EXECUTION VERSION 743430296 16500839 RECEIVABLES PURCHASE AGREEMENT This RECEIVABLES PURCHASE AGREEMENT (as it may be amended, modified or supplemented from time to time, this “Agreement”) is made as of September 30, 2021 among Constellium Muscle...
EXECUTION VERSION 743430296 16500839 RECEIVABLES PURCHASE AGREEMENT This RECEIVABLES PURCHASE AGREEMENT (as it may be amended, modified or supplemented from time to time, this “Agreement”) is made as of September 30, 2021 among Constellium Muscle Shoals Funding III LLC, a Delaware limited liability company, in its capacity as seller hereunder (“Seller”), Constellium Muscle Shoals LLC, a Delaware limited liability company, in its capacity as servicer hereunder (“Servicer”), Deutsche Bank Trust Company Americas, Deutsche Bank AG New York Branch, and each other subsidiary or affiliate of either such party who may from time to time become a party hereto (collectively, “DB”), in such capacity as a purchaser hereunder (each, a “Purchaser”) and Intesa Sanpaolo S.p.A., New York Branch and each subsidiary or affiliate who may from time to time become a party hereto (collectively, “Intesa”), in its capacity as a purchaser hereunder (each, a “Purchaser” and, together with DB, and each of their permitted successors and assigns, collectively, the “Purchasers”), and in its capacity as purchaser representative hereunder (together with its successors and permitted assigns in such capacity, the “Purchaser Representative”). RECITALS WHEREAS, Seller has purchased certain accounts receivable related to each account debtor listed on Schedule 1 hereto (each an “Account Debtor” and, collectively, the “Account Debtors”) and is the legal and beneficial owner of Receivables (as hereinafter defined) payable by each such Account Debtor; and WHEREAS, Seller desires to sell certain Receivables to each Purchaser, and each Purchaser is willing to purchase from Seller such Receivables, in which case the terms set forth herein shall apply to such purchase and sale. WHEREAS, the Servicer, Constellium Muscle Shoals Funding II, LLC, Intesa, DB and various other parties previously entered into that certain Receivables Purchase Agreement, dated as of March 16, 2016 (as amended through and prior to the date hereof, the “Prior Agreement”). WHEREAS, the Seller hereunder, and certain Purchasers and parties hereto, are not parties to the Prior Agreement, but understand that the Prior Agreement is expiring pursuant to its terms on September 30, 2021. WHEREAS, as a result of the expiration of the Prior Agreement, the Seller, the Servicer, the Parent and certain of their respective subsidiaries and affiliates are seeking to enter into their Agreement, as a new source of funds to monetize certain Eligible Receivables from time to time and finance certain business activities in the ordinary course of business of the Seller, the Servicer, the Parent and certain of their subsidiaries and affiliates. THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. DEFINITIONS. Certain capitalized terms used in this Agreement shall have the meanings given to those terms in Exhibit A attached hereto and thereby incorporated herein. 2. SALE AND PURCHASE. (a) Sale. Commencing on the date hereof and ending on the Purchase Termination Date, Seller may from time to time make an offer to sell to a Purchaser a 100% interest in certain Proposed Receivables by submitting to the Purchasers and the Purchaser
2 743430296 16500839 Representative a request substantially in the form of Exhibit B hereto by 2:00 p.m., (New York City time), at least three Business Days prior to any purchase hereunder (a “Purchase Request”), and each Purchaser agrees, subject to the requirements for purchase and all of the terms and conditions therefor set forth herein (including the conditions precedent set forth in Section 2(c)), to purchase from Seller the related Proposed Receivables identified in such Purchase Request. The Seller shall have the right to select which Purchaser to offer certain specific Proposed Receivables on any applicable Purchase Date; provided, however, that (i) that the applicable Purchase Request which has been delivered to all Purchasers shall identify which specific Proposed Receivables are being offered to each Purchaser, respectively, on such date, (ii) when determining which Proposed Receivables to offer to a Purchaser, the Seller shall not use selection procedures which could be reasonably expected to materially and adversely affect any Purchaser when compared to the Proposed Receivables offered to any other Purchaser and (iii) the Seller shall offer individual Proposed Receivables to each Purchaser on a substantially ratable basis (based on the Commitments of each such Purchaser, respectively). Notwithstanding anything herein to the contrary, and for the avoidance of doubt, any Proposed Receivable offered to a Purchaser shall be 100% of such Proposed Receivable and the Purchasers will not be sharing ratable portions of any individual Purchased Receivables. Subject to the satisfaction of the conditions precedent set forth in Section 2(c) hereof, with respect to any Proposed Receivable on any Purchase Date, the applicable Purchaser to whom such Proposed Receivable is being offered on such date shall and hereby does purchase from Seller, and Seller shall and hereby does sell to such Purchaser, without representation, warranty, covenant or recourse except as expressly provided herein, all of Seller’s right, title and interest in such Proposed Receivable and all Related Rights with respect thereto as of the applicable Purchase Date (all such Proposed Receivables together with such Related Rights, once sold to and purchased by a Purchaser hereunder, being referred to, collectively, as the “Purchased Receivables”). The Seller shall not request and no Purchaser shall be required to fund more than two (2) purchases per week, to take place on the Monday and Thursday of each week (or, if any such day is not a Business Day, on the immediately following Business Day). No single request for purchase hereunder shall be for an amount less than $250,000. Each Purchaser’s obligation hereunder shall be several, such that the failure of any Purchaser to make a payment in connection with any Proposed Receivables offered to it on any Purchase Date hereunder shall not relieve any other Purchaser of its obligation hereunder to make payment in connection with any other Proposed Receivables offer to such other Purchaser on such date; it being understood that no Purchaser shall be responsible for the obligations of any other Purchaser. If a Purchaser fails its obligation to purchase any Proposed Receivable offered to it hereunder on any Purchase Date, the Seller may offer such Proposed Receivables to the other Purchaser, and if so offered, such other Purchaser shall be obligated to fund such Proposed Receivables, subject to all conditions to funding in paragraph (c) below and otherwise herein being satisfied at such time; it being understood that no Purchaser shall be obligated or committed to fund any purchases hereunder if, after giving effect thereto, the sum of (x) the Outstanding Aggregate Purchase Amount funded by such Purchaser hereunder, plus (y) the Prior Agreement Outstanding Aggregate Purchase Amount funded by such Purchaser under the Prior Agreement and which remain outstanding shall exceed its Commitment hereunder at such time. (b) Term. This Agreement shall continue in effect until the Purchase Termination Date provided that either Purchaser shall have the right to terminate this Agreement solely with respect to such Purchaser at any time (i) upon ten (10) days’ prior written notice to Seller and the Purchaser
4 743430296 16500839 supporting documentation that the applicable Purchaser may have reasonably requested; (vii) The applicable Purchaser is not legally prohibited from purchasing the Proposed Receivables listed on the relevant Purchase Request; (viii) The representations and warranties contained in this Agreement and the Purchase Request shall be true and correct (subject to any applicable materiality qualification to the extent expressly set forth in any particular representation or warranty) on and as of such Purchase Date; (ix) Seller, Servicer and Parent shall be in compliance (subject to any applicable materiality qualification to the extent expressly set forth in any particular covenant or other provision) with each term, covenant and other provision of this Agreement and the Parent Guarantee applicable to Seller, Servicer or Parent, as applicable; (x) No Event of Repurchase shall then exist hereunder or under (and as defined in) the Prior Agreement, unless Seller has repurchased and paid (or is paying on such proposed Purchase Date and the applicable Purchaser who purchased the related Purchased Receivable is satisfied that Seller will be paying on such proposed Purchased Date in cash), the full amount of the Repurchase Price (or the amount subject to Dispute or Dilution, to the extent provided pursuant to Section 7 hereof) for the affected Purchased Receivables pursuant to the terms of Section 7 hereof; (xi) Following the sale and purchase of the Proposed Receivables set forth in the related Purchase Request, (A) the sum of (x) the Outstanding Aggregate Purchase Amount, plus (y) the Prior Agreement Outstanding Aggregate Purchase Amount which remain outstanding under the Prior Agreement, with respect to the applicable Purchaser, shall not exceed such Purchaser’s Commitment hereunder, and (B) the sum of (x) the Outstanding Aggregate Purchase Amount for all Purchased Receivables for all Purchasers hereunder and under the Prior Agreement, collectively, plus (y) the Prior Agreement Aggregate Outstanding Purchase Amounts for all Purchasers under the Prior Agreement shall not exceed the Facility Amount hereunder; (xii) (A) No Account Debtor Insolvency Event shall have occurred and be continuing with respect to any Account Debtor obligated on the Proposed Receivables described in such Purchase Request, and no Insolvency Event with respect to Seller, Servicer or Parent shall have occurred and be continuing; and (B) neither Xxxxx’x nor Standard & Poor’s shall have rated or downgraded Anheuser-Xxxxx InBev SA/NV from its current rating to a rating below Baa3 (in the case or Xxxxx’x) or below BBB- (in the case of Standard & Poor’s); (xiii) Each Purchaser shall have received payment of all Commitment Fees due and payable to such Purchaser under Section 2(e) and all other amounts due to such Purchaser under this Agreement and the Prior Agreement by any party at such time have been paid;
5 743430296 16500839 (xiv) The Collection Account shall be open under the Collection Account Agreement and not subject to a notice of termination by the account bank under the Collection Account Agreement, or a replacement collection account under a replacement collection account agreement reasonably acceptable to each Purchaser shall be in effect (or scheduled to be in effect upon the termination of the Collection Account); and (xv) On the initial Purchase Date, the Purchasers shall have received each of the following documents, each dated such date and in form and substance satisfactory to each such Purchaser: (A) Executed counterparts of this Agreement and each of the other Transaction Documents by the parties thereof; (B) Each Purchaser shall have received evidence satisfactory to it that Seller shall have established the Collection Account and the Purchaser Representative shall have control over such account for the benefit of the Purchasers as herein provided and pursuant to the Collection Account Agreement; (C) A certificate of each of the Secretary or Assistant Secretary of Seller, Servicer and the Parent certifying the names and true signatures of the incumbent officers authorized on behalf of such Person to execute and deliver this Agreement, each Purchase Request, the other Transaction Documents and any other documents to be executed or delivered by it hereunder, together with its Organizational Documents and board resolutions, evidencing necessary organizational action and governmental approvals, if any, necessary for Seller, Servicer and Parent to execute, deliver and perform its obligations under this Agreement and the other Transaction Documents. (D) UCC and tax judgment lien searches or equivalent reports or searches, listing all effective financing statements, lien notices or comparable documents that name Seller or Originator as debtor and that are filed in those state and county jurisdictions in which Seller or Originator is organized or maintains its principal place of business or chief executive office and such other searches that the Purchasers deem reasonably necessary or appropriate. (E) Acknowledgment copies of proper termination statements (Form UCC-3) and any other relevant filings necessary to evidence the release of all security interests, ownership and other rights of any Person previously granted by Seller in the Proposed Receivables. (F) Copies of proper Uniform Commercial Code financing statements (or appropriate amendments thereto) identifying Seller as “seller” and each Purchaser as “buyer”, together with evidence that they have been duly filed on or before the initial Purchase Date hereunder in the correct filing office under the Uniform Commercial Code of the jurisdiction in which seller is located for purposes of the UCC. For the avoidance of doubt, each Purchaser will be listed as a “buyer” in separate Uniform Commercial Code financing statements. (G) A good standing certificate for each of Seller, Servicer and Parent from its respective jurisdiction of organization. (H) A fully completed Seller Information Schedule in the form attached as Schedule 2, containing certain factual information regarding Seller to the extent that such information was not previously delivered to the Purchasers.
