EXHIBIT 10.2
EXECUTION COPY
Dated August 14, 2003
as last amended and restated on March 31, 2004
between
BNP PARIBAS BANK N.V.
as Transferee
and
XXXXXX MICRO DISTRIBUTION GMBH
as Originator
and
XXXXXX MICRO HOLDING GMBH
as Depositor
------------------------------------------------------------------
GERMAN MASTER RECEIVABLES TRANSFER AND SERVICING AGREEMENT
------------------------------------------------------------------
HENGELER XXXXXXX
-2-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
TABLE OF CONTENTS
PART I. DEFINITIONS - INTERPRETATION............................................................. 5
1. Definitions............................................................................. 5
2. Interpretation.......................................................................... 5
PART II. PURPOSE - TERM - CONDITIONS PRECEDENT................................................... 6
3. Purpose................................................................................. 6
4. Effective Date - Termination............................................................ 6
5. Conditions Precedent.................................................................... 7
PART III. TRANSFER OF RECEIVABLES................................................................ 8
6. Transferable Receivables................................................................ 8
7. Eligible Receivables.................................................................... 9
8. Eligible Debtors........................................................................ 10
9. Conditions of Transfer.................................................................. 11
10. Transfer of Receivables................................................................. 12
11. Warranties of Compliance................................................................ 14
PART IV. INFORMATION - PROGRAM MANAGEMENT........................................................ 15
12. Information Obligations of the Originator............................................... 15
13. Calculation and Determination of the Financing Conditions by the Transferee............. 15
14. Transactions to be carried out during the Replenishment Period.......................... 15
15. Transactions to be carried out during the Redemption Period or any Temporary Redemption
Period.................................................................................. 15
PART V. SERVICING AND COLLECTION OF RECEIVABLES.................................................. 16
16. Servicing Obligations of the Originator................................................. 16
17. Equivalent Payments..................................................................... 17
18. Servicing Mandate....................................................................... 18
19. Obligations of the Originator in respect of Collections................................. 19
20. Renegotiations.......................................................................... 20
21. Authority to Xxx and be Sued............................................................ 21
22. Payments of Collections................................................................. 21
23. Diligence Obligations of the Originator................................................. 22
24. Retransfer to the Originator............................................................ 23
25. Onward Transfer by the Transferee....................................................... 24
PART VI. FINANCING............................................................................... 25
26. Characteristics of the Financing........................................................ 25
27. Maximum Financing Amount................................................................ 27
28. Issuer of Reference..................................................................... 27
29. Transfer Fee............................................................................ 28
30. Management Fee.......................................................................... 28
PART VII. DEPOSITS............................................................................... 29
31. Creation of Deposits on the Initial Transfer Date....................................... 29
32. Change in the Subordinated Deposit...................................................... 29
33. Change in the Complementary Deposit..................................................... 31
34. Cash Collateral......................................................................... 31
35. Increase of the Cash Collateral......................................................... 32
36. Release of the Cash Collateral.......................................................... 32
37. Immobilization Fee...................................................................... 32
PART VIII. REPRESENTATIONS AND WARRANTIES - COVENANTS............................................ 33
38. Representations and Warranties.......................................................... 33
39. Covenants............................................................................... 35
-3-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
PART IX. EVENTS OF DEFAULT......................................................................... 36
40. Events of Default and Termination of the Transferee's Commitment.......................... 36
41. Remedies upon the Occurrence of an Event of Default or a Termination of the Transferee's
Commitment................................................................................ 41
PART X. MISCELLANEOUS.............................................................................. 42
42. Payments and Currency for Payments........................................................ 42
43. Waiver.................................................................................... 42
44. Late payment Interests.................................................................... 42
45. Taxes..................................................................................... 43
46. Change in Circumstances................................................................... 43
47. Expenses.................................................................................. 45
48. Sub-contracting and Substitution.......................................................... 45
49. Confidentiality........................................................................... 45
50. Benefit of the Agreement.................................................................. 46
51. Notices, Communication and Documents...................................................... 46
52. Exercise of Rights........................................................................ 48
53. Language.................................................................................. 48
54. Indivisibility............................................................................ 48
55. Governing Law - Jurisdiction - Counterparts............................................... 48
56. Continuity................................................................................ 49
SCHEDULE 1 Glossary................................................................................ 50
SCHEDULE 2 Offer Form.............................................................................. 67
PORTFOLIO FILES DETAILS............................................................................ 71
SCHEDULE 4 Financing Conditions.................................................................... 77
SCHEDULE 5 Timetable................................................................................ 81
SCHEDULE 6 Retransfer Form......................................................................... 82
SCHEDULE 7 Calculation of the Daily and Transfer Fees............................................... 84
SCHEDULE 8 Trigger Event........................................................................... 88
SCHEDULE 9 Calculation of the Net Outstanding Receivables Amount and the Overconcentration
Limits............................................................................................. 90
SCHEDULE 10 Calculation of the Subordinated Deposit Rate........................................... 92
SCHEDULE 11A Form of the Originator's Auditors Certificate (Effective Date)........................ 94
SCHEDULE 12A Form of the Managing Director's Certificate (Effective Date).......................... 96
SCHEDULE 12B Form of the Managing Director's Certificate........................................... 97
SCHEDULE 13 Form of legal opinion of in-house counsel of the Guarantor............................. 99
SCHEDULE 14 Management Procedures.................................................................. 101
SCHEDULE 15 Form of ERoT-Certificate............................................................... 122
SCHEDULE 16 Part I: US Guarantee (Collections)..................................................... 123
Part II: US Guarantee (Fees)........................................................... 135
SCHEDULE 17 Liquidity Fees......................................................................... 147
SCHEDULE 18A Confirmation of Program Continuation upon an ERoT Withdrawal Event.................... 148
-4-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
THIS AGREEMENT has been originally made on August 14, 2003, as amended and
restated on December 29, 2003 and is hereby amended and restated on March 31,
2004.
BETWEEN:
(1) XXXXXX MICRO DISTRIBUTION GMBH, a German limited liability company
(Gesellschaft mit beschrankter Haftung), having its registered offices
at Xxxxxxxxxxxxxxx 0, 00000 Xxxxxxxx, Xxxxxxx, registered in the
commercial registry of the Lower Local Court (Amtsgericht) in Munchen
under registration number HRB 76025 (the "ORIGINATOR" );
(2) BNP PARIBAS BANK N.V., a Dutch limited liability company (naamloze
vennootschap), licensed as a credit institution, having its registered
offices at Xxxxxxxxxxx 000, Xxxxxxx 00000, XX - Amsterdam, 1101 EA,
registered with the Chamber of Commerce in Amsterdam under the number
33 166 364 (hereinafter referred to as the "TRANSFEREE"); and
(3) XXXXXX MICRO HOLDING GMBH, a German limited liability company
(Gesellschaft mit beschrankter Haftung), having its registered offices
at 85609 Aschheim, Heisenbergbogen 3, registered in the commercial
registry of the Lower Local Court (Amtsgericht) in Munchen under
registration number HRB 99636, whose representatives on the signature
page are duly authorized for the purposes of this Agreement
(hereinafter referred to as the "DEPOSITOR").
NOW, THEREFORE IT IS HEREBY AGREED AS FOLLOWS:
WHEREAS:
(A) The Originator's business consists of the distribution, sale and
purchase of hardware and software products, the importation and
exportation of such products and any other activity in connection with
the distribution of such materials.
(B) The Originator has agreed to a securitization program of five (5)
years, commencing on the Initial Transfer Date, with respect to certain
Receivables originated by it.
(C) Due to the affiliation of the Originator to the Xxxxxx Micro Group, the
Transferee has accepted the offer made to it by the Originator to
purchase, from time to time, Receivables under the terms and subject to
the conditions set forth in this Agreement, provided in particular
that:
- the payment of such Receivables by the Debtors will be secured
by means of a Subordinated Deposit made by the Depositor in
favor of the Transferee;
- the Debtor Payments will be paid to the Collection Accounts;
- the wire transfer of Debtor Payments, the payment of
Equivalent Payments and Retransfer Payments and the payment of
the Total Fees and Expenses to the Transferee will be
guaranteed by Xxxxxx Micro Inc.; and
- the various fees payable to the Transferee in connection with
the financing granted by it to the Originator, will be based
upon the refinancing costs of Eliopee Limited, named as Issuer
of Reference in the area of the securitization of receivables
and other financial assets.
-5-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
(D) Pursuant to a release letter (the "RELEASE LETTER") dated March 18,
2004, it has been agreed, inter alios, by the parties hereto and
Compu-Shack Electronic GmbH to release Compu-Shack Electronic GmbH from
its future obligations under this Agreement.
PART I. DEFINITIONS - INTERPRETATION
1. DEFINITIONS
Capitalized terms and expressions in this Agreement shall have the same
meaning as ascribed to such terms and expressions in the glossary (the
"GLOSSARY") attached hereto as Schedule 1. This Agreement, including
the recitals, the Schedules and each instrument delivered by any Party
pursuant to its terms shall form a single agreement.
2. INTERPRETATION
A. Parts and Clauses headings (including paragraphs headings) and the
table of contents have been inserted exclusively to facilitate referral
and shall not be used to interpret this Agreement.
B. In this Agreement, unless the context otherwise requires:
(a) a "PART" or "CLAUSE" or "SCHEDULE" is a reference to a part,
clause or schedule to this Agreement, and references to the
Agreement include its whereas and Schedules; references to the
"Parties" refer to the Originator, to the Depositor and to the
Transferee.
(b) words in the plural shall cover the singular and vice versa;
(c) unless otherwise stipulated, reference to the time of the day
refers to the time in Paris, France;
(d) references to a month shall mean:
- a period starting on a given day in a calendar month
and ending on the numerically corresponding day in
the next calendar month; or
- if the corresponding day is not a Business Day, a
period ending on the first Business Day following the
corresponding day unless such following day falls in
the next calendar month, in which case the period
shall end on the Business Day immediately preceding
the corresponding day; or
- if the period starts on the last Business Day of a
calendar month, or if there is no numerically
corresponding day in the next calendar month, a
period ending on the last Business Day of the next
calendar month;
(e) reference to a person includes its successors, transferees and
assignees;
(f) reference to a document means that document as novated,
amended or supplemented.
-6-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
PART II. PURPOSE - TERM - CONDITIONS PRECEDENT
3. PURPOSE
The purpose of this Agreement is to set forth the conditions under
which:
(a) the Originator may, from time to time during the Replenishment
Period, transfer Transferable Receivables to the Transferee by
way of sale (Verkauf) and assignment (Abtretung) and in
accordance with the provisions of this Agreement;
(b) the Transferee shall pay to the Originator the Purchase Price
for any Transferred Receivables in accordance with the
provisions of this Agreement;
(c) upon each Transfer Date, but prior to each transfer of any
Transferable Receivables, the Depositor shall make a
Subordinated Deposit with the Transferee as provided for in
Clause 32;
(d) upon each Transfer Date, but prior to each transfer of
Transferable Receivables, the Depositor shall make a
Complementary Deposit with the Transferee as provided for in
Clause 33.
4. EFFECTIVE DATE - TERMINATION
A. This Agreement shall become effective on the date on which all
the conditions precedent set forth in Clause 5 shall have been
satisfied (the "EFFECTIVE DATE").
B. This Agreement shall terminate on the earlier of (the
"AGREEMENT TERMINATION DATE"):
(i) the Redemption Date; or
(ii) the sixth Transaction Date following the Final
Transfer Date.
C. The date upon which (i) no more transfer of receivables may be
made under this Agreement and (ii) the Transferee's Commitment
is terminated (the "FINAL TRANSFER DATE") shall be the first
Transaction Date which shall occur during the 61st month
following the Initial Transfer Date. The Final Transfer Date
shall be advanced under the conditions set forth under Clauses
10.1 A (b), 41.1, 41.2, 41.3 (D), 45 (C) and 46 (C)(ii), or
postponed by mutual consent of the Parties pursuant to the
conditions set forth under Clause 4 (D).
D. The Parties may agree to extend the Final Transfer Date (and,
accordingly, the Agreement Termination Date) by entering, to
that effect, into an amendment to this Agreement. In this
case, the new Final Transfer Date and the new Agreement
Termination Date shall be the dates as mutually agreed between
the Parties.
E. Notwithstanding the Agreement Termination Date, and for so
long as there remains a Transferred Receivable which has not
either been paid in full or become an Irrecoverable
Receivable: (i) all of the representations, warranties,
covenants and obligations of the
-7-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
Originator to the Transferee; (ii) all of the obligations of
the Transferee with respect to Release of the Deposits and
(iii) the provisions of Clause 25.2, shall remain in full
force and effect.
