Exhibit 10.6
FACTORING AGREEMENT
between
GE Capital Bank AG
Heinrich-von-Brentano-Straße 2, 55130 Mainz, Germany
- hereinafter referred to as „GE CAPITAL”-
and
Aleris Recycling (German Works) GmbH
Aluminiumstraße 3, 41515 Grevenbroich, Germany
TABLE OF CONTENT
| | |
| I. | | CLAUSES |
| |
| A. | | PURCHASE OF RECEIVABLES |
| 1. | | Purpose of this Agreement |
| 2. | | Receivables Purchase Agreement,Receivables Notification,Offer Letter |
| 3. | | Obligation to Purchase |
| 4. | | Purchase Price, Due Date, Reserves,Factoring Commission,Interest |
| 5. | | Guarantee of Dilution Risk, Obligations of the ORIGINATOR regardingReceivables |
| 6. | | Bad Debt Coverage of GE CAPITAL |
| 7. | | Debtor Limit,Discretionary Debtor Limit |
| 8. | | Non-PurchasedReceivables, Set-Off Right,Administration Fee |
| |
| B. | | ASSIGNMENT AND SECURITY |
| 9. | | Assignment ofReceivables, Legal Cause |
| 10. | | Cheques, Direct Debit, Bills of Exchange |
| 11. | | Liens and Ancillary Rights, Insurance and Central Settlement Claims |
| |
| C. | | FACTORING PROCEDURE |
| 12. | | Full-Service, Inter-Credit®, Smart-Service |
| 13. | | Disclosed /Undisclosed Procedure |
| 14. | | Change of Procedure by Partial Termination |
| 15. | | Quarterly Account Statement, Tacit Ratification, Time Limit for Objections |
| 16. | | Collection Procedure |
| II. | | SCHEDULES |
| | Schedule 1 (Terms and Conditions) |
| | Schedule 2 (Declaration of Consent) |
| | Schedule 3 (Deposit Protection – Deposit Protection Fund of the Association of German Banks) |
| | |
| D. | | GENERAL OBLIGATIONS |
| 17. | | Negative Pledge |
| 18. | | Increased Fiduciary Duty and Duty of Care |
| 19. | | Obligation for Information Undertaking and Deposit |
| 20. | | External Audit, Declaration of Consent |
| 21. | | Arrangements inDebtor Agreements |
| |
| E. | | OTHER TERMS |
| 22. | | Set-Off, Settlement,Reimbursement Claims |
| 23. | | Changes inInterest Rate, Exchange Rate Differences |
| 24. | | Fees and Reimbursement of Expenses |
| 25. | | Assignability of Claims against GE CAPITAL |
| 26. | | Commencement, Expiration, Termination |
| 27. | | Further Elements of this Agreement |
| 28. | | Governing Law, Jurisdiction |
| 29. | | Severability Clause |
| |
| F. | | DEFINITIONS |
Note:
Terms initalics have the meaning ascribed to them in part F (DEFINITIONS).
| A. | PURCHASE OF RECEIVABLES |
| 1. | Purpose of this Agreement |
1.1This agreement shall be the basis for receivables purchase agreements entered into by the ORIGINATOR as seller and GE CAPITAL as purchaser of the relevantReceivable.
1.2Any amounts paid as purchase price for theReceivables purchased by GE CAPITAL shall enable the ORIGINATOR to primarily satisfy its obligations vis-à-vis its suppliers.
1.3To the extent that GE CAPITAL does not purchase certainReceivables of the ORIGINATOR, suchReceivables shall be assigned to GE CAPITAL to secure claims of GE CAPITAL against the ORIGINATOR resulting from the business relationship and shall be collected by GE CAPITAL.
GE CAPITAL - Release: 07/2013 – Germany (Translation 11/2013)
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| 2. | Receivables Purchase Agreement,Receivables Notification, Offer Letter |
2.1The ORIGINATOR hereby offers to sell all of itsReceivables to GE CAPITAL.
The ORIGINATOR repeats each offer in respect of each individualReceivable by sending a Receivables Notification to GE CAPITAL.
2.2 Each relevant receivables purchase agreement shall be concluded by GE CAPITAL’s acceptance of the ORIGINATOR’s offer.
Acceptance occurs by booking the relevantReceivable on theFactoring Account, without requirement of the ORIGINATOR receiving a notice of such book entry.
2.3The ORIGINATOR is entitled and obliged to send a Receivables Notification to GE CAPITAL within ten (10) Business Days after having dispatched the invoice to the relevantDebtor and theReceivable becomingEligible.
2.4The ORIGINATOR is obliged to submit theReceivablesNotification by data transfer in accordance withFactoring-Satzaufbau or online data entry inFactorlink.
In addition, the ORIGINATOR is obliged to send a completed and legally signedOffer Letter, preferably in the form of a pdf-file or in a similar format together with theReceivables Notification.
3.1GE CAPITAL shall accept the ORIGINATOR’s offer to sell aReceivable if the relevantReceivable fulfils the following requirements:
| (a) | theReceivables Notification is correct and complete and was dispatched by the ORIGINATOR within the time line set out in clause 2.3; and |
| (b) | the relevantReceivable isEligible; and |
| (c) | theDebtor has been granted a payment term not exceeding 90 days after the relevant invoice date; and |
| (d) | the relevantReceivable is not a claim against anAffiliated Company; and |
| (e) | the relevantReceivable is within the scope of theDebtor Limit. To the extent that this requirement is only partially fulfilled, GE CAPITAL shall purchase the relevant part of theReceivable; and |
| (f) | the sum of the amount of the relevantReceivable and all other purchased and unpaidReceivables against the relevantDebtor or debtor credit unit – within the meaning of § 19 of the German Banking Act – does not exceed 40% of all purchased and unpaidReceivables of the ORIGINATOR against all of hisDebtors; and |
| (g) | the legal relationship from which theReceivable arises is governed by German law. However, in respect of the relevant member of the Alcoa group, GE CAPITAL shall also accept offers to sell, if the legal relationship is governed by Swiss law provided that such Receivable is not subject to Swiss VAT and that the relevant member of the Alcoa group has consented to an assignment to GE Capital in a form reasonably satisfactory to GE CAPITAL; and |
| (h) | the payment of the purchase price in respect of the purchasedReceivable will not result in an excess of theMaximum Commitment. |
3.2GE CAPITAL shall become obliged to purchase aReceivable if aReceivable that was initially not purchased subsequently fulfils the requirements set out in clause 3.1.
3.3GE CAPITAL will cease to be obliged to purchase anyReceivable if based on the facts available to GE CAPITAL, there is reason to believe that the ORIGINATOR does not comply with its obligations vis-à-visRetaining Suppliers or thatRetaining Suppliers revoke the authorisation of the ORIGINATOR to collectReceivables.
3.4GE CAPITAL is entitled but not obliged to purchaseReceivables which do not fulfil the requirements set out in clause 3.1. In relation toReceivables existing on theCommencement Date, GE CAPITAL will only exercise such right in respect ofReceivables which have not been due for more than 60 days.
3.5GE CAPITAL will, upon receipt of the relevantReceivables Notification, book allReceivables which have not been purchased to theSpecial Account. SuchReceivables shall continue to be offered for sale.
3.6The ORIGINATOR’s offer expires only after a period of ten (10) Business Days set by the ORIGINATOR for GE CAPITAL’s acceptance of such offer has lapsed to no avail.
| 4. | Purchase Price, Due Date, Reserves,Factoring Commission, Interest |
4.1The purchase price for each purchasedReceivable shall be equal to itsNominal Amount, reduced by deductions relating to the relevantReceivable (such as discounts) that were granted to the relevantDebtor by the ORIGINATOR, less theFactoring Commission andInterest.
In theBad Debt Case, the purchase price is reduced by the VAT amount included in theReceivable which the ORIGINATOR must claim from the tax authorities (see clause 6.4).
The purchase price (excluding thePurchase Price Reserve and subject to the settlement ofInterest) shall fall due when theReceivable is purchased.Interest will be charged monthly in arrears.
Any payments in respect of the purchase price and any charges are made by book entry by GE CAPITAL on theSettlement Account.