6 743430296 16500839 (I) A duly executed Parent Guarantee, together with a secretary’s certificate of Parent and such other documentation relating to Parent as the Purchasers may request. (J) A favorable legal opinion of counsel to each of Seller, Servicer and Parent covering enforceability, general corporate matters, no conflicts and UCC matters, in form and substance satisfactory to the Purchasers and addressed to the Purchasers; (K) A favorable “true sale” opinion of counsel to Seller in form and substance satisfactory to the Purchasers and addressed to the Purchasers; (L) A schedule of Receivables purchased by the Purchasers from the Seller on each Purchase Date, as such schedule may be amended, modified, updated or supplemented from time to time as Receivables are purchased by any Purchaser hereunder; (M) Originator and Seller shall have executed and delivered to each Purchaser two (2) original Notifications of Assignment in the form of Exhibit E hereto to be used in accordance with Section 6(d); and (N) All documents and other evidence that each Purchaser requires for its know-your-customer and other compliance checks on Seller, Servicer, Parent and each Account Debtor. (d) Purchase Price. The purchase price for any Purchased Receivable purchased on any Purchase Date (the “Purchase Price”) shall be determined on and as of the applicable Purchase Date (without any subsequent adjustment whether for late payment, credit rating deterioration or otherwise), shall be paid to Seller on the Purchase Date and shall be equal to: Purchase Price = A - (A x (B x ((C)/360)), where: A = Net Invoice Amount B = Discount Rate C = number of days between the Purchase Date and the Scheduled Payment Date (including the Purchase Date, but not including the Scheduled Payment Date On each Purchase Date, the Purchase Price for Purchased Receivables purchased by any Purchaser shall be paid by such Purchaser to such account designated by the Seller (or the Servicer on its behalf) in immediately available funds. (e) Commitment Fee and Purchaser Account Information. The Seller shall pay to each Purchaser, a commitment fee (the “Commitment Fee”) on the last business day of each calendar quarter (commencing with the calendar quarter ending on December 31, 2021) and on the Purchase Termination Date, to each Purchaser, respectively, an amount calculated in arrears on a daily basis at a rate of 0.56% per annum (calculated on a 360-day basis), on the difference between such Purchaser’s Commitment and such Purchaser’s Outstanding Aggregate Purchase Amount on each such day during such period. The Commitment Fee, and all other payments to be made to the Purchasers pursuant to the terms of this Agreement and the other Transaction Documents, shall be made to the following account maintained in (x) in the case of Intesa, in the name of Intesa Sanpaolo S.p.A., New York Branch , at Intesa Sanpaolo S.p.A., New York Branch, with account number 35150840049, ABA # 000000000, SWIFT code XXXXXX00XXX, and (y) in the case of DB, in the name of Deutsche Bank Trust Company
8 743430296 16500839 (i) With respect to each transfer of Receivables hereunder, as of the date of the applicable Purchase Request and the related Purchase Date for such Proposed Receivable, the information contained in the applicable Purchase Request in respect of such Proposed Receivable on the applicable Purchase Date is a true and correct list of the Account Debtor’s name, the purchase order numbers, the invoice numbers, the Net Invoice Amount due in respect thereof and the Invoice Due Date, in each case, for each applicable Proposed Receivable that is the subject of such Purchase Request. With respect to the Proposed Receivables listed on the related Purchase Request to be transferred on the applicable Purchase Date to any Purchaser, as of the date of the applicable Purchase Request and the related Purchase Date for such Proposed Receivable, (A) all information contained in each Purchase Request is accurate in all respect, (B) each invoice related to such Proposed Receivable is accurate in all respects as of its date and the Purchase Date, as applicable, (C) the applicable Purchaser to whom such Proposed Receivables have been offered, has received true and correct copies of all the relevant documentation relating to each of the Proposed Receivables requested by such Purchaser, (D) none of the Proposed Receivables are currently evidenced by “chattel paper” or “instruments” (as each such term is defined in Article 9 of the UCC), (E) each of the Proposed Receivables is in full force and effect and is the valid and binding obligation of the applicable Account Debtor, enforceable in accordance with its terms, and constitutes the applicable Account Debtor’s legal, valid and binding obligation to pay to Seller the amount of the Purchased Receivables, subject to, bankruptcy, insolvency, reorganization, arrangement, moratorium and other laws of general applicability relating to or affecting creditors’ rights, (F) neither Originator nor any Account Debtor is in default in the performance of any of the provisions of the documentation applicable to its transactions included within any Proposed Receivables, including any of the Contracts relating to such Proposed Receivables, (G) each Proposed Receivable and the Contract and sale terms related thereto are not subject to any Dispute, whether arising out of the transactions contemplated by this Agreement or independently thereof and (H) Originator has delivered to the Account Debtor all property or performed all services required to be so delivered or performed by the terms of the documentation giving rise to the Proposed Receivables. The payments due with respect to each Proposed Receivable are not contingent upon Seller’s or Originator’s fulfillment of any further obligation. (ii) With respect to the Proposed Receivables listed on a Purchase Request, as of the date of the applicable Purchase Request and the related Purchase Date for such Proposed Receivables, each Proposed Receivable listed in such Purchase Request is an Eligible Receivable and a bona fide payment obligation of the applicable Account Debtor identified in the applicable invoice and due on the Invoice Due Date for such Proposed Receivable. (iii) Each Proposed Receivable (A) arises under a Contract between Originator and the applicable Account Debtor, (B) does not require the applicable Account Debtor or any other Person to consent to the transfer, sale or assignment of Seller’s rights to payment under such agreement and (C) does not contain a confidentiality provision that purports to restrict the ability of the applicable Purchaser who purchases such Proposed Receivables to exercise its rights under this Agreement.
15 743430296 16500839 (iii) [reserved]; (iv) To the extent, if any, that Seller (or any Affiliate thereof) shares items of expenses not reflected in the servicing fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered; it being understood that Servicer shall pay all expenses relating to the preparation, negotiation, execution and delivery of this Agreement, including legal, agency and other fees; (v) All of Seller’s business correspondence and other communications shall be conducted in Seller’s own name and on its own separate stationery; (vi) Seller’s books and records will be maintained separately from those of Servicer and any other Affiliate thereof; (vii) All financial statements of the Ultimate Parent, Servicer or any Affiliate thereof that are consolidated to include Seller will, in accordance with GAAP, contain detailed notes clearly stating that: (i) a special purpose company exists as a subsidiary of Servicer, and (ii) Constellium Muscle Shoals LLC has sold receivables and other related assets to such special purpose subsidiary that, in turn, has sold such receivables to certain financial institutions and other entities; and (viii) Seller will strictly observe corporate formalities in its dealings with Servicer or any Affiliate thereof, and funds or other assets of Seller will not be commingled with those of the Originator, Servicer or any Affiliate thereof except as permitted by the Agreement or one of the other Transaction Documents in connection with servicing the Purchased Receivables. Seller shall not maintain joint bank accounts or other depository accounts to which Servicer or any Affiliate thereof (other than Servicer in its capacity as Servicer) has independent access. Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of Servicer or Affiliate thereof. (r) Change in Credit and Collection Policy. Except for changes mandated by Applicable Law applicable to the Seller or the Servicer, as applicable, neither the Seller nor the Servicer, as applicable, shall make (or permit the Originator to make) without the prior written consent of each Purchaser (as provided in the following sentence), any change (by amendment or otherwise) to the Credit and Collection Policy that would materially adversely affect the collectability of the Purchased Receivables or the ability of the Servicer to perform its obligations under any related Contract that would in turn materially adversely affect the collectability of the Purchased Receivables (in each case, taken as a whole). If consent of the Purchasers is required pursuant to the immediately preceding sentence, then the Servicer will furnish or cause to be furnished to each Purchaser at least ten (10) days prior to the effectiveness of any material change in (or material amendment to) the Credit and Collection Policy, a notice indicating such change or amendment and a request for consent thereto.