5. CONDITIONS PRECEDENT
This Agreement shall not be effective unless and until each and all of
the following conditions precedent shall have been fulfilled to the
satisfaction of the Transferee:
(a) from each of the Originator and the Depositor, a copy of its
Articles of Association (Satzung), certified as actual version
thereof by its duly authorized representative;
(b) from the Originator and the Depositor, an original copy of the
excerpt of the commercial registry (Handelsregister) not older
than 30 days prior to August 14, 2003;
(c) from each Originator and the Depositor, a copy, certified to
be true by its duly authorized representative, of its annual
non-consolidated accounts for the fiscal year 2001 and the
original annual non-consolidated accounts for the fiscal year
2002 as published and certified by its statutory auditors
together with the respective unqualified auditor's opinion
relating thereto, and the related corporate resolutions
approving such accounts;
(d) from the Originator and the Depositor, a certificate from one
of its managing directors (Geschaftsfuhrer) in the form of
Schedule 12A, representing that:
- between the closing date of its audited accounts for
the fiscal year 2002 and August 14, 2003, no event
has occurred which could constitute a Material
Adverse Effect;
- it is not under administration, insolvency,
bankruptcy, dissolution, receivership or winding up
and no stoppage of payments has occurred in relation
to it;
- there exists no provision currently in force and
which has not been removed (with respect to any
contract or agreement which is binding on it or to
which it is a party) which could impede the execution
of this Agreement or the performance of any of its
obligations by it hereunder; in particular there
exists no (i) provision limiting the transfer of its
receivables or (ii) negative pledge clauses;
(e) from the Originator, a certificate from its statutory
auditors, issued in the form of Schedule 11A;
(f) from the Originator and the Depositor, a list of the names of
the individuals authorized to act on behalf of it under this
Agreement and a specimen signature of each;
(g) from the Originator and the Depositor the corporate
resolutions authorizing it to enter into and execute this
Agreement;
(h) the Transferee or any of its agent shall have conducted a due
diligence of the Originator, satisfactory in particular as
regards origination, management and collections of the
Receivables;
(i) the Originator shall have demonstrated its ability to provide
monthly historical data
-8-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
regarding the Receivables;
(j) the Transferee shall have received from the Originator a
historical monthly analysis of the credit notes and other
dilution (and any other relevant risk factors in relation to
the Receivables);
(k) the Originator shall have demonstrated its ability to provide
a reporting Statement on the Receivables twice a month;
(l) the Transferee shall have received a legal opinion from
Hengeler Xxxxxxx as legal advisor to the Transferee in form
and substance satisfactory to the Transferee regarding (i)
that the transfer of the Receivables will constitute a legal
true sale of such Receivables and (ii) the Originator's and
the Depositor's capacity and authority to enter into this
Agreement;
(m) each of the US Guarantees shall have been issued in the form
as set out in Schedule 16 by the Guarantor in favor of the
Transferee, BNP Paribas acting as its agent, and the
Transferee shall have received a certified copy of the last
audited consolidated financial statements of the Guarantor for
the fiscal year 2002 and a certificate signed by a duly
authorized representative of the Guarantor representing that:
(1) between the closing date of the above mentioned accounts
for the fiscal year 2002 and August 14, 2003, no Material
Adverse Effect has occurred; and (2) the Guarantor is not
under administration, insolvency, bankruptcy, dissolution,
receivership or winding up and no stoppage of payments has
occurred in relation to it;
(n) the Transferee shall have received from the Guarantor an
in-house legal opinion in form and substance satisfactory to
the Transferee regarding (i) the capacity and authority of the
Guarantor to enter into each of the US Guarantees and (ii) the
validity and legality of each of the US Guarantees; and
(o) from the Originator, a certificate signed by one of its
managing directors (Geschaftsfuhrer) and its senior in-house
lawyer in the form of Schedule 15 regarding its collection
authority with respect to receivables which are subject to
Extended Retention of Title Clauses (verlangerter
Eigentumsvorbehalt).
PART III. TRANSFER OF RECEIVABLES
6. TRANSFERABLE RECEIVABLES
A. On a given Statement Date, a Transferable Receivable shall be any
Receivable bearing the following characteristics on such date:
(i) the Receivable exists, is not an Irrecoverable Receivable and
has not been paid in full;
(ii) the Receivable originates from a contract entered into between
the Originator and an Eligible Debtor and constitutes for both
parties a Commercial Contract;
(iii) the underlying Commercial Contract is valid and enforceable
against the relevant Debtor in accordance with its terms and
fully performed by the Originator;
-9-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
(iv) the underlying Commercial Contract is governed by German Law;
(v) the amount of the Receivable invoiced by the Originator to the
respective Debtor is inclusive of value-added tax in
compliance with applicable tax laws;
(vi) the Receivable is evidenced by an Invoice, duly recorded in
the relevant Statement or Portfolio File; and
(vii) the Receivable is denominated in Euros, payable to the
Originator by the relevant Debtor and such Debtor is requested
to pay any amount due in relation to such Receivable into the
relevant Collection Account.
7. ELIGIBLE RECEIVABLES
A. On a given Statement Date, an Eligible Receivable shall be any
Transferred Receivable bearing the additional following characteristics
on that date:
(i) the Debtor of such Transferred Receivable is an Eligible
Debtor;
(ii) the Transferred Receivable is neither an Unpaid Receivable nor
an Irrecoverable Receivable nor a Disputed Receivable;
(iii) the date upon which the Transferred Receivable is due and
payable, which is stated on the Invoice, is no later than
thirty (30) calendar days following the Final Transfer Date;
(iv) the date upon which the Transferred Receivable is due and
payable, which is stated on the Invoice, is no later than
sixty (60) calendar days following the related Transaction
Date except for Proreserv in which case the Transferred
Receivable is due and payable no later than one hundred forty
(140) calendar days following the date of Invoice;
(v) the Transferred Receivable has been managed since its creation
and is managed at the given date by the Originator, in
accordance with the Management Procedures and the applicable
statutes and regulations in force at any relevant time;
(vi) the Transferred Receivable is not subject to any defense,
counterclaim or set-off right;
(vii) the Transferred Receivable is identified in a Statement and
Portfolio Files which strictly conform with the form of
Statement and Portfolio Files attached as Schedule 3;
(viii) the Transferred Receivable is legally and beneficially solely
owned by the Originator free from any adverse claims in favor
of any person (including, without limitation, has not been, in
part or in whole, pledged, mortgaged, charged, assigned,
discounted, subrogated or seized or attached or transferred in
any way) and is otherwise free and clear of any Extended
Retention of Title Clause (verlangerter Eigentumsvorbehalt),
subject to Clause (B) below, and of any liens or other
encumbrances exercisable against the Originator or the
Transferee;
(ix) the Transferred Receivable can be segregated and identified
for ownership purposes on the Transfer Date thereof and on any
day after such Transfer Date;
-10-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
(x) the Transferred Receivable constitutes an unconditional and
irrevocable obligation of the relevant Eligible Debtor to pay
the full sums of the amounts stated on the due date therefor;
and
(xi) the Transferred Receivable is enforceable (durchsetzbar),
non-litigious (nicht einredebehaftet) and assignable
(abtretbar).
B. Any Receivable being affected by an Extended Retention of Title Clause
shall be an Eligible Receivable if it meets in addition to the
requirements set forth under Clause 7 (A) the following conditions:
(i) the sale of the relevant Receivable to the Transferee must be
characterised as legal true sale for German civil and
insolvency law purposes;
(ii) the Originator has been granted the authorization to collect
the Billing Amount of such Receivable by the relevant
supplier, this authorization shall be express and the
Originator shall not have been notified by such supplier of
the withdrawal of such authorisation;
(iii) the Purchase Price paid by the Transferee for the Receivable
shall at least be equal to the purchase price due by the
Originator to the relevant supplier for the items that are the
subject of such Receivable;
(iv) the assignment by the Originator of the Receivable to the
Transferee is made at the same time as the payment of the
Purchase Price of such Receivable;
(v) the purchase and the acquisition of the relevant Receivable by
the Transferee is not structured in a way that would prejudice
the interests of the relevant supplier; and
(vi) the Originator is not in a state of financial crisis as such
term may be defined in the respective Extended Retention of
Title Clause.
8. ELIGIBLE DEBTORS
On any Statement Date, an Eligible Debtor shall be a Debtor having the
following characteristics:
(i) the Debtor is either (i) a private company having its
registered office in Germany (ii) a natural person having its
domicile in Germany or (iii) a private company having its
registered office in Germany and being held by a German public
entity;
(ii) the Debtor is neither the Originator nor a company of the
Xxxxxx Micro Group;
(iii) the Debtor does not have any contractual relationship with the
Originator providing for an automatic set-off of debts and
credits or a current account relation (Kontokorrent) between
such Debtor and the Originator;
(iv) the Debtor has not become a Doubtful Debtor;
(v) the Debtor is not under an Insolvency Proceeding; and
(vi) the Debtor is not a supplier of the Originator, except as
expressly agreed by the
-11-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
Transferee.
9. CONDITIONS OF TRANSFER
On the Initial Transfer Date, and subsequently on each Transfer Date,
the transfer of Transferable Receivables and the payment of the
Purchase Price by the Transferee shall not occur unless each of the
following conditions have been fulfilled to the satisfaction of the
Transferee, on the dates agreed upon in the Agreement or, if such date
has not been agreed upon, on each relevant Transfer Date at the latest:
(i) the Representations and Warranties are accurate;
(ii) a Statement and the related Portfolio Files have been notified
to the Transferee on the Information Date related to the
Initial Transfer Date or such Transfer Date, respectively and
all data contained in such Statement and in such Portfolio
Files are consistent with each other;
(iii) (A) with respect to the Initial Transfer Date, the Deposits
have been duly made as provided for in Clause 31, and (B) with
respect to each Transfer Date, the Deposits have been adjusted
according to the provisions of Clauses 32 and 33,
respectively;
(iv) the Originator has delivered, on an annual basis, a
certificate from its statutory auditors, issued in the form of
Schedule 11 together with the respective unqualified auditor's
opinion relating thereto;
(v) each of the Originator and the Depositor has delivered, on a
monthly basis, a certificate from one of its managing
directors (Geschaftsfuhrer) in the form of Schedule 12B,
representing that:
- between the closing date of its non-audited accounts
for the relevant fiscal year and the execution date
of such certificate, no event has occurred which
could constitute a Material Adverse Effect;
- it is not under administration, insolvency,
bankruptcy, dissolution, receivership or winding up
and no stoppage of payments has occurred in relation
to it;
- there exists no provision currently in force and
which has not been removed (with respect to any
contract or agreement which is binding on it or to
which it is a party) which could impede the execution
of this Agreement or the performance of any of its
obligations by it hereunder; in particular there
exists no (i) provision limiting the transfer of its
Receivables or (ii) negative pledge clauses;
(vi) the Originator has delivered an Offer to the Transferee
pursuant to Clause 10.1 and, as regards any Transfer Date
other than the Initial Transfer Date, the relevant Debtor
Payments, received during the last Collection Period preceding
such Transfer Date, have been credited to the Transferee's
Account and the relevant Retransfer Payments and the
Equivalent Payments due in respect of such Collection Period
have been paid to the Transferee's Account;
-12-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
(vii) the Transfer Date occurs within the Replenishment Period;
(viii) the transfer of Transferable Receivables and the corresponding
payment of the Purchase Price to be made on the relevant
Transfer Date do not contravene any statute or regulation in
force;
(ix) no Event of Default or Potential Event of Default has occurred
or is existing and continuing on the Transfer Date, and the
transfer of the Transferable Receivables, as well as the
corresponding payment of the Purchase Price to be made on the
relevant Transfer Date, do not constitute a Potential Event of
Default or an Event of Default;
(x) the Collection Accounts Pledge Agreement has been entered into
between the Originator as pledgor, and the Transferee as
pledgee, and continues to exist and constitutes a valid and
enforceable pledge in favor of the Transferee;
(xi) the Data Protection Trust Agreement has been entered into
between the Originator, the Transferee and the Data Protection
Trustee and continues to exist and constitutes a valid and
enforceable obligation of the Originator regarding the
transmission of personal data with respect to the Debtors in
favor of the Data Protection Trustee;
(xii) on the Initial Transfer Date only, (A) the Transferee shall
have received a confirmation by the Rating Agency of the
current rating of the Issuer of Reference's programs in a form
satisfactory to the Transferee, (B) the Originator has agreed
with the Transferee which of the dates appearing in the
timetable attached as Schedule 5 shall be deemed the first
Transfer Date for the purposes of this Agreement;
(xiii) on or before the Initial Transfer Date or each subsequent
Transfer Date, the Transferee shall have been able to fund its
Transferee's Commitment up to an amount at least equal to the
amount of the Financing to be provided on the Initial Transfer
Date or on each such subsequent Transfer Date; and
(xiv) the Transferee shall have confirmed that the liquidity
facility relating to a securitisation transaction arranged for
one French company of the Xxxxxx Micro Group has been
syndicated or that the Transferee considers such syndication
no longer desirable.
10. TRANSFER OF RECEIVABLES
10.1 Offer to Transfer
A. On any Information Date during the Replenishment Period, the Originator
may make an offer (each, an "OFFER") to sell and assign to the
Transferee one or more Transferable Receivable(s), together with any
ancillary rights of such Transferable Receivable(s) and any related
security for the Purchase Price in accordance with this Agreement,
subject to Clause 9, provided that:
(a) on or after the Final Transfer Date, the Transferee shall no
longer be authorized to purchase any Transferable Receivable;
(b) in the event that the Originator does not make an Offer on two
consecutive Information Dates, the Final Transfer Date shall
be deemed to have occurred on the last of these two
Information Dates; and
-13-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
(c) no Offer shall be deemed to be made by the Originator for the
Transfer Date relating to such Information Date if no
Transferable Receivable originated during the Collection
Period immediately preceding such Information Date is reported
in the relevant Statement and Portfolio Files notified to the
Transferee on such Information Date.
