in good faith after consideration of the best interests of the affected Participants.

For Participants who are U.S. taxpayers, it is intended that the Grants meet the requirements of Section 409A of the Internal Revenue Code and shall be interpreted accordingly. The Participants recognize that it may be necessary to modify this Award Agreement to reflect guidance under Section 409A of the Code issued by the Internal Revenue Service. The Participant agrees that the Company shall have sole discretion in determining (i) whether any such modification is desirable or appropriate and (ii) the terms of any such modification.

For Participants who are French taxpayers, it is intended that the Grants meet the requirements of Article L225-197-1 et seq of the French Commercial Code and related tax and social regulations and shall be interpreted accordingly. The Participants recognize that it may be necessary to modify this Award Agreement to reflect guidance under such provision issued by the French tax and social administration. The Participant agrees that the Company shall have sole discretion in determining (i) whether any such modification is desirable or appropriate and (ii) the terms of any such modification.

 

15. PROCESSING OF PERSONAL DATA

Constellium Group has the right to transfer globally within Constellium Group and/or to an agent of Constellium Group any of the personal data required for the administration of the Award Agreement and the settlement of the Performance Shares. The personal data may be administered and processed by Constellium Group or its authorized agent in the future. The

 

10

Participant is entitled to request access to data referring to the Participant’s person, held by Constellium Group or its agent and to request amendment or deletion of such data in accordance with applicable laws, statutes or regulations. In order to exercise these rights, the Participant must contact Constellium.

 

11

Exhibit 10.8

 

LOGO

2017 Long Term Incentive Award Agreement

Award Letter

[DATE]

Dear [Name] ,

I am pleased to inform you that you have received a Grant of Units under the Constellium 2017 Long Term Incentive Award Agreement in the amounts set forth below.

The 2017 Grants

These Units entitle you to receive Constellium Shares, or a cash equivalent at Constellium’s discretion, subject to the terms and conditions set forth in this Award Letter, in the Constellium 2017 Long Term Incentive Award Agreement (the “ Award Agreement ”) and the 2013 Constellium Equity Incentive Plan (the “ Plan ”). Capitalized Terms used in this Award Letter, unless so defined herein, shall have the meanings found in the Award Agreement or Plan.

 

Grant Date    July 31, 2017
Total number of Restricted Stock Units (RSUs) granted    X,XXX
Vesting Date    July 31, 2020
Vesting Period    From the Grant Date through and including the Vesting Date

Please note that the vesting of the RSUs and the delivery of Shares in respect of such RSUs are subject to the satisfaction of the Continued Service Condition described in the Award Agreement.

General Provisions

If you are a French resident for tax purposes on the Grant Date or on the date shares are delivered to you, any Shares delivered to you in respect of this Grant will be subject to an additional two year holding period during which such Shares may not be sold or transferred, except in case of death or Disability or if the holding requirement is waived by the Company. For the avoidance of doubt, this holding period shall continue to apply in case of early delivery upon Change in Control. During this holding period, the Company may require that the Shares be placed into an escrow account organized by the Company to monitor transfers. It is only at the end of such period that the Participant will be able to sell their Shares.

You acknowledge that you have received a copy of, or have online access to, the Award Agreement and the Plan, and hereby accept the Units granted, subject to all the terms and provisions of this Award Letter, the Award Agreement and the Plan. The Award Agreement and the Plan are incorporated herein by reference and all terms used herein that are not defined in this Letter shall have the meaning set forth in the Award Agreement.

You acknowledge that this award and similar awards are made on a selective basis and are, therefore, to be kept confidential. If at any time you forfeit any or all of your Units, you agree that all of your rights and interest in such Units and in Shares issuable thereunder shall terminate upon forfeiture without payment of any indemnity or consideration. The Committee shall determine whether an event has occurred resulting in the forfeiture, in accordance with the Award Agreement and the Plan, of your Units and any Shares issuable thereunder in accordance with this Letter and all determinations of the Committee shall be final and conclusive. Nothing in this Letter, the Award Agreement, or the Plan shall interfere with or limit in any way the right of the Company, its Subsidiaries or an Affiliate to terminate your employment or service at any time, nor confer upon you the right to continue in the employment of the Company and/or Affiliate.

Please note that this Award Letter, the Award Agreement and the Plan will be administered by the Board of Directors of Constellium and its designees. To the extent that any discretionary action or interpretation of this Award Letter, the Award Agreement or the Plan may be taken or made by the Company or the Board or any Committee or other designee of the Board, such action or interpretation shall only be taken or made in good faith in a manner that is consistent with the best interests of the affected Participants. Discretionary actions or interpretations that directly or indirectly limit or delay the vesting, delivery or transferability of Shares awarded shall not be consistent with such best interests.

 

Very truly yours,
Philip R. Jurkovic
SR VP Chief Human Resources Officer
On behalf of Constellium N.V.

Agreed and accepted:

Name :

Date :

 

2

LOGO

2017 Long Term Incentive Award Agreement

Award Letter

[DATE]

Dear [Name] ,

I am pleased to inform you that you have received a Grant of Units under the Constellium 2017 Long Term Incentive Award Agreement in the amounts set forth below.