4.2ThePurchase Price Reserve shall fall due if and when
| (a) | theDebtor has fully paid the relevantReceivable to GE CAPITAL, but in theInter-Credit®-Factoring procedure, only afterReconciliation Process, or |
| (b) | it falls due as aBad Debt Amount (see clause 6.3). |
If theDebtor makes deductions which are less than thePurchase Price Reserve for the relevantReceivable, thePurchase Price Reserve (reduced by such deductions) will be credited to theSettlement Account. If the deductions exceed thePurchase Price Reserve, theSettlement Account will be debited accordingly.
4.3GE CAPITAL shall be entitled to increase thePurchase Price Reserve beyond the agreed amount if and to the extent that GE CAPITAL has, based on the facts available to it, reason to believe (soweit für GE CAPITAL Tatsachen die Annahme rechtfertigen) that
| (a) | the ORIGINATOR will not comply with material obligations vis-à-vis GE CAPITAL, in particular because the ORIGINATOR has suffered a financial collapse or such an event is imminent, or |
| (b) | thePurchase Price Reserve is not sufficient to adequately cover invoice reductions byDebtors and credit notes of the ORIGINATOR. |
4.4In the event of aNotification of Dispute, GE CAPITAL shall, until this matter is settled, be entitled to set aside aSpecial Purchase Price Reserve and to debit theSettlement Account accordingly.
GE CAPITAL will credit theSpecial Purchase Price Reserve to theSettlement Account again if and to the extent that it has been established by final and non-appealable judgement, or theDebtor has acknowledged, or the ORIGINATOR has provided evidence, that the relevantReceivable isEligible. If and to the extent that it is established by final and non-appealable judgement that the relevantReceivable is notEligible, GE CAPITAL will exercise its rights pursuant to clause 5.1 will cancel suchReceivable as uncollectible from the books in the relevant amount.
4.5To the extent that GE CAPITAL is liable for VAT contained in the relevantReceivable because the ORIGINATOR did not pay, or not fully pay VAT when due, GE CAPITAL may pay an amount equal to such liability to the tax authorities.
Such payment shall be deemed to be a payment in respect of the purchase price for the relevantReceivable by GE CAPITAL to the ORIGINATOR.
If such a liability is imminent, GE CAPITAL is entitled to establish a reserve in such amount until the matter of liability has been resolved.
If GE CAPITAL already paid the relevant part of the purchase price in accordance with clause 4.1, the ORIGINATOR undertakes to repay the amount payable by GE CAPITAL to the tax authorities/the respective reserve to GE CAPITAL. GE CAPITAL is entitled to debit theSettlement Account accordingly.
The ORIGINATOR is obliged, upon request and in respect of eachReceivable, to inform GE CAPITAL about the following:
| (a) | all overdue VAT liabilities; |
| (c) | all payments in respect of VAT. |
GE CAPITAL - Release: 07/2013 – Germany (Translation 11/2013)
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| 5. | Guarantee of Dilution Risk, Obligations of the ORIGINATOR regardingReceivables |
5.1The ORIGINATOR represents and warrants (by way of an independent guarantee) that each purchasedReceivable is and will continue to beEligible until it is fully collected by GE CAPITAL (Guarantee of Dilution Risk).
In the event of a breach of such guarantee, GE CAPITAL may require the reinstatement of the contractually stipulated condition (cure). If this is not possible or unreasonable, or a deadline set for such reinstatement has lapsed unsuccessfully, GE CAPITAL may reduce the purchase price, rescind from the receivable purchase and/or, in the event of negligence or willful misconduct on the part of the ORIGINATOR, claim indemnification for damages.
5.2If aDebtor claims that the relevantReceivable is notEligible, the ORIGINATOR must inform GE CAPITAL by sending aNotification of Dispute without undue delay. The ORIGINATOR is further obliged to clarify the matter and, following clarification, to issue a credit note, where applicable.
5.3The ORIGINATOR must forward to GE CAPITAL all payments received by it fromDebtors without undue delay.
| 6. | Bad Debt Coverage of GE CAPITAL |
6.1GE CAPITAL assumes theBad Debt Coverage for each purchasedReceivable, to the extent that such purchasedReceivable isEligible.
6.2TheBad Debt Case occurs if theDebtor
| (a) | fails to pay aReceivable within 120 days after its due date without disputing its obligation to pay in a substantiated manner prior to or after the expiry of such period; or |
6.3TheBad DebtAmount is settled promptly after the occurrence of theBad Debt Case, but not before the expiration of a 120-day-period after the due date of theReceivable.
6.4If the ORIGINATOR already paid VAT for the relevantReceivable and the tax authorities legitimately refuse to refund/offset such VAT, GE CAPITAL is obliged to pay that part of the purchase price as well (see clause 4.1 paragraph 2).
| 7. | Debtor Limit, Discretionary Debtor Limit |
7.1At the ORIGINATOR’s request, GE CAPITAL setsDebtor Limits at its reasonable discretion on the basis of the relevantDebtor’s creditworthiness and reliability.
GE CAPITAL is likewise entitled to modify (including cancellation)Debtor Limits at any time. Such modification does neither apply to purchasedReceivables nor toReceivables for which the ORIGINATOR has already provided theconsideration before having received the modification notice, and where such consideration cannot be reclaimed.
7.2Until revocation of such right by GE CAPITAL, the ORIGINATOR is entitled to set aDiscretionary Debtor Limit.
AnyDiscretionary Debtor Limit becomes effective unless GE CAPITAL objects to it without undue delay.
The ORIGINATOR determines the amount of anyDiscretionary Debtor Limit, which is limited, however, to an amount equal to the maximum amount forDiscretionary Debtor Limits pursuant to schedule 1 (Terms and Conditions), in accordance with the following provisions:
| (a) | If the ORIGINATOR delivered goods to aDebtor at least twice within the preceding twelve-month period and theDebtor duly paid for such goods within 60 days after the relevant due date of the Receivable, the ORIGINATOR may set aDebtor Limit for suchDebtor of up to 150% of the sum of all unpaid Receivables owing from suchDebtor to the ORIGINATOR at a particular point in time during the aforementioned twelve-month period; |
| (b) | In all other cases, the amount of theDebtor Limit must be justifiable beyond doubt by information (not older than twelve (12) months) provided by a commercial inquiry agency or a bank. |
7.3At GE CAPITAL’s request, the ORIGINATOR must provide information about the satisfaction of the requirements set out in clause 7.2 (a) or 7.2 (b), as the case may be, in respect of theDiscretionary Debtor Limit and submit the relevant documents.
7.4GE CAPITAL may always replace anyDiscretionary Debtor Limits byDebtor Limits set by itself.
7.5The amount of the fee charged by GE CAPITAL to establish aDebtor Limit is set out in schedule 1 (Terms and Conditions).Discretionary Debtor Limits are free of charge.
| 8. | Non-Purchased Receivables, Set-Off Right,Administration Fee |
8.1GE CAPITAL also collectsReceivables, which have not been purchased. To the extent that the relevant authorisation does not arise from clause 9, the ORIGINATOR hereby authorises GE CAPITAL to collect suchReceivables.
8.2Any payments made by Debtors in respect of suchReceivables shall be credited to theSettlement Account, but in theInter-Credit®-Factoring only after theReconciliation Process.
Clause 4.5 shall apply mutatis mutandis to any VAT amount which is contained in the relevantReceivables.
GE CAPITAL is entitled to set off the proceeds from the collection ofReceivables, which have not been purchased against its claims vis-à-vis the ORIGINATOR. To the extent that such counter-claims do not arise from the balance of theSettlement Account, the proceeds will be made available to the ORIGINATOR as part of the credit balance on theSettlement Account. The rights ofRetaining Suppliers shall not be affected thereby.
8.3GE CAPITAL shall receive anAdministrationFee as set out in schedule 1 (Terms and Conditions) for the administration ofReceivables, which have not been purchased. TheAdministration Fee shall fall due when the relevantReceivable is booked to theSpecial Account and will be charged to theSettlement Account.
| B. | ASSIGNMENT AND SECURITY |
| 9. | Assignment ofReceivables, Legal Cause |
9.1The ORIGINATOR hereby assigns any and all Receivables to GE CAPITAL. GE CAPITAL hereby accepts such assignment.