B. Each Offer must be made substantially in the form set out in Schedule 2
hereto and shall contain the following information:
(i) the number of Transferable Receivables to be assigned, the
total aggregate outstanding amount of the Transferable
Receivables to be assigned, the amount of Credit and Dilution
in respect of Transferable Receivables to be assigned, and
(ii) in respect of each offered Transferable Receivable, the
invoice number and Debtor identification number, the amount
due as of the relevant Information Date, the due date, a
detailed description of any related security and the invoice
date.
Additionally, with respect to any such Offer, a Debtors File and a
Debtors Table are to be provided to the Data Protection Trustee in the
form of Schedule 3.
10.2 Financing Conditions
Following the delivery of any Offer in accordance with Clause 10.1 and
subject to Clause 9, the Transferee shall send a notification to the
Originator with a copy to the Depositor and Xxxxxx Micro Coordination
Center BVBA/Sprl. in respect of all Transferable Receivables which are
the subject of such Offer on the relevant Calculation Date in the form
of Schedule 4 (the "FINANCING CONDITIONS").
10.3 Acceptance of Offer; Purchase Price
The Purchase Price for any offered Transferable Receivable shall be
equal to the outstanding Billing Amount. The Transferee shall accept
any Offer made in accordance with Clause 10.1 and subject to Clause 9
by payment of the aggregate Purchase Price for all Transferable
Receivables (together with any related security) contained in such
Offer on the next Transfer Date or to the order of the Transferee as
such Transfer Date appears in the then applicable Schedule 5 attached
to this Agreement.
10.4 Transfer of Title
Upon acceptance of the relevant Offer in accordance with Clause 10.3 of
this Agreement the purchase and assignment of the offered Transferable
Receivables and the related security (if any) shall become effective,
and all rights thereto (including any ancillary rights thereto) shall
pass to the Transferee; provided that in the event that the title to
the related security is not transferable by means of a mere agreement
between the Transferee and the Originator, the parties hereto agree
that:
(a) if the related security is governed by German law and the
transfer of possession (Besitzubergabe) is necessary for the
transfer of title, such transfer of possession shall be
substituted as follows:
- if the Originator holds direct possession
(unmittelbarer Besitz) in respect of the
-14-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
related security, the Originator shall hold such
related security in custody for the Transferee free
of charge;
- if the Originator holds indirect possession
(mittelbarer Besitz) in respect of the related
security or is entitled to claim surrender of the
related security from a third party for any other
reason, the Originator hereby assigns any claim to
surrender (Herausgabe-anspruch) the related security
to the Transferee who hereby accepts such assignment;
(b) if the related security is governed by the laws of any other
jurisdiction, sub-clause (a) above shall apply mutatis
mutandis.
10.5 Transfer Procedures
A. On each Transfer Date before 1.00 p.m., the Originator shall, subject
to Clause 9, transfer to the Transferee the Transferable Receivables
the subject of the Offer made on the related Information Date pursuant
to Clause 10.2.
B. Furthermore, on such Transfer Date:
(i) the Originator shall deliver to the Transferee an Offer; and
(ii) at the same time as the Offer Form is delivered, the
Transferee shall pay to the relevant Collection Account of the
Originator an amount equal to the aggregate Billing Amount of
the Group of Transferred Receivables, with good value on that
date.
11. WARRANTIES OF COMPLIANCE
A. On each Transfer Date, the Originator makes the following
representations and warranties (the Warranties of Compliance) for the
benefit of the Transferee in respect of each Transferred Receivable in
the form of an independent guarantee (selbstandige Garantie):
(i) such Transferred Receivable bears all of the characteristics
of a Transferable Receivable;
(ii) such Transferred Receivable is identified in the Statement and
in the Portfolio Files delivered on the Information Date
relating to such Transfer Date and the relevant Statement and
the Portfolio Files strictly conform with the forms attached
as Schedule 3; and
(iii) if identified as an Eligible Receivable in the Statement or in
the Portfolio Files delivered on the Information Date relating
to such Transfer Date, such Transferred Receivables bears all
the characteristics of an Eligible Receivable.
B. The Warranties of Compliance shall be deemed reiterated by the
Originator to the Transferee on each Transfer Date.
-15-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
PART IV. INFORMATION - PROGRAM MANAGEMENT
12. INFORMATION OBLIGATIONS OF THE ORIGINATOR
A. On each Statement Date, the Originator shall draw up a Statement and
the related Portfolio Files in order to notify the Offer to the
Transferee before 11.00 a.m. on the Information Date corresponding to
that Statement Date.
B. Any Statement and any of the Portfolio Files shall be notified in their
respective form as set out in Schedule 3.
13. CALCULATION AND DETERMINATION OF THE FINANCING CONDITIONS BY THE
TRANSFEREE
On each Calculation Date, before 04.00 p.m. and after the Transferee
has received a Statement, the Transferee shall notify the Financing
Conditions to the Originator in the form set out in Schedule 4.
14. TRANSACTIONS TO BE CARRIED OUT DURING THE REPLENISHMENT PERIOD
On each Transfer Date before 01.00 p.m., the following transactions
shall be carried out (as far as they should be carried out on such date
pursuant to this Agreement) in the following order of priority:
(i) payment by the Originator to the Transferee of an amount equal
to the difference between: (a) the amount of Collections
relating to the immediately preceding Collection Period ending
before such Transfer Date; and (b) the Retransfer Payments
made in relation to the Retransfers occurring during such
Collection Period (exclusive of its last day);
(ii) Increase of the Deposits, if any;
(iii) payment by the Originator to the Transferee of the Transfer
Fee and the Management Fee;
(iv) payment of the Purchase Price to the Originator by the
Transferee of the Transferred Receivables listed in the
Financing Conditions;
(v) Release of the Deposits, if any;
(vi) payment of the Immobilization Fee; and
(vii) payment of the Collection Fee.
15. TRANSACTIONS TO BE CARRIED OUT DURING THE REDEMPTION PERIOD OR ANY
TEMPORARY REDEMPTION PERIOD
On each Transaction Date which is not a Transfer Date before 12.00 a.m.
(during the Redemption Period or any Temporary Redemption Period), the
following transactions (as far as
-16-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
they should be carried out on such date pursuant to this Agreement)
shall be carried out in the following order of priority:
(i) payment by the Originator to the Transferee of an amount equal
to the difference between (a) the amount of Collections
relating to the immediately preceding Collection Period ending
before such Transaction Date, and (b) the Retransfer Payments
made in relation to the Retransfers occurring during such
Collection Period exclusive of its last day;
(ii) payment by the Originator to the Transferee of the Transfer
Fee and the Management Fee;
(iii) Release of the Complementary Deposit, subject to the limits
and conditions set forth in Part VII;
(iv) after the redemption in full of the Financing and
Complementary Deposit, Release of the Subordinated Deposit or
part thereof, subject to the limits and conditions set forth
in Part VII; and
(v) payment of the Immobilization Fee; and
(vi) payment of the Collection Fee.
PART V. SERVICING AND COLLECTION OF RECEIVABLES
16. SERVICING OBLIGATIONS OF THE ORIGINATOR
For so long as the Financing has not been fully reimbursed pursuant to
the provisions of the Agreement, the Originator as servicer undertakes
as follows:
(i) not to make any change whatsoever in the contractual terms and
conditions applicable to the Transferred Receivables and to
such rights and security interests as may be attached to them,
unless otherwise provided by this Agreement;
(ii) at the Transferee's request in order to protect its interests,
to inform the Transferee of any related security and other
rights attached to the Transferred Receivables and to
co-operate with the Transferee whenever said related security
and rights are exercised or enforced;
(iii) not to demand that the Transferee perform any act or carry out
any formality not provided for in this Agreement;
(iv) to fulfil its contractual obligations towards the Debtors;
(v) to retain all contracts and documents concerning each
Transferred Receivable until the relevant Transferred
Receivable is paid in full or has become an Irrecoverable
Receivable;
(vi) to remit promptly to the Transferee all documents and
contracts relating to a Transferred Receivable on first demand
by the Transferee, in order to enable it to verify the
accuracy of the Warranties of Compliance;
-17-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
(vii) to inform the Transferee promptly if any of the Warranties of
Compliance made by the Originator is inaccurate as regards any
Transferred Receivable;
(viii) to inform the Transferee promptly of any change concerning its
computer system in the event that such change may at any time
prevent the Transferee's access to the data contained in any
Statement or any Portfolio File, as well as any change
concerning the working or running of any Statement or any
Portfolio File;
(ix) not to change the nature of its business if such change will
or is likely to materially alter the Quality of the
Transferred Receivables, or its ability to fulfil its
management obligations under the Agreement; however, the
Originator shall be authorized to modify its general terms and
conditions used in connection with the Commercial Contracts;
provided that it has previously given notice of its intention
to the Transferee and that such modification has no Material
Adverse Effect;
(x) to carry on its business so that the Quality of the
Transferred Receivables and the ability of the Originator to
fulfil its servicing obligations under this Agreement are not
materially altered thereby;
(xi) not to change its Management Procedures in a manner likely to
alter materially the Transferee's rights (in particular, a
change causing a deterioration of the quality of information
provided to the Transferee or of the performance of the
Transferable Receivables), and to inform promptly the
Transferee of any material change in those Management
Procedures in any event;
(xii) to inform the Transferee of any material breach of its
obligations as regards the servicing of the Transferable
Receivables;
(xiii) not to use, for the servicing of the Transferable Receivables
(namely, as regards the use of any Statement or any Portfolio
File), software not belonging to it or which license prohibits
the Originator's use for the purposes of this Agreement;
(xiv) not to use any other bank account other than the Collection
Accounts for the Debtor Payments,
(xv) to set up with the Transferee and at least once a year after
2004 an updated indicative timetable intended to replace the
timetable set up for the years 2003 and 2004 attached as
Schedule 5 and, at the same time, to specify with the
Transferee which of the dates appearing in the relevant new
timetable shall be deemed the first Transfer Date for the
relevant year; and
(xvi) to inform the Transferee immediately if any supplier withdraws
the authority to collect any Receivable which is subject to an
Extended Retention of Title Clause.
17. EQUIVALENT PAYMENTS
17.1 Amount of an Equivalent Payment
If the Billing Amount of any Transferred Receivable is reduced or the
cumulative Debtor Payments are less than the Billing Amount for any
reason whatsoever other than an inability to
-18-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
pay because Insolvency Proceedings with respect to the respective
Debtor have been instituted (each such reduction, a "DILUTION") then
the Originator shall be treated as having received the amount of such
Dilution on the date of such Dilution in addition to any other amounts
which may be received on such Transferred Receivable. Such Dilution
shall be paid by the Originator on the date and in the manner set forth
in Clauses 17.2 and 17.3 and such payment shall be treated for the
purposes of this Agreement as an Equivalent Payment in an amount
equivalent to the amount of such Dilution.
In particular but not limited to, a reduction of the Billing Amount due
to any of the following events shall be deemed a Dilution for the
purposes of this Agreement:
(i) the Transferee no longer holds unrestricted title to such
Transferred Receivable and any related security and other
rights relating thereto; or
(ii) the Originator is in breach of one or more Warranties of
Compliance concerning such Transferred Receivable, the
consequence of which is to reduce the amount of this
Transferred Receivable or to cause the Debtor to contest it;
or
(iii) the Debtor Payments are reduced as a consequence of any
supplier enforcing its rights under an Extended Retention of
Title Clause.
17.2 Date of Equivalent Payments
For so long as the Servicing Mandate is not terminated, the Equivalent
Payment shall be made on the Transaction Date immediately following the
date of the occurrence of the aforementioned event. Upon termination of
the Servicing Mandate, the Equivalent Payment referred to in Clause
17.1 shall be made on the date on which the respective Dilution occurs.
17.3 Remedies of the Transferee
In any event, in respect of any Equivalent Payment that is due and
payable to the Transferee, the Originator hereby accepts that the
Transferee may:
(i) automatically set-off the amount owed to the Transferee in
respect of said Equivalent Payment against the amount owed to
the Depositor in respect of any Release of the Deposits; or
(ii) in case no amounts can be set-off, and upon written notice
setting out the reason to the Originator, exercise all rights
and remedies against the Originator or the Guarantor including
any of its rights under the US Guarantee, in order to obtain
payment of the sums due and payable which remain outstanding,
without prejudice to the Transferee's rights under Clause 40.
18. SERVICING MANDATE
18.1 Servicing Mandate
Subject to Clause 18.2, the Originator as servicer shall handle the
collection of the Transferred Receivables on behalf of the Transferee.
The Transferee hereby confers to the Originator the mandate to service
the Receivables and the collection thereunder, which the Originator
hereby
-19-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
accepts. Until termination of the Servicing Mandate, the Transferee
shall pay the Originator a Collection Fee for each Fee Computation
Period equal to 0.50 % per annum of the amount of the Financing on the
Transaction Date at the beginning of such Fee Computation Period. The
Collection Fee shall be computed on the basis of the exact number of
days in each Fee Computation Period, adjusted to a 360-day year, and
shall be payable on the last Transaction Date of each Fee Computation
Period.