23 743430296 16500839 of or resulting from any of the following: (i) the sale to such Purchaser of any Receivable as to which the representations and warranties made herein are not all true and correct on the Purchase Date therefor; (ii) any representation or warranty made by Seller (or any of its respective officers) under or in connection with this Agreement (except with respect to the Purchased Receivables) which shall have been incorrect in any respect when made; (iii) the failure by Seller or Servicer to comply with any applicable law, rule or regulation with respect to any Purchased Receivable; (iv) the failure to vest in each Purchaser a perfected interest in each Purchased Receivable and other Sold Assets and the proceeds and Collections in respect thereof sold or assigned to such Purchaser hereunder, free and clear of any liens or encumbrances of any kind or nature whatsoever (other than those granted to the Purchasers under this Agreement); (v) any Dispute or any other claim related to such Purchased Receivable (or any portion thereof) excluding any Dispute or claim that (A) relates to the acts or omissions of such Purchaser which are (x) in material violation of applicable law relating to such action or omission or (y) in material breach of its obligations hereunder, (B) does not relate to the acts or omissions of the Seller, the Servicer or any of their Affiliates, (C) does not relate to the transfer of such Purchased Receivable from the Seller to such Purchaser and (D) does not relate to the goods or services that are the subject of such Purchased Receivables; (vi) except as otherwise expressly provided in this Agreement or in any of the other Transaction Documents, the commingling by Seller of Collections at any time with other funds of Seller or any other Person; (vii) any products liability claim, personal injury or property damage suit, environmental liability claim or any other claim or action by a party of whatever sort, whether in tort, contract or any other legal theory, arising out of or in connection with the goods or services that are the subject of any Purchased Receivable with respect thereto; (viii) this Agreement and the transactions contemplated hereby and the purchases of the Purchased Receivables by such Purchaser pursuant to the terms hereof, excluding any Dispute or claim that (A) relates to the acts or omissions of such Purchaser which are (x) in material violation of applicable law relating to such action or omission or (y) in material breach of its obligations hereunder, (B) does not relate to the acts or omissions of the Seller, the Servicer or any of their Affiliates, (C) does not relate to the transfer of such Purchased Receivable from the Seller to such Purchaser and (D) does not relate to the goods or services that are the subject of such Purchased Receivables; (ix) any currency restrictions or foreign political restrictions or regulations; (x) any failure by any Person who is not a party to the Intercreditor Agreement and to whom Seller, Originator or Servicer directs or furnishes payment to pay over to such Purchaser reasonably promptly Collections on account of Purchased Receivables received by it; or (xi) the failure of Seller to perform any of its obligations under this Agreement or any of the other Transaction Documents. The foregoing indemnification shall not apply in the case any claims, losses or liabilities to the extent resulting solely from (1) the gross negligence or willful misconduct of the Indemnified Party making a claim hereunder as determined in a final non-appealable judgment by a court of competent jurisdiction, (2) lack of credit worthiness of the related Account Debtor or an Account Debtor Insolvency Event or (3) acts or omissions of such Purchaser (A) which are (x) in material violation of applicable law relating to such action or omission or (y) in material breach of its obligations hereunder, (B) which do not relate to the acts or omissions of the Seller, the Servicer or any of their Affiliates, (C) which do
27 743430296 16500839 9. COSTS AND EXPENSES; DELINQUENT RATE. (a) Seller shall reimburse the Purchaser Representative and each Purchaser for all reasonable costs (including reasonable attorneys’ fees and expenses) that each Purchaser and the Purchaser Representative incurs in connection with the preparation and negotiation of this Agreement, any amendments hereto and the administration, preservation of rights and enforcement hereof. In no event shall such obligation of Seller to reimburse the Purchasers or the Purchaser Representative include costs incurred by any Purchaser or the Purchaser Representative in collecting or otherwise enforcing its rights as against the Account Debtors under the Receivables, including, but not limited to, as a result of an Account Debtor Insolvency Event, unless Seller or Servicer is in breach or default of the performance of its obligations hereunder or under the terms of such Receivable. (b) Any fees, expenses, indemnity, Repurchase Price or other amounts payable by Seller to the Purchasers in connection with this Agreement shall bear interest each day from the date due until paid in full at the Delinquent Rate, whether before or after judgment. Such interest shall be payable on demand. Fees are deemed payable on the date or dates set forth herein; expenses, indemnity or other amounts payable by Seller to the Purchasers are due ten (10) days after receipt by Seller of written demand thereof. 10. GENERAL PAYMENTS. All amounts payable by Seller to the Purchasers under this Agreement shall be paid in full, free and clear of all deductions, set-off or withholdings whatsoever except only as may be required by law, and shall be paid on the date such amount is due by not later than 3:00 pm (New York City time) to the account of the applicable Purchaser notified to Seller from time to time. For the avoidance of doubt, Seller shall not be responsible for any deductions, set-off or withholdings made by the Account Debtors or required by law, except to the extent provided for in Section 7 above. If any deduction or withholding is required by law other than as Excluded Taxes, Seller shall pay to the applicable Purchaser such additional amount as necessary to ensure that the net amount actually received by such Purchaser equals to the full amount such Purchaser should have received had no such deduction or withholding been required. All payments to be made hereunder or in respect of a Purchased Receivable shall be in USD. Any amounts that would fall due for payment on a day other than a Business Day shall be payable on the succeeding Business Day. All interest amounts calculated on a per annum basis hereunder are calculated on the basis of a year of three hundred sixty (360) days. 11. LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY PURCHASER SHALL BE LIABLE TO SELLER FOR ANY SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT (INCLUDING LOST PROFITS OR LOSS OF BUSINESS). 12. NOTICES. Unless otherwise provided herein, any notice, request or other communication which any Purchaser, the Purchaser Representative, Seller or Servicer may be required or may desire to give to the other party under any provision of this Agreement shall be in writing and sent by email, hand delivery or first class mail, certified or registered and postage prepaid, and shall be deemed to have been given or made when transmitted with receipt confirmed in the case of email, when received if sent by hand delivery or five (5) days after deposit in the mail if mailed, and in each case addressed to the applicable Purchaser, Seller or Servicer as set forth below. Any party hereto may change the address to which all notices, requests and other communications are to be sent to it by giving written notice of such address change to the other parties in conformity with this paragraph, but such change shall not be effective until notice of such change has been received by the other parties. If to Seller: Constellium Muscle Shoals Funding III, LLC 0000 Xxxxxx Xxxxxx
28 743430296 16500839 Xxxxxx Xxxxxx, XX 00000 Attn: Xxxx Xxxxxx or Treasury Department Fax: 000.000.0000 Email: xxxx.xxxxxx@xxxxxxxxxxx.xxx with a copy to: Constellium Switzerland AG Max Xxxxxx-Xxxxxxx 0 0000 Xxxxxx, Xxxxxxxxxxx Attention: Xxxx Xxxxxxxx, Group Treasurer Office phone : x00 00 000 0000 Email : xxxx.xxxxxxxx@xxxxxxxxxxx.xxx If to Servicer: Constellium Muscle Shoals LLC 0000 Xxxxxx Xxxxxx Xxxxxx Xxxxxx, XX 00000 Attn: Xxxx Xxxxxx or Treasury Department Fax: 000.000.0000 Email: xxxx.xxxxxx@xxxxxxxxxxx.xxx with a copy to: Constellium Switzerland AG Max Xxxxxx-Xxxxxxx 0 0000 Xxxxxx, Xxxxxxxxxxx Attention: Xxxx Xxxxxxxx, Group Treasurer Office phone : x00 00 000 0000 Email : xxxx.xxxxxxxx@xxxxxxxxxxx.xxx If to Intesa, as a Purchaser and/or Purchaser Representative: Intesa Sanpaolo S.p.A., New York Branch Xxx Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxx Xx Xxxxx Email: xxxxx.xxxxxxx@xxxxxxxxxxxxxx.xxx with a copy to: Intesa Sanpaolo S.p.A., New York Branch Xxx Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: Legal Department Email: XXXxxxx@xxxxxxxxxxxxxx.xxx If to DB, as a Purchaser: Deutsche Bank Trust Company Americas 00 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Email: xxxxxxxx.xxxxxxxx@xx.xxx and xxxxxxx.xxxxxxxxxxx@xx.xxx Attention: Xxxxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxxxxx, Trade Finance Flow, North America
30 743430296 16500839 or willful misconduct by it, be under any liability to any Purchaser with respect to anything which it may do or refrain from doing which the Purchaser Representative determines is necessary or desirable. (d) The permissive right of the Purchaser Representative to take any action provided under this Agreement or any Transaction Document shall not be construed as a duty. The Purchaser Representative may conclusively rely and shall be fully protected in acting or refraining from acting upon any notice, requisition, request, consent, certificate, order, opinion, affidavit, letter, telegram or other paper or document reasonably believed by it to be genuine and correct and to have been signed or sent by or on behalf of a Purchaser. (e) No provision of this Agreement shall require the Purchaser to expend or risk its own funds or otherwise incur any financial liability in respect of this Agreement or any Transaction Document, or any agreements related thereto, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it by the Purchasers. In addition, the Purchaser Representative shall not be obligated to take any action at the direction or request of any Purchaser if the Purchaser Representative reasonably believes that such action would be illegal or in conflict or breach of any provision of law (including all applicable consumer protection laws) or contract to which the Purchaser Representative is a party or to which it may be bound, or would otherwise expose the Purchaser Representative to material risk, loss or liability. (f) The Purchaser Representative shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, opinion, report, notice, request, consent, entitlement, order, approval or other paper or document relating to any Transaction Document, whether or not provided to a Purchaser by the Seller, the Servicer or any other party. (g) Except as otherwise specifically provided herein, in no event shall the Purchaser Representative or any agent of the Purchaser Representative be obligated or responsible for preparing, executing, filing or delivering in respect of this Agreement, any Transaction Document or on behalf of any other party, either (i) any report or filing required or permitted by the Securities and Exchange Commission, (ii) any filing, amendment or continuation statement necessary or desirable under the UCC with respect to Sold Assets purchased by applicable Purchaser or (iii) any certification in respect of any such report or filing. (h) Each Purchaser acknowledges that it has received copies of all documents relating to the Agreement, all related Transaction Documents and any related Purchased Receivables or Proposed Receivables that such Purchaser has requested with respect thereto. (i) Each Purchaser acknowledges that it is a sophisticated financial institution and has, independently and without reliance on the Purchaser Representative and based on such documents and information as such Purchaser has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and will continue to make its own credit analysis and decision to purchase any applicable Sold Assets hereunder. Each Purchaser acknowledges, confirms and agrees that it has engaged and consulted with all legal, tax, accounting, regulatory and other professionals and advisors as it has deemed necessary and appropriate to enter into the transactions contemplated hereby and has not and shall not, be deemed to have relied on the Purchaser Representative for any such advice or decisions. (j) Each Purchaser will pay and reimburse the Purchaser Representative on demand for any and all reasonable costs and expenses (including without limitation, reasonable legal fees and expenses) incurred by the Purchaser Representative in connection with the protection or enforcement the Participant’s rights under or in connection with this Agreement or any other Transaction Document with respect, or relating in any way, to the applicable Sold Assets purchased by such Purchaser hereunder,
31 743430296 16500839 unless the Purchaser Representative’s actions were not taken in accordance with the provisions of this Agreement. (k) The Purchaser Representative shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with a request of the Purchasers, and such request and any action taken or failure to act pursuant thereto shall be binding upon each Purchaser. (l) Each of the Purchasers and the Purchaser Representative and their affiliates may extend credit to, accept deposits from and generally engage in any kind of banking, trust, debt, entity or other business with the Seller, Originator, Servicer or any of their affiliates. With respect to the acquisition of the Sold Assets pursuant to this Agreement, the Purchaser Representative shall have the same rights and powers under this Agreement as any Purchaser and may exercise the same as though it were not such a representative for the Purchasers, and the terms “Purchaser” and “Purchasers” shall include, to the extent applicable, the Purchaser Representative in its individual capacity. (m) The Purchaser Representative hereby agrees that it shall not amend the Collateral Account Agreement without the prior written consent of each Purchaser. 15. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL; ETC. (a) This Agreement 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. (b) Each of the parties hereto irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States sitting in the Borough of Manhattan, New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment. Each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court. A final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any New York State or federal court located in the Borough of Manhattan. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of inconvenient forum to the maintenance of such action or proceeding in any such court. (c) EACH PARTY HERETO IRREVOCABLY WAIVES ANY RIGHT THAT SUCH PERSON MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. 16. GENERAL PROVISIONS. (a) This Agreement represents the final agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements with respect to such subject matter. No provision of this Agreement may be amended or waived except by a writing signed by each Purchaser, the Purchaser Representative, the Servicer and the Seller.