9.2The legal cause for the assignment of each purchased Receivable is the relevant receivables purchase agreement.
The assignment ofReceivables, which have not been purchased and the proceeds resulting from the collection of anyReceivables, which have not been purchased shall secure any and all existing and future claims which GE CAPITAL may have against the ORIGINATOR in connection with their overall business relationship.
For eachReceivable that has already been assigned to GE CAPITAL at the time of the purchase by GE CAPITAL, the legal cause for such assignment shall be replaced by the relevant receivables purchase agreement (purchase of the relevantReceivable as opposed to assignment for security purposes).
9.3In respect ofReceivables which have not been purchased, the following provisions shall apply:
The assignment shall not includeReceivables that the ORIGINATOR assigned or will assign toRetaining Suppliers in connection with an extended retention of title arrangement (partial in rem waiver of rights). If and to the extent that the extended retention of title subsequently ceases to exist, the assignment of relevantReceivable shall become valid and effective.
Clause 11.3 shall apply mutatis mutandis to the limitation of the claim to demand security and the obligation to release security.
9.4To the extent that the assignment pursuant to clause 9.1 does not result in the valid and unchallengeable ownership of GE CAPITAL in a purchasedReceivable, the following provision shall apply: Subject to the condition precedent of entering into a respective receivables purchase agreement, the ORIGINATOR hereby assigns the relevantReceivable to GE CAPITAL and GE CAPITAL hereby accepts such assignment.
| 10. | Cheques, Direct Debit, Bills of Exchange |
10.1If the ORIGINATOR receives payments in respect ofReceivables in any other form (in particular by way of bill of exchange or cheque), GE CAPITAL and the ORIGINATOR hereby agree that title to such instruments will transfer to GE CAPITAL as soon as the ORIGINATOR acquires title. Furthermore, the ORIGINATOR hereby assigns to GE CAPITAL any and all rights arising from such instruments. GE CAPITAL hereby accepts such assignments.
The delivery of any cheques and bills of exchange, which may at any time be in the ORIGINATOR’s direct possession to GE CAPITAL is replaced by the ORIGINATOR keeping such instruments on trust and in gratuitous custody for GE CAPITAL. If the ORIGINATOR does not acquire direct possession, it hereby assigns to GE CAPITAL its present and future claims for restitution against third parties. GE CAPITAL hereby accepts such assignments.
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10.2The ORIGINATOR shall deliver and, to - the extent necessary - endorse the instruments and any documents relating thereto to GE CAPITAL without undue delay. Until delivery to GE CAPITAL, the ORIGINATOR must take all steps that are necessary to preserve the rights resulting from such instruments.
The ORIGINATOR hereby authorises GE CAPITAL to sign bills of exchange on behalf of the ORIGINATOR as drawer and to endorse bills of exchange and cheques in the ORIGINATOR’s name.
10.3GE CAPITAL shall be entitled but not obliged to credit directly, but subject to their respective cashing, any equivalent amounts of cheques, debit entries and bills of exchange. If the relevant instruments are not irrevocably cashed, the underlying Receivable shall be treated as if it had originally not been paid.
| 11. | Liens and Ancillary Rights, Insurance and Central Settlement Claims |
11.1The ORIGINATOR hereby transfers to GE CAPITAL, who accepts such transfer, any and all present and future rights and claims (other than theReceivable itself) arising under or in connection with the relevant contract with theDebtor, including
| (a) | all ownership and inchoate rights in the underlying assets with respect to assignedReceivables that the ORIGINATOR may have or acquire, which are particularly set out in invoices relating to assignedReceivables, provided that the ORIGINATOR shall continue to be entitled to resell such assets to theDebtor; |
| (b) | any and all claims for delivery of such assets, in particular in the event of an unwinding of the contract, as well as the right to rescind the contract; |
| (c) | in the event of a sale by consignment, any claims against the carrier and the right of pursuit; |
| (d) | all rights of the ORIGINATOR arising from an extended retention of title arrangement within the meaning of clause 21 (d), in particular, the claim of theDebtor resulting from the resale of the relevant assets; |
| (e) | the ORIGINATOR’s right to request the insolvency administrator to exercise its rights in an insolvency of theDebtor. |
To the extent that such transfer is subject to specific additional requirements, the ORIGINATOR undertakes to comply with any such requirements in the required form.
To the extent that the ORIGINATOR holds or reacquires direct possession of such assets, the ORIGINATOR shall keep such assets for GE CAPITAL in gratuitous custody and separate from any other goods and waives any claims for reimbursement of expenses.
11.2 The ORIGINATOR and GE CAPITAL agree that GE CAPITAL acquires a lien and a retention right with respect to the securities and chattels, of which it may have or acquire possession in the course of business with the ORIGINATOR.
GE CAPITAL also acquires a lien and a retention right with respect to any claims arising from the business relationship (e.g. credit balances) that the ORIGINATOR has or will acquire against GE CAPITAL.
Such liens and the retention right shall secure all existing, future and contingent claims of GE CAPITAL against the ORIGINATOR arising from the business relationship.
If GE CAPITAL acquires control over monies or other assets under the condition that they may only be used for a certain purpose, GE CAPITAL’s lien does not extend to such assets and in this case, GE CAPITAL shall not have a retention right.
11.3 If the realisable value of all security interests not only temporarily exceeds the total amount of all claims arising from the business relationship (Cover Limit), GE CAPITAL shall, at the ORIGINATOR’s request, release security interests in the discretion of GE CAPITAL in the amount exceeding the Cover Limit.
When selecting the security interests to be released, GE CAPITAL will consider the legitimate interests of the ORIGINATOR and any third party that provided security for the ORIGINATOR’s obligations.
11.4 GE CAPITAL will only enforce the security interests if the ORIGINATOR is in payment default and a grace period of at least two weeks set by GE CAPITAL before the commencement of enforcement actions has expired to no avail.
TheReceivables assigned for security purposes are enforced by collection and the net proceeds resulting from such enforcement are set off against the ORIGINATOR’s obligations owing to GE CAPITAL.
GE CAPITAL will credit the net enforcement proceeds to theSettlement Account.
11.5If facts emerge which indicate that the payment of a purchasedReceivable by theDebtor may be at risk, the ORIGINATOR must, upon request by and at the expense of GE CAPITAL, take back the relevant goods.
GE CAPITAL may also take possession of the goods or store such goods at a third party’s premises.
GE CAPITAL’sBad Debt Coverage, if applicable, shall remain unaffected thereby.
The realisation of returned goods shall be for the benefit and at the expense of GE CAPITAL who will also determine the method of enforcement.
11.6 The ORIGINATOR shall use its best efforts to support GE CAPITAL without remuneration in enforcing and realising all security interests, rights and claims.
11.7The ORIGINATOR hereby assigns to GE CAPITAL any and all present and future claims arising from insurance contracts in respect of the items listed in clause 11.1 (a) and (b). GE CAPITAL hereby accepts such assignment.
The ORIGINATOR hereby assigns to GE CAPITAL any and all present and future claims againstCentral Settlement Agencies. GE CAPITAL hereby accepts such assignment.
To the extent that the validity of these assignments depends on other conditions, the ORIGINATOR hereby undertakes to perform the assignment in the required manner and to obtain any third party consent that may be required.
| 12. | Full-Service, Inter-Credit®, Smart-Service |
12.1Schedule 1 (Terms and Conditions) sets out whether the accounts receivable bookkeeping and dunning procedure follow the rules ofFull-Service-Factoring,Inter-Credit®-Factoring orSmart-Service-Factoring.
| 12.2 | The following rules apply to the bookkeeping: |
In all instances, the ORIGINATOR transfers the data relating toReceivables, such as invoices, credit notes, debit notes andNotifications of Dispute by submitting the relevant documents and/or throughFactoring-Satzaufbau and/or by manually entering data of invoices/credit notes online inFactorlink.