18.2 Termination of Servicing Mandate
A. It is not initially provided that the Transferee informs the Debtors of
the transfer of Transferred Receivables. However, in order to protect
its interests and in particular if an Event of Default has occurred,
the Transferee may (i) inform the Debtors of the transfer at any time
in its discretion; (ii) terminate the Servicing Mandate as regards all
or part of the Transferred Receivables, subject to having notified the
Originator thereof in writing at least five (5) Business Days before
the date of such termination; (iii) terminate the Collection Accounts
Pledge Agreement accordingly, and (iv) transfer to a Back-up Servicer
the management and recovery mandate for collections of the Transferred
Receivables. Once appointed, the Back-up Servicer may directly notify
the Debtors of the transfer and direct the payments of the Receivables
to the Transferee's Account.
B. All costs incurred by the Transferee in connection with:
(a) the termination of the Servicing Mandate and the enforcement
of the Collection Accounts Pledge Agreement; and
(b) the management of the collection of the Transferred
Receivables and the Collections by the Back-up Servicer;
shall be borne exclusively by the Originator, up to an amount limited
to EUR two (2) per Invoice (not including legal and court fees). The
Originator shall reimburse all such costs (including legal and court
fees) upon duly justified and documented demand.
C. The termination of the Servicing Mandate shall not give rise to any
termination indemnity in favor of any Party.
19. OBLIGATIONS OF THE ORIGINATOR IN RESPECT OF COLLECTIONS
With respect to the collection of the Transferred Receivables, for so
long as the Financing has not been repaid in full, the Originator
undertakes:
(i) (A) to refrain from materially modifying its Management
Procedures in a manner that would likely cause prejudice to
the Transferee's rights, namely by causing an increase of the
average term of collection or a lower collection rate, and, in
any event, (B) to inform promptly the Transferee of any
material change in its Management Procedures concerning the
collection procedures and (C) to provide the Transferee with
an yearly update of its Management Procedures;
(ii) not to change the nature of its business if such a change will
or is likely to materially and adversely affect the collection
of the Transferred Receivables or its ability to fulfil its
obligations under this Agreement, namely as regards the
collection of Transferred Receivables;
-20-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
(iii) to carry on its business so that the collection of the
Transferred Receivables or its ability to fulfil its
obligations under this Agreement, namely as regards the
collection of Transferred Receivables, cannot be materially
and adversely be affected thereby;
(iv) to provide the Transferee, upon reception of
fully-substantiated notification by the latter so requesting,
Statements, Portfolio Files and all other documents allowing
it to verify the performance of its obligations as regards the
collection of the Transferred Receivables;
(v) to inform the Transferee of any material breach of its
obligations as regards the servicing of the Transferred
Receivables;
(vi) not to provide any documents containing, to the best of its
knowledge, inaccurate or incomplete information;
(vii) not to credit on the Collection Accounts any sums that are not
Debtor Payments within the meaning of this Agreement and not
to have Debtor Payments paid to accounts other than the
Collection Accounts;
(viii) not to use, for the collection of the Transferred Receivables
(namely, as regards the use of any Statement or any Portfolio
File), software not belonging to it or whose license prohibits
its use for the purposes of this Agreement; and
(ix) if any supplier of the Originator withdraws the Originator's
authority to collect Receivables which are subject to an
Extended Retention of Title Clause, the Originator shall
notify the Transferee by telefax without any delay, but in any
case no later than three (3) Business Day following the
receipt of such withdrawal.
20. RENEGOTIATIONS
A. In the event an Insolvency Proceeding is instituted against a Debtor or
a Group of Debtors in relation to one or several Transferred
Receivables, the Originator may, subject to the fulfillment of its
diligence obligations under Clause 23, make or accept proposals with a
view to extend the maturity of those Transferred Receivables. However,
for any proposal of renegotiations not envisaged in the Management
Procedures, or whose characteristics are not those provided for such
type of proposal of renegotiations in the Management Procedures, the
Originator must obtain the prior written consent of the Transferee,
which shall not be unreasonably withheld, before declining or accepting
such proposal.
B. The Originator shall be entitled to grant Credits in accordance with
its Management Procedures.
C. Without prejudice to Clause 20. A above, the Originator may renegotiate
the due date of a Transferred Receivable in accordance with its
Management Procedures.
D. Aside the instances described above, the Originator shall not under any
circumstances modify the contractual terms and conditions of a
Transferred Receivable without the prior written consent of the
Transferee, which shall not be unreasonably withheld.
-21-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
21. AUTHORITY TO XXX AND BE SUED
A. The Originator as servicer shall hereby be authorised to xxx Debtors
owing Transferred Receivables in any court in Germany or in any other
competent jurisdiction in the Originator's own name and for the benefit
of the Transferee (gewillkurte Proze(Beta)standschaft), the Transferee
being obliged where necessary to assist the Originator in exercising
all rights and remedies under and in connection with the relevant
Transferred Receivables.
B. The costs, fees and taxes incurred in connection with the above
proceedings shall be borne solely by the Originator. However, any
damages paid and court fees reimbursed, in any recovery proceeding
described above, beyond the Billing Amount of the relevant Transferred
Receivables shall remain to the benefit of the Originator.
22. PAYMENTS OF COLLECTIONS
A. For a given Collection Period, the Collections shall be the total sum
of:
(a) the Debtor Payments made during that Collection Period; plus
(b) the Equivalent Payments owed by the Originator to the
Transferee with respect to Clause 17.2, as to events described
in Clause 17.1 having occurred during that Collection Period;
plus
(c) the Retransfer Payments owed by the Originator to the
Transferee with respect to all Retransfers made during that
Collection Period (subject to Clause 24.3).
B. Until and unless an Early Termination Event has occurred during any
given Collection Period:
- the Originator shall be free to use the Debtor Payments
standing to the credit of its respective Collection Accounts
at any time during such Collection Period, subject only to the
relevant provisions of the Collection Accounts Pledge
Agreement; and
- the Originator shall, on the Transaction Date following such
Collection Period before 01.00 p.m., debit from the
Collections Accounts and credit to the Transferee's Account
the full amount of the Debtor Payments having been made during
such Collection Period.
C. Upon the occurrence during any given Collection Period of an Early
Termination Event which is continuing, the Transferee, in its capacity
as beneficiary under the Collection Accounts Pledge Agreement, shall be
entitled to send a Stop Drawing Notice (as defined in the Collection
Accounts Pledge Agreement) to each bank with which any of the
Collection Accounts are held and exercise all of the rights and
privileges conferred to him in its capacity as beneficiary under the
Collection Accounts Pledge Agreement in accordance with the respective
terms thereof.
D. In the event that, on a Transaction Date, the Originator is in default
of its obligation to credit the full amount of the Collections for the
immediately preceding Collection Period to the Transferee's Account
(whether by debit from the Collections Account or otherwise), the
Transferee may, without prejudice and in addition to any relevant
provisions of the Collection Accounts Pledge Agreement, make a demand
under the relevant US Guarantee in accordance with its terms. Such
demand shall be made by the Transferee before close of business (Paris
time) on a Business Day in the US for payment instructions to be
granted by the Guarantor at the latest on 05.00 p.m.
-22-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
(Los Angeles time) on the Business Day in the US of such demand and
effective payment to be made before 05.00 p.m. (Los Angeles time) on
the fourth Business Day in the US at the latest after such demand. A
demand under the relevant US Guarantee may only be made on or after the
day following each relevant Transaction Date in respect of the
Collections for the immediately preceding Collection Period or, as the
case may be, on or after any Final Transfer Date.
E. In the event that a Debtor is both a debtor in respect of one or more
Receivables not transferred to the Transferee by the Originator and a
debtor in respect of one or more Transferred Receivables, any payment
received from this Debtor shall first be applied to the Transferred
Receivables each time that:
(a) the Debtor expressly instructs to that effect, in accordance
with Section 366(1) of the German Civil Code (Burgerliches
Gesetzbuch); or
(b) where the said Debtor Payment is obviously related to a
Transferred Receivable.
F. In an event other than those mentioned under paragraph (E) above, and
unless the Debtor expressly indicates the contrary, the Debtor Payment
shall, as between the Originator and the Transferee, be applied first
to the Transferred Receivables relating to such Debtor, and in the
order of priority corresponding to their respective due dates,
beginning with the oldest among them.
23. DILIGENCE OBLIGATIONS OF THE ORIGINATOR
Within the framework of the servicing and the collections of the
Transferred Receivables, the Originator undertakes to act as a
diligent, prudent and informed servicer. In particular, the Originator
undertakes:
(i) to comply with any applicable statutes and regulations in
force;
(ii) to use a level of care and diligence at least equivalent to
that used in connection with its own receivables (Sorgfalt in
eigenen Angelegenheiten);
(iii) to ensure that any related security, rights, claims,
privileges, encumbrances and other benefits attached to the
Transferred Receivables are valid and remain in force and are
exercised in due time;
(iv) to oppose any claim challenging the existence, validity,
amount or maturity of the Transferred Receivables or any
related security, rights, claims, privileges, and other
benefits, if any, attached thereto;
(v) to take such steps as may be required or appropriate for the
recovery of the sums of all kinds due under the Transferred
Receivables; and
(vi) to take such steps as may be required to cause any attachment,
seizure, or any civil enforcement measure levied or applied
for by a third party against it and affecting a Transferred
Receivable to be released or withdrawn and to do so within 30
calendar days or any longer timeframe upon which the Parties
have agreed.
-23-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
24. RETRANSFER TO THE ORIGINATOR
24.1 Conditions of Acceptance of Retransfer
A. The Originator may offer to re-purchase and have re-assigned from the
Transferee one or more Transferred Receivables previously sold and
assigned to the Transferee by it. However, such request may only be
accepted by the Transferee subject to the following conditions:
(a) the Retransfer concerns all and not just part of the Billing
Amount of the relevant Receivable, the Originator being in
charge of identifying the amounts of the Debtor Payments or
Equivalent Payments already received;
(b) the Retransfer occurs by means of sale (Verkauf) and
assignment (Abtretung) on the basis of an offer (a "RETRANSFER
OFFER") in the form of Schedule 6, its amount per receivable
being equal to the Billing Amount of each Transferred
Receivable;
(c) the Originator shall serve a Retransfer Offer which shall
contain the following:
- the intended Retransfer Date, which shall be a
Transaction Date (except as provided for in Clause
24.3); and
- the identification of each Transferred Receivable
proposed for Retransfer, as such is specified in the
form of Schedule 6, and
(d) the Transferee is the owner of the Receivables proposed for
Retransfer on the intended Retransfer Date or, should the
Transferee have exercised its rights to onward transfer such
Receivables to any Permitted Onward Transferee pursuant to
Clause 25.1, the Transferee has the right to obtain the
retransfer of the same from such Permitted Onward Transferee
on the intended Retransfer Date.
B. The Retransfer shall be offered by the Originator to the Transferee on
the Information Date corresponding to the Transaction Date which the
Originator proposes for the Retransfer (except as provided for in
Clause 24.3), or no later than three (3) Business Days before the
intended Retransfer Date.
24.2 Means of Retransfer
A. Upon satisfaction of the conditions set forth in Clause 24.1, the
Transferee shall, at its discretion, accept any Retransfer Offer as
notified by the Originator. The Retransfer shall take effect upon the
payment of the Retransfer Payment on the Retransfer Date agreed upon by
the parties hereto and before 11.00 a.m. on such date or, in the
absence of such agreement, on the date set forth in the offer of
Retransfer and before 11.00 a.m. on such date.
B. The Retransfer Payment shall be made on the Retransfer Date against
delivery by the Transferee of a Retransfer Offer.
24.3 Retransfer Date
Any Retransfer accepted by the Transferee shall occur on a Transaction
Date. For good reason (aus wichtigem Xxxxx) and upon delivery by the
Originator of a duly substantiated offer, the Originator, may, with
respect to one or more Transferred Receivables, ask the Transferee that
the Transferred Receivables be retransferred on a date other than a
Transaction Date, in which case
-24-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
the Originator shall indemnify the Transferee for any additional costs
incurred by a Retransfer made on a day other than a Transaction Date,
pursuant to the conditions set forth under Clause 44.
25. ONWARD TRANSFER BY THE TRANSFEREE
25.1 Onward Transfer during the Replenishment Period
A. At any time prior to the Redemption Date, the Transferee may onward
transfer to any Permitted Onward Transferee, by any means, all or part
of the Transferred Receivables. The rights and obligations of the
Originator and of the Transferee under this Agreement shall remain
unchanged in any event, notwithstanding the onward transfer to any
Permitted Onward Transferee of all or part of the Transferred
Receivables. In particular, the procedures governing the creation,
Increases and Releases of the Deposits shall remain unchanged.
B. In the event of an onward transfer as described above in paragraph (A),
the Transferee shall ensure that such transfer is not likely to cause a
termination of the Servicing Mandate. In the event that the relevant
Permitted Onward Transferee directly authorizes the Originator to
collect the Transferred Receivables onward transferred to it on its
behalf, the Originator shall have the same rights and obligations under
such mandate as those granted to it under the Servicing Mandate and
such mandate may be terminated under the same conditions.