32 743430296 16500839 (b) This Agreement shall bind and inure to the benefit of the respective successors and permitted assigns of each of the parties; provided, however, that neither Seller nor Servicer may assign any of its rights hereunder without each Purchaser’s prior written consent, given or withheld in each such Purchaser’s sole discretion. Each Purchaser shall have the right without the consent of Seller or Servicer but, other than in the case of any subsidiaries or affiliates of such Purchaser for which no such consent shall be required, with the prior written consent of the other Purchaser (not to be unreasonably withheld or delayed), to sell, transfer, negotiate or grant participations in all or any part of, or any interest in, such Purchaser’s obligations, rights and benefits hereunder and in any of the Sold Assets purchased by such Purchaser hereunder (any such sale, transfer or assignment, a “Conveyance”); provided, however, that prior to the occurrence and continuation of any Termination Event (it being understood that following the occurrence and continuation of any Termination Event, no such restriction, limitation or Seller consent shall apply), no Purchaser shall have the right to effect a Conveyance to any Constellium Muscle Shoals Competitor, without the prior written consent of the Seller. In addition to the foregoing, prior to the occurrence and continuation of any Termination Event (following which no such notice shall be required), upon the occurrence of any Conveyance permitted by a Purchaser hereunder, such Purchaser shall provide the Seller with written notice thereof. (c) Each provision of this Agreement shall be severable from every other provision hereof for the purpose of determining the legal enforceability of any specific provision. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same agreement. (d) Seller acknowledges that from time to time financial advisory, investment banking and other services may be offered or provided to Seller or one or more of its affiliates (in connection with this Agreement or otherwise) by a Purchaser or its subsidiaries. Seller hereby authorizes each Purchaser to share any information delivered to such Purchaser by Seller and its subsidiaries pursuant to this Agreement or any of the other Transaction Documents, or in connection with the decision of such Purchaser to enter into this Agreement to any actual or prospective participant or assignee under this Agreement that agrees to keep it confidential to the same extent as set forth in this paragraph (d). Such authorization shall survive the termination of this Agreement or any provision hereof. Without limiting the foregoing, and subject to the provisions of paragraph (e) below, each party agrees to maintain the confidentiality of any Confidential Information (as defined below) of the other party and shall not disclose such Confidential Information to any third party except as set forth in the Agreement. “Confidential Information” shall mean the terms of this Agreement and all information of a party provided to the other party hereunder. “Confidential Information” shall not include any information that (i) is part of the public domain without any breach of this Agreement by the receiving party; (ii) is or becomes generally known to the general public or organizations engaged in the same or similar businesses as the receiving party on a non-confidential basis, through no wrongful act of such party; (iii) is known by the receiving party prior to disclosure to it hereunder without any obligation to keep it confidential; (iv) is disclosed to it by a third party which, to the best of the receiving party's knowledge, is not required to maintain the information as proprietary or confidential; (v) is independently developed by the receiving party without reference to Confidential Information of the other party; or (vi) is the subject of a written agreement whereby the other party consents to the disclosure of such Confidential Information on a non-confidential basis. A party may disclose Confidential Information, without the consent of the other party, if such party is requested or becomes legally compelled (by applicable law, rule, regulation, oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process and including, without limitation, to the extent required to be disclosed to any regulatory body having jurisdiction over such party or its affiliates pursuant to the Securities Exchange Act of 1934, as amended, or otherwise) to disclose any of the Confidential Information. Except as otherwise provided in paragraph (e) below, each party may disclose any
34 743430296 16500839 rate of interest for similar transactions or interest or discount rate calculations in the United States at such time and shall include (i) the spread or method for determining a spread or other adjustment or modification that is generally accepted as the then prevailing market convention for determining such spread, method, adjustment or modification and (ii) other adjustments to such alternate rate and this Agreement (A) to not increase or decrease pricing in effect for any related Purchase Price calculation on the Business Day immediately preceding the Business Day on which such alternate rate is selected pursuant to this provision (but for the avoidance of doubt which would not reduce the applicable Discount Rate) and (B) other changes necessary to reflect the available interest periods for such alternate rate for similar transactions of this type in the United States at such time (any such rate, the “Successor Benchmark Rate”), and the Purchasers and the Sellers shall, if necessary or reasonably requested by any applicable Purchaser, enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable and, notwithstanding anything to the contrary in Section 16 hereof, such amendment shall become effective without any further action or consent of any other party to this Agreement; provided, further that if a Successor Benchmark Rate has not been established pursuant to the immediately preceding proviso after the applicable Purchaser has reached such a determination that LIBOR is not or no longer ascertainable, the applicable Purchaser may select a different alternate rate as long as it is reasonably practicable for the applicable Purchaser to administer such different rate and, upon not less than 15 Business Days’ prior written notice to the Purchaser Representative, the Purchasers and the Sellers shall enter into an amendment to this Agreement, if necessary or reasonably requested by any applicable Purchaser to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable and, notwithstanding anything to the contrary in Section 16 hereof, such amendment shall become effective without any further action or consent of any other party to this Agreement. For the avoidance of doubt, if a Benchmark Discontinuation Event occurs, the applicable Discount Rate for any previously purchased Receivables hereunder shall remain the rate used in the calculation of Purchase Price for such Proposed Receivable when originally calculated pursuant to Section 2(d), above. Notwithstanding anything to the contrary contained herein, if at any time the replacement index is less than zero, at such times, such index shall be deemed to be zero for purposes of this Agreement. [Remainder of page intentionally blank]
S-1 Receivables Purchase Agreement (Constellium Muscle Shoals III) 743430296 16500839 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. Constellium Muscle Shoals Funding III, LLC, as Seller By:______________________________________ Name:____________________________________ Title:_____________________________________ Constellium Muscle Shoals LLC, as initial Servicer and as Originator By:_______________________________________ Name:_____________________________________ Title:______________________________________ Xxxx X. Xxxxx Vice President and Secretary Xxxx X. Xxxxx Vice President and Secretary
S-2 Receivables Purchase Agreement (Constellium Muscle Shoals III) 743430296 16500839 Intesa Sanpaolo S.p.A., New York Branch, as a Purchaser and as Purchaser Representative By:______________________________________ Name:____________________________________ Title:_____________________________________ Intesa Commitment: $200,000,000.00 Xxxxx Xxxxxxxx Xxxxx Xx Xxxxx Head of Financial Institutions - SEF & TEF Vice President
Schedule 1-1 743430296 00000000 Schedule 1 Account Debtors 1. Anheuser-Xxxxx LLC (but only so long as Anheuser-Xxxxx LLC remains a direct or indirect wholly-owned subsidiary of Anheuser-Xxxxx InBev SA/NV)
Schedule 2-1 743430296 16500839 Schedule 2 Seller Information Schedule Actual Name, as reflected in the attached organizational documents (i.e., certified copy of the Certificate of Incorporation, Articles of Formation or Certificate of Limited Partnership): Constellium Muscle Shoals Funding III, LLC Trade Name(s) (if any): n/a Type and Jurisdiction of Organization (e.g. Delaware corporation, sole proprietorship): Delaware limited liability company Address of Place of Business (if only one) or Chief Executive Office (if more than one place of business): Constellium Muscle Shoals Funding III, LLC 0000 Xxxxxx Xxxxxx Xxxxxx Xxxxxx, XX 00000 Attn: Xxxx Xxxxxx or Treasury Department Fax: 000.000.0000 Email: xxxx.xxxxxx@xxxxxxxxxxx.xxx Seller Payment Instructions: Account maintained in the name of Constellium Muscle Shoals III LLC at Xxxxx Fargo Bank, National Association, with account number 4943965533 or such other account designated by the Seller or the Servicer from time to time.
Schedule 3-1 743430296 16500839 Schedule 3 Applicable Credit Spreads (Receivables Purchase Agreement) Applicable Credit Spread On any applicable date, the “Applicable Credit Spread” for purposes of the Agreement shall be determined on such date based on the grid below depending on the lower of the most recent public issuer credit ratings for Anheuser-Xxxxx InBev SA/NV as provided by S&P and Xxxxx’x. Anheuser-Xxxxx InBev SA/NV, Long Term Rating Applicable Credit Spread S&P Xxxxx'x >= A- A3 1.575% <= BBB+ Baa1 1.575%
Exhibit A-1 743430296 16500839 Exhibit A Definitions “ABL Agent”: Xxxxx Fargo Bank, National Association, as successor in interest to General Electric Capital Corporation, in its capacity as agent under the ABL Credit Agreement, together with its successors and assigns. “ABL Credit Agreement”: The credit agreement, dated as of December 11, 2013 (as amended, restated, supplemented or otherwise modified from time to time), by and among Constellium Muscle Shoals LLC (f/k/a Wise Alloys LLC), as the borrower, the other credit parties signatory thereto, the ABL Agent, and the lenders signatory thereto. “Account Debtor”: The meaning set forth in the recitals hereto. “Account Debtor Insolvency Event”: With respect to any Account Debtor, such Account Debtor shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally (including its obligations under the Receivables), or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against such Account Debtor seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or such Account Debtor shall take any action to authorize any of the actions set forth above in this definition. “Adverse Claim”: Any ownership interest or claim, mortgage, deed of trust, pledge, lien, security interest, hypothecation, charge or other encumbrance or security arrangement of any nature whatsoever, whether voluntarily or involuntarily given, including, but not limited to, any conditional sale or title retention arrangement, and any assignment, deposit arrangement or lease intended as, or having the effect of, security and any filed financing statement or other notice of any of the foregoing (whether or not a lien or other encumbrance is created or exists at the time of the filing); it being understood that any such interest, lien or claim in favor of, or assigned to, a Purchaser hereunder or under the Prior Agreement, shall not constitute an Adverse Claim in respect of such Purchaser. “Affiliate”: With respect to any Person, each officer, director, general partner or joint-venturer of such Person and any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person. For purpose of this definition, “control” means the possession of either (a) the power to vote, or the beneficial ownership of, 25% or more of the equity interests having ordinary voting power for the election of directors of such Person or (b) the power to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise. “Agreement”: The meaning set forth in the first paragraph of the agreement to which this Exhibit is attached. “Applicable Credit Spread”: On any applicable date of determination, means the credit spreads determined at such time in accordance with the credit spread chart set forth on Schedule 3 attached hereto.