In theFull-Service-Factoring andSmart-Service-Factoring procedures, theDebtors’ payments are booked directly by GE CAPITAL to theDebtors’ Accounts.
In theInter-Credit®-Factoring procedure, theDebtors’ payments shall be booked by GE CAPITAL to theIncoming Payment Settlement Account. Any accounting documents that GE CAPITAL may have shall be delivered to the ORIGINATOR who books the payments on the debits side and relates them to the relevant invoices. At least once a week, the ORIGINATOR shall send its completeOpen Items File to GE CAPITAL throughFactoring-Satzaufbau. Upon receipt of such data, GE CAPITAL will perform aReconciliation Process and will adjust all otherAccounts kept in connection with the factoring arrangement.
In theInter-Credit®-Factoring procedure, the ORIGINATOR must keep the accounts receivable books in such a manner that arrears of postings are avoided and that theOpen Items File is correct and up-to-date on a daily basis.
12.3 The following rules apply to the dunning procedure:
If theDebtor fails to pay the relevantReceivable on the due date, three (3) dunning runs in cycles of 14 days will generally be performed. If the relevantReceivable is not completely discharged within a period of 60 days after its due date, theCollection Procedure is initiated in accordance with clause 16.
In theFull-Service-Factoring procedure, GE CAPITAL performs the dunning procedure, in theSmart-Service-Factoring and theInter-Credit®-Factoring procedures, the ORIGINATOR performs the dunning procedure.
In theInter-Credit®-Factoring andSmart-Service-Factoring procedures, the ORIGINATORS must perform the dunning procedure in such a manner that arrears of reminders are avoided.
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| 13. | Disclosed /Undisclosed Procedure |
13.1Schedule 1 (Terms and Conditions) sets out whether theDisclosed Procedureor the Undisclosed Procedure applies.
13.2In theDisclosed Procedure, the ORIGINATOR will inform itsDebtors at theCommencement Date about the factoring procedure and the assignment ofReceivables to GE CAPITAL in writing and in the appropriate manner (letter of notification).
Furthermore, the ORIGINATOR will attach to its invoices a clearly visible note of assignment in accordance with schedule 1 (Terms and Conditions).
GE CAPITAL is also entitled to inform theDebtors about the factoring arrangement and the assignment and to verify the relevantReceivables with theDebtors.
To the extent that the parties agree onPledged Accounts, clause 13.3 shall apply mutatis mutandis.
13.3In theUndisclosed Procedure, the ORIGINATOR shall acceptDebtors’ payments by cashless transactions, if possible, and only into thePledged Accounts.
All invoices and any other relevant correspondence of the ORIGINATOR vis-à-vis itsDebtors shall only specify thePledged Accounts as the ORIGINATOR’s bank account details. AnyDebtors that may have been informed otherwise will be advised accordingly by the ORIGINATOR without undue delay.
The ORIGINATOR undertakes to reset all balances on thePledged Accounts prior to theCommencement Date.
The ORIGINATOR will enter into a separate agreement with GE CAPITAL in respect of thePledged Accounts and will obtain the respective consent of the account keeping bank. In particular, this agreement shall regulate the following points:
| (a) | Pledge and security purpose: To secure in particular the claim arising from clause 5, and to secure any and all other present and future claims of GE CAPITAL against the ORIGINATOR arising from the business relationship, the ORIGINATOR shall pledge to GE Capital its claims arising from thePledged Accounts. The amounts received and standing to the credit of thePledged Accounts serve for the sole purpose of being transferred to GE CAPITAL; |
| (b) | Collection Arrangement: GE CAPITAL is – in particular prior to the occurrence of an enforcement event – entitled to solely collect the pledged claims. The ORIGINATOR may only demand payment to GE CAPITAL; |
| (c) | Trust Arrangement: ThePledged Accounts shall be used exclusively to accept payments in respect ofReceivables and are held by the ORIGINATOR as trustee for GE CAPITAL in its own name, but for the sole purpose of creating a security interest for GE CAPITAL (trust arrangement); |
| (d) | Notification: The ORIGINATOR undertakes to notify each credit institution that keeps any of thePledged Accounts of the pledge, the collection arrangement and the trust arrangement; |
| (e) | Warranty: The ORIGINATOR warrants by way of an independent guarantee that no third party rights exist with respect to the pledged rights and claims other than a subordinated pledge arising from the account keeping credit institution’s General Business Conditions, if applicable. |
13.4GE CAPITAL is entitled to conduct regular balance acknowledgement procedures withDebtors.
GE CAPITAL will send an account statement setting out theReceivables which, to GE CAPITAL’s knowledge, are unsettled at the relevant date, including the account balance resulting therefrom, accompanied with a request to the relevantDebtor to confirm the balance set out therein to be accurate and the relevantReceivables to beEligible.
In theUndisclosed Procedure, the request to confirm the account balances is generally made in the name of the ORIGINATOR by an auditor appointed by GE CAPITAL as trustee for GE CAPITAL. The ORIGINATOR will grant a relevant power of attorney to the trustee for submission to theDebtor. The trustee will inform GE CAPITAL comprehensively about the results of the balance acknowledgement procedure.
| 14. | Change of Procedure by Partial Termination |
14.1GE CAPITAL is entitled to terminate in writing theInter-Credit®-Factoring, theUndisclosed Procedure or both in accordance with the following terms (partial termination):
| (a) | an ordinary partial termination by giving a month’s prior notice to the end of each month, |
| (b) | an extraordinary partial termination without observation of a termination period, if the conditions of clause 26.2 are fulfilled. |
14.2Upon effectiveness of a partial termination of theInter-Credit®-Factoring, the Factoring Agreement shall continue asFull-Service-Factoring, upon partial termination of theUndisclosed Procedure as Disclosed Procedure, respectively.
14.3Upon receipt of an ordinary partial termination pursuant to clause 14.1 (a), the ORIGINATOR is entitled to terminate the Factoring Agreement by giving five (5) Business Days’ notice prior to the date on which the partial termination takes effect.
14.4At the ORIGINATOR’s request, GE CAPITAL will not disclose the assignment notwithstanding a termination of theUndisclosed Procedure if and as long as the claims owing to GE CAPITAL arising from the business relationship with the ORIGINATOR are unappealably repaid.
14.5GE CAPITAL is entitled to terminate theSmart-Service-Factoring by written notice, applying clause 14.1 mutatis mutandis. Upon effectiveness of a partial termination, the Factoring Agreement shall continue as Full-Service-Factoring; clause 14.3 shall also apply mutatis mutandis.
| 15. | Quarterly Account Statement,Tacit Ratification, Time Limit for Objections |
15.1GE CAPITAL shall, within ten (10) days following the end of each calendar quarter, send theQuarterly Account Statement to the ORIGINATOR.
15.2The ORIGINATOR must raise any objections concerning the incorrectness or incompleteness of aQuarterly Account Statement no later than six (6) weeks following receipt thereof; if such objections are made in writing, dispatch thereof during the 6-week-period shall suffice.
Failure to make objections in due time will be considered an approval of theQuarterly Account Statement. When issuing theQuarterly Account Statement, GE CAPITAL will expressly refer the ORIGINATOR to this consequence.
The ORIGINATOR is also entitled to request correction of theQuarterly Account Statement after the expiry of the 6-week-period, but must prove in that instance that itsAccount was either unlawfully debited or not credited.
15.3To the extent that GE CAPITAL has a repayment claim against the ORIGINATOR, GE CAPITAL may reverse incorrect credit entries on allAccounts of the ORIGINATOR by way of a debit entry prior to the issue of the nextQuarterly Account Statement (reverse entry); in this case, the ORIGINATOR may not object to the debit entry on the grounds of having already disposed of an amount equivalent to the credit entry.
If GE CAPITAL discovers an incorrect credit entry only after aQuarterly Account Statement has been issued and if GE CAPITAL has a repayment claim against the ORIGINATOR, it will make a correction entry in the amount of such claim.
If the ORIGINATOR objects to the correction entry, GE CAPITAL will re-credit the account with the amount in dispute and pursue its repayment claim separately.
GE CAPITAL will immediately notify the ORIGINATOR of any reverse entries and correction entries made by it. With respect to the calculation ofInterest, the entries will take retroactive effect to the day on which the incorrect entry was made.