The 2017 Grants

These Units entitle you to receive Constellium Shares, or a cash equivalent at Constellium’s discretion, subject to the terms and conditions set forth in this Award Letter, in the Constellium 2017 Long Term Incentive Award Agreement (the “ Award Agreement ”) and the 2013 Constellium Equity Incentive Plan (the “ Plan ”). Capitalized Terms used in this Award Letter, unless so defined herein, shall have the meanings found in the Award Agreement or Plan.

 

Grant Date    July 31, 2017
Total number of Units granted    X,XXX

Number of Restricted Stock Units (RSUs) granted

   X,XXX

Number of Performance Share Units (PSUs) granted (Base Amount)

   X,XXX
Indices    S&P 400 Materials Index and S&P 600 Materials Index
Initial price of a Constellium Share on the Grant Date    $7.83 (20-day average)
Vesting Date    July 31, 2020
Vesting Period    From the Grant Date through and including the Vesting Date
Performance Period    From the Grant Date through and including the Vesting Date

Please note that the vesting of the RSUs and the delivery of Shares in respect of such RSUs are subject to the satisfaction of the Continued Service Condition described in the Award Agreement. The vesting of the PSUs and the delivery of Shares in respect of such PSUs are also subject to the satisfaction of the Continued Service Condition, as well as to the level of achievement of the Performance Condition. This level of achievement shall be determined by comparing the Constellium TSR to the average of the median TSRs of the two Indices on the last day of the relevant Performance Period as follows:

 

Level of achievement of the

Performance Condition

 

Number of Shares eligible to be delivered

The Constellium TSR is below the average of the two median TSRs   No PSUs will vest and no Shares will be delivered

The Constellium TSR is at the average of the two

median TSRs

  100% of the PSU Base Amount
The Constellium TSR is at or above the average of the two 75th percentile TSRs   200% of the PSU Base Amount

If the Constellium TSR is between the average of the two median TSRs and the average of the two 75th percentile TSRs, then the number of Shares eligible to be delivered in respect of the PSUs shall be determined by linear interpolation on a straight line basis.

Notwithstanding the foregoing, if the Constellium TSR is negative, the number of Shares eligible to be delivered in respect of the PSUs shall be capped at 100% of the Base Amount.

General Provisions

If you are a French resident for tax purposes on the Grant Date or on the date shares are delivered to you, any Shares delivered to you in respect of this Grant will be subject to an additional two year holding period during which such Shares may not be sold or transferred, except in case of death or Disability or if the holding requirement is waived by the Company. For the avoidance of doubt, this holding period shall continue to apply in case of early delivery upon Change in Control. During this holding period, the Company may require that the Shares be placed into an escrow account organized by the Company to monitor transfers. It is only at the end of such period that the Participant will be able to sell their Shares.

You acknowledge that you have received a copy of, or have online access to, the Award Agreement and the Plan, and hereby accept the Units granted, subject to all the terms and provisions of this Award Letter, the Award Agreement and the Plan. The Award Agreement and the Plan are incorporated herein by reference and all terms used herein that are not defined in this Letter shall have the meaning set forth in the Award Agreement.

You acknowledge that this award and similar awards are made on a selective basis and are, therefore, to be kept confidential. If at any time you forfeit any or all of your Units, you agree that all of your rights and interest in such Units and in Shares issuable thereunder shall

 

2

terminate upon forfeiture without payment of any indemnity or consideration. The Committee shall determine whether an event has occurred resulting in the forfeiture, in accordance with the Award Agreement and the Plan, of your Units and any Shares issuable thereunder in accordance with this Letter and all determinations of the Committee shall be final and conclusive. Nothing in this Letter, the Award Agreement, or the Plan shall interfere with or limit in any way the right of the Company, its Subsidiaries or an Affiliate to terminate your employment or service at any time, nor confer upon you the right to continue in the employment of the Company and/or Affiliate.

Please note that this Award Letter, the Award Agreement and the Plan will be administered by the Board of Directors of Constellium and its designees. To the extent that any discretionary action or interpretation of this Award Letter, the Award Agreement or the Plan may be taken or made by the Company or the Board or any Committee or other designee of the Board, such action or interpretation shall only be taken or made in good faith in a manner that is consistent with the best interests of the affected Participants. Discretionary actions or interpretations that directly or indirectly limit or delay the vesting, delivery or transferability of Shares awarded shall not be consistent with such best interests.

 

Very truly yours,
Philip R. Jurkovic
SR VP Chief Human Resources Officer
On behalf of Constellium N.V.

 

Agreed and accepted:
Name :
Date :

 

3

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form F-3 of our report dated March 9, 2017 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Constellium N.V’s Annual Report on Form 20-F for the year ended December 31, 2016. We also consent to the reference to us under the heading “Experts” in such Registration Statement.

 

/s/ PricewaterhouseCoopers Audit

Neuilly-sur-Seine, France

October 30, 2017