Exhibit A-2 743430296 16500839 “Applicable Law”: Any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree, judgment, award or similar item of or by a governmental authority or any interpretation, implementation or application thereof. “Benchmark Discontinuation Event”: The meaning set forth in Section 17 hereof. “Buffer Period”: Five (5) days. “Business Day”: Any day that is not a Saturday, Sunday or other day on which banks in New York City are required or permitted to close. “Capital Stock”: With respect to any Person, any and all common shares, preferred shares, interests, participations, rights in or other equivalents (however designated) of such Person’s capital stock, partnership interests, limited liability company interests, membership interests or other equivalent interests and any rights (other than debt securities convertible into or exchangeable for capital stock), warrants or options exchangeable for or convertible into such capital stock or other equity interests. “Change of Control”: If at any time, (i) Constellium SE ceases to own, directly or indirectly, 100% of the Capital Stock of Parent, (ii) Parent ceases to own directly or indirectly, 100% of the Capital Stock of the Originator or (iii) Originator ceases to own, directly or indirectly, free and clear of any Adverse Claim, except with respect to the ABL Credit Agreement or any other similar incurrence of debt, 100% of the Capital Stock of the Seller. “Closing Date”: September 30, 2021 or such other date as all conditions in Section 2(c) have been satisfied. “Code”: The Internal Revenue Code of 1986 and shall include all amendments, modifications and supplements thereto from time to time. “Collections”: All collections and other proceeds received and payment of any amounts owed in respect of the Purchased Receivables, including, without limitation, all cash collections, wire transfers or electronic funds transfers. “Collection Account”: The account maintained in the name of Constellium Muscle Shoals Funding III, LLC at Xxxxx Fargo Bank, National Association, with Account No. 4943965525 and ABA No. 000000000. “Collection Account Agreement”: The Deposit Account Control Agreement, dated as of September 30, 2021, by and among the Servicer, the Seller, as pledgor, the Purchaser Representative, as secured party for the benefit of the Purchasers), and Xxxxx Fargo Bank, National Association, as the account bank, as amended, amended and restated, supplemented or otherwise modified from time to time. “Commitment”: With respect to any Purchaser, the commitment amount of such Purchaser set forth beneath its signature to this Agreement, as such commitment may be reduced from time to time by the Seller in accordance with the terms of Section 2(f) hereof. “Commitment Fee”: The meaning set forth in Section 2(e) hereof. “Compliance Action”: Any action taken by any Purchaser (or any action that such Purchaser instructs other members of such Purchaser, its Affiliates or subsidiaries to take) to the extent it is legally permitted to do so under the laws of its jurisdiction, which it, in its sole discretion, considers appropriate
Exhibit A-3 743430296 16500839 to act in accordance with Sanctions Laws or domestic and foreign laws and regulations, including without limitation, the interception and investigation of any payment, communication or instruction; the making of further enquiries as to whether a person or entity is subject to any Sanctions Laws; and the refusal to process any transaction or instruction that does not conform with Sanctions Laws. “Confidentiality Termination Date”: (i) With respect to the confidentiality obligations related to Contracts and invoices, the date which is seven (7) years from the date hereof, and (ii) with respect to the confidentiality obligations relating to all other Confidential Information, the date which is two (2) years from the Purchase Termination Date. “Constellium Muscle Shoals Competitor”: Novelis Inc., Norsk Hydro ASA, Alcoa, Inc., Tri- Arrows Aluminum Inc., Arconic Inc., UACJ Corp., UACJ North America, Inc., Aleris International, Inc., Xxxxxx Aluminum Corp., and, solely to the extent that the applicable Purchaser engaging in the related assignment or participation, has actual knowledge of such affiliation, after reasonable inquiry and using its customary “know your customer” diligence standards, any affiliates and successors of any such parties listed above. “Contracts”: The meaning set forth in Section 6(a) hereof. “Conveyance”: The meaning set forth in Section 16(b) hereof. “Credit and Collection Policy”: As the context may require, those receivables credit and collection policies and practices of each Originator, the Seller or the Servicer in effect on the date of this Agreement and delivered to each Purchaser on or prior to the date hereof, as may be modified in compliance with this Agreement and the Transaction Documents. “DB”: The meaning set forth in the preamble. “Defaulted Receivable”: A Receivable: (a) as to which any payment, or part thereof, remains unpaid for more than 10 days from the original due date for such payment, or (b) without duplication (i) as to which an Account Debtor Insolvency Event shall have occurred, or (ii) that has been (or consistent with its standard Credit and Collection Policies, should have been) written off on Seller’s or Servicer’s books as uncollectible. “Default Ratio”: The ratio (expressed as a percentage and rounded to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of the last day of each calendar month by dividing: (a) the aggregate outstanding balance of all Purchased Receivables that became or remained Defaulted Receivables during such month, by (b) the aggregate outstanding balance of all Purchased Receivables during the month that is three calendar months before such month. “Delinquency Ratio”: The ratio (expressed as a percentage and rounded to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of the last day of each calendar month by dividing: (a) the aggregate outstanding balance of all Purchased Receivables that were Delinquent Receivables on such day by (b) the aggregate outstanding balance of all Purchased Receivables on such day. “Delinquent Receivable”: A Receivable as to which any payment, or part thereof, remains unpaid for more than 5 days from the original due date for such payment.
Exhibit A-4 743430296 16500839 “Delinquent Rate”: A rate of interest equal to 2.00% per annum plus the Discount Rate. “Dilution”: All actual offsets to the face value of the Net Invoice Amount for the relating to one or more Purchased Receivables, including, without limitation, customer payment and/or volume discounts, write-offs, deductions, offsets, credit memoranda, returns and allowances, billing errors, rebates and other similar items but no event shall include failure or inability of the Account Debtor to timely pay due to credit-related reasons. “Discount Rate”: On any date of determination, a rate equal LIBOR plus a per annum rate equal to the Applicable Credit Spread at such time. “Dispute”: Any dispute, Dilution, claim, defense or counterclaim relating to one or more Purchased Receivables (other than an adjustment granted with the prior written consent of the Purchaser who purchased such Purchased Receivable hereunder) asserted or claimed by the Account Debtor in writing or other reasonable and customary form of business communication and which is not remedied within 10 days regardless of whether the same (i) is in an amount greater than, equal to or less than the applicable Purchased Receivable, or (ii) arises by reason of an act of God, civil strife, war, currency restrictions, foreign political restrictions or regulations, or any other circumstance beyond the control of Seller or the applicable Account Debtor, but shall in no event include the failure of the Account Debtor to timely pay any of its obligations under the Receivable in the absence of a Dispute, Dilution or any other event for which any amount is payable pursuant to Section 6. For the avoidance of doubt, and notwithstanding the foregoing, the failure to make payment of a Purchased Receivable as a result of an Account Debtor Insolvency Event of the applicable Account Debtor shall not be deemed a “Dispute” hereunder. “Eligible Receivable”: A Receivable that satisfies each of the following conditions to the satisfaction of the applicable Purchaser to whom such Receivable has been offered as a Proposed Receivable in any applicable Purchase Request: (i) is generated by the Originator in the ordinary course of its business from sale of goods or the provision of services to an Account Debtor under a duly authorized Contract that is in full force and effect and that is a legal, valid and binding obligation of the Originator and the related Account Debtor, enforceable against such Person in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, arrangement, moratorium, receivership, conservatorship or other laws relating to or affecting the enforcement of creditors' rights generally; (ii) such sale of goods or provision of services to the applicable Account Debtor have been fully delivered or performed by Originator, (iii) the Account Debtor with respect to such Receivable is rated investment grade by all nationally recognized statistical rating organizations then rating such Account Debtor; (iv) that by its terms has an Invoice Due Date that is no more than 180 days from the original invoice date and such Invoice Due Date has not occurred, (v) that is owned by Seller, free and clear of all liens, encumbrances and security interests of any Person. (vi) that is freely assignable without the consent of any Person, including the applicable Account Debtor,