16.Collection Procedure
16.1If anyReceivables remain unsettled after the third dunning letter, GE CAPITAL will initiate theCollection Procedure.
16.2GE CAPITAL shall inform the ORIGINATOR about any developments in theCollection Procedure if necessary, and shall, in the event of any disputes raised by theDebtor, give the ORIGINATOR the opportunity to provide comments thereon and introduce such comments in the procedure. GE CAPITAL shall enter into settlement agreements concerning theEligibility of anyReceivable, orReceivables which have not been purchased only with the consent of the ORIGINATOR.
Considering the above, the ORIGINATOR acknowledges that the results of a legal proceeding between GE CAPITAL and theDebtor are also binding between GE CAPITAL and the ORIGINATOR.
16.3GE CAPITAL shall bear the collection costs for purchased andEligible Receivables, all other costs shall be borne by the ORIGINATOR.
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All collection costs are initially debited to theSettlement Account. When theBad Debt Amount is paid, GE CAPITAL shall reimburse such costs for the relevantReceivable.
GE CAPITAL is entitled to claim an advance in justifiable instances.
16.4GE CAPITAL is entitled but shall not be obliged to claim default interest from theDebtor. At the ORIGINATOR’s request, GE CAPITAL shall assign such claims against theDebtor to the ORIGINATOR.
16.5The ORIGINATOR is obliged to provide GE CAPITAL with all documentation necessary for theCollection Procedure and make all relevant disclosures at the latest on the 60th day after the due date of the relevantReceivable and shall continue to provide such information immediately upon request during the procedure.
If the ORIGINATOR fails to submit the necessary information in due time, GE CAPITAL may, after having set a reasonable period to provide information, withdraw from the receivables purchase agreement relating to the relevantReceivable.
GE CAPITAL declares the withdrawal by rebooking theReceivables from theFactoring Account to theSpecial Account, provided that the ORIGINATOR does not need to receive a notice of such book entry.
The ORIGINATOR shall not undertake any action or make any declaration intended to create any third party rights in respect of the assignedReceivables and ancillary rights, in particular:
| (a) | security assignments ofReceivables; |
| (b) | collection authorisations of any kind in relation to theReceivables. |
| 18. | Increased Fiduciary Duty and Duty of Care |
In theUndisclosed Procedure,Inter-Credit®-Factoring andSmart-Service-Factoring procedure, the ORIGINATOR has an increased fiduciary duty and duty of care, and must exercise such duties in such a manner that GE CAPITAL is in no worse position than if GE CAPITAL had performed the relevant task itself, or the assignment had been disclosed, as the case may be.
| 19. | Obligation for Information Undertaking and Deposit |
19.1The ORIGINATOR must deliverReceivables Recordsto GE CAPITAL without undue delay, if so requested at any time.
19.2The ORIGINATOR and GE CAPITAL agree that in respect of purchasedReceivables title to all present and futureReceivables Records is transferred to GE CAPITAL. The delivery is replaced by the ORIGINATOR keeping theseReceivables Statements on trust and in gratuitous custodyduring its own statutory record retention duties. The ORIGINATOR hereby assigns to GE CAPITAL any and all present and future claims for restitution against third parties concerning theseReceivables Records. GE CAPITAL hereby accepts this assignment.
19.3The ORIGINATOR shall inform GE CAPITAL without undue delay of any significant circumstances relating to the ORIGINATOR’s enterprise and shall submit all relevant documents, in particular:
| (a) | any intended changes with respect to the rights of representation, the shareholding, the constitutional documents and intended changes with respect toAffiliated Companies, to the extent that such changes are relevant for the performance of this Agreement; |
| (b) | any financing arrangements with any other financial institutions including security agreements; |
| (c) | any restriction of the authorisation to resell retained goods and/or collectReceivables; |
| (d) | any substantial deterioration in the ORIGINATOR’s general financial and business condition. |
19.4The ORIGINATOR is obliged to inform GE CAPITAL of any circumstances of which it may become aware concerning the risk of theDebtor of beingUnable to Pay debts as they fall due.
19.5 The ORIGINATOR is obliged to provide GE CAPITAL with all information and documents necessary for GE CAPITAL to perform its obligations under the Anti-Money-Laundering Act and to inform GE CAPITAL without undue delay of any relevant changes during the course of the business relationship.
19.6 The ORIGINATOR shall supply to GE CAPITAL the following financial information:
(a) annually, as soon as reasonably practicable and no later than one hundred and eighty (180) days from the relevant financial year end, copies of the audited (consolidated if available) annual financial statements (balance sheet, profit and loss account and cash flow statement) ofParent and ORIGINATOR together with the relevant auditors’ reports;
(b) quarterly, and no later than thirty (30) days after the end of each quarter, copies of the consolidated quarterly financial statements (balance sheet, profit and loss account and cash flow statement) ofParent; and
(c) monthly, and no later than fifteen (15) days after the end of each month, the management reports (balance sheet, profit and loss account and cash flow statement) ofParent and ORIGINATOR.
| 20. | External Audit, Declaration of Consent |
GE CAPITAL is entitled to perform an external audit at the ORIGINATOR’s business premises at any time during customary business hours.
GE CAPITAL is entitled to review and make copies of all books, records and other documents of the ORIGINATOR relating to the factoring arrangement and its performance. The ORIGINATOR is obliged to support GE CAPITAL and provide comprehensive information.
GE CAPITAL’s right to receive information shall also include the right to receive information from the tax advisor, auditor or any other person who keeps the accounts or prepares, establishes or audits the annual report for the ORIGINATOR. The ORIGINATOR hereby releases such persons vis-à-vis GE CAPITAL from their professional duty of confidentiality.
The right of GE CAPITAL to collect, process and utilise data and the release from its obligations under the Banking Secrecy is set out in schedule 2 (Declaration of Consent).
| 21. | Arrangements inDebtor Agreements |
The ORIGINATOR shall ensure and shall provide GE CAPITAL with reasonable evidence that its agreements with anyDebtors, in particular its general business conditions, contain the following terms:
| (a) | general business conditions of anyDebtor which are in conflict with the ORIGINATOR’s general business conditions shall have no effect; |
| (b) | the ORIGINATOR has the right to assign itsReceivables against the relevantDebtor to a third party; |
| (c) | the business relationship between theDebtor and the ORIGINATOR shall be governed by German law; the place of jurisdiction shall be at the registered seat of the ORIGINATOR; |
| (d) | the general terms and conditions shall contain all customary and permissible security arrangements, in particular retention of title arrangements, including any forms of extension and augmentation of such retention of title arrangements; |
| (e) | if aDebtor is in payment default with any of theReceivables, all otherReceivables against the relevantDebtor can be accelerated forthwith; |
| (f) | theDebtor shall bear all fees, costs and expenses incurred in connection with any legal proceedings successfully instituted against it outside of Germany. |
| 22. | Set-Off, Settlement,Reimbursement Claims |
22.1All claims of GE CAPITAL and the ORIGINATOR against each other arising from any legal relationship may be set off against each other by GE CAPITAL.
22.2Following the cancellation of aDebtor Limit, GE CAPITAL may, in relation to the ORIGINATOR, set off payments received from the relevantDebtor againstReceivables purchased from suchDebtor (irrespective of theDebtor’s appropriation of payment) provided that the application shall not affect the rights of anyRetaining Supplier. The same shall apply mutatis mutandis for Credit Notes issued to a Debtor and enforcement proceeds.
22.3 Unless expressly agreed otherwise, all claims and receivables of GE CAPITAL against the ORIGINATOR arising from this agreement fall due with immediate effect.
22.4 The ORIGINATOR may only set off its claims against claims of GE CAPITAL if the ORIGINATOR’s claims are undisputed or have been confirmed by an unappealable court decision.
22.5The ORIGINATOR shall keep GE CAPITAL continuously informed about agreements withDebtors from whichReimbursement Claims may arise. Such agreements do not affect theEligibility ofReceivables if theReimbursement Claims have been secured in accordance with the following terms.