25.2 Onward Transfer during the Redemption Period
A. At any time after the Redemption Date, and in the event the Transferee
intends to onward transfer all Transferred Receivables to any Permitted
Onward Transferee, the Transferee shall notify the Originator thereof
and set out the conditions of the transfer which have been accepted by
such Permitted Onward Transferee, by facsimile, confirmed by registered
letter with acknowledgement of receipt, in order to allow the
Originator to demand a Retransfer of the relevant Transferred
Receivables prior to such onward transfer being effected.
B. If the Originator demands such Retransfer in writing before the fifth
(5th) Business Day following receipt of the aforementioned letter by
the Originator, the Retransfer shall be carried out by the Originator
and the Transferee under conditions at least equally favorable to the
Transferee as those governing the offer to the Permitted Onward
Transferee mentioned above.
C. In the event that the Originator refuses or does not reply before the
fifth (5th) Business Day following receipt of the aforementioned letter
by the Originator, the Transferee shall be free to transfer the
Transferred Receivables to the aforementioned Permitted Onward
Transferee under the conditions set forth in the said letter or under
any other conditions more favorable to the Transferee.
D. The payment of a purchase price by any Permitted Onward Transferee to
the Transferee pursuant to this Clause 25 shall be construed as having
the effect of a Retransfer Payment of same amount for the purpose of
calculating the amount of the Deposits on each relevant date.
-25-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
PART VI. FINANCING
26. CHARACTERISTICS OF THE FINANCING
26.1 Transferee's Commitment
On each Transaction Date, subject to compliance with all the conditions
set forth in Clauses 5, 9 and 10.1 and without prejudice to the
Transferee's rights under Clauses 41.1, 41.2, 41.3, 45 (C) or 46 (C),
the Transferee hereby undertakes to provide the Financing to the
Originator (the "TRANSFEREE'S COMMITMENT"). On each Calculation Date,
the Financing shall be computed pursuant to the terms and conditions
set forth in this Part VI.
26.2 Calculation of the Financing during the Replenishment Period
A. On each given Transfer Date during the Replenishment Period and
provided that this Transfer Date is a Principal Transaction Date, the
Financing shall be calculated by the Transferee according to the
information, calculations and data set out in a consolidated statement
calculated by the Transferee on the Statement Date related to this
Transfer Date, on the basis of the Statement of the Originator, in the
following manner (given that the Subordinated Deposit is calculated
according to Part VII):
F = min [FMax; FC; Fr]
where:
"F" means the amount of Financing
"FMax" means the Maximum Financing Amount
"FC" means the Computed Financing Amount
"Fr" means the Requested Financing Amount
where:
FC = [NOR/l+SDR]
where:
"NOR" means the Net Outstanding Receivables Amount
"SDR" means the Subordinated Deposit Rate as computed for each
Principal Transaction Date pursuant to Schedule 10
B. On each given Transfer Date during the Replenishment Period and
provided that this Transfer Date is an Intermediary Transaction Date,
the Financing shall be calculated by the Transferee according to the
information, calculations and data set out in a consolidated statement
calculated by the Transferee on the Calculation Date related to this
Transfer Date, on the basis of the Statement of the Originator, in the
following manner (given that the Subordinated Deposit is calculated
according to Part VII):
-26-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
F = min [FPTD; FMax; FC; Fr]
where:
"F" means the amount of Financing
"F(PTD)" means the Financing Amount as calculated on the Principal
Transaction Date immediately preceding the relevant
Intermediary Transaction Date
"FMax" means the Maximum Financing Amount
"FC" means the Computed Financing Amount
"Fr" means the Requested Financing Amount
where:
FC = [NOR / 1 + SDR(PTD)]
where:
"NOR" means the Net Outstanding Receivables Amount
"SDR(PTD)" means the Subordinated Deposit Rate on the Principal
Transaction Date immediately preceding such Intermediary
Transaction Date
C. On each Transaction Date which is not a Transfer Date during any
Temporary Redemption Period, the Financing shall be calculated as set
out in Clause 26.3.
26.3 Calculation of the Financing during the Redemption Period
On each Transaction Date during the Redemption Period, the Financing
shall be calculated in the following manner (given that the
Subordinated Deposit is calculated according to Part VII):
F(if) = max [0; F(io) - PS(if)]
where:
"(io)" means the Transaction Date occurring at the beginning of the
Fee Computation Period
"(if)" means the Transaction Date occurring at the end of the Fee
Computation Period
"F" means the amount of Financing
"PS" means the Principal Share of the Collections
-27-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
27. MAXIMUM FINANCING AMOUNT
27.1 Initial Maximum Financing Amount
The Maximum Financing Amount shall be EUR 230,000,000 (two hundred
thirty million Euros) at the effective date of this Agreement. After
that date, the Maximum Financing Amount may be reduced according to the
conditions set out in Clause 27.2.
27.2 Reduction of the Maximum Financing Amount
A. The Maximum Financing Amount may be reduced at any time upon request of
the Originator. Such reduction shall become effective on the first
Transaction Date agreed upon between the Originator and the Transferee,
or failing that, on the first Transaction Date subsequent to the period
often (10) Business Days following the receipt of such request by the
Transferee.
B. A reduction of the Maximum Financing Amount shall not be requested by
the Originator if as a result of such reduction the Maximum Financing
Amount is below EUR 100,000,000 (one hundred million Euros).
28. ISSUER OF REFERENCE
28.1 Choice of an Issuer of Reference
A. The Parties expressly agree that the Transfer Fees shall be based on
the refinancing costs of Eliopee Limited, which has been chosen by the
Parties as Issuer of Reference in the area of securitization of
receivables and other financial assets, and from which the Transferee
undertakes to obtain all information needed to calculate said fees.
B. The Issuer of Reference is solely in the business of issuing billets de
tresorerie and any other short-term notes in order to finance the
acquisition of receivables and other financial assets. The Issuer of
Reference is a bankruptcy remote multi-seller vehicle created to
refinance different types of assets, mainly trade receivables. The
Transferee agrees to notify the Depositor about any material change
with respect to the types of assets refinanced by the Issuer of
Reference.
28.2 Financing costs of the Issuer of Reference
The Parties hereby agree that the following costs of the Issuer of
Reference shall be taken into account in the calculation of the
Transfer Fee:
(i) the costs incurred in connection with the issuance of billets
de tresorerie and any other short-term notes;
(ii) the costs incurred both in connection with the implementation
of and, as the case may be, the drawdown under the Liquidity
Agreement.
The calculation of the above-mentioned costs is described under Clauses
29 and 37.
-28-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
29. TRANSFER FEE
29.1 The Originator shall pay the Transferee a Transfer Fee on each
Transaction Date until the Agreement Termination Date, calculated
pursuant to the terms of Schedule 7.
29.2 The calculation of the Transfer Fee is based on the financing costs of
the Issuer of Reference incurred for one (1) entire year, i.e. on
financing costs which shall remain constant for each 360-calendar day
period and shall be those effectively payable by the Issuer of
Reference on the first day of each such 360-calendar day period.
29.3 For each 360-calendar day period as from the first applicable
360-calendar day period which shall commence on the first Transaction
Date, the financing costs of the Issuer of Reference shall be as
follows:
(i) issuance of billets de tresorerie or other short-term notes:
the amount of the daily weighted fee incurred by the Issuer of
Reference shall be calculated pursuant to Schedule 7.
(ii) Liquidity Agreement:
- if no drawdown is made pursuant to the Liquidity Agreement, a
commitment fee calculated in accordance with the Liquidity
Agreement and as further described in Schedule 17;
- if a drawdown is made pursuant to the Liquidity Agreement, an
drawdown interest rate calculated in accordance with the
Liquidity Agreement and as further described in Schedule 17.
29.4 The Transfer Fee shall be computed on the basis of the exact number of
days in each Fee Computation Period, adjusted to a 360-day year, and
shall be payable on the Transaction Date relating to the end of such
Calculation Period.
30. MANAGEMENT FEE
Until the Agreement Termination Date, notwithstanding the occurrence of
any Event of Default, the Originator shall pay to the Transferee a
Management Fee on the last Transaction Date of each Fee Computation
Period equal to:
(i) 0.61 % of the amount of the Financing on the Transaction Date
at the beginning of such Fee Computation Period terminated
before the relevant Transaction Date subject to a monthly
minimum of EUR 15,000 plus 0.50 % of the amount of the
Financing on the Transaction Date at the beginning of such Fee
Computation Period terminated before the relevant Transaction
Date; and
(ii) where applicable, in case of termination of the Servicing
Mandate given to the Originator pursuant to Clause 18.2, the
amount effectively borne and justified by the Transferee
pursuant to the Collection of the Transferred Receivables.
-29-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
The Management Fee shall be computed on the basis of the exact number
of days in each Fee Computation Period, adjusted to a 360-day year, and
shall be payable on the last Transaction Date of each Fee Computation
Period.
PART VII. DEPOSITS
31. CREATION OF DEPOSITS ON THE INITIAL TRANSFER DATE
A. On the Initial Transfer Date before 01.00 p.m. the Depositor shall make
with the Transferee a Subordinated Deposit calculated by the Transferee
pursuant to Clause 32.1 and a Complementary Deposit calculated by the
Transferee pursuant to Clause 33.1.
B. The Parties agree that the Depositor shall make the Deposits on behalf
of the Originator by crediting the Transferee's Account with the amount
thereof.
32. CHANGE IN THE SUBORDINATED DEPOSIT
32.1 Amount of the Subordinated Deposit during the Replenishment Period
A. On each Transfer Date during the Replenishment Period, and provided
that this Transfer Date is a Principal Transaction Date, the amount of
the Subordinated Deposit shall be calculated by the Transferee as
follows:
SD = SDR x min [FMax; FC; Fr)]
where:
"SD" means the amount of the Subordinated Deposit on the relevant
Transfer Date
"FMax" means the Maximum Financing Amount on the relevant Transfer
Date
"Fr" means the Requested Financing Amount
"FC" means the Computed Financing Amount
"SDR" means the Subordinated Deposit Rate on the relevant Transfer
Date computed for each Principal Transaction Date pursuant to
Schedule 10.
B. On each Transfer Date during the Replenishment Period and provided that
this Transfer Date is an Intermediary Transaction Date, the amount of
the Subordinated Deposit shall be calculated by the Transferee as
follows:
SD = SDR(PTD)x min [FMax; FC; Fr)]
where:
"SD" means the amount of the Subordinated Deposit on the relevant
Transfer Date
"FMax" means the Maximum Financing Amount on the relevant Transfer
Date
"Fr" means the Requested Financing Amount by the Originator on the
relevant Transfer
-30-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
Date
"FC" means the Computed Financing Amount
"SDR(PTD)" means the Subordinated Deposit Rate on the Principal
Transaction Date immediately preceding such Intermediary
Transaction Date
C. On each Transaction Date which is not a Transfer Date during any
Temporary Redemption Period, the amount of the Subordinated Deposit
shall be calculated by the Transferee as indicated under Clause
32.2(A).
32.2 Amount of the Subordinated Deposit during the Redemption Period
A. During any Temporary Redemption Period and during the Redemption
Period, on each Transaction Date which is not a Transfer Date and so
long as both of the Financing and the Complementary Deposit are not
repaid in full in accordance with this Agreement, the amount of the
Subordinated Deposit shall be equal to the amount of the Subordinated
Deposit on the preceding Transaction Date.
B. During the Redemption Period, on each Transaction Date which is not a
Transfer Date occurring after the repayment in full of both of the
Financing and the Complementary Deposit shall be calculated as follows:
SD(if) = SD(io) - max [0; - (F(io) + CD(io) - CS(if) - PS(if)]
where:
"(io)" means the Transaction Date occurring at the beginning of the
Fee Computation Period
"(if)" means the Transaction Date occurring at the end of the Fee
Computation Period
"SD" means the amount of the Subordinated Deposit subject to the
Increase made in accordance with Clause 40.3.3
"F" means the amount of the Financing
"CD" means the amount of the Complementary Deposit
"CS" means the amount of the Complementary Share of the Collections
"PS" means the amount of the Principal Share of the Collections
32.3 Change in the Subordinated Deposit
A. On each Transfer Date during the Replenishment Period, the change in
the Subordinated Deposit shall be equal to the difference (positive,
negative or zero) between the amount of the Subordinated Deposit on
this date calculated pursuant to Clauses 32.1 and 32.2 and the amount
of the Subordinated Deposit on the previous Transfer Date.
B. On each Transaction Date which is not a Transfer Date during any
Temporary Redemption Period or during the Redemption Period, the
Subordinated Deposit shall not be reduced as long as the Financing and
the Complementary Deposit have not been repaid in full.
-31-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
33. CHANGE IN THE COMPLEMENTARY DEPOSIT
33.1 Amount of the Complementary Deposit during the Replenishment Period
A. On each Transfer Date during the Replenishment Period, the amount of
the Complementary Deposit shall be calculated as follows:
CD(if)=OTR(if)-F(if)-SD(if)
where:
"CD" means the amount of the Complementary Deposit
"OTR" means the Outstanding Transferred Receivables Amount
"F" means the amount of the Financing
"SD" means the amount of the Subordinated Deposit
B. On each Transaction Date which is not a Transfer Date, during any
Temporary Redemption Period, the amount of the Complementary Deposit
shall be calculated pursuant to Clause 33.2.