Exhibit A-5 743430296 16500839 (vii) for which no default or event of default (howsoever defined) exists under the applicable Contract between Originator and the applicable Account Debtor, (viii) which is not subject to any Dispute or Dilution, (ix) the related Account Debtor has been instructed in writing to make payments on such Receivable only to the Collection Account, (x) the related Account Debtor (i) is a resident of the United States of America and has provided Originator with a billing address in the United States of America, (ii) is not an Affiliate of Seller, Servicer or Parent and (iii) is not a natural person, (xi) such Receivable (i) is denominated and payable only in USD in the United States and (ii) is not payable in installments, (xii) such Receivable is not a Receivable which arose as a result of the sale of consigned goods or finished goods that have incorporated any consigned goods into such finished goods or a sale in which Seller or Servicer acted as a bailee, consignee or agent of any other Person or otherwise not as principal or otherwise in respect of deferred or unearned revenues, (xiii) such Receivable does not constitute a re-billed amount arising from a deduction taken by the related Account Debtor with respect to a previously arising Receivable, (xiv) as of the related Purchase Date, no Account Debtor Insolvency Event has occurred with respect to the related Account Debtor, such Account Debtor is not delinquent or in default either on more than 5% of its then unpaid and outstanding Receivables or on more than 5% of its then unpaid and outstanding Purchased Receivables, (xv) such Receivable (i) does not arise from a sale of accounts made as part of a sale of a business or constitute an assignment for the purpose of collection only, (ii) is not a transfer of a single account made in whole or partial satisfaction of a preexisting indebtedness or an assignment of a right to payment under a contract to an assignee that is also obligated to perform under the contract and (iii) is not a transfer of an interest in or an assignment of a claim under a policy of insurance, (xvi) such Receivable constitutes an account or a payment intangible as defined in the UCC and is not evidenced by instruments or chattel paper, and (xvii) the related Account Debtor is Anheuser-Xxxxx LLC (but only so long as Anheuser-Xxxxx LLC remains a direct or indirect wholly-owned subsidiary of Anheuser-Xxxxx InBev SA/NV) and/or such other Account Debtors as a Purchaser may agree to from time to time in its sole discretion and in a writing signed by the applicable Purchaser to whom such Receivable has been offered as a Proposed Receivable in any applicable Purchase Request. “Event of Repurchase”: The meaning set forth in Section 7(a) hereof. “Excluded Taxes”: Any of the following taxes imposed on or with respect to a Purchaser or required to be withheld or deducted from a payment to such Purchaser, taxes imposed on or measured by net income (however denominated) or capital, franchise taxes, and branch profits taxes, in each case, (i) imposed as a result of such Purchaser being organized under the laws of, or having its principal office or applicable lending office located in, the jurisdiction imposing such tax (or any political subdivision
Exhibit A-6 743430296 16500839 thereof), (ii) imposed under or as a result of FATCA, or (iii) that are taxes imposed as a result of a present or former connection between such Purchaser and the jurisdiction imposing such tax (other than connections arising from such Purchaser having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, Purchased Receivables under or engaged in any other transaction pursuant to this Agreement). “Facility Amount”: At any time, the aggregate of the Commitments of each Purchaser hereunder at such time. “FATCA”: Sections 1471 through 1474 of the Code, as of the date of this Agreement (or as amended or a 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 (or any amended or successor version as described above), any intergovernmental agreement entered into in connection with such sections of the Code and any legislation, law, regulation or practice enacted or promulgated pursuant to such intergovernmental agreement. “First Tier Parent Guarantee”: A guarantee agreement in form and substance satisfactory to Seller and the Purchasers duly executed and delivered by Parent to Seller, as the purchaser under the Sale Agreement. “GAAP”: Generally accepted accounting principles in the United States of America or the International Financial Reporting Standards issued by the International Accounting Standards Board (IASB) and related interpretations (in each case as in effect from time to time). “Identification Ratio”: The ratio (expressed as a percentage and rounded to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of the last day of each calendar month by dividing: (a) the aggregate of all Collections during such month on all outstanding receivables originated by the Originator (whether or not Purchased Receivables hereunder (and whether or not then owned, pledged or otherwise assigned by the Originator), which were not, within five (5) Business Days of receipt of such Collections, properly identified as being related or applicable to a particular receivable (whether or not a Purchased Receivable), by (b) the aggregate of all Collections during such month on all outstanding Purchased Receivables, which were, within five (5) Business Days of receipt of such Collections, properly identified as being related or applicable to a particular Purchased Receivable. “Indemnified Amounts”: The meaning set forth in Section 7(b) hereof. “Indemnified Party”: The meaning set forth in Section 7(b) hereof. “Insolvency Event”: With respect to any Person, such Person shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against such Person seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 30 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or such Person shall take any action to authorize any of the
Exhibit A-7 743430296 16500839 actions set forth above in this definition; provided, that in the case of the inability of a Person to pay its debts as such debts become due arising by reason of currency restrictions or foreign political restrictions or regulations beyond the control of Seller or such Person, such event shall not be deemed an “Insolvency Event” hereunder. “Intercreditor Agreement”: That certain Intercreditor Agreement, dated as of the date hereof, by and among Xxxxx Fargo Bank, National Association, as ABL Agent (the “ABL Agent”), each Purchaser, the Servicer and the Seller, as amended, restated, supplemented or otherwise modified from time to time. “Intesa”: The meaning set forth in the preamble. “Invoice Due Date”: With respect to a Purchased Receivable, the last date identified for timely payment in the applicable original invoice. “LIBOR”: With respect to any Purchaser and any purchase of Receivables on any Purchase Date, the offered rate for deposits in U.S. dollars in the London interbank market for a period determined by such Purchaser, by reference to ICE Benchmark Administration Limited (“ICE”) (or the generally accepted industry successor thereto) appearing at Reuters Reference LIBOR01 page (or on any successor thereto or substitute therefor), as of 11:00 a.m. (London time) day that the Purchase Price is paid pursuant hereto; provided, however, that if such a rate (x) ceases to be available on such Reuters Reference LIBOR01 page (or on any generally accepted industry successor thereto or substitute therefor) or (y) is otherwise replaced, withdrawn or ceases to be available in the financial markets generally, then, in either such case, “LIBOR”, on any such date of determination, shall be a rate per annum, for the relevant period, as may be reasonably determined (based on commercially reasonable standards for such determinations at such time) by the applicable Purchaser, and reasonably agreed to, on any such date, by the Seller; provided, further, however, if any such determined rate at any such time is less than 0.0%, then “LIBOR” for purposes hereof in connection with such determination, at such time, shall be deemed to be 0.0%. “Material Adverse Change”: With respect to any Person, an event that results or could likely result in (a) a material adverse change in (i) the business condition (financial or otherwise), operations, performance or properties of such Person, or (ii) the ability of such Person to fulfill its obligations hereunder, or (b) the impairment of the validity or enforceability of, or the rights, remedies or benefits available to, a Purchaser or the Purchaser Representative under this Agreement. “Xxxxx’x”: Xxxxx’x Investors Service, Inc. “Net Invoice Amount”: The amount shown on the original invoice for the applicable Purchased Receivable as the total amount payable by the applicable Account Debtor, which amount shall be net of any discounts, credits or other allowances identified with specificity on such original invoice. “OFAC”: The meaning set forth in the definition of “Sanctioned Country”. “Offset Condition”: On any date of determination shall be satisfied, so long as (i) the aggregate outstanding Purchase Prices of all Purchased Receivables at such time related to any Account Debtor and its Affiliates (on a combined basis) does not exceed (ii) 90% of (x) the aggregate outstanding principal balance of all receivables payable at such time by such Account Debtor (whether or not such receivables are Purchased Receivables hereunder), minus (y) the aggregate amounts of principal and interest, if any, at such time in respect of any amounts which are subject to payment by (whether or not then due and payable) the Seller or any of its Affiliates (on an aggregate basis), to or for the account of such Account Debtor (and any of its Affiliates (on a combined basis).
Exhibit A-8 743430296 16500839 “Organization Documents”: (a) With respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and the operating agreement, or the equivalent thereof; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable governmental authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity, or any equivalent thereof. “Originator”: Constellium Muscle Shoals LLC, as originator and seller under the Sale Agreement. “Outstanding Account Debtor Purchase Amount”: As of the date of determination, (x) when used with respect to a specific Purchaser, an amount equal to (i) the aggregate amount paid by such Purchaser to Seller in respect of Purchased Receivables of a particular Account Debtor, minus (ii) the aggregate amount of all Collections with respect to such Purchased Receivables actually deposited into the Collection Account and (y) when used in respect of all Purchasers, the sum of the aggregate of the amounts described in clause (x) above for each Purchaser collectively. “Outstanding Aggregate Purchase Amount”: As of the date of determination, (x) when used with respect to a specific Purchaser, an amount equal to the Outstanding Account Debtor Purchase Amount for such Purchaser for all Account Debtors and (y) when used in respect of all Purchasers, the sum of the aggregate of the amounts described in clause (x) above for each Purchaser collectively. “Parent”: Constellium International SAS, a French joint stock company. “Parent Guarantee”: A guarantee agreement in form and substance satisfactory to the Purchasers duly executed and delivered by Parent to the Purchasers. “Person”: An individual, partnership, corporation (including a business trust), limited liability company, limited partnership, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof. “Prior Agreement”: The meaning set forth in the recitals hereto. “Prior Agreement Outstanding Aggregate Purchase Amount”: with respect to each Purchaser’s commitment under the Prior Agreement, shall have the meaning assigned to the term “Outstanding Aggregate Purchase Amount” in the Prior Agreement. “Proposed Receivables”: With respect to any Purchase Date, the Eligible Receivables proposed by Seller to the applicable Purchaser for purchase hereunder and described in a Purchase Request to be purchased on such Purchase Date. “Purchase Date”: Each date on which a Purchaser purchases Eligible Receivables. “Purchase Price”: The meaning set forth in Section 2(d) hereof. “Purchase Request”: The meaning set forth in Section 2(a) hereof.