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GE CAPITAL is entitled to establish a reserve or (at its choice) demand security deposits from the ORIGINATOR in the anticipated amount of theReimbursement Claims. The ORIGINATOR is entitled to provide a security deposit in order to discharge a reserve at any time. When determining the anticipated amount of theReimbursement Claims, futureReimbursement Claims shall also be considered. These are claims that are certain or likely to arise in the future, but which amount and/or time of origination is still uncertain. To the extent that the determination of such claims depends on future events (e.g. development of sales), the amount shall be determined by way of estimate, in the absence of other indicators on the basis of historical data.
GE CAPITAL determines the amount ofReimbursement Claims considering all circumstances in its reasonable discretion on a monthly basis, by the end of each month at the latest.
Immediately after the end of each month, the ORIGINATOR shall demonstrate the anticipated amount ofReimbursement Claims in a testable manner.
The reserve is established by debiting theSettlement Account and crediting aReserve Account by the relevant amount. If the anticipated amount of theReimbursement Claims is reduced, theReserve Account will be debited by such reduction and a respective credit will be booked on theSettlement Account.
Security deposits will be provided by payment by the ORIGINATOR to GE CAPITAL, whereby the amount is credited to theReserve Account and any dissolution is debited on theReserve Account and credited on theSettlement Account.
The reserve and the security deposit shall primarily secure GE CAPITAL against set-offs or settlements byDebtors withReimbursement Claims. To the extent that such claims are legally and validly raised, GE CAPITAL is entitled to receive the relevant amounts likeDebtors’ payments.
In addition, the reserve and the security deposit shall secure any and all existing and future claims which GE CAPITAL may have against the ORIGINATOR in connection with their business relationship.
| 23. | Changes inInterest Rate, Exchange Rate Differences |
23.1The applicableInterest Rate and any changes ofInterest Rate during the term of this Agreement are set out in schedule 1 (Terms and Conditions).
23.2 GE CAPITAL will convert any invoices/credit notes not denominated in Euro at the exchange rate published by the European Central Bank for the month closing date of the previous month.
Payments ofDebtors are settled at the current market rate.
| 24. | Fees and Reimbursement of Expenses |
The amount of fees is set out in schedule 1 (Terms and Conditions).
If a service provided by GE CAPITAL is required by law or secondary contractual obligation, or is provided in GE CAPITAL’s own interest, such service will be free of charge, unless the charging of fees is legally permitted and occurs in accordance with the relevant statutory provision.
Any claim of GE CAPITAL for reimbursement of expenses is subject to statutory law.
| 25. | Assignability of Claims against GE CAPITAL |
All present and future claims that the ORIGINATOR may have against GE CAPITAL may only be assigned to third parties with the express written consent of GE CAPITAL.
GE CAPITAL may decline its consent for good cause; such cause will be assumed in particular if GE CAPITAL has reason to believe that the intended assignment would be disadvantageous to suppliers of the ORIGINATOR.
| 26. | Commencement, Expiration, Termination |
26.1TheCommencement Date andExpiration Date of this agreement are set out in schedule 1 (Terms and Conditions).
Unless this agreement is terminated with three (3) months’ notice prior to its scheduledExpiration Date, it shall be extended by another year. The same shall apply to any subsequent periods.
26.2 Each party may terminate the factoring agreement for good cause without observing any notice period. Good cause is shown if, considering all circumstances of the individual case and weighing the interests of both parties, the terminating party cannot reasonably be expected to continue the contractual relationship until the end of the notice period in accordance with clause 26.1.
If the good cause results from a breach of a contractual obligation, termination shall only be permitted after expiry of a reasonable period of time set for remedy to no avail, or after a dissuasion has proved to be unsuccessful, unless this proviso can be dispensed with because of the particularities of the individual case.
GE CAPITAL is in particular entitled to terminate for good cause if
| (a) | the ORIGINATOR is in substantial breach of clause 5, 12, 13, 18 or 19; or |
| (b) | the ORIGINATOR made incorrect statements about its financial condition that were of fundamental significance for GE CAPITAL’s decision about risk relevant transactions; or |
| (c) | a change of control with respect to the ORIGINATOR occurs, pursuant to which a natural person or legal entity (or group of persons or entities) other than the existing direct or indirect majority shareholder acquires the majority of the shares or voting rights with respect to the ORIGINATOR without prior written consent of GE CAPITAL; or |
| (d) | a substantial deterioration in the ORIGINATOR’s financial condition or of the value of a security interest occurs or threatens to occur which would jeopardize the fulfilment of an obligation vis-à-vis GE CAPITAL, even if security provided therefore is realised; or |
| (e) | the ORIGINATOR fails to comply within a reasonable time period set by GE CAPITAL with its obligation to create security pursuant to this agreement or any other agreement, or |
| (f) | if aCross-Default occurs. |
Statutory termination rights shall remain unaffected.
26.3 In the event of a termination without notice period, GE CAPITAL shall grant the ORIGINATOR a reasonable period of time for the winding up unless an immediate completion is necessary.
26.4 Any termination notice must be made in writing.
26.5Upon termination of this agreement, all purchase offers, which have not yet been accepted, shall expire. All pending transactions shall be unwound in accordance with this agreement.
GE CAPITAL will, after satisfaction of all of its claims arising from the business relationship with the ORIGINATOR, reassign to the ORIGINATOR all outstandingReceivables, which have not been purchased.
| 27. | Further Elements of this Agreement |
| (a) | Schedule 1 (Terms and Conditions) |
In the event of any discrepancies between schedule 1 (Terms and Conditions) and this agreement, the provisions of schedule 1 (Terms and Conditions) shall prevail.
| (b) | Schedule 2 (Declaration of Consent) |
The ORIGINATOR consents to the collection, processing and utilisation of data by GE CAPITAL, the transfer of data to GE CAPITAL, the transfer of data to third parties in connection with the transfer of rights arising from this agreement and the release of the tax authorities from their professional duty of confidentiality.
| (c) | Schedule 3 (Deposit Protection – Deposit Protection Fund of the Association of German Banks) |
28. Governing Law, Jurisdiction
28.1 This agreement is governed by German law.
28.2 The courts in Mainz shall have jurisdiction.
If any provisions of this agreement or the schedules thereto are or become invalid in full or in part, the validity of the remaining provisions will not be affected thereby. The invalid provision shall be replaced by the provision which is valid and effective and comes closest to the economic intention of the parties. The same principles shall apply if this agreement contains a gap.
If any in rem transfers (assignments ofReceivables or inchoate rights and transfers of movable assets) should be or become ineffective, GE CAPITAL and the ORIGINATOR are obliged to treat each other as if the relevant transfers were effective. They are further obliged to perform the relevant in rem transfer without undue delay, observing any requirements which until that time may not have been observed.
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Accounts: The Accounts maintained in the factoring procedure:Factoring Account, Incoming Payment Settlement Account, Purchase Price Reserve Account, Reserve Account, Settlement Account, Special Account, Special Settlement Account, Special Purchase Price Reserve Account.
Administration Fee: The percentage rate of theNominal Amountset out in schedule 1 (Terms and Conditions).
Affiliated Company: A company which holds a participation in the ORIGINATOR or in which the ORIGINATOR holds a participation or a shareholder of which holds a participation in the ORIGINATOR or whose representatives are completely or partially identical with those of the ORIGINATOR. The form of participation is irrelevant; an indirect participation is sufficient.
Bad Debt Amount: Amount corresponding to the purchase price for the relevantReceivable, but reduced by the VAT amount contained in theReceivable. Any payments made in respect of the purchase price are offset. The balance shall be credited or debited, as the case may be, to theSettlement Account.
Bad Debt Case: Occurrence of an event referred to in clause 6.2.
Bad Debt Coverage: Obligation of GE CAPITAL to pay theBad Debt Amount in theBad Debt Case.
Business Days: All calendar days except for Saturdays, Sundays and any public holidays and bank holidays applicable at the registered seat of the ORIGINATOR or GE CAPITAL.
Central Settlement Agency: Companies, in particular central settlement agency, purchasing associations and banks that provide central settlement services, which provide payments in respect ofReceivables on behalf of theDebtors (e.g. servicing), alongside theDebtors (e.g. collateral promise) or instead of theDebtors (purchase of receivables).
Collection Procedure: Procedure instigated to collectReceivables, including legal dunning procedures by external counsel, judicial court proceedings and foreclosure proceedings until the final settlement of the proceeding.
Commencement Date: TheCommencement Date referred to in schedule 1 (Terms and Conditions).
Cross-Default: An (i) event of default (however described) has occurred under any of theGECC Credit Facility or theIndentureprovided that such event of default has not been remedied or waived in accordance with the relevant document or (ii) any of the GECC Facility or theIndenture terminates or is terminated for any reason.
Debtor Limit: The maximum amount available to fund purchases ofReceivables against a particularDebtor. The extent of its utilization is equal to the sum of all purchased and outstandingReceivables. Bills of exchange and cheques are considered as a settlement of aReceivable when irrevocably cashed.Debtor Limits are established pursuant to clause 7.
Debtors: All present and future counterparties of the ORIGINATOR to contracts pursuant to which the ORIGINATOR owes the delivery of goods and/or the rendering of services for which the relevant counterparty owes payment, provided that theDebtors included in the factoring agreement are set out in schedule 1 (Terms and Conditions).
Debtors’ Accounts:Accounts administrated by GE CAPITAL, which show the ORIGINATOR’sReceivablesagainst theDebtors that were assigned to GE CAPITAL.
Disclosed Procedure: Factoring procedure in which the assignment ofReceivablesis disclosed to theDebtors.
Discretionary Debtor Limit:Debtor Limit established and modified by declaration of the ORIGINATOR vis-à-vis GE CAPITAL in accordance with clause 7.2 and within the extent set out in schedule 1 (Terms and Conditions).
Eligible: Means in respect of any Receivable that such Receivable exists as set out in the Receivables Notification, is free from any objections and defenses, is assignable and is not subject to any third party rights that may be asserted against GE CAPITAL and that the respective invoice has been received by the Debtor.
Expiration Date: TheExpiration Date referred to in schedule 1 (Terms and Conditions).
Factoring Account:Account on which the purchasedReceivablesare booked in their aggregate amount.
Factoring Commission: The percentage rate of theNominal Amount set out in schedule 1 (Terms and Conditions).
Factoring-Satzaufbau: GE CAPITAL’s requirements for information to be provided by the ORIGINATOR in electronic form about invoices, credit notes, payments or open items.
Factorlink: Software for the performance of the factoring procedure.
Full-Service-Factoring: Factoring procedure in which the accounts receivable bookkeeping and dunning procedure are performed by GE CAPITAL.
GECC Credit Facility: A revolving credit facility entered into on or about the date of this Agreement between (among others) Aleris Recycling, Inc., Aleris Recycling Bens Run, LLC, Aleris Specialty Products, Inc., Aleris Specification Alloys, Inc., ETS Schaefer, LLC, Aleris Specification Alloy Products Canada Company and General Electric Capital Corporation (as amended from time to time).
Incoming Payment Settlement Account: Accounton which in theInter-Credit®-Factoring incoming payments are booked by interim posting until theReconciliation Process has been performed, see clause 12.2.
Indenture:The indenture dated as of 8 January 2015 and entered into between (among others) Real Alloy Holding, Inc. (f/k/a SGH Acquisition Holdco, Inc. and a successor by merger to SGH Escrow Corporation) as issuer and Wilmington Trust, National Association as trustee and notes collateral trustee (as amended from time to time). Such indenture governs,inter alia, the issue of USD 305,000,000.00 senior secured notes.
Inter-Credit®-Factoring: Factoring procedure in which the accounts receivable bookkeeping and dunning procedure are performed by the ORIGINATOR as trustee for GE CAPITAL.
Interest: Interest is calculated by applying theInterest Rate to the assessment base.
The assessment base is the partial amount of the purchase price that was paid to the ORIGINATOR, calculated for the period starting on the beginning of the day when payment is made by GE CAPITAL to the ORIGINATOR until the beginning of the day when theDebtor’s payment is received by GE CAPITAL or when theBad Debt Amount falls due.
Interest is calculated on the basis of the international method, i.e. act/360 interest days per year. The assessment of interest occurs monthly.
Interest is subject to applicable VAT.
Interest Rate: The percentage rate p.a. (per annum) set out in schedule 1 (Terms and Conditions), consisting of the sum of the percentage rates of theInterest Reference Rateand the margin.
Interest Reference Rate: TheInterest Reference Rate is the EURIBOR (Euro Interbank Offered Rate), provided that the applicable term and the details of the continuing adjustment of the EURIBOR are set out in schedule 1 (Terms and Conditions). The actual rate of the EURIBOR is published, inter alia, on the internet site of the German Federal Bank.
Maximum Commitment: The amount which theUtilization may not exceed. The amount of theMaximum Commitment is set out in schedule 1 (Terms and Conditions).
Nominal Amount: The final amount set out in the invoice for the relevantReceivable, including VAT.
Notification of Dispute: Notification by the ORIGINATOR or theDebtor to GE CAPITAL that theDebtor claims that theReceivable is notEligible.
Offer Letter: A form provided by GE CAPITAL, in which the ORIGINATOR acknowledges that theReceivablesNotification is correct and theReceivables areEligible.
Open Items File: List of allReceivables which are existing and unpaid at the time when the list is compiled.
Parent: Real Alloy Holding, Inc., a Delaware Corporation (f/k/a SGH Acquisition Holdco, Inc. and a successor by merger to SGH Escrow Corporation).
Pledged Accounts: The bank accounts referred to asPledged Accounts in schedule 1 (Terms and Conditions) and pledged to GE CAPITAL pursuant to a separate agreement.
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Purchase Price Reserve: Amount corresponding to the percentage rate set out in schedule 1 (Terms and Conditions) of theNominal Amount.
Purchase Price Reserve Account: Account on which the Purchase Price Reserve is booked (see clauses 4.1 and 4.3).
Quarterly Account Statement: Written summary of the balances of allAccounts as of the end of each calendar quarter.
Receivables: All existing and future payment receivables arising under agreements for the delivery of goods and/or the rendering of services by the ORIGINATOR vis-à-vis itsDebtors.
Receivables Notification: Notification of a certainReceivable by the ORIGINATOR to GE CAPITAL. Several notifications ofReceivables can be combined in oneReceivables Notification.
Receivables Records: All documents – irrespective of whether in digital, paper or other form – that provide evidence of theReceivables, in particular invoices, credit notes, debit notes, orders, order confirmations and bills of delivery.
Reconciliation Process: Reconciliation of GE CAPITAL’sOpen Items Filewith theOpen Item File provided by the ORIGINATOR.
Reimbursement Claims:Claims ofDebtors vis-à-vis the ORIGINATOR, which do not result in a direct reduction of individualReceivables, in particular claims based on a relevant period and/or the volume of sales (bonuses etc.), and claims arising from certain operations/events (marketing contributions, anniversary bonuses etc.).
Reserve Account:Account showing the anticipated amount ofReimbursement Claims (see clause 22.5).
Retaining Supplier: Each supplier of the ORIGINATOR who has stipulated an extended retention of title arrangement (assignment of theReceivables resulting from the resale of the goods) with the ORIGINATOR.
Settlement Account:Accounton which all claims of the ORIGINATOR vis-à-vis GE CAPITAL (e.g. purchase price payments for purchasedReceivables, includingPurchase Price Reserves that have been released,Debtor’s payments in respect ofReceivables which have not been purchased) and claims of GE CAPITAL against the ORIGINATOR (e.g. commission claims, claims for reimbursement based on performance defaults) as well as disbursements to the ORIGINATOR are booked and offset against each other.
Smart-Service-Factoring: Factoring procedure in which the accounts receivable bookkeeping is performed by GE CAPITAL and the dunning procedure is performed by the ORIGINATOR as trustee for GE CAPITAL.
Special Account: Account on which theReceivables which have not been purchased are booked.
Special Purchase Price Reserve: Reserve established as the result of aNotification of Dispute which shall not exceed, however, the part of the purchase price that was previously credited.
Special Purchase Price Reserve Account: Account on which Special Purchase Price Reserves resulting from Notifications of Disputes are booked, see clause 4.4.
Special Settlement Account: Technical offset account to the Special Account.
Unable to Pay: Means with respect to aDebtor that suchDebtor is unable to pay its debts as and when they fall due.Inability to Pay is generally presumed if theDebtor generally ceases to make payments.
Undisclosed Procedure: Factoring procedure in which the assignment ofReceivables is not initially, but only in theCollection Procedure, disclosed vis-á-vis theDebtors.
Utilization: Sum of the balances on allAccounts held for the ORIGINATOR in accordance with the factoring agreement.
|
| Germany, February 27, 2015 |
| Place, Date |
|
| Germany, February 27, 2015 |
| Place, Date |
|
| /s/ Russell Barr, Authorized Signatory |
| Aleris Recycling (German Works) GmbH |
|
| /s/ Johannes Wehrmann, Senior Manager, Structured Finance |
| GE Capital Bank AG |
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Schedule 1 (Terms and Conditions)
| 1. | Debtors included in the Factoring Agreement: |
AllDebtors of the ORIGINATOR which are located (howsoever, be it the registered office, seat or otherwise) in any of the following countries:
Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Ireland, Iceland, Italy, Latvia, Lithuania, Liechtenstein, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Sweden, Switzerland, Spain, Slovakia, Slovenia, Czech Republic, Hungary, United Kingdom, Federal Republic of Germany, United States of America.
However, those Debtors listed in theAnnex(Excluded Debtors) are excluded and are not included in the Factoring Agreement.
| 2. | Purchase Price Reserve:10 % |
| 3. | Interest Rate,Factoring Commission,Administration Fee, Limit Fee, Maximum Amount forDiscretionary Debtor Limit, Costs of Money Transfer charged by other Financial Institutions: |
| a) | TheInterest Rate is calculated as the sum of: |
| | (1) | Interest Reference Rate: three months EURIBOR (daily rate) fixed on the last business day of a month for the following month and |
| | (2) | Interest margin: 1.65 % p.a. |
Therefore, theInterest Rate is 1.686 % p.a. until 28 February 2015.
| b) | Factoring Commission andAdministration Fee: |
0.16 % Domestic
0.16 % Foreign
A minimum charge of 450,000.00 EUR applies during the first year of the term of the Factoring Agreement.
TheFactoring Commission andAdministration Fee are stated exclusive of applicable VAT.
| c) | Structuring Fee: 1.0% of the Maximum Commitment. |
The Structuring Fee is subject to applicable VAT and is due and payable upon commencement of the cooperation.
| d) | Limit Fee per each requestedDebtor Limit and contractual year: |
To the extend GE CAPITAL assumes insurance limits set by the trade credit insurer, no limit fees are charged.
The Limit Fee is stated exclusively of applicable VAT.
| e) | Maximum amount ofDiscretionary Debtor Limit perDebtor within the European Union (EU), Norway and the Switzerland: 50,000.00 EUR |
Discretionary Debtor Limits are free of charge.
| f) | The ORIGINATOR shall bear all costs charged or deducted by external financial institutions concerning allDebtor related payments received by GE CAPITAL directly or on aPledged Account. |
In case ofPledged Accounts the ORIGINATOR shall further bear any costs and expenses arising in connection with the account management and money transfer.
| 4. | Maximum Commitment: 50,000,000.00 EUR |
| 5. | Commencement Date:27 February 2015, provided that GE CAPITAL, by such date, confirms in writing to the ORIGINATOR that the Conditions Precedent (as defined below) have been satisfied or waived by GE CAPITAL. |
If GE CAPITAL does not provide such confirmation on 27 February 2015, theCommencement Date will be the earlier of: (i) such other date upon which GE CAPITAL confirms in writing to the ORIGINATOR that the Conditions Precedent have been satisfied or waived and (ii) such date on which GE CAPITAL makes the first purchase price payment under this factoring agreement.
If theCommencement Date occurs although one or more Conditions Precedent are not satisfied at such date, the ORIGINATOR undertakes to perform the respective actions and/or provide the respective documents/evidence immediately after theCommencement Date.
The ORIGINATOR is aware that GE CAPITAL may not execute any payment pursuant to this factoring agreement with effect of 27 February 2015 if GE CAPITAL has not received evidence of satisfaction of the Conditions Precedent by 12:00 CET on such date.
“Conditions Precedent” means:
| | 1. | Executed copy of this factoring agreement, including its schedules 1, 2 and 3 |
| | 2. | Executed copy of the addendum #1 to this factoring agreement (regarding trade credit insurance claims) |
| | 3. | Executed copy of the assignment of claims under trade credit insurance contracts (currently under credit insurance no. 630-000.317-00/7 with Compagnie Francaise d’Assurance pour le Commerce Exterérieur S.A., Niederlassung in Deutschland (Coface)) |
| | 4. | Executed copy of the addendum #2 to this factoring agreement (regarding balance sounding by an external auditor) |
| | 5. | Executed copy of the authorization to the external auditor for purposes of balance sounding |
| | 6. | Executed copy of the addendum #3 to this factoring agreement (regarding counter-claims and tolling) |
| | 7. | Executed copy of the certificate issued by Real Alloy Holding, Inc. confirming,inter alia, that theReceivables are not subject to any group company or third party right, that there is no conflict with any other financing and that the closing conditions and all other conditions to be fulfilled in accordance with the terms of the purchase and sale agreement regarding,inter alia, the ORIGINATOR have been satisfied or waived |
| | 8. | Executed copy of the no-conflict opinion to be issued by McGuireWoods LLP |
| | 9. | Executed copy of the assignment agreement between the ORIGINATOR and GE CAPITAL regarding claims against Aleris Switzerland GmbH on forwarding debtor collection proceeds |
| | 10. | Executed copy of the non-recourse receivables resale and repurchase agreement between the ORIGNATOR and Aleris Switzerland GmbH |
| | 11. | Shareholders resolutions for Aleris Switzerland GmbH respecting the document to be provided under no. 10. above |
| | 12. | Executed copy of the negative declaration by Deutsche Bank AG regarding theReceivables |
| | 13. | Executed copy of the pledge agreement regarding thePledged Accounts held with Deutsche Bank AG, including the respectively executed notification to and executed re-confirmation by Deutsche Bank AG |
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| | 14. | Executed copy of the letter agreement between,inter alia, Aleris Switzerland GmbH and Bank of America, N.A. in respect of,inter alia, the release of (i) receivables originated by the ORIGINATOR and sold to Aleris Switzerland GmbH and (ii) the collection accounts used by Aleris Switzerland GmbH for the collection of such receivables, including the confirmation that Bank of America, N.A. has received all conditions precedent to the effectiveness of the release contemplated by the letter agreement |
The Conditions Precedent, in each case, have to be delivered in a form and substance reasonably satisfactory to GE CAPITAL.
| 6. | Expiration Date:15 January 2019 |
| 7. | Pledged Accounts:1. Kto. Nr.: 0208 0208 00 |
BLZ: 300 700 10
BIC-Code: DEUTDEDDXXX
IBAN: DE07 3007 0010 0208 020800
| 8. | Assignment of payment claims arising from credit insurance no. 630-000.317-00/7 against Compagnie Francaise d’Assurance pour le Commerce Exterérieur S.A., Niederlassung in Deutschland (Coface). |
| 9. | Guarantee for orderly performance of contractual obligations by: not applicable |
| 10. | Factoring Procedure: Inter-Credit® |
| 11. | Disclosed / Undisclosed Procedure: TheUndisclosed Procedure shall be applicable. |
| 12. | Note of assignment in theDisclosed Procedure: not applicable |
| 13. | Miscellaneous: not applicable |
| | | | |
Germany, February 27, 2015 | | | | /s/ Russell Barr, Authorized Signatory |
| Place, Date | | | | Aleris Recycling (German Works) GmbH |
| | |
Germany, February 27, 2015 | | | | /s/ Johannes Wehrmann, Senior Manager, Structured Finance |
| Place, Date | | | | GE Capital Bank AG |
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