33.2 Amount of the Complementary Deposit during the Redemption Period
On each Transaction Date which is not a Transfer Date, during any Temporary
Redemption Period and during the Redemption Period, the amount of the
Complementary Deposit shall be calculated as follows:
CD(if) = max [0 ; CD(io)- CS(if)-max [0 ; - (F(io) -PS(if))]]
33.3 Change in the Complementary Deposit
A. On each Transfer Date, during the Replenishment Period, the
Complementary Deposit shall record a change, positive, negative or
null, equal to:
CD (if)-CD(io)
B. On each Transaction Date which is not a Transfer Date, during any
Temporary Redemption Period and during the Redemption Period, the
reduction, if any, of the Complementary Deposit shall be equal to the
Complementary Share of the Collections effectively collected by the
Transferee increased, as the case may be, by the residual amount of the
Principal Share of the Collections after repayment in full of the
Financing.
34. CASH COLLATERAL
The Originator and the Depositor irrevocably agree that the Deposits
created pursuant to the provisions of this Agreement, the amount of
which may vary in respect of any Increases and the Releases of the
Deposits, shall be applied as cash collateral to the benefit of the
Transferee, to secure timely and full payment of all sums that may be
owed by the Originator to the Transferee
-32-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
under this Agreement (including sums owed from the Debtors which shall
be repaid by the Originator to the Transferee pursuant to this
Agreement).
35. INCREASE OF THE CASH COLLATERAL
In the case of any Increase of the Cash Collateral in accordance with
Clause 32 and 33, the Parties agree that the Depositor, on the
Transferee's request, shall increase the Cash Collateral by crediting
the Transferee's Account with the required amount thereof.
36. RELEASE OF THE CASH COLLATERAL
A. On each Transaction Date upon which a Release of the Cash Collateral is
to occur pursuant to Clauses 32 and 33, the Cash Collateral shall be
released, in full or in part, by the Transferee to the Depositor
limited to the amounts corresponding to the Debtor Payments already
repaid by the Originator to the Transferee.
B. The Release of the Cash Collateral, in full or in part, shall be
subject to the payment in full of the amounts secured thereunder as
specified in Clause 34. In the event of the non-payment of any such
amount, the non-paid amount to be repaid under a Release of the Cash
Collateral to be performed shall be reduced by such amount.
C. The Parties hereby acknowledge that the Transferee shall carry out any
Release of the Cash Collateral by merely crediting the Depositor's
Account of the amount of such Release.
37. IMMOBILIZATION FEE
A. On each Transaction Date up to and including the Redemption Date,
notwithstanding the occurrence of any Event of Default, in remuneration
for the Deposits, the Transferee shall pay the Depositor, by crediting
the Depositor's Account, an Immobilization Fee equal to the Synthetic
Period Rate applicable on such date multiplied by the respective amount
of each Deposit on the preceding Transaction Date.
B. On each Transaction Date after the Redemption Date (excluded),
notwithstanding the occurrence of an Event of Default, in remuneration
for the Deposits, the Transferee shall pay the Depositor, by crediting
the Depositor's Account, an Immobilization Fee equal to the Synthetic
Period Rate applicable on the Redemption Date multiplied by the
respective amount of each Deposit on the preceding Transaction Date.
C. The Immobilization Fee shall be computed on the basis of the exact
number of days in each Fee Computation Period, adjusted to a 360-day
year, and shall be payable on the Transaction Date relating to the end
of such Fee Computation Period.
-33-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
PART VIII. REPRESENTATIONS AND WARRANTIES - COVENANTS
38. REPRESENTATIONS AND WARRANTIES
38.1 From the Originator
The Originator hereby makes the following Representations and
Warranties to the Transferee in the form of an independent guarantee
(selbstandige Garantie) and accepts that the following Representations
and Warranties shall be deemed to be reiterated according to Clause
38.3:
(i) the Originator is a company duly organized and validly
existing under the law of its place of incorporation;
(ii) the Originator has the capacity to carry on its business, to
own all of the assets referred to on its balance sheet, to
enter into this Agreement and to perform its obligations
thereunder;
(iii) no authorization except those already obtained by the
Originator is required to execute this Agreement;
(iv) the execution of this Agreement and the performance of the
Originator's obligations thereunder do not violate any
provision of its articles of association (Satzung) and other
constitutional documents or any provision, in particular
concerning restrictions on the transfer of receivables or any
negative pledges, of any agreement or undertaking to which it
is a party or by which it is bound, and does not in any manner
violate the statutes and regulations applicable to it;
(v) the Originator's obligations arising from this Agreement are
binding upon it and enforceable in accordance with their
terms;
(vi) the payment of any sums due or to be paid to the Transferee
under this Agreement does not require any authorization that
has not already been obtained;
(vii) all financial documents provided by the Originator to the
Transferee are true and accurate;
(viii) the Originator conducts its business in all material respects
in accordance with all applicable laws and regulations;
(ix) no claim has been raised, or, to the Originator's knowledge,
is intended to be raised against it, which may prevent or
prohibit the performance of this Agreement or of its
obligations thereunder, or which may constitute a Material
Adverse Effect;
(x) no event has occurred since the closing date of its last
fiscal year which may have a Material Adverse Effect;
(xi) it proves to be technically possible to run each and any
Statement and any Portfolio Files so that this does at no time
prevent the Transferee from identifying any Transferred
Receivable or information related thereto contained in such
Statement or Portfolio Files, regardless of the date of
transfer of such Transferred Receivable;
-34-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
(xii) on each Transaction Date, the Transferable and Transferred
Receivables comply with the Warranties of Compliance;
(xiii) the Guarantor controls directly or indirectly 100% of the
Originator's share capital or voting rights;
(xiv) save for the effects against the relevant Debtor, which depend
on notice to, or acceptance by, such Debtor, the assignment of
each Receivable in the manner herein contemplated will:
-constitute a valid and binding assignment between the
Originator and the Transferee;
-transfer in accordance herewith, the legal and economic title
of such Receivable (and any Collections in respect thereof)
to the Transferee without notice of such assignment being
served upon the relevant Debtor and so that such
Receivables (and any Collections) will not form part of the
Originator's insolvency estate;
-be effective to pass to the Transferee full and unencumbered
title to the Receivable and the benefit thereof (including
in such context, any Collections and other rights in
connection therewith such as related security); and
-no further act, condition or thing will be required to be
done in connection therewith to enable the Transferee to
require payment of any such Receivable or the enforcement
of any such right in the courts of Germany.
(xv) the underlying Commercial Contract of each Transferable
Receivable is governed by German law and is valid and
enforceable against the relevant Debtor in accordance with its
terms and fully performed by the Originator;
(xvi) each sale and transfer will be effected at arm's length,
within the ordinary course of business of the Originator, and
will not result in any kind of fraudulent preference;
(xvii) any transaction hereunder is in accordance with the German
Data Protection Act (Bundes-Datenschutzgesetz) and with any
and all other applicable laws relating to the protection of
data relating to Debtors;
(xviii) no Event of Default or Potential Event of Default has occurred
or is existing and is continuing;
(xix) the Originator has performed all its obligations under each of
the Commercial Contracts and there exist no circumstances as
at this date or the relevant Transfer Date in which any Debtor
could exercise a right of set-off under the relevant
Commercial Contract;
(xx) the Originator is not in any insolvency, administration,
suspension of payments, liquidation, receivership or any such
other proceeding; no petition has been presented for the
entering into an insolvency procedure nor for the making of an
administration order in relation to the Originator and no
receiver, administrative receiver, administrator or receiver
and manager has been appointed in relation to the Originator;
and
(xxi) the Originator has obtained from any supplier who has supplied
goods which are the basis for any Transferred Receivable the
authority to collect such Transferred Receivable and no
-35-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
ERoT Event has occurred and is continuing.
38.2 From the Depositor
The Depositor hereby makes, to the Transferee, (a) the Representations
and Warranties set forth under Clauses 38.1 (i) to (x), which shall
apply to the Depositor mutatis mutandis and, in addition, (b)
represents and warrants that the Parent Company controls directly or
indirectly 100% of its share capital or voting rights and the Depositor
accepts that the Representations and Warranties referred to in (a) and
(b) above shall be deemed to be reiterated according to the provisions
set out under Clause 38.3.
38.3 Reiteration
Each of the Representations and Warranties of Clauses 38.1 and 38.2
shall be deemed to be reiterated by the Originator and the Depositor,
respectively, on each Transaction Date. These Representations and
Warranties shall remain in full force and effect until repayment in
full of the Financing.
39. COVENANTS
Until the Agreement Termination Date, the Originator and the Depositor,
undertake(s):
(i) to provide the Transferee:
- as soon as possible but no later than (i) on August 31, 2003
with respect to the fiscal year 2002 and (ii) on July 31, 2004
with respect to the fiscal year 2003 and (iii) on July 31 of
each following year with respect to the respective immediately
preceding fiscal year (A) with its most recent annual accounts
(balance sheet, profit and loss account and notes thereto) as
published and certified by its statutory auditors together
with the unqualified auditor's opinion relating thereto and
(B) with the report of its managing directors relating thereto
and the minutes of the annual meeting of its shareholders
approving the said accounts, no later than thirty days
following the said annual meeting;
- within (10) ten working days from its shareholders' approval
of the annual accounts at the latest, with an annual solvency
certificate from its statutory auditors in the form of
Schedule 11B;
- as soon as possible but no later than 90 days after the end of
each fiscal year of the Guarantor with respect to the
immediately preceding fiscal year, with the most recent
consolidated audited annual accounts of the Guarantor prepared
in accordance with US GAAP;
- as soon as possible with any information on the Receivables
and the Debtors; and
- as soon as possible with any other information, reports or
statements which the Transferee may at any time reasonably
request;
(ii) to request promptly all authorizations as may be necessary for
the performance of its obligations under this Agreement;
-36-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
(iii) upon knowledge by the Originator or the Depositor that a
Potential Event of Default or an Event of Default has
occurred, to notify promptly the Transferee thereof;
(iv) to conduct its business in compliance with all applicable laws
and regulations;
(v) not to modify its corporate purpose or its legal form in a way
which may have a Material Adverse Effect;
(vi) to inform the Transferee of any reorganization under which the
Parent Company would no longer hold, directly or indirectly,
at least 51 % of the share capital or voting rights of the
Depositor or the Originator;
(vii) as to the Originator only:
- to remit to the Transferee's Account, upon each
Transaction Date all Collections relating to the last
Collection Period terminated before such Transaction
Date;
- upon the Transferee's reasonable request and subject
to reasonable prior written notice thereof by the
Transferee, to allow the Transferee to cany out or to
commission any expert appraisal or audit (in all
cases, at the Originator's expense and up to a
maximum amount of EUR 15,000 per year; if the
expenses actually incurred exceed such amount, the
Originator and the Transferee shall negotiate in good
faith whether such expenses were incurred in a
prudent manner so that it is appropriate for the full
amount to be borne by the Originator) in respect of
the Transferable and the Transferred Receivables
originated by the Originator and its Management
Procedures;
- to maintain an adequate level of insurance coverage,
as required by law or normally taken out in its
business sector;
- to save all data relating to the Transferred
Receivables as recorded in any Statement or any of
the Portfolio Files delivered to the Transferee on
each Information Date for a period of at least six
years after the Transfer Date relating to such
Information Date as required by Section 257 of the
German Commercial Code (Handelsgesetzbuch);
- to immediately inform the Transferee if any of the
Originator's suppliers has withdrawn the authority of
the Originator to collect Transferred Receivables
which are the subject of an Extended Retention of
Title Clause.
PART IX. EVENTS OF DEFAULT
40. EVENTS OF DEFAULT AND TERMINATION OF THE TRANSFEREE'S COMMITMENT
40.1 General Events of Default
Each of the following Events of Default shall constitute a General
Event of Default:
-37-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
(i) any failure by the Originator or the Depositor to make any due
payment under this Agreement unless its failure to pay is
caused by administrative or technical error and such payment
is made within three (3) Business Days of its due date;
(ii) any default by the Originator or the Depositor, other than
specified in paragraph (i) above, of any of their covenants or
obligations under this Agreement provided that no Event of
Default under this paragraph will occur if the failure to
comply is capable of remedy and is remedied within five (5)
Business Days of the occurrence date of the default;
(iii) any of the Representations and Warranties of the Originator or
of the Depositor pursuant to Clause 38, or any information
contained in any document delivered by the Originator or the
Depositor to the Transferee under this Agreement is found to
be inaccurate in any material respect at the date upon which
it was made or delivered;
(iv) the Originator or the Guarantor or the Depositor is subject to
a voluntary dissolution or Insolvency Proceedings;
(v) the Parent Company has ceased to hold, directly or indirectly,
at least 51 % of the issued share capital or voting rights of
the Originator or the Depositor;
(vi) any event which shall have a Material Adverse Effect;
(vii) the validity of this Agreement or of any transfer of
Transferred Receivables is successfully challenged before a
court of law; and
(viii) the Guarantor is in breach of its Financial Covenants (as
defined under each of the US Guarantees) or any of the US
Guarantees ceases to be effective in accordance with its
terms.
40.2 Receivables Trigger Events
The occurrence of any Receivables Trigger Event shall constitute an
Event of Default.
40.3 ERoT Events
40.3.1 The occurrence of any ERoT Trigger Event (as defined in Schedule 8 Part
3) shall constitute an Event of Default.
40.3.2 The occurrence of any of the following events shall constitute an
"ERoT WITHDRAWAL EVENT" and an Event of Default:
(a) any of the suppliers (each, a "WITHDRAWING SUPPLIER") of the
Originator notifies the Originator that its authority to
collect Receivables which are subject to an Extended Retention
of Title Clause is withdrawn (each, a "SUPPLIER WITHDRAWAL");
provided that no ERoT Withdrawal Event shall be deemed to have
occurred, if, during the related Consultation Period:
(A) within a period of three (3) Business Days from the
receipt by the Originator of notice of a Supplier
Withdrawal:
-38-
HENGELER XXXXXXX BNP / Xxxxxx
GMRTSA
(i) the Originator provides evidence reasonably
satisfactory to the Transferee that it (1)
has no accounts payable outstanding to such
Withdrawing Supplier and (2) commits to have
no accounts payable outstanding with respect
to such Withdrawing Supplier at any time
until the end of the related Consultation
Period; or
(ii) the Originator (1) has paid an amount equal
to the aggregate amount of all accounts
payable outstanding to such Withdrawing
Supplier into an escrow account held by the
Transferee and (2) commits to pay into such
escrow account on a daily basis until the
end of the related Consultation Period an
amount equal to the aggregate amount of all
accounts payable which fall due on such day
and (3) has granted to the Transferee the
authority to, upon consultation with the
Originator, dispose of the funds held in
such account in order to discharge such
accounts payable;
and
(B) any of the following measures has been taken during
the related Consultation Period:
(i) the Financing has been reduced to zero and
all other obligations of the Originator, the
Depositor and the Guarantor hereunder have
been fulfilled; or
(ii) the Originator has provided evidence
reasonably satisfactory to the Transferee
that the Withdrawing Supplier has re-granted
the Originator's authority to collect
Receivables which are subject to an Extended
Retention of Title Clause; or
(iii) the Originator has provided evidence
reasonably satisfactory to the Transferee
that it is able to identify Receivables
which are subject to the Extended Retention
of Title Clause imposed by the Withdrawing
Supplier and to ensure that such Receivables
are not offered to the Transferee.
During such Consultation Period,
(i) if any Transaction Date occurs, the
Transferee shall not be obliged to purchase
any Transferable Receivables at such
Transaction Date; and
(ii) the Transferee, in its capacity as pledgee
under the Collection Accounts Pledge
Agreement, shall at any and all times be
entitled to serve a Stop Drawing Notice in
the form of Schedule 2 to the Collection
Accounts Pledge Agreement (with a copy to
the Originator).
If the measures set forth under (A) (i) or (ii) and (B) (i) or
(ii) or (iii) have been taken in accordance with the terms of
such provisions, the Transferee shall at the end of the
relevant Consultation Period (i) confirm the remedy of the
respective Supplier Withdrawal by a letter to the Originator
substantially in the form of Schedule 18A and (ii) withdraw
the Stop Drawing Notice by a letter substantially in the form
of Schedule 3 to the Collection Accounts Pledge Agreement;
provided that none of the actions mentioned in (i) and (ii)
above shall prevent the Transferee to enforce any of its other
rights and remedies pursuant
-39-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
to this Agreement.
(b) a Supplier Withdrawal by a Non-Relevant Supplier has occurred,
however, such Supplier Withdrawal is not deemed to constitute
an ERoT Withdrawal Event pursuant to Clause 40.3.2 (a) (A) and
(B) above, and at any time within the Consultation Period
starting from the notice of the occurrence of such Supplier
Withdrawal, an additional Supplier Withdrawal is notified to
the Originator by any Non-Relevant Supplier; and
(A) any of the requirements set forth under Clause 40.3.2
(a) (A) and (B) has not been fulfilled during the new
Consultation Period with respect to the additional
Supplier Withdrawal; or
(B) after the end of such new Consultation Period, the
managing directors of the Originator has not issued a
certificate in the form as set forth in Schedule 12B.
During such new Consultation Period,
(i) if any Transaction Date occurs, the Transferee shall
not be obliged to purchase any Transferable
Receivables at such Transaction Date; and
(ii) the Transferee, in its capacity as pledgee under the
Collection Accounts Pledge Agreement, shall at any
and all times be entitled to serve a Stop Drawing
Notice in the form of Schedule 2 to the Collection
Accounts Pledge Agreement (with a copy to the
Originator).
If such second Supplier Withdrawal is deemed not to constitute
an ERoT Withdrawal Event pursuant to (A) and (B) above, the
Transferee shall at the end of the second Consultation Period
(i) confirm the remedy of the respective Supplier Withdrawal
by a letter to the Originator substantially in the form of
Schedule 18A and (ii) withdraw the Stop Drawing Notice by a
letter substantially in the form of Schedule 3 to the
Collection Accounts Pledge Agreement; provided that none of
the actions mentioned in (i) and (ii) above shall prevent the
Transferee to enforce any of its other rights and remedies
pursuant to this Agreement.
(c) (i) a Supplier Withdrawal has occurred, however, such Supplier
Withdrawal is not deemed to constitute an ERoT Withdrawal
Event pursuant to Clause 40.3.2 (a) (A) and (B) above, and
(ii) at any time within the Consultation Period starting from
the notice of the occurrence of such Supplier Withdrawal, an
additional Supplier Withdrawal is notified to the Originator
by any supplier and (iii) (aa) either the first Supplier
Withdrawal or the additional Supplier Withdrawal was made by a
Relevant Supplier or (bb) at any time within the Consultation
Period starting from the notice of the occurrence of such
additional Supplier Withdrawal, a third Supplier Withdrawal is
notified to the Originator by any supplier; and
(A) any of the requirements set forth under Clause 40.3.2
(a) (A) and (B) has not been fulfilled during the new
Consultation Period with respect to the second
Supplier Withdrawal; or
(B) (i) after the end of a three months period
following the commencement of such new
Consultation Period, the Transferee in its
reasonable opinion having conducted a credit
audit of the Originator and/or the Guarantor
decides that a
-40-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
material deterioration of the business or
the financial condition of the Originator or
the Guarantor has occurred; unless
(ii) within three (3) Business Days upon notice
of (i) being served on the Depositor with a
copy to Xxxxxx Micro Coordination Center
BVBA/Sprl., the Originator has exercised in
its absolute discretion the option to make a
Retransfer Offer with respect to all
Transferred Receivables and have made the
respective Retransfer Payment.
During the three months period mentioned in (B) (i) above,
(i) if any Transaction Date occurs, the Transferee shall
not be obliged to purchase any Transferable
Receivables at such Transaction Date and Clause 40.1
(ix) shall not be applicable during such three months
period; and
(ii) the Transferee, in its capacity as pledgee under the
Collection Accounts Pledge Agreement, shall at any
and all times be entitled to serve a Stop Drawing
Notice in the form of Schedule 2 to the Collection
Accounts Pledge Agreement (with a copy to the
Originator).
If such second Supplier Withdrawal is deemed not to constitute
an ERoT Withdrawal Event pursuant to (A) and (B) above, the
Transferee shall at the end of the three months period
mentioned in (B) (ii) above (i) confirm the remedy of the
respective Supplier Withdrawal by a letter to the Originator
substantially in the form of Schedule 18B and (ii) withdraw
the Stop Drawing Notice by a letter substantially in the form
of Schedule 3 to the Collection Accounts Pledge Agreement;
provided that none of the actions mentioned in (i) and (ii)
above shall prevent the Transferee to enforce any of its other
rights and remedies pursuant to this Agreement.
40.3.3 If (i) an ERoT Withdrawal Event has occurred because the measures set
forth in Clause 40.3.2 (a) (A) have not been fulfilled and (ii) any
insolvency or similar proceeding has been commenced with respect to the
Guarantor or the Guarantor is in a stoppage of payment situation, an
amount equal to three times the aggregate amount of accounts payable
outstanding to the relevant Withdrawing Supplier shall be transferred
from the Complementary Deposit to the Subordinated Deposit.
40.4 Issuer Event of Default
Each of the following events shall constitute an Issuer Event of
Default:
(i) any or all Liquidity Bank(s) has(ve) notified the Issuer of
Reference its intention to partially renew or its intention
not to renew its commitment under the Liquidity Agreement (the
Transferee hereby undertaking to inform the Depositor and the
Originator of such non renewal or partial renewal upon
becoming aware of the same), provided that no Issuer Event of
Default shall be deemed to have occurred if upon notice of
such non renewal or partial renewal, the Issuer of Reference
and each relevant Liquidity Bank have found an alternative
solution within a 20-Business Day period following the above
mentioned notice (such alternative solution being subject to
the confirmation by the Rating Agency that the current rating
of the Notes issued by the Issuer of Reference is not likely
to be challenged because of such solution and including, but
not being limited to, the reduction of each
-41-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
relevant Liquidity Bank's maximum amount of commitment or the
replacement of each relevant Liquidity Bank);
(ii) the Issuer of Reference becomes unable to issue Notes (other
than as as a result of the occurrence of an event of market
disruption); or
(iii) the rating of the Notes issued by the Issuer of Reference is
withdrawn or downgraded below the rating granted to such notes
as of the date hereof.
41. REMEDIES UPON THE OCCURRENCE OF AN EVENT OF DEFAULT OR A TERMINATION OF
THE TRANSFEREE'S COMMITMENT
41.1 Voluntary Early Termination
By written notice to the Depositor and the Originator, the Transferee
may (but is not obliged to) declare the termination of this Agreement
following the occurrence of:
(a) any General Event of Default (other than the General Events of
Default listed in Clause 40.1) upon the termination of the
grace period specified for such General Event of Default in
Clause 40.1, if any; or
(b) any ERoT Event, in accordance with the terms of Clause 40.3.
In any of the above cases, the Final Transfer Date shall be either (i)
the date indicated by the Transferee to the Depositor and the
Originator in the above mentioned notice, or (ii) failing such
indication, the first Transaction Date following the date of receipt by
the Depositor and the Originator of the above mentioned notice. The
provisions of this Agreement concerning the Redemption Period shall
apply as of the Final Transfer Date, as determined in this Clause 41.1.
41.2 Mandatory Early Termination without Consultation Period
Upon the occurrence of any General Event of Default set out in Clause
40.1(i), Clause 40.1(iv), Clause 40.1(vi), Clause 40.1(vii), or Clause
40.1(viii) or any Receivables Trigger Event, the Transferee shall serve
a written notice to the Originator and the Depositor, declaring the
termination of this Agreement. In this case, the Final Transfer Date
shall be the first Transaction Date following the date of reception of
the notification by the Originator and the Depositor, and the
provisions of this Agreement concerning the Redemption Period shall
apply as of the Final Transfer Date, as determined in this Clause 41.2.
41.3 Mandatory Early Termination with Consultation Period
(A) Upon the occurrence of any Issuer Event of Default or any Collections
Trigger Event or ERoT Trigger Event, the Transferee and the Originator
shall consult with one another and endeavor in good faith, during the
duration of a Consultation Period starting from the occurrence of such
Issuer Event of Default or Collections Trigger Event or ERoT Trigger
Event, to find a solution mutually acceptable to the Parties.
(B) If another Transaction Date occurs during this Consultation Period, the
Transferee shall not be obliged to purchase any Transferable
Receivables at that Transaction Date, and the provisions
-42-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
under this Agreement applying to any Temporary Redemption Period and
Redemption Period shall take effect.
(C) If an agreement is reached on the alternative solution within this
Consultation Period, this solution shall be applied by the Parties on
the date upon which they have agreed.
(D) If an agreement cannot be reached within this Consultation Period and
if such Issuer Event of Default or Collections Trigger Event or ERoT
Trigger Event is continuing at this date, the Transferee shall serve
notice to the Originator of the termination of the Transferee's
Commitment. Upon termination of the Transferee's Commitment pursuant to
the foregoing provision, the Final Transfer Date shall be the first
Transaction Date following the date of acknowledgement of receipt by
the Originator of the above mentioned termination notice, and the
provisions of this Agreement concerning the Redemption Period shall
apply on this date.
PART X. MISCELLANEOUS
42. PAYMENTS AND CURRENCY FOR PAYMENTS
For the purpose of making the payment of all sums due under this
Agreement, the Originator and the Transferee expressly agree to use
exclusively the following bank accounts:
(i) the Collection Accounts;
(ii) the Transferee's Account; and
(iii) the Depositor's Account.
Any Debtor Payments shall be directed by the Originator to the
Collection Accounts in accordance with the Collection Accounts Pledge
Agreement. Any amount due by the Originator to the Transferee shall be
credited on the Transferee's Account. Any amount due by the Transferee
to the Originator shall be credited on a Collection Account of the
Originator. The payment of indemnity amounts, expenses and charges, as
are payable in accordance with this Agreement, shall be made in Euros.
43. WAIVER
For so long as the Financing has not been irrevocably repaid in full,
the Originator shall waive the right to effect any set-off between any
amount owed by it to the Transferee pursuant to this Agreement and any
amount which is owed to it by the Transferee, in any respect whatsoever
to the extent permitted by applicable law, even if the reciprocal
claims are certain, liquid and due and payable, or related claims.
44. LATE PAYMENT INTERESTS
A. In the event that the Originator fails to pay the Transferee any sum
whatsoever owed under this Agreement on the day it is due and payable,
the Originator shall pay the Transferee, to the extent permitted by
applicable law, late payment interests computed over the period between
the due
-43-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
date and the actual date on which said sum is paid, at a rate of
interest per annum equal to EONIA+1.00%.
B. Late payment interests shall be owed even if the Transferee did not
declare the termination of this Agreement pursuant to Clause 40. Late
payment interests shall not be exclusive of payment of a compensation
to remedy certain and specific damages suffered by the Transferee, in
accordance with the provisions of Clause 42.
45. TAXES
A. Any amount which should be paid or remitted by the Originator in favor
of the Transferee under this Agreement shall be made net of any
deduction or withholding (with the exception of corporate income tax),
unless the Originator is required to make said deduction or
withholding, in which case, to the extent permitted by law, the
Originator shall increase the amount to be paid or remitted to the
Transferee such that following said deduction or withholding, the
Transferee shall receive a net amount (free of any deduction or
withholding of tax) which is equal to what it would have received had
there been no such deduction or withholding.
B. In the event and to the extent of any taxes, duties or charges becoming
due, being imposed upon or otherwise becoming attributable to or
payable by the Transferee (i) in Germany (in particular any trade tax
(Gewerbesteuer)) by whatever reason in connection with this Agreement
or (ii) in connection with the transactions contemplated hereby or
(iii) in connection with the income derived hereunder or thereunder or
(iv) in connection with the refinancing by the Transferee of the
purchase of Transferred Receivables hereunder or (v) otherwise or in
connection with their collection or realisation, the Originator shall
pay such additional amounts to the Transferee which are required to
ensure that the Transferee finally is able to fulfil its tax payment
obligations and therefore receives, and is able to retain at any time
for its free disposal in full an unreduced amount being equal to the
aggregate of all amounts collected in relation to Transferred
Receivables.
C. If the applicable laws do not permit the aforementioned increase to be
made, the Transferee and the Originator shall consult with one another
in the shortest possible time and endeavor in good faith to find a
solution mutually acceptable to the Parties.
D. If such an agreement cannot be reached within 30 calendar days
following the effective date of said levy, deduction or withholding of
tax, the Final Transfer Date shall be deemed to have occurred on the
30th calendar day following the effective date of said levy, deduction
or withholding of tax.
46. CHANGE IN CIRCUMSTANCES
A. If, as a result of:
(a) any new law, regulation, directive or any amendment to any
law, regulation or directive or any change in the manner it is
interpreted by a governmental authority responsible for its
enforcement; or
(b) any compliance by the Transferee (or its parent company) with
a recommendation or regulation of a competent central bank or
any other financial, monetary or other authority
-44-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
(including but not limited to a recommendation or regulation
affecting the capital adequacy requirements applicable to the
Transferee (or its parent company) in light of its obligations
and such amounts as are owed to it under this Agreement);
B. (a) the Transferee (or its parent company):
(i) incurs a cost as a result of granting, financing or
maintaining the Transferee's Commitment; or
(ii) suffers an increase in the cost of granting,
financing or maintaining the Transferee's Commitment;
or
(iii) is compelled to make any payment whatsoever or to
waive any return based on or computed by reference to
the gross amount of those sums of any kind which it
has received or is entitled to receive from the
Originator pursuant to this Agreement; or
(b) any amounts payable to the Transferee under this Agreement or
any related documents is reduced or any regulatory capital
adequacy requirements, as imposed on the Transferee (or its
parent company) as the result of the Transferee entering into
this Agreement and any transactions contemplated thereby, is
increased;
(c) it becomes impossible for the Originator to fulfil its
obligations pursuant to this Agreement; or
(d) it becomes unlawful for the Transferee (or its parent company)
to maintain or give effect to its obligations as contemplated
in this Agreement or impossible for the Transferee to maintain
the Transferee's Commitment; or
(e) any new condition is imposed on the Transferee (or its parent
company) in respect of this Agreement;
C. then in each of those cases:
(a) the Transferee shall give the Originator written notice of
that event; and
(b) the Transferee shall be entitled to claim from the Originator
payment of compensation for the entire term of this Agreement
in an amount sufficient to compensate the Transferee (or its
parent company, respectively) for said incurred costs,
reduction, payment or relinquishment of any return actually
borne by the Transferee (or its parent company, respectively)
and which arose subsequent to the date of receipt by the
Originator of the above-mentioned notification; or
provided that (i) if the Originator contests the amount of the
compensation claimed by the Transferee, the Transferee and the
Originator shall promptly consult with one another within a 30-calendar
day period during which each Party endeavors in good faith to find a
solution mutually acceptable to the Parties; and (ii) if the Parties
are unable to reach agreement by the end of that 30-calendar day
period, the Originator shall pay the amount of the compensation as
determined by the Transferee and the Final Transfer Date shall be
deemed to have occurred on the last calendar day of the consultation
over the said 30-calendar day period.
-45-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
D. The Transferee hereby undertakes to give the Originator written notice
of its becoming aware of any possibility of the occurrence of any event
described in paragraph A of this Clause.
47. EXPENSES
The Originator shall reimburse the Transferee, upon duly justified
written request of the Transferee, all reasonable and documented
expenses (including court and lawyers' costs and fees) arising from any
modification to this Agreement and from any protection or enforcement
of the rights of the Transferee under this Agreement.
48. SUB-CONTRACTING AND SUBSTITUTION
A. Each Party shall have the right to add or appoint a third party to
assist it in the performance of certain tasks, provided that it has so
informed the other Parties and the Rating Agency.
In addition, each Party shall have the right to nominate a third party
to replace it in the performance of certain tasks, provided that:
(i) it has so informed the other Parties, or, concerning the
Originator, it has obtained the prior approval of the
Transferee;
(ii) it shall remain responsible for the proper performance of its
obligations in accordance with Section 278 of the German Civil
Code and the third party expressly waives any contractual
recourse against the other Parties, unless this Agreement
expressly provides for the contrary;
(iii) the third party undertakes to perform all of the obligations
to which the said Party is subject under this Agreement.
B. The Transferee has appointed BNP Paribas to act in its name and on its
behalf in all matters relating to this Agreement and, in that capacity,
to perform all of its obligations under this Agreement. BNP Paribas
shall only be accountable to the Transferee for the performance of its
duties and obligations under this Agreement, and shall not be
accountable to any third party or anyone else whosoever, and shall only
be liable for gross negligence and willful misconduct.
49. CONFIDENTIALITY
Each Party undertakes to treat any and all information that comes to
its knowledge concerning the other Party as confidential.
This undertaking shall not:
(i) prevent the transmission of any information to supervisory
authorities, statutory auditors, legal advisers, tax
authorities, the Rating Agency, the Issuer of Reference or any
other entities appointed pursuant to Clause 48;
-46-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
(ii) preclude the possibility of any Party using any information to
protect or enforce its rights under this Agreement, notably by
bringing any legal action.
This confidentiality undertaking shall remain in effect for three (3) years
from the Agreement Termination Date.
50. BENEFIT OF THE AGREEMENT
The benefit of this Agreement shall not be transferred to any third party
without the prior written consent of any Party.
51. NOTICES, COMMUNICATION AND DOCUMENTS
51.1. Addresses
Unless otherwise subsequently notified to each of the Parties on the following
terms, all notices, communication and documents in connection with this
Agreement shall take effect as of the date that it is received, and shall be
transmitted by way of registered mail with acknowledgment of receipt requested,
or by facsimile, to:
(i) The Originator:
Xxxxxx Micro Distribution GmbH
Title: Chief Financial Officer
For the attention of: Xxxx-Xxxxx Xxxxxx
Mail to: xxxx-xxxxx.xxxxxxx@xxxxxxxxxxx.xx
Address: Xxxxxxxxxxxxxxx 0, 00000 Xxxxxxx
Fax: x00 00 0000 0000
Tel: x00 00 0000 0000
E-mail: xxxx-xxxxx.xxxxxxx@xxxxxxxxxxx.xx
(ii) The Depositor:
Xxxxxx Micro Holding GmbH
Title: Senior Manager Treasury Central Region
For the attention of: Xxxxxxxx Xxxxx
Mail to:
Address: Xxxxxxxxxxxxxxx 0, X-00000 Xxxxxxx
Fax: +49-89-2080 836 52
Tel: +49-89-4208 1378
E-mail: Xxxxxxxx.xxxxx@xxxxxxxxxxx.xx
-47-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
(ii) The Guarantor (Xxxxxx Micro Inc.):
Title: Worldwide Treasurer
For the attention of: Xxx Xxxxxxxx
Title: General Counsel
For the attention of: Xxx Xxxxxxxx
Address: 0000 X. Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
XX 00000, X.X.X.
Fax: (000) 000-0000
Tel: (000)000-0000
E-mail: xxx. xxxxxxxx@ingrammicro. com
xxx.xxxxxxxx@xxxxxxxxxxx.xxx
(iii) The Transferee (BNP Bank N.V. represented by BNP Paribas):
Address: 0, xxx x'Xxxxx, 00000 Xxxxx, Xxxxxx
Fax: (x00 0)00000000
Tel: (x00 0)00 000000/0142986613
E-mail: xxxxxxxx.monci@bnpparibas.
xxx/xxxx.xxxxx@xxxxxxxxxx.xxx
For the attention of: Xxxxxxxx Xxxxx / Xxxx Lefol
In addition, a copy of any notice, communication or document in
connection with this Agreement shall be automatically and
simultaneously sent to Ingram European Coordination Center N.V./S.A. at
the following address:
Xxxxxx Micro Coordination Center BVBA/Sprl.:
Title: Treasury Project Manager-Europe
For the attention of: Xxxxxxxx Ransquin
Title: Senior Director Treasury Europe
For the attention of: Xxx Xxxxxxxx
Address: Xxxxxxxxxxxxxx 00 X, 0000 Xxxxxxxxx,
Xxxxxxx
Fax: 00 00 0 000 00 00
Tel: 0032 2 254 92 95
E-mail: xxxxxxxx.xxxxxxxx@xxxxxxxxxxx-xxxxxx.xxx
xxx.xxxxxxxx@xxxxxxxxxxx-xxxxxx.xxx
-48-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
51.2. Effectiveness
Unless otherwise mutually agreed by each of the Parties, any notice,
communication or document made or delivered by one person to another
under or in connection this Agreement will only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of registered mail with acknowledgement of receipt
requested, when received by the relevant person or officer in
charge; or
(iii) if by way of electronic mail, when received in legible and
virus-free form.
52. EXERCISE OF RIGHTS
Absent an express waiver, any failure by a Party to exercise its rights
under this Agreement shall not constitute a waiver of those rights.
53. LANGUAGE
Any document provided under or in connection with this Agreement,
including all or part of its Schedules, shall be made in English.
54. INDIVISIBILITY
A. If a provision of this Agreement is or becomes void or ceases to be
effective and enforceable, the legality, validity or enforceability of
any other provision of this Agreement shall not be affected thereby.
However, the Parties shall modify any provision of the Agreement which
becomes or ceases to be effective and enforceable, invalid or
unenforceable, to the extent that it is reasonably possible to modify
such provision in order for it to become legal, valid and enforceable
and after the mutual written consent of the Parties.
B. If, after the execution of this Agreement, any additional formality
proves to be necessary in connection with this Agreement or each
instrument delivered by any Party pursuant to its terms, each Party
undertakes to fulfil such formality that another Party may reasonably
request, to the extent that such formality does not substantially
modify its rights and obligations under the Agreement.
55. GOVERNING LAW - JURISDICTION - COUNTERPARTS
A. This Agreement shall be governed by, and construed in accordance with
German law if not explicitly provided otherwise in this Agreement.
B. Any dispute as to the validity, execution, interpretation or any other
matter arising from this Agreement shall be subject to the jurisdiction
of the District Court (Landgericht) in Frankfurt am Main, Germany.
-49-
HENGELER XXXXXXX BNP / Ingram
GMRTSA
C. Each of the US Guarantees shall be governed by the laws of the State of
California and subject to the jurisdiction of the Courts of the State
of California.
D. This Agreement may be executed (including execution by facsimile) in
one or more counterparts (Ausfertigungen). Each signed counterpart
shall constitute an original.
56. CONTINUITY
Each of the parties hereto hereby agrees with the other parties hereto
that all provisions of the German Master Receivables Transfer and
Servicing Agreement originally dated August 14, 2003, as amended and
restated on December 29, 2003, any transactions thereunder and any
rights and obligations created thereunder shall continue to be in full
force and effect, as hereby amended and restated. Any references in any
agreement or document to this Agreement shall be to the German Master
Receivables Transfer and Servicing Agreement, originally dated August
14, 2003, as amended and restated on December 29, 2003, as hereby
amended and restated. With respect to any time prior to the date
hereof, the terms of the German Master Receivables Transfer and
Servicing Agreement dated August 14, 2003, as amended and restated on
December 29, 2003, shall not be affected hereby.
EXECUTION PAGE
As amended and restated on March 31, 2004
BNP PARIBAS BANK N.V.
By: /s/
XXXXXX MICRO DISTRIBUTION GMBH
By: /s/
By: /s/
XXXXXX MICRO HOLDING GMBH
By: /s/