Exhibit A-9 743430296 16500839 “Purchase Termination Date”: With respect to any Purchaser (it being understood if one Purchaser elects to terminate and one Purchaser elects to not so terminate, this Agreement shall be deemed to be terminated as to the terminating Purchaser, and remain in full, force and effect with respect to the Purchaser who does not so terminate), the date which is the earlier of (i) on which this Agreement terminates pursuant to Section 2(b) hereof, (ii) the date declared by a Purchaser in its sole discretion following the occurrence of a Termination Event, (iii) the date declared by the Seller in accordance with the terms of Section 2(b) hereof, and (iv) September 30, 2023, as such date may be extended in accordance with the terms of Section 2(b) hereof. “Purchased Receivables”: The meaning set forth in Section 2(a) hereof. “Purchaser”: The meaning set forth in the preamble hereto. “Ratable Share”: For any Purchaser, on any date, (i) prior to the expiration or termination of such Purchaser’s Commitment hereunder, a fraction (expressed as a percentage), (a) the numerator of which is the Commitment of such Purchaser on such date, and (b) the denominator of which is the sum of the Commitments of all Purchasers on such date, and (ii) following the expiration or termination of such Purchaser’s Commitment hereunder (in accordance with the termination of this Agreement pursuant to Section 2(b) of this Agreement, or otherwise) , a fraction (expressed as a percentage), (a) the numerator of which is the Outstanding Aggregate Purchase Amount of such Purchaser on such date, and (b) the denominator of which is the sum of the Outstanding Aggregate Purchase Amounts of all Purchasers on such date. “Receivables”: Any indebtedness or other payment obligation owing to Seller or Originator by any Account Debtor (whether constituting an account or payment intangible), including any right to payment of interest or finance charges and other obligations of such Account Debtor with respect thereto, arising out of Originator’s sale and delivery of goods or Originator’s sale and provision of services. “Regulatory Change”: Relative to any Person: (a) any change in (or the adoption, implementation, administration, change in phase- in or interpretation or commencement of effectiveness of) any: (i) Applicable Law applicable to such Person; (ii) regulation, interpretation, directive, requirement or request (whether or not having the force of law) applicable to such Person of (A) any governmental authority charged with the interpretation or administration of any Applicable Law referred to in clause (a)(i) or of (B) any fiscal, monetary or other authority having jurisdiction over such Person; (iii) GAAP, IFRS or regulatory accounting principles applicable to such Person and affecting the application to such Person of any Applicable Law, regulation, interpretation, directive, requirement or request referred to in clause (a)(i) or (a)(ii) above; or (iv) notwithstanding the forgoing, (A) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder, issued in connection therewith or in implementation thereof, and (B) all requests, rules, guidelines and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
Exhibit A-10 743430296 16500839 (or any successor or similar authority) or the United States or foreign governmental or regulatory authorities, shall in each case be deemed to be a “Regulatory Change” occurring and implemented after the date hereof, regardless of the date enacted, adopted, issued or implemented; or (b) any change in the application to such Person of any existing Applicable Law, regulation, interpretation, directive, requirement, request or accounting principles referred to in clause (a)(i), (a)(ii), (a)(iii) or (a)(iv) above. “Related Rights”: With respect to any Receivable: (a) all of the Seller’s and the Originator’s interest in any documents of title evidencing the shipment or storage of any goods that give rise to such Receivable, and all goods (including returned goods) relating to such Receivable, (b) all instruments, chattel paper or other documents or contracts, to the extent evidencing such Receivable, (c) all other security interests or liens and property subject thereto from time to time, to the extent purporting to secure payment of such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, together with all UCC financing statements or similar filings relating thereto, (d) all of the Seller’s and each Originator’s rights, interests and claims under the Contracts and all guaranties, indemnities, insurance and other agreements (including the related Contract) or arrangements of whatever character from time to time, to the extent supporting or securing payment of such Receivable or otherwise relating to such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, (e) the Seller’s rights and remedies as against the Originator or Parent under the Sale Agreement and/or any other Transaction Document; and (f) all Collections and proceeds of any of the foregoing. “Repurchase Date”: The meaning set forth in Section 7 hereof. “Repurchase Price”: The meaning set forth in Section 7 hereof. “Repurchase Rate”: For any Purchased Receivable repurchased by the Seller, a rate per annum equal to the Discount Rate. “Repurchase Ratio”: The ratio (expressed as a percentage) with respect to any month, equal to (i) the aggregate outstanding balance of all Purchased Receivables which has become the subject of a Repurchase Event, divided by (ii) the aggregate outstanding balance of all Receivables generated by the Constellium Muscle Shoals LLC one month prior to such month. “Retained Obligations”: The meaning set forth in Section 8 hereof. “Sale Agreement”: The receivables sale agreement between the Originator and the Seller, dated as of the date hereof, as amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.
Exhibit A-11 743430296 16500839 “Sanctioned Country”: A country that is the subject of country-wide or territory wide economic or trade sanctions administered by the US Treasury Department's Office of Foreign Assets Control (“OFAC”). “Sanctioned Person”: Any of the following currently or in the future: (i) an entity, vessel, or individual named on the list of Specially Designated Nationals or Blocked Persons maintained by U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) available at xxxx://xxx.xxxxxxxx.xxx/xxxxxxxx-xxxxxx/xxxxxxxxx/XXX-Xxxx/Xxxxx/xxxxxxx.xxxx or on the consolidated list of persons, groups, and entities subject to the European Union financial sanctions currently available at xxxx://xxxx.xxxxxx.xx/xxxx/xxxxxxxxx/xxxxxx-xxxx_xx.xxx; (ii) any entity or individual located in or organized under the laws of any Sanctioned Country to the extent that the entity or individual is subject to sanctions under Sanctions Laws; (iii) any entity or individual otherwise a subject of sanctions under Sanctions Laws; and (iv) any entity or individual engaged in sanctionable activities under the Sanctions Laws. “Sanctions Laws”: The sanctions laws, regulations, and rules promulgated or administered by OFAC and the U.S. Department of State, including any enabling legislation or Executive Order related thereto, as amended from time to time; the sanctions and other restrictive measures applied by the European Union in pursuit of the Common Foreign and Security Policy objectives set out in the Treaty on European Union; the United Kingdom, and any similar sanctions laws as may be enacted from time to time in the future by the U.S., the European Union (and any of its member states), or the Security Council or any other legislative body of the United Nations; and any corresponding laws of jurisdictions in which Seller operates or in which the proceeds of the Purchase Price will be used or from which repayments of such obligations be derived. "Scheduled Payment Date": For any invoice, the date arrived at by adding the Buffer Period to the Invoice Due Date. “Seller”: The meaning set forth in the preamble. “Servicer”: The meaning set forth in Section 6(a) hereof. “Servicer Report”: The meaning set forth in Section 6(e) hereof. “Servicing Fee”: The meaning set forth in Section 6(a) hereof. “Settlement Date”: The meaning set forth in Section 6(b)(v) hereof. “Sold Assets”: The meaning set forth in Section 2(g) hereof. “Standard & Poor’s”: Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. “Successor Benchmark Rate”: The meaning set forth in Section 17 hereof. “Termination Event”: Each of the following shall be a “Termination Event”: (a)(i) Seller, Parent, Originator or Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any Transaction Document and, except as otherwise provided herein, such failure shall continue for five (5) Business Days after such Person’s knowledge or notice thereof, (ii) Seller or Servicer shall fail to make when due any payment or deposit to be made by it under this Agreement including without limitation, any payment or deposit of Collections Due on each Settlement
Exhibit A-12 743430296 16500839 Date or under Section 7(b) of this Agreement and such failure shall continue unremedied for one Business Day or (iii) Servicer shall resign as Servicer, and no successor Servicer reasonably satisfactory to the Purchasers shall have been appointed; (b) any representation or warranty made by Seller, Parent, Originator or Servicer (or any of their respective officers) under or in connection with this Agreement or any Transaction Document, or any information or report delivered by Seller, Parent, Originator or Servicer pursuant to the Agreement, shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered and shall continue unremedied for five (5) Business Days after such Person’s knowledge or notice thereof; (c) Seller or Servicer shall fail to deliver any report required to be delivered by this Agreement when due; (d) this Agreement or any purchase pursuant to the Agreement shall for any reason: cease to create with respect to the Purchased Receivables, or the interest of any Purchaser or the Purchaser Representative with respect to such Purchased Receivables shall cease to be, a valid and enforceable first priority perfected ownership interest, free and clear of any Adverse Claim; or there shall exist any Adverse Claim on the Purchased Receivables other than the Adverse Claims created under this Agreement; (e) Seller, Parent, Originator or Servicer shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against Seller or Servicer seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or Seller, Parent, Originator or Servicer shall take any corporate action to authorize any of the actions set forth above in this paragraph; (f) (i) on any date of determination the (A) Default Ratio shall exceed 1.00%, (B) the Delinquency Ratio shall exceed 1.00%; (C) the Repurchase Ratio shall exceed 3.00%, or (D) the Identification Ratio shall exceed 5.00%, (ii) the average for three consecutive calendar months of: (A) the Default Ratio shall exceed 1.00%, (B) the Delinquency Ratio shall exceed 1.00%, (C) the Repurchase Ratio shall exceed 3.00%, or (D) the Identification Ratio shall exceed 5.00% or (iii) the Offset Condition shall fail to be satisfied; (g) a Change in Control shall occur; (h) (i) Parent or Servicer or any of their subsidiaries shall fail to pay any principal of or premium or interest on any of its debt that is outstanding in a principal amount of at least $75,000,000 in the aggregate when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument relating to such debt (and shall have not been waived); or (ii) any other “default”, “event of default” or similar event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such debt
Exhibit A-13 743430296 16500839 and shall continue after the applicable grace period, if any, specified in such agreement, mortgage, indenture or instrument; (i) to the extent Ultimate Parent has a credit rating from Standard & Poor’s or Moody’s (including, if applicable, a shadow rating from either such rating agency): (i) such rating shall be downgraded below B- by Standard & Poor’s and below B3 by Moody’s or (ii) such rating of Ultimate Parent is withdrawn by Standard & Poor’s or Moody’s, as the case may be (for the avoidance of doubt, if either Standard & Poor’s or Moody’s takes any of the actions described in clauses (i) or (ii) above, whether or not such action is taken by the other or both, such action by either such agency shall constitute a Termination Event hereunder); (j) (i) One or more final judgments for the payment of money shall be entered against Seller or (ii) one or more final judgments for the payment of money in an amount in excess of $50,000,000, individually or in the aggregate, shall be entered against Servicer, Parent or Originator on claims not covered by insurance or as to which the insurance carrier has denied its responsibility; (k) This Agreement or the Parent Guarantee, at any time, ceases to be the legal, valid and binding obligation of the Seller, the Originator, the Servicer or the Parent, as applicable, at any time, challenges its obligations hereunder or thereunder; or (l) so long as any purchased receivables remain outstanding thereunder, any “Termination Event” (as defined in the Prior Agreement) shall have occurred and be continuing under the Prior Agreement. “Transaction Documents”: This Agreement, the Sale Agreement, the Parent Guarantee, the First Tier Parent Guarantee, the Intercreditor Agreement, the Collection Account Agreement, any account, control or similar agreement (if any) covering the Collection Account and all other certificates, instruments, UCC financing statements, reports, notices, agreements and documents executed or delivered under or in connection with this Agreement, in each case as the same may be amended, supplemented or otherwise modified from time to time in accordance with this Agreement. “UCC”: The Uniform Commercial Code in effect in the State of New York from time to time. “Ultimate Parent”: Constellium SE, a French company, together with its successors and assigns. “Unmatured Termination Event”: An event that, with the giving of notice or lapse of time, or both, would constitute a Termination Event. “Unsold Receivable”: Any Receivable that is not a Purchased Receivable. “USD”: United States Dollars, the lawful currency of the United States of America.
Exhibit B-1 743430296 16500839 Exhibit B Form of Purchase Request [date] Intesa Sanpaolo S.p.A., New York Branch Xxx Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Deutsche Bank Trust Company Americas 00 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Reference is hereby made to that certain Receivable Purchase Agreement, dated as September 30, 2021, among Constellium Muscle Shoals Funding III, LLC (“Seller”), Intesa Sanpaolo S.p.A., New York Branch (“Intesa”), as a purchaser (the “Intesa Purchaser”) and as purchaser representative, Deutsche Bank Trust Company Americas, as a purchaser (the “DB Purchaser”) and Constellium Muscle Shoals LLC (“Servicer”) (as it may be amended, modified or supplemented from time to time, the “Agreement”; capitalized terms not otherwise defined herein shall have the meanings set forth in the Agreement). Pursuant to the terms of the Agreement, Seller hereby requests that: (i) the Intesa Purchaser purchase from Seller the Proposed Receivables listed herein in Item 6 below (for purposes of this Purchase Request, the “Intesa Proposed Receivables”), with an aggregate Net Invoice Amount of USD[___________]; and (ii) the DB Purchaser purchase from Seller the Proposed Receivables listed herein in Item 7 below (for purposes of this Purchase Request, the “DB Proposed Receivables”), with an aggregate Net Invoice Amount of USD[___________]. Seller represents and warrants that as of the date hereof and on the Purchase Date: 1. Following the purchase of the Proposed Receivables set forth in this Purchase Request, (A) the Outstanding Aggregate Purchase Amount does not exceed: (i) USD[____________] in the aggregate for both Purchasers, (ii) USD[____________] for the Intesa Purchaser and (iii) USD[____________] for the Intesa Purchaser, (B) the Outstanding Account Debtor Purchase Amount with respect to the Purchased Receivables (assuming the Proposed Receivables constitute Purchased Receivables) payable by any Account Debtor does not exceed the sublimit established by the applicable Purchaser for such Account Debtor and (C) after giving effect to the Purchase requested hereby, the Outstanding Aggregate Purchase Price of Sold Assets purchased by each such Purchaser, shall not exceed such Purchaser’s Commitment at such time, and the Outstanding Aggregate Purchase Amount for all Purchased Receivables for all Purchasers, collectively, shall not exceed the Facility Amount; 2. Seller’s representations, warranties and covenants set forth in the Agreement are true and correct; 3. The conditions precedent for purchase set forth in Section 2(c) of the Agreement have been satisfied;
Exhibit C-2 743430296 16500839 4. No Event of Repurchase exists on such Purchase Date except for repurchases being effectuated on the date hereof by setoff by: (i) the Intesa Purchaser against the Purchase Price for the Intesa Proposed Receivables, and (ii) the DB Purchaser against the Purchase Price for the DB Proposed Receivables; and 5. There has not been any Material Adverse Change in Seller, Servicer, Originator or Parent since the last purchase of Receivables under the Agreement. 6. With respect to the Intesa Proposed Receivables offered for sale by Seller to the Intesa Purchaser based on the approved Account Debtor(s), set forth below is the following: applicable Account Debtor’s legal name, address, the invoice number(s), the stated amount of the invoice(s), the date and term of the invoice(s), the stated due date of such invoice (s), the Scheduled Payment Date of such invoice and the calculation of the Offset Condition: [____________________________________________________________________________] [____________________________________________________________________________] [____________________________________________________________________________] 7. With respect to the DB Proposed Receivables offered for sale by Seller to the DB Purchaser based on the approved Account Debtor(s), set forth below is the following: applicable Account Debtor’s legal name, address, the invoice number(s), the stated amount of the invoice(s), the date and term of the invoice(s), the stated due date of such invoice (s), the Scheduled Payment Date of such invoice and the calculation of the Offset Condition: [____________________________________________________________________________] [____________________________________________________________________________] [____________________________________________________________________________] Upon acceptance by the Intesa Purchaser of this Purchase Request and payment of the related Purchase Price by the Intesa Purchaser, the Intesa Purchaser hereby purchases, and Seller hereby sells, all of Seller’s right, title and interest with respect to the Intesa Proposed Receivables identified on the attached Exhibit and all Related Rights as of the date hereof, and the Intesa Proposed Receivables shall become Purchased Receivables in the manner set forth in the Agreement. Upon acceptance by the DB Purchaser of this Purchase Request and payment of the related Purchase Price by the Intesa Purchaser, the DB Purchaser hereby purchases, and Seller hereby sells, all of Seller’s right, title and interest with respect to the DB Proposed Receivables identified on the attached Exhibit and all Related Rights as of the date hereof, and the DB Proposed Receivables shall become Purchased Receivables in the manner set forth in the Agreement. CONSTELLIUM MUSCLE SHOALS FUNDING III, LLC By:______________________________________ Name: Title:
Exhibit C-3 743430296 16500839 PURCHASE REQUEST ACCEPTED WITH RESPECT TO THE INTESA PURCHASER AND THE INTESA PROPOSED RECEIVABLES: INTESA SANPAOLO S.P.A., NEW YORK BRANCH By:______________________________________ Name: Title: Date:_____________________________________ PURCHASE REQUEST ACCEPTED WITH RESPECT TO THE DB PURCHASER AND THE DB PROPOSED RECEIVABLES: DEUTSCHE BANK TRUST COMPANY AMERICAS By:______________________________________ Name: Title: Date:_____________________________________ DEUTSCHE BANK AG NEW YORK BRANCH By:______________________________________ Name: Title: Date:_____________________________________
Exhibit C-1 743430296 16500839 Exhibit C [Reserved.]
Exhibit D-1 743430296 16500839 Exhibit D Payment Reconciliation Exhibit D shows the payment for each individual invoice related to the Purchased Receivable. Please include all the information in the Purchase Request together with the payment date, payment amount, any Dilutions and the outstanding amount, if any.
Exhibit E-1 743430296 16500839 Exhibit E Form of Notification of Assignment Intesa ___________ __, 202_ Anheuser-Xxxxx, LLC. Xxx Xxxxx Xxxxx, 000-0 Xx. Xxxxx, Xxxxxxxx 00000 Attention: Accounts Payable; Head of Metal Procurement Constellium Muscle Shoals LLC (“Supplier”) and Constellium Muscle Shoals Funding III, LLC (“Subsidiary”) hereby notifies you pursuant to Section 9-406 of the Uniform Commercial Code that Supplier has sold and assigned and will sell and assign to Subsidiary and Subsidiary has thereupon sold and assigned to Intesa Sanpaolo S.p.A., New York Branch (the “Purchaser”) certain of Supplier’s accounts receivable due from you, including those accounts listed on Schedule 1 attached hereto. From time to time, Purchaser may notify you of additional accounts receivable due from you that have then been purchased by Purchaser. You are hereby instructed to rely upon any such notice from Purchaser. You are hereby instructed to make all payments due from you on all Supplier’s or Subsidiary’s accounts receivable to Purchaser in accordance with the instructions set forth on Schedule 2 attached hereto or such other instructions as Purchaser may provide you with from time to time. Neither Supplier nor Subsidiary may countermand any Purchaser instructions and you are instructed to disregard any instructions from Supplier or Subsidiary that are contrary to those on Schedule 2 or to any other instructions hereafter furnished to you by Purchaser, unless such instructions are joined in by Purchaser in writing. Please contact Purchaser at [__] if you have any questions about the above notification of assignment and remittance instructions. Very truly yours, SUPPLIER: Constellium Muscle Shoals LLC, a Delaware limited liability company By: Name: Title: [Signatures continued on following page]
Exhibit E-2 743430296 16500839 SUBSIDIARY: Constellium Muscle Shoals Funding III, LLC, a Delaware limited liability company By: Name: Title: Acknowledged and Accepted as of the date first written above: PURCHASER: Intesa Sanpaolo S.p.A., New York Branch, the New York branch of an Italian banking corporation By: Name: Title:
Exhibit E-3 743430296 16500839 Schedule 1 to Notification of Assignment List of Current Purchased Accounts
Exhibit E-4 743430296 16500839 Schedule 2 to Notification of Assignment Payment Instructions for Purchased Accounts Until further notice, please continue to make payments on account of Purchased Receivables to: Account Bank: Xxxxx Fargo Bank, National Association, Account Holder: Constellium Muscle Shoal Funding III, LLC Account No.: 4943965525 and ABA No.: 000000000 OR Please pay all amounts due on Purchased Receivables to:
Exhibit E-5 743430296 16500839 DB ___________ __, 202_ Anheuser-Xxxxx, LLC. Xxx Xxxxx Xxxxx, 000-0 Xx. Xxxxx, Xxxxxxxx 00000 Attention: Accounts Payable; Head of Metal Procurement Constellium Muscle Shoals LLC (“Supplier”) and Constellium Muscle Shoals Funding III, LLC (“Subsidiary”) hereby notifies you pursuant to Section 9-406 of the Uniform Commercial Code that Supplier has sold and assigned and will sell and assign to Subsidiary and Subsidiary has thereupon sold and assigned to Deutsche Bank Trust Company Americas (the “Purchaser”) certain of Supplier’s accounts receivable due from you, including those accounts listed on Schedule 1 attached hereto. From time to time, Purchaser may notify you of additional accounts receivable due from you that have then been purchased by Purchaser. You are hereby instructed to rely upon any such notice from Purchaser. You are hereby instructed to make all payments due from you on all Supplier’s or Subsidiary’s accounts receivable to Purchaser in accordance with the instructions set forth on Schedule 2 attached hereto or such other instructions as Purchaser may provide you with from time to time. Neither Supplier nor Subsidiary may countermand any Purchaser instructions and you are instructed to disregard any instructions from Supplier or Subsidiary that are contrary to those on Schedule 2 or to any other instructions hereafter furnished to you by Purchaser, unless such instructions are joined in by Purchaser in writing. Please contact Purchaser at [__] if you have any questions about the above notification of assignment and remittance instructions. Very truly yours, SUPPLIER: Constellium Muscle Shoals LLC, a Delaware limited liability company By: Name: Title: [Signatures continued on following page]
Exhibit E-6 743430296 16500839 SUBSIDIARY: Constellium Muscle Shoals Funding III, LLC, a Delaware limited liability company By: Name: Title: Acknowledged and Accepted as of the date first written above: PURCHASER: Deutsche Bank Trust Company Americas By: Print Name: Print Title: PURCHASER: Deutsche Bank AG New York Branch By: Print Name: Print Title:
Exhibit E-7 743430296 16500839 Schedule 1 to Notification of Assignment List of Current Purchased Accounts
Exhibit E-8 743430296 16500839 Schedule 2 to Notification of Assignment Payment Instructions for Purchased Accounts Until further notice, please continue to make payments on account of Purchased Receivables to: Account Bank: Xxxxx Fargo Bank, National Association, Account Holder: Constellium Muscle Shoals Funding III, LLC Account No.: 4943965525 and ABA No.: 000000000 OR Please pay all amounts due on Purchased Receivables to:
