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This RECEIVABLES PURCHASE AGREEMENT is entered into as of June 26, 2001 among:
(1) AGCO CANADA, LTD., a Saskatchewan corporation, as the Seller,
(2) AGCO CORPORATION, a Delaware corporation, as initial Servicer,
(3) THE PURCHASERS party hereto,
(4) THE ADMINISTRATORS party hereto, and
(5) COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL" NEW YORK BRANCH, as Agent and
Custodian.
PRELIMINARY STATEMENTS
WHEREAS the Seller has Dealer Receivables and will have additional
Dealer Receivables;
WHEREAS, the Seller desires to transfer and assign Ownership Interests
in the Dealer Receivables and Related Security with respect thereto to the
Purchasers from time to time;
WHEREAS, each Purchaser may, in its absolute and sole discretion,
purchase Ownership Interests from the Seller from time to time;
WHEREAS, the Seller and the Purchaser have agreed that all such
Ownership Interests as well as the interests of the Seller in the Dealer
Receivables and Related Security shall be held by the Custodian as agent and
bailee of the Seller and the Purchasers in accordance with the terms of this
Agreement;
WHEREAS, each Administrator has been requested and is willing to act on
behalf of the Purchasers in its Related Group in accordance with the terms
hereof; and
WHEREAS, Rabobank has been requested and is willing to act as the Agent
on behalf of the Purchasers in accordance with the terms hereof and to act as
the Custodian on behalf of both the Seller and the Purchasers;
NOW, THEREFORE, in consideration of the premises set forth above, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is agreed as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
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"Adjusted Eurodollar Rate" means for any period, a rate per annum equal
to the sum of (a) 1.50%, and (b) the quotient of (i) LIBOR for such period,
divided by (ii) a number equal to 1.00 minus the Eurodollar Reserve Percentage,
if applicable. The Adjusted Eurodollar Rate shall be determined by the Agent and
shall be rounded upward, if necessary, to the nearest 1/100th of 1%.
"Administrator" means (i) with respect to the Related Group that
includes Nieuw Amsterdam, Rabobank in its capacity as administrator for such
Related Group hereunder, and any successor thereto in such capacity and (ii)
with respect to any other Related Group that may become party hereto pursuant to
Section 13.02, the Person designated as such in the relevant Joinder Agreement,
and any successor thereto in such capacity.
"Administrator Agreement" means an agreement between an Administrator
and the members of its Related Group relating to the performance of such
Administrator's duties hereunder.
"Adverse Claim" means a lien, security interest, charge, encumbrance,
mortgage, pledge, assignment, hypothec, hypothecation, privilege, title
retention or other right or claim in, of or on any Person's assets or properties
in favour of any other Person.
"Affected Party" means a Purchaser, a Conduit Funding Source or any of
their respective Affiliates.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person or any Subsidiary of such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
stock, by contract or otherwise.
"AGCO U.S." means AGCO Corporation, a Delaware corporation, and any
successor thereto.
"Agent" means Rabobank in its capacity as agent for the Purchasers
hereunder, and any successor thereto in such capacity.
"Agreement" means this Receivables Purchase Agreement, as it may be
amended, restated, supplemented or modified and in effect from time to time.
"Alternative Rate" means the Adjusted Eurodollar Rate, provided,
however, that the "Alternative Rate" shall be equal to the Base Rate (i) for any
Settlement Period not equal to a month, (ii) with respect to any portion of
Investment which is not outstanding during an entire Settlement Period or which
does not accrue Yield at the Alternative Rate for an entire Settlement Period,
(iii) at any time when the Adjusted Eurodollar Rate has been suspended as
provided in Section 5.02, (iv) for any Settlement Period for which the Seller so
elects by delivery of a written notice to such effect to the Agent and each
Administrator not later than the third Business Day
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prior to the commencement of such Settlement Period, and (v) in respect of any
Investment transferred by Nieuw Amsterdam to any other Person, during the
initial period of three Business Days immediately following such transfer;
provided, further however, that if, for any Settlement Period, the average
Alternative Rate as determined in accordance with the foregoing is less than the
weighted average cost of funds (expressed as an annual interest rate based on a
360 day year) incurred by the Purchasers for such period to fund their
Investments (as determined by the Agent, whose determination thereof shall be
conclusive for purposes hereof) (such rate being the "Cost of Funds Rate"), the
"Alternative Rate" for such Settlement Period shall be equal to the Cost of
Funds Rate for such Settlement Period.
"Applicable Unpaid Obligations" has the meaning set out in Section
5.05(a).
"Authorized Officer" shall mean, with respect to the Seller or AGCO
U.S., its respective corporate controller, treasurer or chief financial officer.
"Base Rate" means, on any date, a fluctuating rate of interest per
annum equal to the higher of (a) the Prime Rate (or, for any period when the
Agent has elected in accordance with Section 3.07 to denominate the Investment
in Canadian Dollars, the Canadian Prime Rate) and (b) the Federal Funds Rate
+ 0.50%.
"Business Day" means any day on which banks are not authorized or
required to close in Xxx Xxxx, Xxx Xxxx xx Xxxxxxx, Xxxxxx and, if the
applicable Business Day relates to any computation or payment to be made with
respect to the Adjusted Eurodollar Rate, any day on which dealings in dollar
deposits are carried on in the London interbank market.
"Canadian Dealer" means a Dealer that is located in Canada or that
remits payments to a Lock-Box and/or Deposit Account located in Canada.
"Canadian Dollar Equivalent" means, at any time, (i) with respect to
any amount expressed in U.S. Dollars, the Equivalent Amount thereof at such time
in Canadian Dollars, and (ii) with respect to any amount expressed in Canadian
Dollars, the amount thereof.
"Canadian Dollars" or "Cdn $" means the lawful currency of Canada.
"Canadian Prime Rate" means, at any time, the rate of interest charged
by Royal Bank of Canada for Canadian dollar commercial loans made in Canada and
which it refers to as its "Prime Rate".
"Carrying Cost Reserve Percentage" means, at any time, a percentage
equal to:
1.5 * (3 Month LIBOR + 3.0%) * DSO/365
where
3 Month LIBOR = LIBOR for an assumed Settlement Period of three
months commencing on the immediately preceding
Payment Date.
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DSO = The product of (i) 270, times (ii) a fraction,
the numerator of which is equal to the aggregate
Outstanding Balance of all Dealer Receivables as of
the last day of the calendar month most recently
ended on or prior to the date of determination, and
the denominator of which is equal to the aggregate
Outstanding Balance of all Dealer Receivables arising
during the nine calendar month period then most
recently ended on or prior to such date.
"Cash Control Event" means the occurrence of either of the following
events: (i) the Servicer's long-term corporate or senior implied rating shall be
Ba3 or lower by Xxxxx'x or BB- or lower by S&P or (ii) any Early Amortization
Event.
"Charged-Off Receivable" means a Dealer Receivable, (i) as to which the
Obligor has taken any action, or suffered any event to occur, of the type
described in Section 10.01(e) or (ii) which, consistent with the Credit and
Collection Policy, would be written off the Seller's books as uncollectible.
"Collection Account" means the account maintained in the name of
Servicer at the Collection Account Bank having the account no. 0000-0000-000, or
any new collection account established by the Servicer pursuant to Section 4.07.
"Collection Account Bank" means Bank of Montreal or, if the Servicer
establishes any new Collection Account pursuant to Section 4.07, the Eligible
Bank at which such account is established.
"Collection Notice" means a notice, in substantially the form of Annex
A to Exhibit B, from the Agent to a Deposit Account Bank.
"Collections" means, with respect to any Dealer Receivable, all cash
collections and other cash proceeds in respect of such Dealer Receivable,
including, without limitation, all Sales Taxes or other related amounts accruing
in respect thereof, all cash proceeds of Related Security with respect to such
Dealer Receivable and all Deemed Collections with respect to such Dealer
Receivable and any other amounts which are stated herein to be applied as
Collections, but for greater certainty, not including any collections of Finance
Charges. Without limiting the generality of the foregoing, it is understood and
agreed that Collections shall include all such amounts received (including
insurance proceeds, if any) with respect to Dealer Receivables which have
previously become Defaulted Receivables or Charged-Off Receivables.
"Commercial Paper Notes" means the short-term promissory notes issued
by a Purchaser having an original maturity of 45 days or less (including the
date of issuance thereof).
"Conduit Funding Agreement" means any agreement or instrument executed
by any Conduit Funding Source with or for the benefit of a Purchaser pursuant to
which such Conduit Funding Source provides liquidity, credit enhancement or
back-up purchase support or facilities to such Purchaser.
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"Conduit Funding Source" means any bank, insurance company or other
funding entity providing liquidity, credit enhancement or back-up purchase
support or facilities to a Purchaser.
"Contract" means, with respect to any Dealer Receivable, any and all
instruments, agreements, invoices or other writings pursuant to which such
Dealer Receivable arises or which evidences such Dealer Receivable, including,
without limitation, any related Dealer Agreement.
"CP Rate" means, with respect to any Purchaser for any period, the per
annum rate equivalent to the weighted average of the per annum rates paid or
payable by such Purchaser from time to time as interest on Commercial Paper
Notes (by means of interest rate xxxxxx or otherwise and taking into
consideration any incremental carrying costs associated with Commercial Paper
Notes issued by such Purchaser maturing on dates other than those certain dates
on which such Purchaser is to receive funds) in respect of Funding Commercial
Paper Notes issued by such Purchaser, which rates shall reflect and give effect
to (i) the commissions of placement agents and dealers in respect of such
Commercial Paper Notes, to the extent such commissions are reasonably allocated,
in whole or in part, to such Commercial Paper Notes by the related Administrator
(on behalf of such Purchaser), (ii) other borrowings by such Purchaser,
including, without limitation, borrowings to fund small or odd dollar amounts
that are not easily accommodated in the commercial paper market and (iii) any
related Currency Protection Agreements and the costs incurred thereunder;
provided that if any component of such rate is a discount rate, in calculating
the CP Rate the related Administrator shall for such component use the rate
resulting from converting such discount rate to an interest bearing equivalent
rate per annum; and provided further that any Purchaser which becomes a party
hereto pursuant to Section 13.02 may specify a different "CP Rate" in the
relevant Joinder Agreement, in which case the term "CP Rate", when used in
reference to such Purchaser, shall have the meaning assigned to such term in
such Joinder Agreement.
"Credit Agreement" means that certain Credit Agreement dated as of
April 17, 2001 (as amended, restated, supplemented or otherwise modified from
time to time) by and among AGCO U.S. and the Subsidiaries signatory thereto, the
Lenders and Issuing Banks party thereto, Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", Canadian Branch, as
Canadian Administrative Agent and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch, as
Canadian Administrative Agent.
"Credit and Collection Policy" means the Servicer's credit and
collection policies and practices relating to Contracts, Dealer Receivables and
Related Security existing on the date hereof, as modified from time to time in
accordance with Section 8.04(b).
"Credit Enhancement" means the product of (a) the Net Eligible
Receivables Balance, times (b) the greater of (i) the Dynamic Reserve Percentage
and (ii) 17%.
"Currency Deficiency" has the meaning set out in Section 5.05(b).
"Currency Excess" has the meaning set out in Section 5.05(b).
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"Currency Protection Agreement" shall mean a forward or spot exchange
contract, currency exchange agreement or other agreement or arrangement entered
into by the Agent or any Purchaser and designed to protect the Agent or one or
more Purchasers against fluctuations in currency values or to allow for the
conversion of currencies, in either case in connection with the transactions
contemplated by this Agreement.
"Custodian" means Rabobank in its capacity as Custodian hereunder, and
any successors thereto in such capacity.
"Dealer" means a Person that has entered into a Dealer Agreement with
the Seller.
"Dealer Agreement" means an agreement between the Seller and another
Person that has agreed to act as a dealer for equipment manufactured or
distributed by the Seller including, without limitation, any "Dealer Sales and
Service Agreement" in substantially the form attached hereto as Exhibit F or any
substantially similar agreement, howsoever denominated.
"Dealer Concentration Limit" means, at any time with respect to any
Dealer and its Affiliates, 3.0% of the Eligible Receivables Balance (or, if a
Special Concentration Limit is in effect with respect to such Dealer and its
Affiliates, such Special Concentration Limit).
"Dealer Receivable" means the indebtedness and other obligations owed
to the Seller (without giving effect to any Transfer or conveyance hereunder) or
in which the Seller has a security interest or other interest, whether
constituting an account, chattel paper, instrument or general intangible,
arising in connection with the sale of farm machinery (other than a sale of
individual parts) to a Canadian Dealer pursuant to a Dealer Agreement and
includes, without limitation, the obligation to pay any Sales Taxes or similar
charges with respect thereto, but excluding any obligation to pay Finance
Charges. Indebtedness and other rights and obligations arising from any one
transaction, including, without limitation, indebtedness and other rights and
obligations represented by an individual invoice, shall constitute a Dealer
Receivable separate from a Dealer Receivable consisting of the indebtedness and
other rights and obligations arising from any other transaction.
"Deemed Collections" means, the aggregate of all amounts the Seller
shall have been deemed to have received as a Collection of a Dealer Receivable
pursuant to Section 4.02 or otherwise hereunder.
"Default Ratio" means, at any time, the percentage equivalent of a
fraction, the numerator of which is equal to the sum of (i) the aggregate
Outstanding Balance of Dealer Receivables that were Defaulted Receivables as of
the last day of the immediately preceding month, plus (ii) the aggregate
Outstanding Balance of all Dealer Receivables which became Charged Off
Receivables during the immediately preceding one month period (such Outstanding
Balance to be computed as of the respective dates such Dealer Receivables became
Charged Off Receivables), minus (iii) the aggregate amount of Collections
received in respect of such Charged Off Receivables during the immediately
preceding one month period (excluding any Collections received prior to the
respective dates on which such Dealer Receivables became
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Charged Off Receivables), and the denominator of which is equal to the Eligible
Receivables Balance as of the last day of the immediately preceding month.
"Defaulted Receivable" means a Dealer Receivable as to which any
payment, or part thereof, remains unpaid for 91 days or more from the original
due date for such payment (or, if such due date has been amended in accordance
with the Credit and Collection Policy, from such amended due date).
"Deferred Reinvestment Purchase" has the meaning specified in Section
3.03.
"Delinquent Receivable" means a Dealer Receivable that is not a
Defaulted Receivable and as to which any payment, or part thereof, remains
unpaid for 61 days or more from the original due date for such payment.
"Deposit Account" means the Collection Account or any other
concentration account, depositary account, lock-box account or similar account
in which any Collections are collected or deposited.
"Deposit Account Agreement" means an agreement substantially in the
form of Exhibit B among the Seller, the Agent and a Deposit Account Bank.
"Deposit Account Bank" means, at any time, any of the banks holding one
or more Deposit Accounts.
"Dilution" means, at any time, the amount of any reduction in the
outstanding balance of a Dealer Receivable as a result of any setoff, dispute,
discount, rebate, return, netting, adjustment or any other reason including
warranty claims, other than (i) payment in cash of such outstanding balance by
the Obligor, (ii) credit for a trade-in of used equipment, to the extent such
credit simultaneously gave rise to a new Dealer Receivable in respect of such
equipment having an original Outstanding Balance equal to or greater than the
amount of such reduction or (iii) such Dealer Receivable having become a
Charged-Off Receivable.
"Dilution Ratio" means, at any time, the percentage equivalent of a
fraction, the numerator of which is equal to the aggregate amount of Dilutions
which occurred during the calendar month then most recently ended, and the
denominator of which is equal to the original Outstanding Balance of all Dealer
Receivables which arose from the sale of new equipment and for which the final
payment of principal owing by the Obligor was made in the immediately preceding
calendar month.
"Dynamic Reserve Percentage" means, at any time, the sum of (i) the
Loss Reserve Percentage, plus (ii) the Variable Dilution Reserve Percentage,
plus (iii) the Carrying Cost Reserve Percentage.
"Early Amortization Event" has the meaning specified in Section 10.01.
"Eligible Bank" means a depository institution or trust company,
organized under the laws of the United States or any State thereof (a "U.S.
Institution") or of Canada or any Province
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thereof (a "Canadian Institution"), that (i) in the case of a U.S. Institution,
is a member of the Federal Deposit Insurance Corporation, (ii) in the case of a
Canadian Institution, is a member of the Canada Deposit Insurance Corporation,
(iii) has a combined capital and surplus of not less than U.S. $50,000,000 or
the Canadian Dollar Equivalent thereof , (iv) has (or is a subsidiary of a
Person that has) a long-term unsecured debt rating of at least A or better by
S&P and A2 or better by Xxxxx'x, and (iv) has been approved in writing by each
Administrator, such approval not to be unreasonably withheld.
"Eligible Receivable" means, at any time, a Dealer Receivable that
satisfies each of the following criteria:
(a) the representations and warranties set forth in Sections
6.01(i) and 6.01(j) are true and correct with respect to such Dealer
Receivable,
(b) the Obligor of such Dealer Receivable is a Dealer and is not
an Affiliate of the Seller,
(c) such Dealer Receivable arises under a Dealer Agreement
substantially in the form attached hereto as Exhibit F (or in such
other form as shall have been approved in writing by the Agent, such
approval not to be unreasonably withheld), which, together with such
Dealer Receivable, is in full force and effect and has not been
terminated and constitutes the legal, valid and binding obligation of
the related Obligor enforceable against such Obligor in accordance with
its terms subject to no offset, counterclaim or other defense or
contingency,
(d) such Dealer Receivable is denominated and payable only in
Canadian dollars in Canada,
(e) the Obligor of such Dealer Receivable (i) if a natural person,
is a resident of Canada or, if a corporation or other business
organization, is organized under the laws of Canada or any Province or
Territory thereof and has an office in Canada; and (ii) is not a
government or a governmental subdivision or agency,
(f) such Dealer Receivable is evidenced by an invoice issued
pursuant to a Dealer Agreement and constitutes an "account" or "chattel
paper", within the meaning of Section 9-105 and Section 9-106,
respectively, of the UCC of all applicable jurisdictions in the United
States, or comparable legislation in Canada,
(g) such Dealer Receivable is not a Defaulted Receivable, a
Delinquent Receivable or a Charged-Off Receivable,
(h) the Obligor of such Dealer Receivable has not been served with
a notice by or on behalf of the Servicer, notifying such Obligor of
breaches committed and unremedied by it of any Contract related to such
Dealer Receivable (including, without limitation, any refusal or
failure of such Dealer to account to the Servicer for the proceeds of
the sale of Equipment) during the immediately preceding twelve (12)
calendar months,
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(i) such Dealer Receivable was generated in the ordinary course of
the Seller's business from the sale of equipment to the Obligor by the
Seller, and not by any other Person (in whole or in part),
(j) such Dealer Receivable complies in all material respects with
all applicable requirements of the Credit and Collection Policy and has
not had its payment terms extended,
(k) such Dealer Receivable is required to be paid in full within
twenty-four (24) months of the date of determination,
(l) such Dealer Receivable is required to be paid in full within
twelve (12) months of the date such Dealer Receivable arises; provided
that Dealer Receivables which satisfy all criteria in this definition
other than this clause (l) may be treated as Eligible Receivables
hereunder so long as the aggregate Outstanding Balance of such Dealer
Receivables does not exceed 20% of the aggregate Outstanding Balance of
all Dealer Receivables,
(m) such Dealer Receivable arises from the sale of new equipment;
provided that Dealer Receivables arising from the sale of used
equipment may be treated as Eligible Receivables hereunder so long as
the aggregate Outstanding Balance of such Dealer Receivables does not
exceed 25% of the aggregate Outstanding Balance of all Dealer
Receivables,
(n) (i) the Outstanding Balance of such Dealer Receivable when
combined with the aggregate Outstanding Balance of all other Eligible
Receivables owing by the same Dealer or any Affiliate of such Dealer,
would not exceed the applicable Dealer Concentration Limit and (ii) if
the Dealer in respect of such Dealer Receivable is located in the
Northwest Territories or Nunavut, the Outstanding Balance of such
Dealer Receivable when combined with the aggregate Outstanding Balance
of all other Eligible Receivables owing from Dealers located in the
Northwest Territories or Nunavut, would not exceed 5% of the Eligible
Receivables Balance,
(o) the outstanding balance of such Dealer Receivable is due and
payable in full upon the Dealer's sale of the related Equipment,
(p) the outstanding principal balance of such Dealer Receivable
does not exceed the purchase price for the related Equipment payable by
the Dealer,
(q) such Dealer Receivable arises under a Dealer Agreement which
(i) does not require the Obligor under such Dealer Agreement to consent
to the Transfer, sale or assignment of the rights and duties of the
Seller under such Dealer Agreement, (ii) does not contain a
confidentiality provision that purports to restrict the ability of any
Purchaser to exercise its rights under this Agreement, including,
without limitation, its right to review such Dealer Agreement, and
(iii) contains an obligation to pay a specified sum of money,
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(r) such Dealer Receivable, together with the Dealer Agreement and
each other Contract related thereto, does not contravene any law, rule
or regulation applicable thereto to an extent which would in any way
impair the ability of the Servicer to ultimately collect any and all
amounts payable in respect of such Dealer Receivable, and
(s) which the Agent has not designated, in its reasonable business
judgment and in good faith applying the credit criteria customarily
applied by the Agent in transactions of this type, upon (30) days'
notice to the Seller, as no longer eligible for Transfer hereunder.
"Eligible Receivables Balance" means, at any time, the aggregate
Outstanding Balance of all Eligible Receivables at such time.
"Equipment" means, with respect to any Dealer Receivable, the equipment
the sale or financing of which gave rise to such Dealer Receivable and all
financing statements or other filings relating thereto.
"Equivalent Amount" means, at any time, with respect to a specified
amount of any currency, the amount of any other currency that may be purchased
by the Agent with such specified amount of the first mentioned currency at the
rate of exchange for the purchase of such other currency with the first
mentioned currency as quoted by the Agent on the immediately preceding Business
Day as its noon rate for such purchases. Notwithstanding the foregoing, if at
the time in question the Agent or the applicable Purchasers have in place a
Currency Protection Agreement which applies to the conversion of the amounts in
question into the desired currency, the rate as aforesaid shall be the rate for
the purchase of such other currency as specified in such Currency Protection
Agreement, to the extent considered by the Agent to be reasonable in the
circumstances.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
the rules and regulations thereunder, as amended from time to time.
"Eurodollar Reserve Percentage" means for any day, the maximum rate
(expressed as a decimal) at which any lender subject thereto would be required
to maintain reserves under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor or similar regulations relating to such reserve
requirements) against Eurocurrency Liabilities (as defined therein), if such
liabilities were outstanding. The Eurodollar Reserve Percentage shall be
adjusted automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Face Amount" means in relation to any Commercial Paper Note (a) if
issued on a discount basis, the amount due at the maturity thereof and (b) if
issued on an interest-bearing basis, the principal amount stated therein plus
the amount of all interest scheduled to accrue thereon through its stated
maturity date.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to (a) the weighted average of
the rates on overnight Federal
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funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, (b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by the Agent from three Federal funds brokers of recognized standing
selected by it in good faith.
"Fee Letter" means (i) with respect to the Related Group that includes
Nieuw Amsterdam, that certain fee letter dated as of the date hereof, among the
Seller, Nieuw Amsterdam and Rabobank, as Administrator for such Related Group,
as the same may be amended or modified and in effect from time to time and (ii)
with respect to any other Related Group, the fee letter entered into among the
Seller, the related Purchaser for such Related Group and the related
Administrator on or prior to the date on which the members of such Related Group
become parties hereto, as the same may be amended or modified and in effect from
time to time.
"Finance Charges" means, with respect to a Contract, any finance,
interest, late payment charges or similar charges owing by an Obligor pursuant
to such Contract.
"Funding Commercial Paper Notes" means, during any period, Commercial
Paper Notes issued by any Purchaser that are allocated, in whole or in part, by
the related Administrator (on behalf of such Purchaser) to fund or maintain the
Investment of such Purchaser during such period, as determined by the related
Administrator (on behalf of such Purchaser) and reported to the Seller and the
Servicer.
"Incremental Purchase" means a purchase of Ownership Interests which
increases the total outstanding Investment hereunder, including the initial
purchase of an Ownership Interest hereunder.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by liens, (iv) obligations which
are evidenced by notes, acceptances, or other instruments, (v) capitalized lease
obligations, (vi) net liabilities under interest rate swap, exchange or cap
agreements, (vii) obligations under any agreement, undertaking or arrangement by
which such Person assumes, guarantees, endorses, contingently agrees to purchase
or provide funds for the payment of, or otherwise becomes or is contingently
liable upon, the obligation or liability of any other Person, or agrees to
maintain the net worth or working capital or other financial condition of any
other Person, or otherwise assures any creditor of such other Person against
loss, including, without limitation, any comfort letter, operating agreement,
take-or-pay contract or application for a letter of credit and (viii)
liabilities in respect of unfunded vested benefits under plans covered by Title
IV of ERISA or any pension benefits or similar legislation in any applicable
jurisdictions in Canada.
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"Investment" means, with respect to any Ownership Interest at any time,
an amount, expressed in U.S. Dollars (except as otherwise provided in Section
3.07) equal to (A) the Purchase Price for such Ownership Interest, minus (B) the
U.S. Dollar Equivalent (except as otherwise provided in Section 3.07), using the
applicable exchange rate from the definition herein of "Equivalent Amount" (as
determined by the Agent), of the sum of the aggregate amount of Collections and
other payments received by the Agent which in each case are applied to reduce
such Investment in accordance with the terms and conditions of this Agreement,
provided, however, that such Investment of such Ownership Interest shall not be
reduced by any distribution of any portion of Collections if at any time such
distribution is rescinded or must be returned for any reason.
"Joinder Agreement" means an agreement, in form and substance
reasonably satisfactory to each of the parties hereto, entered into among each
of the parties hereto and the members of a new Related Group pursuant to Section
13.02.
"LIBOR" means, for any Settlement Period, an interest rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) as determined on
the basis of the offered rates for deposits in U.S. dollars, for a period of
time comparable to such Settlement Period which appears at Telerate Page 3750 as
of 11:00 a.m. (London time) two Business Days before the first day of such
Settlement Period. If the Agent is unable to determine LIBOR by reference to
Telerate Page 3750 on any applicable interest determination date, LIBOR shall be
the rate (rounded upward as described above, if necessary) for deposits in
dollars for a period substantially equal to such Settlement Period on the
Reuters Screen LIBO Page, as of 11:00 a.m. (London time) two Business Days
before the first day of such Settlement Period. If the Agent is unable to
determine LIBOR for any period by reference to either the Telerate Page 3750 or
the Reuters Screen LIBO Page, then LIBOR for that Settlement Period will be
determined on the basis of the offered rates for deposits in U.S. dollars for a
period of time comparable to such Settlement Period which are offered by the
Reference Bank in the London interbank market at approximately 11:00 a.m.
(London time) two Business Days before the first day of such Settlement Period.
"Liquidity Termination Date" means, at any time, the Scheduled Purchase
Commitment Termination Date at such time, under and as defined in the Liquidity
Asset Purchase Agreement of even date among Nieuw Amsterdam, the Purchasers from
time to time parties thereto and Rabobank as Liquidity Agent, as such agreement
may be amended, restated, supplemented or modified and in effect from time to
time, and upon any extension of the Scheduled Purchase Commitment Termination
Date at any time, the Liquidity Termination Date shall be adjusted accordingly.
"Lock-Box" means a locked postal box to which Obligors remit
Collections and with respect to which a Deposit Account Bank has been granted
exclusive access for the purpose of retrieving and processing such Collections.
"Loss Reserve Percentage" means, at any time, 2.0 times the highest
average Default Ratio for any three consecutive month period ending during the
twelve (12) complete calendar month period then most recently ended.
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"Majority Purchasers" means, at any time, Purchasers owning in excess
of 66-2/3% of the aggregate Investments at such time.
"Material Adverse Effect" means a material adverse effect on (i) the
financial condition or operations of the Seller and its Subsidiaries or the
Servicer and its Affiliates, (ii) the ability of the Seller or the Servicer to
perform its obligations under this Agreement, (iii) the legality, validity or
enforceability of this Agreement, (iv) the Seller's or any Purchasers' interest
in the Dealer Receivables generally or in any significant portion of the Dealer
Receivables, the Related Security or the Collections with respect thereto, or
(v) the collectibility of the Dealer Receivables generally or of any material
portion of the Dealer Receivables.
"Maximum Program Amount" means U.S. $60,000,000.
"Monthly Report" means a report, in substantially the form of Exhibit A
hereto, furnished by the Servicer to the Agent pursuant to Section 9.05.
"Moody's" means Xxxxx'x Investors Service, Inc., and any successor
thereto.
"Net Eligible Receivables Balance" means, at any time, an amount equal
to (a) the Eligible Receivables Balance minus (b) the product of (i) the Planned
Dilution Ratio, times (ii) the New Equipment Receivables Percentage, times (iii)
the Eligible Receivables Balance.
"New Equipment Receivables Percentage" means, at any time, the
aggregate Outstanding Balance of the Dealer Receivables which arose from the
sale of new equipment, expressed as a percentage of the aggregate Outstanding
Balance of all Dealer Receivables.
"Nieuw Amsterdam" means Nieuw Amsterdam Receivables Corporation, a
Delaware corporation, together with its successors and permitted assigns.
"Obligor" means a Dealer or any other Person obligated to make payments
pursuant to a Contract, including any guarantor.
"Other Taxes" has the meaning specified in Section 11.03(b).
"Outstanding Balance" means, with respect to any Dealer Receivable, the
outstanding principal balance of such Dealer Receivable expressed in Canadian
Dollars including any amount payable by the applicable Obligor or Obligors in
respect of goods and services tax, but for greater certainty excluding any
Finance Charges.
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"Ownership Interest" means, at any time, an undivided percentage
ownership interest (computed as set forth below) associated with a designated
amount of Investment in (i) each Dealer Receivable existing at such time, (ii)
all Related Security with respect to each such Dealer Receivable, and (iii) all
Collections with respect to, and other proceeds of, each such Dealer Receivable
(collectively, at any time, the "Pool Assets"). Each such undivided percentage
interest shall equal:
I
-----------
(NERB - CE)
where:
I = the Investment of such Ownership Interest.
CE = the Credit Enhancement.
NERB = the Net Eligible Receivables Balance;
provided that if, at the time in question, such Investment is expressed in U.S.
Dollars, the U.S. Dollar Equivalent at such time of the Credit Enhancement and
Net Eligible Receivables Balance shall be used for the foregoing calculation.
Each Ownership Interest shall be computed on its date of purchase and recomputed
(or deemed recomputed) on each day prior to the Termination Date on which the
Investment associated with such Ownership Interest, the Credit Enhancement or
the Net Eligible Receivables Balance changes. The variable percentage
represented by any Ownership Interest as computed (or deemed recomputed) as of
the close of the Business Day immediately preceding the Termination Date shall
remain constant at all times on and after the Termination Date.
"Payment Date" means (i) the 20th day of each calendar month (or, if
such day is not a Business Day, the next succeeding Business Day) and (ii) from
and after the occurrence of an Early Amortization Event, each additional
Business Day designated as a "Payment Date" by the Agent.
"Payment Rate" means, at any time, the percentage equivalent of a
fraction, the numerator of which is equal to the original Outstanding Balance of
all Dealer Receivables for which the final payment of principal owing by the
Obligor was made in the immediately preceding calendar month, and the
denominator of which is equal to the aggregate Outstanding Balance of all Dealer
Receivables as of the last day of the immediately preceding calendar month.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Planned Dilution" means, with respect to any calendar month, the
aggregate amount of reserves accrued on the accounting books of the Seller with
respect to program discounts expected to be taken by the Dealers at the time of
settlement, as calculated by the Servicer on the
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last day of the immediately preceding calendar month in accordance with the
accounting practices of the Seller as in effect on the date hereof.
"Planned Dilution Amount" means an amount, determined as of the
Business Day immediately preceding the Termination Date, equal to the sum of (a)
the Planned Dilution for the calendar month then most recently ended plus (b)
the product of (i) the Variable Dilution Reserve Percentage and (ii) the Net
Eligible Receivables Balance.
"Planned Dilution Ratio" means, with respect to any calendar month, the
greater of (a) 10%, and (b) the percentage equivalent of a fraction, the
numerator of which is equal to the aggregate Planned Dilution for such calendar
month, and the denominator of which is equal to the aggregate Outstanding
Balance of the Dealer Receivables which arose from the sale of new equipment as
of the last day of the immediately preceding calendar month.
"Pool Assets" has the meaning set out in the definition of Ownership
Interest.
"Potential Early Amortization Event" means an event which, with the
passage of time or the giving of notice, or both, would constitute an Early
Amortization Event.
"Prime Rate" means the rate announced by Rabobank from time to time as
its prime rate in the United States, such rate to change as and when such
designated rate changes. The Prime Rate is not intended to be the lowest rate of
interest charged by Rabobank in connection with extension of credit to debtors.
"Purchase" means an Incremental Purchase or a Reinvestment Purchase or
a Deferred Reinvestment Purchase.
"Purchase Notice" has the meaning set forth in Section 3.02.
"Purchase Price" means, with respect to any Incremental Purchase of an
Ownership Interest, including for greater certainty, the initial purchase of an
Ownership Interest hereunder, the amount in U.S. Dollars paid to the Seller for
such Ownership Interest, which shall not exceed the least of (i) the amount
requested by the Seller in the applicable Purchase Notice, (ii) the unused
portion of the Maximum Program Amount on the applicable purchase date and (iii)
the excess, if any, of the U.S. Dollar Equivalent of the Net Eligible
Receivables Balance (less the Credit Enhancement), on the applicable purchase
date over the aggregate outstanding amount of Investment determined as of the
date of the most recent Monthly Report, taking into account such proposed
Incremental Purchase, subject to adjustment as provided in Section 4.05.
"Purchaser" means Nieuw Amsterdam or any other Person that may become a
party hereto as a "Purchaser" pursuant to a Joinder Agreement as described in
Section 13.02, together in each case with their respective successors and
assigns.
"Purchaser Obligations" means, at any time, the aggregate outstanding
Investment hereunder, all Yield, Swap Costs and Servicer Fees and any applicable
taxes thereon, all costs of
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the Custodian or the Agent of collection and enforcement of this Agreement and
any Currency Deficiency.
"Purchasers' Portion" has the meaning set out in Section 4.03(a).
"Rabobank" means Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank International", New York Branch, and any successor thereto.
"Records" means, with respect to any Dealer Receivable, all Contracts
and other documents, books, records and other information (including, without
limitation, computer programs, tapes, disks, punch cards, data processing
software and related property and rights) relating to such Dealer Receivable,
any Related Security therefor and the related Obligor.
"Reference Bank" means, with respect to any Settlement Period to which
any portion of the Investment of a Related Group has been allocated, the
Administrator for such Related Group or such other bank as the Administrator for
such Related Group shall reasonably and in good faith designate with the consent
of each Purchaser in such Related Group.
"Reinvestment Purchase" has the meaning set forth in Section 3.03.
"Related Group" means (i) Nieuw Amsterdam, as a Purchaser, and
Rabobank, as Administrator, together with their respective successors and
assigns or (ii) any other group of Purchasers and their related Administrator
that shall become a party hereto as a "Related Group" pursuant to Section 13.02,
together with their respective successors and assigns.
"Related Security" means, with respect to any Dealer Receivable:
(i) all of the Seller's interest in the Equipment or other
inventory and goods (including returned, foreclosed or repossessed inventory or
goods) the financing or sale of which by the Seller gave rise to such Dealer
Receivable, and all insurance contracts with respect thereto,
(ii) all other security interests, liens or other Adverse Claims
and property subject thereto from time to time, if any, purporting to secure
payment of such Dealer Receivable, whether pursuant to the Dealer Agreement
related to such Dealer Receivable or otherwise, together with all financing
statements and security agreements describing any collateral securing such
Dealer Receivable,
(iii) all guarantees, insurance and other agreements or arrangements
of whatever character from time to time supporting or securing payment of such
Dealer Receivable whether pursuant to the Dealer Agreement related to such
Dealer Receivable or otherwise,
(iv) the related Dealer Agreement and all service contracts and
other agreements associated with such Dealer Receivable,
(v) all Records related to such Dealer Receivable, and
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(vi) all proceeds of any of the foregoing.
"Reporting Date" means the 5th Business Day preceding each Payment
Date.
"Required Canadian Dollar Amount" has the meaning set out in Section
5.05(a).
"Reuters Screen LIBO Page" means the display on the Reuter Monitor
Money Rates Service (or any successor service) on the applicable page on such
service for the purpose of displaying the London interbank rates of major banks
for deposits in U.S. dollars.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and any successor thereto.
"Sales Taxes" means all sales taxes, goods and services taxes,
harmonized taxes and other similar taxes and all related penalties and interest,
including provincial sales tax, goods and services tax, and any taxes payable
under similar legislation in any other jurisdiction of Canada, including Quebec
sales tax.
"Seller" means AGCO Canada, Ltd., a Saskatchewan corporation, and any
successor thereto.
"Seller Obligations" means, at any time, all amounts required to be
paid by the Seller under Section 4.01 hereof, together with all other
liabilities and obligations (howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, or due or to become due) of the
Seller to the Custodian, the Agent, any Administrator, any Purchaser or any
other Affected Party, arising under or in connection with this Agreement or any
of the other Transaction Documents or the transactions contemplated thereby and
shall include, without limitation, all fees, expense reimbursements,
indemnifications, and other amounts due or to become due from the Seller under
the Transaction Documents, including, without limitation, fees and other
obligations that accrue after the commencement of any bankruptcy,
reorganization, arrangement, insolvency, liquidation or similar proceeding with
respect to the Seller.
"Servicer" means at any time the Person (which may be the Agent) then
authorized pursuant to Article IX to service, administer and collect Dealer
Receivables.
"Servicer Default" has the meaning set forth in Section 9.07.
"Servicer Fee" has the meaning set forth in Section 9.06.
"Settlement Period" means each period from and including the
immediately preceding Payment Date (or, in the case of the initial Settlement
Period, the date of the initial Purchase hereunder) to but excluding the next
succeeding Payment Date.
"Special Concentration Limit" means, at any time, with respect to all
of the Dealer Receivables owing from a single Obligor, together with Dealer
Receivables owing from its Affiliates, the amount set forth on Schedule II next
to such Obligor's name; provided that the Agent may, with the consent of the
Majority Purchasers, at any time, in its sole discretion, reduce
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or increase the Special Concentration Limit for any Obligor upon not less than
three (3) Business Days' notice to the Seller; provided further that in no event
shall the Special Concentration Limit of any single Obligor be reduced so that
the Dealer Receivables owing from such single Obligor together with the Dealer
Receivables owing from its Affiliates are required to be less than 3% of the
aggregate of all Dealer Receivables.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.
"Swap Costs" means, for any Payment Date, an amount (which may be
negative) equal to the sum (without duplication) of (a) any fees, premiums or
other costs payable on such Payment Date by the Agent on behalf of the
Purchasers or any of them, or by any Purchaser, to the counterparty to a
Currency Protection Agreement in connection with the entering into of the
Currency Protection Agreement on such Payment Date, plus (b) any amounts payable
to a counterparty to a Currency Protection Agreement which expires or is to be
closed out at any time subsequent to the prior Payment Date in connection with
the cash settlement of the Currency Protection Agreement and any and all other
losses, costs and expenses to be incurred by the Agent on behalf of the
Purchasers or any of them, or by any Purchaser in connection with the breakage
of any Currency Protection Agreement or other spot, forward or other currency
exchange or hedging arrangement to which any of them shall then be a party or
otherwise existing for the benefit of any of them and obtained for purposes of
effecting a currency exchange, minus (c) any amounts payable to the Agent on
behalf of the Purchasers or any of them, or to any Purchaser, by a counterparty
to a Currency Protection Agreement which expires or is to be closed out at any
time subsequent to the prior Payment Date in connection with the cash settlement
of the Currency Protection Agreement.
"Taxes" has the meaning specified in Section 11.03(a).
"Telerate Page 3750" means the display on Bridge Telerate, Inc. (or any
successor service) on page 3750 (or any other page as may replace such page on
such service) for the purpose of displaying the London interbank rates of major
banks for deposits in U.S. dollars.
"Termination Date" means the earliest to occur of (i) the Liquidity
Termination Date, (ii) the Business Day immediately prior to the occurrence of
an Early Amortization Event set forth in Section 10.01(e), (iii) the Business
Day specified in a written notice from the Agent following the occurrence of any
other Early Amortization Event, (iv) the date which is 30 days after the Agent's
receipt of written notice from the Seller that it wishes to terminate the
facility evidenced by this Agreement, and (V) June 25, 2006.
"Transaction Documents" means, collectively, this Agreement, each
Purchase Notice, each Joinder Agreement, each Deposit Account Agreement and the
Fee Letters, and all other
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instruments, documents and agreements executed and delivered in connection
herewith or therewith.
"Transfer" means sell, assign, convey, set-over and transfer, or,
depending upon the context, sale, assignment, conveyance, set-over and transfer,
and "Transferred" shall be interpreted accordingly.
"UCC" means, (i) with respect to any jurisdiction in the United States,
the Uniform Commercial Code as from time to time in effect in such jurisdiction,
and (ii) with respect to any jurisdiction in Canada, the personal property
security legislation applicable in such jurisdiction, including with respect to
the jurisdictions of Canada other than Quebec, the Northwest Territories and
Nunavut, the Personal Property Security Act applicable in such jurisdictions.
"Unpaid Obligations" means the Seller Obligations and the Purchaser
Obligations.
"U.S. Dollars" or "U.S.$" means the lawful currency of the United
States of America.
"U.S. Dollar Equivalent" means, at any time, (i) with respect to any
amount expressed in Canadian Dollars, the Equivalent Amount thereof at such time
in U.S. Dollars, and (ii) with respect to any amount expressed in U.S. Dollars,
the amount thereof.
"Variable Dilution Ratio" means, with respect to any calendar month, a
percentage equal to the Dilution Ratio minus the Planned Dilution Ratio.
"Variable Dilution Reserve Percentage" means, at any time, a percentage
equal to the product of (i) 2.0 times, (ii) 1 minus the Loss Reserve Percentage,
times (iii) the New Equipment Receivables Percentage, times (iii) the highest
three month rolling average Variable Dilution Ratio during the twelve complete
calendar month period then most recently ended.
"Yield" means, for each respective Settlement Period related to each
Ownership Interest, an amount equal to:
YRT x C x ED
--
360
where: YRT = the Yield Rate applicable to such Ownership Interest for
such Settlement Period;
C = the amount of Investment of such Ownership Interest; and
ED = the actual number of days elapsed during such Settlement
Period;
provided that, to the extent that the Agent estimates the amount of any Unpaid
Obligations for purposes of entering into a Currency Protection Agreement as
contemplated in Section 5.05, and
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the amount so estimated exceeds the actual amount of such Unpaid Obligations,
the excess shall also, in addition to the foregoing, constitute Yield for such
Settlement Period.
"Yield Rate" means, for any Settlement Period and any Ownership
Interest, (i) to the extent the Purchaser which holds such Ownership Interest
funds or maintains its Investment for such Settlement Period through the
issuance of Commercial Paper Notes, the CP Rate and (ii) to the extent such
Purchaser does not fund or maintain its Investment for such Settlement Period
through the issuance of Commercial Paper Notes, the Alternative Rate; provided
that from and after the occurrence and during the continuation of an Early
Amortization Event, the Yield Rate for all Ownership Interests shall, if so
declared by the Agent pursuant to Section 10.02, be equal to the Base Rate plus
2%; and provided further that, to the extent that the Agent estimate the amount
of any Unpaid Obligations for purposes of entering into an Currency Protection
Agreement as contemplated in Section 5.05, and the amount so estimated exceeds
the actual amount of such Unpaid Obligations, the excess shall constitute Yield
for the related Payment Date and , it may using such approach (including
incorporating such cushions) as it considers reasonable .
Section 1.02 Other Terms. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles. All terms used in the Personal Property Security Act of the Province
of Ontario, and not specifically defined herein, are used herein as defined in
such legislation, except that any reference herein to "equipment" includes
inventory as defined therein. Except as otherwise expressly provided in this
Agreement, all dollar amounts referred to in this Agreement are stated in U.S.
Dollars.
ARTICLE II
TRANSFER TO CUSTODIAN
Section 2.01 Deposit with Custodian. With effect as of the date of this
Agreement, the Seller hereby delivers to, and deposits with, the Custodian all
of the Seller's present and future right, title and interest in, to and under
all present and future Pool Assets, all moneys due or to become due with respect
to such Pool Assets and all proceeds of such Pool Assets. The Custodian shall
hold the same as agent and bailee for and on behalf of the Seller and the
Purchasers as their interests and entitlements are set out herein.
Section 2.02 Acceptance by Custodian. With respect to all Pool Assets
delivered to and deposited with the Custodian by the Seller hereunder, the
Custodian agrees to act as the agent and bailee for and on behalf of the Seller
and the Purchasers, and to perform the functions and services and exercise the
authority conferred on it by the Seller and the Purchasers pursuant to this
Agreement. Subject to the terms and conditions hereof, the Custodian hereby
acknowledges its acceptance, as agent and bailee for and on behalf of the Seller
and the Purchasers, of the delivery and deposit of all of the Seller's present
and future right, title and interest in, to and under the Pool Assets.
Section 2.03 Appointment of Custodian. In order to better achieve the
purposes hereof, each of the Seller and the Purchasers hereby appoints, empowers
and instructs the Custodian to hold and possess the Pool Assets as its agent and
bailee for and on their behalf as tenants-in-common and
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authorizes, empowers and instructs the Custodian to take, in the Custodian's own
name or in the name of the Seller and the Purchasers, all actions and exercise
on behalf of the Seller and the Purchasers, all rights of such Persons
specifically contemplated by this Agreement, including, without limitation, the
right to commence action against any Obligor or otherwise enforce obligations of
such Obligor under or in connection with any Pool Asset, whether in the name of
the Custodian, the name of the Seller and the Purchasers jointly or otherwise
and to perform the duties and functions contemplated herein in a manner
consistent with the terms and subject to the applicable provisions hereof.
Except as expressly set forth in this Agreement, the authority of the Custodian
to take such actions, exercise such rights and perform such duties and functions
shall be exclusive and may not be taken by any other Person. The Seller and the
Purchasers hereby irrevocably authorize, empower and instruct the Custodian to
execute and deliver on their behalf, as attorney-in-fact or otherwise, all such
documents and instruments as may be necessary or desirable to accomplish the
foregoing and grant an irrevocable power of attorney to the Custodian, with full
power of substitution, coupled with an interest, to accomplish the foregoing.
Section 2.04 Power of Custodian. The Custodian shall have no power to
create, assume or incur indebtedness or other liabilities relating to the Pool
Assets or to Transfer or otherwise deal with such Pool Assets or any part
thereof or interest therein, other than as expressly contemplated by this
Agreement. It is understood and agreed by the Custodian, on the one hand, and
the Seller and the Purchasers, on the other hand, that the relationship between
them is limited to the Custodian acting as agent and bailee on behalf of such
other parties and that this Agreement does not create, and should not be
construed as creating, any other relationship, except as expressly provided
herein. The Custodian shall hold the Pool Assets and the proceeds thereof
outside Canada and none of the functions, obligations or authority of the
Custodian shall be carried out directly or indirectly in Canada. For greater
certainty, any reference herein to a Transfer to or by the Custodian of any
property, the delivery to or deposit with the Custodian of any property, or the
holding or ownership by the Custodian of any property, shall be deemed to refer
to any such Transfer, delivery, deposit, holding or ownership, as applicable,
to, by, with or for the Seller and the Purchaser for whom the Custodian acts as
agent hereunder as their interests and entitlements are set out herein.
ARTICLE III
PURCHASE FACILITY
Section 3.01 Purchase Facility. Upon the terms and subject to the
conditions hereof, the Seller may, at its option from time to time, Transfer
and, upon payment of the Purchase Price therefor, hereby Transfers Ownership
Interests to the Purchasers. In accordance with the terms and conditions set
forth herein, each Purchaser may, at its option, purchase, Ownership Interests
from time to time during the period from the date hereof to but not including
the Termination Date; provided that in no event shall any Incremental Purchase
be made hereunder to the extent that, after giving effect thereto, the aggregate
Investment held by all Purchasers hereunder would exceed the Maximum Program
Amount. Notwithstanding that the Purchase Price is denominated as a U.S. Dollar
amount and without affecting such denomination, the Seller may request the
Purchaser to pay the Purchase Price to the Seller in Canadian Dollars and in
such event, the
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Purchaser shall purchase Canadian Dollars with the Purchase Price before paying
same to the Seller, and then pay such Canadian Dollar amount to the Seller.
Section 3.02 Incremental Purchases. The Seller shall provide each
Administrator with at least three Business Days' prior notice in a form set
forth as Exhibit D hereto of each Incremental Purchase (a "Purchase Notice").
Except as set forth below, each Purchase Notice shall be irrevocable and shall
specify the requested Purchase Price (which, except as otherwise provided in
Section 3.07, shall be expressed in U.S. Dollars and shall not be less than U.S.
$10,000,000) and date of purchase (which, in the case of any Incremental
Purchase (after the initial purchase hereunder), may be on any Business Day).
Following receipt of a Purchase Notice, each Administrator will determine
whether the Purchaser in its Related Group agrees to make the portion of the
Incremental Purchase to be made by its Related Group. Each Administrator shall,
on or prior to the proposed date of purchase, notify the Seller if its Purchaser
declines to make the portion of the Incremental Purchase to be made by its
Related Group (a "Conduit Refusal"), and, in such event, the Purchase Notice
shall be deemed to be cancelled. Unless it is notified of a Conduit Refusal on
or prior to the date of Purchase, the Seller shall be entitled to assume that
the portion of the Purchase contemplated in such Purchase Notice shall be made
by the Purchasers in such Administrator's Related Group. On the date of each
Incremental Purchase, upon satisfaction of the applicable conditions precedent
set forth in Article VII, the Seller hereby Transfers to the Agent, on behalf of
the applicable Purchasers, the Ownership Interests which are the subject of such
Incremental Purchase and, if requested by the Agent as additional evidence of
such Transfer, shall execute such conveyance documents in respect of such
Transfer as the Agent may reasonably request, and the Purchasers participating
in such Incremental Purchase shall deposit to the Seller's account identified in
the Purchase Notice related to such Incremental Purchase, in immediately
available funds, no later than 4:30 p.m. (New York time), an amount in U.S.
Dollars equal to the portion of the Purchase Price which is to be funded by its
Related Group, based on the terms of any applicable Joinder Agreement.
Section 3.03 Reinvestment Purchases. On each date on which Collections are
received by the Servicer prior to the Termination Date, the Seller hereby
requests and the Purchasers hereby agree to make, simultaneously with such
receipt and out of Collections available for such purpose pursuant to Article
IV, a reinvestment (each a "Reinvestment Purchase"), with that portion of each
and every Collection received by the Servicer that is part of any Ownership
Interest and this is not otherwise allocated hereunder. Upon such Reinvestment
Purchase, the Seller shall Transfer to the Agent on behalf of the Purchasers, in
accordance with Section 3.06, and in consideration of such available
Collections, an Ownership Interest so that, as a result of and after giving
effect to such Reinvestment Purchase, the amount of Investment of such Ownership
Interest immediately after such receipt and corresponding Reinvestment Purchase
shall be equal to the amount of Investment immediately prior to receipt of such
available Collections, provided that if and to the extent that on any such date
after giving effect to such Reinvestment Purchase, the aggregate of the
Ownership Interests of the Purchasers would otherwise exceed 100%, such
Reinvestment Purchase shall not occur and the Servicer shall set aside and be
deemed to hold in trust for the benefit of the Purchasers all or such portion of
such available Collections which, if they were applied to reduce the Investments
of the Purchasers, would result in the aggregate of the Ownership Interests of
the Purchasers being equal to 100%,
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until the next date on which Reinvestment Purchases may be made as contemplated
hereinabove, on which date such Reinvestment Purchases shall be made, subject
again to application of this proviso (each a "Deferred Reinvestment Purchase").
Upon such Reinvestment Purchase or Deferred Reinvestment Purchase, the Servicer
shall hold the applicable Collections for the benefit of the Seller. The
Transfer of the applicable Ownership Interest to the Agent on behalf of the
applicable Purchaser shall occur as provided in Section 3.06.
Section 3.04 Investment Reductions and Reductions in Maximum Program
Amount. The Seller shall provide the Agent with at least five Business Days'
prior written notice of any reduction in Investment from Collections requested
by the Seller. Such notice shall designate (i) the date upon which any such
reduction of Investment shall occur (which must be a Payment Date), and (ii) the
aggregate amount of Investment to be reduced. Any such reduction to the
Investment shall be applied ratably to the Ownership Interests of the Purchasers
in accordance with the amount of Investment (if any) held by each and
Collections which would otherwise have been applied towards a Reinvestment
Purchase shall be held by the Servicer and applied in accordance with Section
4.05 (sixth) instead to the extent of such requested reduction. Further, the
Seller shall have the right, upon at least ten Business Days' prior written
notice to the Administrators, to terminate in whole or reduce ratably in part
the unused portions of each Related Group's pro rata share of the Maximum
Program Amount, provided, however, that each such partial reduction shall be in
the aggregate amount of U.S. $10,000,000 or an integral multiple of U.S.
$1,000,000 in excess of that amount.
Section 3.05 Maximum Ownership Interests.
(a) The Seller shall ensure that the aggregate Ownership Interests
of the Purchasers shall at no time exceed in the aggregate
100%. If at any time, notwithstanding the retention of
Collections in trust as required by the proviso in Section
3.03 and the application thereof as contemplated by Section
4.05 and without duplication of the Seller's obligations under
Section 4.02, the aggregate of the Ownership Interests of the
Purchasers exceeds 100%, the Seller shall immediately pay to
the Agent, as and by way of an indemnity against the
performance of the Dealer Receivables, an amount to be applied
to reduce the Investment of the Ownership Interests, such that
after giving effect to such payment, the aggregate of the
Ownership Interests equals or is less than 100%. Each such
payment shall be allocated among the Purchasers ratably in
accordance with the amount of Investment (if any) held by
each.
(b) The Seller shall also ensure that the U.S. Dollar Equivalent
of the aggregate of the Investments does not at any time
exceed the Maximum Program Amount. If at any time, the U.S.
Dollar Equivalent of the aggregate of the Investments exceeds
the Maximum Program Amount, the Seller shall immediately pay
to the Agent, as and by way of indemnity, that amount, to be
applied to reduce the Investments, such that after giving
effect to such reduction, the U.S. Dollar Equivalent of the
aggregate Investments equals or less than the Maximum Program
Amount. Each such payment shall be applied to reduce the
Investments and allocated among the Purchasers rateably in
accordance with the Investment (if any) held by each.
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Section 3.06 Transfers.
(a) Effective upon the date of each Incremental Purchase
(including, without limitation, the initial Purchase) and the
date of each Reinvestment Purchase, and each other date on
which any Ownership Interest is re-calculated hereunder, as
provided in the definition thereof herein, the Seller hereby
Transfers to the Agent on behalf of the applicable Purchasers
(to the extent not Transferred to and then held by the Agent
on behalf of the applicable Purchasers prior to any such
effective date) an undivided percentage ownership interest in
(i) each Dealer Receivable then existing, (ii) all Related
Security with respect to such Dealer Receivables, and (iii)
all Collections with respect to, and other proceeds of, such
Dealer Receivables and Related Security, such that,
immediately following such Transfer, the undivided percentage
ownership interest of each Purchaser in the Pool Assets shall
(following the application of Section 3.06(b)) be equal to the
Ownership Interest of the applicable Purchaser. Each Ownership
Interest shall be initially computed on the date of the
initial purchase of such Ownership Interest hereunder.
(b) If on any day (the "current day"), any Purchaser has an
undivided interest in any Pool Assets in excess of that which
is required to be included in the Ownership Interest of such
Purchaser on such current day after the application of Section
3.06(a) in respect of such day, such excess undivided
interests are hereby Transferred by such Purchaser to the
Seller at the close of business on such current day in
consideration or part consideration for the Transfer to such
Purchaser on such current day pursuant to Section 3.06(a).
Section 3.07 Denomination of Investment. The Agent may at any time notify
the Seller that, effective as of the date specified in such notice, and
thereafter until otherwise provided herein, the Investments shall be expressed
in Canadian Dollars. From and after the effective date of any such notice (i)
each Investment shall be expressed in Canadian Dollars, and the amount thereof
shall be the Canadian Dollar Equivalent of the U.S. Dollar amount of such
Investment as of such effective date, (ii) any provision hereof which compares
the amount of any Investment as against any amount expressed in U.S. Dollars,
shall be deemed to compare the U.S. Dollar Equivalent of such Investment against
such U.S. Dollar amount, and (iii) for purposes of the definition herein of
Investment, the Investment shall be reduced by the full amount of Collections
applied thereto, expressed in Canadian Dollars, and not converted to U.S.
Dollars, as otherwise provided therein. The Agent may at any time, by notice to
the Seller, revoke any notice given under this Section 3.07 effective as of the
date specified in such notice, in which case clauses (i), (ii) and (iii) above
shall no longer apply, subject to application again thereafter if the Agent
provides a subsequent notice under this Section 3.07.
ARTICLE IV
PAYMENTS AND COLLECTIONS
Section 4.01 Seller Obligations. The Seller shall pay to each Administrator
when due, for the account of the Purchasers in its Related Group, (i) such fees
as are set forth in the Fee Letter to
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which such Administrator is a party, (ii) all amounts payable to reduce the
Ownership Interests, if required, pursuant to Section 3.05, (iii) all amounts
payable pursuant to Article XI, if any, and (iv) if the Servicer is not AGCO
U.S. or an Affiliate thereof, the Servicer Fee. In addition, if at any time or
from time to time the Agent or any Purchaser pays any amounts to a Deposit
Account Bank under or in connection with a Lockbox or Deposit Account Agreement
or a Deposit Account Bank withdraws or sets off against any amounts in a Deposit
Account, the Seller shall forthwith reimburse the Agent and each such Purchaser
for any such amounts so paid, withdrawn or set off against. If the Seller fails
to pay any of the Seller Obligations when due or the Servicer fails to pay or
remit any amounts required to be paid or remitted by it hereunder or under any
of the other Transaction Documents, such Person shall pay to the Agent, for the
account of the applicable Related Group, on demand, interest on such amount at a
per annum rate equal to the Base Rate plus 2% until paid. Notwithstanding the
foregoing, no provision of this Agreement or the Fee Letters shall require the
payment or permit the collection of any amounts of interest in excess of the
maximum permitted by applicable law.
Section 4.02 Collections Received by Seller; Deemed Collections. If at any
time the Seller or any of its Affiliates receives any Collections, the Seller
shall immediately pay (or cause such Affiliate to pay) such Collections to the
Servicer and, at all times prior to such payment, such Collections shall be held
in trust by the Seller or such Affiliate for the exclusive benefit of the
Purchasers and the Agent to the extent of their interests therein. In the event
any Dilution occurs with respect to a Dealer Receivable, the Seller shall be
deemed to have received a Collection of such Dealer Receivable in the amount of
such Dilution; provided that no such Collection shall be deemed to have been
received by the Seller unless (i) if such Dilution occurs on or prior to the
Termination Date, the aggregate Ownership Interests exceed 100% after giving
effect to such Dilution or (ii) if such Dilution occurs after the Termination
Date, the aggregate amount of Dilution that has occurred with respect to the
Dealer Receivables since the Termination Date exceeds the Planned Dilution
Amount. In addition, the Seller shall be deemed to have received a Collection in
full of a Dealer Receivable if either (A) any of the representations or
warranties in Section 6.01(i), (j) or (s) are no longer true with respect to
such Dealer Receivable or (B) such Dealer Receivable shall cease to be an
Eligible Receivable by reason of the Dealer's failure or refusal to account to
the Servicer for the proceeds of the sale of Equipment; provided that no such
Collection shall be deemed to have been received by the Seller unless either (i)
the Ownership Interests exceed 100% or (ii) the Termination Date has occurred.
Any deemed Collections paid by the Seller shall be made as and by way of
indemnity by the Seller. On each Payment Date, the Seller shall pay to the
Servicer an amount equal to the aggregate amount of Collections deemed to have
been received by it pursuant to this Section 4.02 since the immediately
preceding Payment Date.
Section 4.03 Collections Prior to Termination Date.
(a) On each day prior to the Termination Date, the Servicer shall
determine the amount of Collections received on such day, and
the portion thereof that relate to the Ownership Interests
therein (determined based on the percentage amount of such
Ownership Interests). Each such portion (the "Purchasers'
Portion") shall be set aside and held in trust by the Servicer
for the exclusive benefit of the
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Purchasers and the Agent and for application in accordance
with the terms hereof. The balance of any such Collections
which are received by the Servicer shall be remitted by the
Servicer to the Seller, subject however to any rights of the
Agent or the Purchasers with respect thereto under Sections
4.09 or 14.15.
(b) On each day prior to the Termination Date, the Servicer shall,
out of the Purchasers' Portion of Collections received by it
on such day, set aside and hold in trust for the benefit of
the Purchasers, an amount, which expressed in U.S. Dollars
using the applicable exchange rate from the definition herein
of "Equivalent Amount", is equal to the U.S. Dollar Equivalent
of the Purchaser Obligations (exclusive of Investment) accrued
through such day and not so previously set aside. Subject to
Section 4.07, any such amounts received by the Servicer in
excess of the amounts required to be set aside for the payment
of such Purchaser Obligations shall first be applied against
any Seller Obligations that are then due and unpaid and to
such extent paid to the applicable Person to whom such Seller
Obligations are due, and the excess shall be (i) held for the
Seller as, and on account of payment for, a Reinvestment
Purchase or a Deferred Reinvestment Purchase or (ii) if no
Reinvestment Purchases or Deferred Reinvestment Purchases are
to occur on such date or on any date prior to the next
succeeding Payment Date, set aside and held in trust for the
benefit of the Purchasers for application on the next
succeeding Payment Date in accordance with Section 4.05.
Section 4.04 Collections Following Termination Date. On the Termination
Date and on each day thereafter, the Servicer shall set aside and hold in trust,
for the benefit of the Purchasers, (i) the Purchasers' Portion of all
Collections received on such day, and (ii) all other Collections received on
such day (which other Collections are held pursuant to the rights of the Agent
and the Purchasers under Sections 4.09 and 14.15), which amounts shall be held
for application on the next succeeding Payment Date in accordance with Section
4.05.
Section 4.05 Application of Collections. On each Payment Date, the Servicer
shall, out of Collections set aside for the benefit of the Purchasers during the
most recently ended Settlement Period, pursuant to Section 4.03 or 4.04, pay or
remit the following amounts to the following Persons in the following order of
priority (and to the extent any of such following amounts are expressed in U.S.
Dollars, the amount of such Collections to be applied thereto shall be such
amount, which, when converted to U.S. Dollars using the applicable rate of
exchange in the definition herein of "Equivalent Amount", is equal to such U.S.
Dollar amount):
first, if AGCO U.S. or one of its Affiliates is not then acting as the
Servicer, pay to the Servicer on behalf of the Purchasers any accrued
and unpaid Servicer Fee and any applicable taxes thereon, to the extent
not paid by the Seller as required under Section 4.01,
second, remit to the Purchasers, ratably in accordance with the amounts
owing to each, any accrued and unpaid Swap Costs of the type described
in clause (a) of the definition thereof (to the extent greater than
zero) for such Payment Date,
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third, remit to the Purchasers, ratably in accordance with the amounts
owing to each, the accrued and unpaid Yield for their respective
Ownership Interests,
fourth, remit to the Purchasers and the Administrators, ratably in
accordance with the amounts owing to each, the accrued and unpaid fees
then due and payable under the Fee Letters and any applicable taxes
thereon, to the extent not paid by the Seller as required under Section
4.01,
fifth, remit to the Purchasers and the Administrators, rateably in
accordance with the amounts owing to each, any Currency Deficiency for
such Payment Date,
sixth, if the Termination Date has occurred or no Reinvestment
Purchases or Deferred Reinvestment Purchases are to occur (and, if any
such Reinvestment Purchases or Deferred Reinvestment Purchases are to
occur, following such Purchases), remit to the Purchasers, ratably in
accordance with the Investment held by each, an amount (which shall be
applied to reduce each such Investment) equal to the lesser of (i) the
aggregate Investment then outstanding with respect to all Ownership
Interests and (ii) the product of (x) the total Collections received in
respect of the Dealer Receivables since the immediately preceding
Payment Date, net of the portion of such Collections distributed
pursuant to clauses first through fifth above and (y) the aggregate
percentage interest represented by the Ownership Interests,
seventh, remit to the Custodian, the Agent, the Purchasers and the
Administrators, ratably in accordance with the amounts owing to each,
the amount of all other Purchaser Obligations (including Swap Costs not
provided for under Second above to the extent greater than zero, but
other than the Servicer Fee) then outstanding,
eighth, if AGCO U.S. or one of its Affiliates is then acting as the
Servicer, pay to the Servicer, but subject to Section 4.09 and 14.15,
the accrued and unpaid Servicer Fee and any applicable taxes thereon,
and
ninth, after all Purchaser Obligations have been indefeasibly paid or
reduced to zero, pay to the Seller any remaining amounts (subject to
Section 4.09 and 14.15) first on account of any other Collections
referred to in Section 4.04 (to the extent such payment is made after
the Termination Date) and secondly, as additional purchase price for
the Ownership Interests Transferred to the applicable Purchasers.
Collections applied to the payment of Unpaid Obligations shall be distributed in
accordance with the aforementioned provisions, and, giving effect to each of the
priorities set forth in this Section 4.05, shall be shared ratably (within each
priority) among the Agent or the Administrators, as the case may be, and the
Purchasers in accordance with the amount of such Unpaid Obligations owing to
each of them in respect of each such priority.
Section 4.06 Payment Requirements. All amounts to be paid or deposited by
the Seller or the Servicer pursuant to any provision of this Agreement shall be
paid or deposited in accordance with the terms hereof and in the applicable
currency no later than 12:00 p.m. (New York time)
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on the day when due in immediately available funds, and if not received before
12:00 p.m. (New York time) shall be deemed to be received on the next succeeding
Business Day. If such amounts are payable to a Purchaser in a Related Group,
they shall be paid to the Administrator for such Related Group, for the account
of such Purchaser, to such account as may be specified from time to time by such
Administrator in a written notice delivered to the Seller and the Servicer. All
computations of Yield, Swap Costs and per annum fees hereunder and under the Fee
Letters shall be made on the basis of a year of 360 days for the actual number
of days elapsed. For purposes of the Interest Act (Canada), the annual rate to
which any such rate (or any other rate which is determined hereunder on the
basis of a year of 360 days) is equivalent or the annual fee to which any fee
determined in accordance with the foregoing is equivalent, is such rate or fee,
as applicable, multiplied by the actual number of days in the year in question,
divided by 360. If any amount hereunder shall be payable on a day which is not a
Business Day, such amount shall be payable on the next succeeding Business Day.
Section 4.07 Collection Account.
(a) The Servicer has established, and during the term of this
Agreement shall maintain, the Collection Account. If, at any
time, the bank at which the Collection Account is maintained
ceases to be an Eligible Bank, the Servicer shall within 30
days of acquiring knowledge that such bank is no longer an
Eligible Bank establish a new Collection Account with an
Eligible Bank reasonably satisfactory to the Agent and shall
transfer any cash and any investments held in the old
Collection Account to such new Collection Account. Prior to
establishing any new Collection Account with an Eligible Bank,
the Servicer shall obtain from such Eligible Bank a fully
executed Deposit Account Agreement covering such new
Collection Account.
(b) If at any time the Servicer's long-term corporate or senior
implied rating shall not be at least Ba2 by Xxxxx'x and at
least BB by S&P, then, on the last Business Day of each
calendar week, the Servicer shall cause all Collections
received during such week to be deposited into the Collection
Account until the amount on deposit therein is equal to the
greater of (i) the product of the Carrying Cost Reserve
Percentage in effect as of such day and the Eligible
Receivables Balance as of such day and (ii) the amount of
Collections required to be set aside and held in trust for the
benefit of the Purchasers pursuant to Section 4.03 or 4.04, as
applicable.
Section 4.08 Payment Rescission. No payment of any of the Unpaid
Obligations shall be considered paid or applied hereunder to the extent that, at
any time, all or any portion of such payment or application is rescinded by
application of law or judicial authority, or must otherwise be returned or
refunded for any reason. The Seller shall remain obligated for the amount of any
payment or application so rescinded, returned or refunded, and shall promptly
pay to the Agent (for application to the Person or Persons who suffered such
rescission, return or refund) the full amount thereof, plus interest on such
amount at a per annum rate equal to the Base Rate plus 2.0% from the date of any
such rescission, return or refunding.
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Section 4.09 Setoff.
(a) The Seller and the Servicer each hereby irrevocably and
unconditionally waives all rights of setoff or deduction that
it may have under contract (including this Agreement),
applicable law, in equity or otherwise with respect to any
funds or monies of any Purchaser held by it or in its
possession, and all rights to any counterclaim or other
defence to payment of amounts owing to any Purchaser, the
Agent or the Custodian in respect of this Agreement. The
obligation of the Seller and the Servicer to make the payments
and deposits contemplated by this Agreement is absolute and
unconditional, and the Seller and the Servicer shall make all
such payments and deposits in full, without setoff,
counterclaim or deduction of any nature whatsoever except as
expressly permitted hereunder.
(b) The Purchasers, the Agent and the Custodian may set-off and
apply against, or deduct from, any amount payable to the
Seller or the Servicer by any Purchaser (or by the Agent, the
Custodian or a Servicer on its behalf), any amounts then due
and owing by the Seller or the Servicer hereunder or in
connection herewith to any Purchaser or to the Agent, the
Custodian or any other Indemnified Party (whether or not owing
by the party from whom such setoff is to be applied), and may
instruct any Servicer to do so on its behalf out of any
amounts then or thereafter held by such Servicer that
otherwise would have been paid to the Seller or the Servicer
on behalf of a Purchaser or the Agent or the Custodian. For
greater certainty, the Agent may set off against amounts owing
to the Seller, amounts owing by the Servicer, and
correspondingly may set off against amounts owing to the
Servicer, amounts owing by the Seller.
ARTICLE V
YIELD AND FEES
Section 5.01 Yield Payments. On each Payment Date, the Servicer shall remit
to each Administrator (for the benefit of the Purchasers in its Related Group)
an aggregate amount in U.S. Dollars equal to the accrued and unpaid Yield for
all Ownership Interests held by the members of such Related Group, such payment
to be made out of Collections available for such purpose pursuant to Section
4.05.
Section 5.02 Suspension of the Adjusted Eurodollar Rate. If any Purchaser
notifies the Agent that it has determined in good faith that funding its portion
of the Investment at an Adjusted Eurodollar Rate would violate any applicable
law, rule, regulation, or directive of any governmental or regulatory authority,
whether or not having the force of law, or that (i) deposits of a type and
maturity appropriate to match fund its Ownership Interests at such Adjusted
Eurodollar Rate are not available or (ii) such Adjusted Eurodollar Rate does not
accurately reflect the cost of acquiring or maintaining an Ownership Interest at
such Adjusted Eurodollar Rate, then the Agent shall suspend the availability of
such Adjusted Eurodollar Rate and require the Seller to select the Base Rate for
any Ownership Interest accruing Yield at such Adjusted Eurodollar Rate.
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Section 5.03 Fees. The Seller shall pay all fees set forth in each Fee
Letter on the dates and in the amounts set forth therein, including any
applicable taxes, provided that to the extent the Seller fails to pay any such
amounts, such payment shall be made out of Collections available for such
purpose pursuant to Section 4.05.
Section 5.04 Break Costs. In the event that any Purchaser shall incur any
loss or expense (including any swap termination payments or other amounts
required to be paid in connection with the early termination of any Currency
Protection Agreement, and any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Purchaser to make or maintain any funding with respect to its Investment) as a
result of (i) any reduction to the Investment on any day other than the
scheduled last day of a Settlement Period, or (ii) any Purchase not being made
in accordance with a request therefor under Section 3.02 (whether because of the
failure of the conditions precedent with respect to such Purchase to be
satisfied or for any other reason, other than default by the relevant
Purchaser), then the Seller shall, upon written demand, pay to such Purchaser
the amount of such loss or expense as and by way of indemnity. Such written
demand (which shall include calculations in reasonable detail) shall, in the
absence of demonstrable error, be conclusive and binding upon the Seller.
Section 5.05 Settlement of Currency Protection Agreements.
(a) On or prior to each Payment Date (and the initial purchase
date) on which the Investments are expressed in U.S. Dollars,
the Agent shall, on behalf of the Purchasers, enter into a
Currency Protection Agreement providing for the forward sale
on the Payment Date immediately following such Payment Date of
that amount of Canadian Dollars (for any such following
Payment Date, the "Required Canadian Dollar Amount") which,
when converted to U.S. Dollars at the rate of exchange
provided for in such Currency Protection Agreement, is equal
to the sum of the aggregate Investments, and all such other
Unpaid Obligations which are due in U.S. Dollars and which the
Agent determines will be paid on the such following Payment
Date out of Collections ("Applicable Unpaid Obligations");
provided that if, at the time of entering into any such
Currency Protection Agreement, the Agent does not yet know the
amount of any such Unpaid Obligations, it may estimate such
amount using such approach (including incorporating such
cushions) as it considers reasonable, and provided further
that if any Purchaser does not then fund or maintain its
Investment through the issuance of Commercial Paper Notes, the
Agent may determine whether or not to enter into any such
Currency Protection Agreement. To the extent that the actual
such Unpaid Obligations differ from the amount so estimated,
the parties shall make such appropriate adjustments as the
Agent shall advise are required. If on any Payment Date
Collections are insufficient to provide for the payment in
full of any additional Yield resulting from the Agent making
any such estimates, as provide of in the definition herein of
"Yield", the amount of such insufficiency shall constitute a
Seller Obligation and the Seller shall pay same to the Agent
for the benefit of the Purchasers promptly on demand.
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(b) On each Payment Date on which there is a maturing Currency
Protection Agreement entered into as provided under Section
5.05(a), the Agent shall determine the sum of (i) the
aggregate Canadian Dollars which the Agent or any Purchaser
has purchased with the proceeds of the Funding Commercial
Paper Notes issued on such date, plus (ii) the Canadian Dollar
Equivalent (using the exchange rate provided for in the
Currency Protection Agreements closing on such Date) of all
Yield, Swap Costs and other Applicable Unpaid Obligations for
such Payment Date. The amount, if any, by which such amount is
less than the Required Canadian Dollar Amount for such date is
referred to herein as the "Currency Deficiency" and the
amount, if any, by which such amount is greater than the
Required Canadian Dollar Amount is referred to herein as the
"Currency Excess". Any Currency Deficiency for a Payment Date
shall constitute a Purchaser Obligation due on such date;
provided that to the extent that available Collections are
insufficient to provide for the full amount thereof, taking
into account the application of funds under Section 4.05, such
amount shall constitute a Seller Obligation and the Seller
shall pay such amount to the Agent on such Payment Date, as
and by way of indemnity and as additional recourse hereunder
for the Dealer Receivables and for the rateable benefit of the
Purchasers. Subject to the foregoing, to the extent that the
Swap Costs for any Payment Date are less than zero or there is
any Currency Excess for a Payment Date, the amount thereof
shall be applied to the Purchasers' Portion of the Collections
received on such Payment Date.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01 Representations and Warranties of the Seller. The Seller
hereby represents and warrants to the Agent, the Custodian, the Administrators
and the Purchasers that:
(a) Corporate Existence and Power. The Seller is a corporation
duly amalgamated, validly existing and in good standing under
the laws of Saskatchewan, is duly qualified to do business and
is in good standing as a foreign corporation, and has and
holds all corporate power and all governmental licenses,
authorizations, consents and approvals required to carry on
its business in each jurisdiction in which its business is
conducted, except where the absence of any such governmental
license, authorization, consent or approval would not have a
Material Adverse Effect.
(b) Power and Authority; Due Authorization Execution and Delivery.
The execution and delivery by the Seller of this Agreement and
each other Transaction Document to which it is a party, and
the performance of its obligations hereunder and thereunder
and the Seller's use of the proceeds of purchases made
hereunder, are within its corporate powers and authority and
have been duly authorized by all necessary corporate action on
its part. This Agreement and each other Transaction Document
to which the Seller is a party has been duly executed and
delivered by the Seller.
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(c) No Conflict. The execution and delivery by the Seller of this
Agreement and each other Transaction Document to which it is a
party, and the performance of its obligations hereunder and
thereunder do not contravene or violate (i) its certificate or
articles of amalgamation or by-laws, (ii) any law, rule or
regulation applicable to it the violation or contravention of
which would have a Material Adverse Effect, (iii) any
restrictions under any agreement, contract or instrument to
which it is a party or by which it or any of its property is
bound the violation or contravention of which would have a
Material Adverse Effect or (iv) any order, writ, judgment,
award, injunction or decree binding on or affecting it or its
property, and do not result in the creation or imposition of
any Adverse Claim on the assets of the Seller (except as
created hereunder) and no transaction contemplated hereby
requires compliance with any bulk sales act or similar law.
(d) Governmental Authorization. Other than the filing of the
financing statements required hereunder, no authorization or
approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for
the due execution and delivery by the Seller of this Agreement
and each other Transaction Document to which it is a party and
the performance of its obligations hereunder and thereunder
other than those which, if not obtained, would not have a
Material Adverse Effect.
(e) Actions, Suits. There are no actions, suits or proceedings
pending, or to the best of the Seller's knowledge, threatened,
against or affecting the Seller, or any of its properties, in
or before any court, arbitrator or other body, that could
reasonably be expected to have a Material Adverse Effect. The
Seller is not in default with respect to any order of any
court, arbitrator or governmental body.
(f) Binding Effect. This Agreement and each other Transaction
Document to which the Seller is a party constitute the legal,
valid and binding obligations of the Seller enforceable
against the Seller in accordance with their respective terms,
except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws
relating to or limiting creditors' rights generally and by
general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(g) Accuracy of Information. All information heretofore furnished
in writing by the Seller or any of its Affiliates to the Agent
or the Purchasers for purposes of or in connection with this
Agreement, any of the other Transaction Documents or any
transaction contemplated hereby or thereby is, and all such
information hereafter furnished in writing by the Seller or
any of its Affiliates to the Agent or the Purchasers will be,
true and accurate in every material respect on the date such
information is stated or certified and does not and will not
contain any material misstatement of fact or omit to state a
material fact or any fact necessary to make the statements
contained therein not materially misleading.
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(h) Use of Proceeds. No proceeds of any purchase hereunder will be
used for a purpose that violates Regulations T, U or X
promulgated by the Board of Governors of the Federal Reserve
System from time to time.
(i) Good Title. Immediately prior to the date hereof, the Seller
shall be the legal and beneficial owner of the Dealer
Receivables and Related Security with respect thereto, free
and clear of any Adverse Claim, except as created by the
Transaction Documents. There have been duly filed all
financing statements or other similar instruments or documents
necessary under the UCC (or any comparable law) of all
appropriate jurisdictions to perfect the Seller's ownership
interest in each Dealer Receivable, its Collections and the
Related Security.
(j) Perfection. This Agreement, together with the filing of the
financing statements contemplated hereby, is effective to, and
shall, upon each Purchase hereunder, Transfer to the Agent for
the benefit of the relevant Purchaser or Purchasers (and the
Agent for the benefit of such Purchaser or Purchasers shall
acquire from the Seller) a valid and perfected first priority
undivided percentage ownership interest in each Dealer
Receivable subject to such Purchase and in the Related
Security and Collections with respect thereto, free and clear
of any Adverse Claim, except as created by the Transaction
Documents. There have been duly filed all financing statements
or other similar instruments or documents necessary under the
UCC (or any comparable law) of all appropriate jurisdictions
to perfect the Agent's (on behalf of the Purchasers) ownership
interest in the Dealer Receivables, the Related Security and
the Collections.
(k) Places of Business. The principal place of business, domicile
and chief executive office of the Seller and the offices where
it keeps all of its Records are located at the address(es)
listed on Schedule III or such other locations of which the
Agent has been notified in accordance with Section 8.02(a) in
jurisdictions where all action required by Section 14.04(a)
has been taken and completed. The Seller is registered for
GST, HST and QST purposes under the numbers set forth on
Schedule III. The Seller is a resident of Canada for purposes
of the Income Tax Act (Canada).
(l) Collections. The conditions and requirements set forth in
Section 8.03(g) and Section 9.02 save where, in the context of
Section 9.02 only, the failure to so duly perform would not
have a Material Adverse Effect, have at all times been
satisfied and duly performed. The names and addresses of all
Deposit Account Banks, together with the account numbers of
the Deposit Accounts of the Seller at each Deposit Account
Bank and the post office box number of each Lock-Box, are
listed on Schedule I, as such Schedule may be updated from
time to time by the Servicer.
(m) Ownership of the Seller. AGCO U.S. owns, directly or
indirectly, 100% of the issued and outstanding shares and
capital stock of the Seller, free and clear of any Adverse
Claim, other than under or in connection with the Credit
Agreement.
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Such shares and capital stock are validly issued, fully paid
and nonassessable, and there are no options, warrants or other
rights to acquire securities of the Seller.
(n) Not a Holding Company or an Investment Company. The Seller is
not a "holding company" or a "subsidiary holding company" of a
"holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended, or any successor
statute. The Seller is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or
any successor statute.
(o) Compliance with Law. The Seller has complied in all respects
with all applicable laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be
subject, except where the failure to comply would not have a
Material Adverse Effect. Each Dealer Receivable, together with
the Contracts related thereto, does not contravene any laws,
rules or regulations applicable thereto (including, without
limitation, laws, rules and regulations relating to truth in
lending, cost of borrowing disclosure, fair credit billing,
fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy), and no part of such
Contracts are in violation of any such law, rule or
regulation, except where such contravention or violation, as
the case may be, would not have a Material Adverse Effect.
(p) Names. In the past five years preceding the date hereof, the
Seller has not used any corporate names or any names in any
other language other than the name in which it has executed
this Agreement and the names listed in Schedule V hereto.
(q) Compliance with Credit and Collection Policy. The Seller has
complied in all material respects with the Credit and
Collection Policy with regard to each Dealer Receivable and
the related Contract, and has not made any change to such
Credit and Collection Policy, other than as permitted under
Section 8.02(c), and in compliance with the notification
requirements in Section 8.01(a)(i).
(r) Material Adverse Effect. The consolidated balance sheet of
AGCO U.S. and its consolidated subsidiaries (including the
Seller) as of December 31, 2000, and the related statements of
income and retained earnings of AGCO U.S. and its consolidated
subsidiaries for the fiscal year then ended, certified by
Xxxxxx Xxxxxxxx LLP, independent public accountants, fairly
present in all material respects the consolidated financial
condition of AGCO U.S. and its consolidated subsidiaries as at
such date and the consolidated results of the operations of
AGCO U.S. and its consolidated subsidiaries for the period
ended on such date, all in accordance with generally accepted
accounting principles, consistently applied. Since December
31, 2000, no event has occurred that would have a material
adverse effect on the financial condition or operations of the
Seller or AGCO U.S. and its consolidated subsidiaries or the
ability of the Seller or AGCO U.S. to perform its obligations
under this Agreement.
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(s) Eligible Receivables. Each Dealer Receivable at any time
included in the Eligible Receivables Balance as an Eligible
Receivable was an Eligible Receivable at such time.
(t) Enforceability of Contracts. Each Contract with respect to
each Dealer Receivable is effective to create, and has
created, a legal, valid and binding obligation of the related
Obligor to pay the Outstanding Balance of the Dealer
Receivable created thereunder and any accrued interest
thereon, enforceable against the Obligor in accordance with
its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization or other
similar laws relating to or limiting creditors' rights
generally and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
law).
(u) Solvency. The Seller is not an insolvent person, in insolvent
circumstances or on the eve of insolvency, as applicable,
within the meaning of any of the Insolvency Statutes (as
defined below). The Seller will not become an insolvent person
or be put in insolvent circumstances within the meaning of any
of the Insolvency Statutes by entering into, or immediately
after completion of the transactions contemplated by, this
Agreement. The Seller has entered into this Agreement for the
purpose of Transferring the Ownership Interests to the Agent
on behalf of the Purchasers and receiving from the Purchasers
the consideration therefor specified in this Agreement, and
not for the purpose of defeating, hindering, delaying,
defrauding or oppressing the rights and claims of creditors or
others against the Seller or for any other purpose relating in
any way to the claims of creditors or others against the
Seller. For the purposes hereof, "Insolvency Statutes" means
the Bankruptcy and Insolvency Act (Canada), the Companies'
Creditors Arrangement Act (Canada), the Winding-Up and
Restructuring Act (Canada), the Assignment and Preferences Act
(Ontario), the Fraudulent Conveyances Act (Ontario), The
Fraudulent Preferences Act (Saskatchewan) and The Statute of
Xxxxxxxxx, 1571.
Section 6.02 Representations and Warranties of the Servicer. The Servicer
hereby represents and warrants to the Agent, the Custodian and the Purchasers
that:
(a) Corporate Existence and Power. The Servicer is a corporation
duly organized, validly existing and in good standing under
the laws of its state of incorporation, and is duly qualified
to do business and is in good standing as a foreign
corporation, and has and holds all corporate power and all
governmental licenses, authorizations, consents and approvals
required to carry on its business in each jurisdiction in
which its business is conducted, except where the absence of
any such governmental license, authorization, consent or
approval would not have a Material Adverse Effect.
(b) Power and Authority; Due Authorization Execution and Delivery.
(i) The execution and delivery by the Servicer of this
Agreement and each other
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Transaction Document to which it is a party, and the
performance of its obligations hereunder and thereunder, are
within its corporate powers and authority and have been duly
authorized by all necessary corporate action on its part, and
(ii) this Agreement and each other Transaction Document to
which the Servicer is a party has been duly executed and
delivered by the Servicer, except in the case of both clauses
(i) and (ii), where any such deviation from the
representations and warranties set out in both clauses (i) and
(ii) would not have a Material Adverse Effect.
(c) No Conflict. The execution and delivery by the Servicer of
this Agreement and each other Transaction Document to which it
is a party, and the performance of its obligations hereunder
and thereunder do not contravene or violate (i) its
certificate or articles of incorporation or by-laws, (ii) any
law, rule or regulation applicable to it, (iii) any
restrictions under any material agreement, contract or
instrument to which it is a party or by which it or any of its
property is bound, or (iv) any order, writ, judgment, award,
injunction or decree binding on or affecting it or its
property, except, in the case of each of clauses (i), (ii) and
(iv) where such contravention or violation would not have a
Material Adverse Effect.
(d) Governmental Authorization. No authorization or approval or
other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for the
due execution and delivery by the Servicer of this Agreement
and each other Transaction Document to which it is a party and
the performance of its obligations hereunder and thereunder
other than those which, if not obtained, would not have a
Material Adverse Effect.
(e) Actions, Suits. There are no actions, suits or proceedings
pending, or to the best of the Servicer's knowledge,
threatened, against or affecting the Servicer, or any of its
properties, in or before any court, arbitrator or other body,
that could reasonably be expected to have a Material Adverse
Effect. The Servicer is not in default in any material respect
with respect to any order of any court, arbitrator or
governmental body.
(f) Binding Effect. This Agreement and each other Transaction
Document to which the Servicer is a party constitute the
legal, valid and binding obligations of the Servicer
enforceable against the Servicer in accordance with their
respective terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization or other
similar laws relating to or limiting creditors' rights
generally and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at
law).
(g) Accuracy of Information. All information heretofore furnished
in writing by the Servicer or any of its Affiliates to the
Agent or the Purchasers for purposes of or in connection with
this Agreement, any of the other Transaction Documents or any
transaction contemplated hereby or thereby is, and all such
information hereafter furnished, in writing, by the Servicer
or any of its Affiliates to the Agent
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or the Purchasers will be, true and accurate in every material
respect on the date such information is stated or certified
and does not and will not contain any material misstatement of
fact or omit to state a material fact or any fact necessary to
make the statements contained therein not misleading in any
material respect.
(h) Collections. The conditions and requirements set forth in
Section 8.03(g) and Section 9.02 save where, in the context of
Section 9.02 only, the failure to so duly perform would not
have a Material Adverse Effect, have at all times been
satisfied and duly performed. The names and addresses of all
Deposit Account Banks, together with the account numbers of
the Deposit Accounts of the Seller at each Deposit Account
Bank and the post office box number of each Lock-Box, are
listed on Schedule I, as such Schedule may from time to time
hereafter be updated by the Servicer.
(i) Material Adverse Effect. The consolidated balance sheets of
the Servicer and its consolidated subsidiaries as at
December 31, 2000, and the related statements of income and
retained earnings of the Servicer and its consolidated
subsidiaries for the fiscal year then ended, certified by
Xxxxxx Xxxxxxxx LLP, independent public accountants, copies of
which have been furnished to each Administrator, fairly
present in all material respects the consolidated financial
condition of the Servicer and its consolidated subsidiaries as
at such date and the consolidated results of the operations of
the Servicer and its consolidated subsidiaries for the period
ended on such date, all in accordance with generally accepted
accounting principals, consistently applied. Since December
31, 2000, no event has occurred that would have a material
adverse effect on the financial condition or operations of the
Servicer and its Subsidiaries or the ability of the Servicer
or the Seller to perform its obligations under this Agreement.
(j) Not a Holding Company or an Investment Company. The Servicer
is not a "holding company" or a "subsidiary holding company"
of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended, or any
successor statute. The Servicer is not an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended, or any successor statute.
(k) Compliance with Law. The Servicer has complied in all respects
with all applicable laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be
subject, except where failure to comply would not have a
Material Adverse Effect.
(l) Compliance with Credit and Collection Policy. The Servicer has
complied in all material respects with the Credit and
Collection Policy with regard to each Dealer Receivable and
the related Contract, and has not made any change to such
Credit and Collection Policy, other than as permitted under
Section 8.04(b), and in compliance with the notification
requirements in Section 8.03(a)(vii).
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Section 6.03 Representations and Warranties of the Purchasers. Each of the
Purchasers generally (each with respect to itself only) represents and warrants
to, and agrees with, the Seller that:
(a) Such Purchaser is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
organization, has the power and authority and is duly
authorized to enter into and perform this Agreement and has
duly executed and delivered this Agreement;
(b) This Agreement constitutes the valid and binding obligation of
such Purchaser, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization,
receivership and other laws relating to, or affecting
generally the enforcement of creditors' rights and remedies as
the same may be applied in the event of the bankruptcy,
insolvency, reorganization, receivership or liquidation or
similar event of such Purchaser or a moratorium applicable to
such Purchaser and to general principles of equity (regardless
of whether such enforceability is in a proceeding of law or in
equity); and
(c) No registration with, consent or approval of or other action
by any federal, state of governmental authority or regulatory
body having jurisdiction over such Purchaser is required in
connection with the execution, delivery or performance by such
Purchaser of this Agreement.
ARTICLE VII
CONDITIONS OF PURCHASES
Section 7.01 Conditions Precedent to Initial Purchase. The initial purchase
of an Ownership Interest under this Agreement is subject to the conditions
precedent that (a) the Agent shall have received on or before the date of such
purchase those documents listed on Schedule IV and (b) the Agent shall have
received all fees and expenses required to be paid on such date pursuant to the
terms of this Agreement and the Fee Letter to which Nieuw Amsterdam is a party.
Section 7.02 Conditions Precedent to All Purchases and Reinvestment
Purchases. Each purchase of an Ownership Interest and each Reinvestment Purchase
shall be subject to the further conditions precedent that (a) in the case of
each such purchase or Reinvestment Purchase the Servicer shall have delivered to
the Agent on or prior to the date of such purchase, in form and substance
satisfactory to the Agent, all Monthly Reports as and when due under Section
9.05; and (b) on the date of each such purchase or Reinvestment Purchase, the
following statements shall be true (and acceptance of the proceeds of such
purchase or Reinvestment Purchase shall be deemed a representation and warranty
by the Seller that such statements are then true):
(i) the representations and warranties set forth in Sections 6.01
and 6.02 are true and correct in all material respects on and
as of the date of such purchase or Reinvestment Purchase as
though made on and as of such date (except to the extent any
such representation and warranty specifically relates to a
prior date, in which case such representation and warranty
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shall be true and correct in all material respects on and as
of such prior date);
(ii) no event has occurred and is continuing, or would result from
such purchase or Reinvestment Purchase, that will constitute
an Early Amortization Event, and no event has occurred and is
continuing, or would result from such purchase or Reinvestment
Purchase, that would constitute a Potential Early Amortization
Event;
(iii) the Liquidity Termination Date shall not have occurred;
(iv) immediately after giving effect to such Purchase or
Reinvestment Purchase, the Net Eligible Receivables Balance
shall be at least equal to the sum of (i) the aggregate
Investment of all Ownership Interests, plus (ii) the Credit
Enhancement; and
(v) in connection with such purchase or Reinvestment Purchase, the
Agent shall have entered into a Currency Protection Agreement
in accordance with the provisions of Section 5.05;
and (c) the Agent shall have received such other approvals, opinions or
documents (including conveyance documents) as it may reasonably request to
demonstrate compliance with the requirements of this Section 7.02 and
effectiveness of the related transactions. It is expressly understood that each
Reinvestment Purchase shall, unless otherwise directed by the Agent or any
Purchaser, occur automatically on each day that the Servicer shall receive any
Collections without the requirement that any further action be taken on the part
of any Person and notwithstanding the failure of the Seller to satisfy any of
the foregoing conditions precedent in respect of such Reinvestment Purchase. The
failure of the Seller to satisfy any of the foregoing conditions precedent in
respect of any Reinvestment Purchase shall give rise to a right of the Agent and
the Purchasers, which right may be exercised at any time on demand of the Agent,
to rescind the related purchase and direct the Seller to pay to the Agent for
the benefit of the Purchasers an amount equal to the Collections that shall have
been applied to effect such Reinvestment Purchase.
ARTICLE VIII
COVENANTS
Section 8.01 Affirmative Covenants of the Seller and AGCO U.S. Until the
date on which all Unpaid Obligations have been indefeasibly paid in full or
reduced to zero (including the indefeasible reduction to zero of all
Investments) and this Agreement terminates in accordance with its terms:
(a) Notices. The Seller will, unless otherwise stated, promptly
upon learning of the occurrence thereof, provide to each
Administrator notice of the following events, which notice, in
the case of clause (iii) will include a description of the
relevant events and the steps, if any, being taken with
respect thereto:
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(i) Change in Credit and Collection Policy. At least ten
(10) days prior to the effectiveness of any material
change in or amendment to the Credit and Collection
Policy, a notice describing in reasonable detail such
change or amendment.
(ii) Other Information. Promptly, from time to time, such
other information, documents, records or reports
relating to the Dealer Receivables or the condition
or operations, financial or otherwise, of the Seller
as the Agent or any Administrator may from time to
time reasonably request.
(iii) Early Amortization Events or Potential Early
Amortization Events. The occurrence of each Early
Amortization Event and each Potential Early
Amortization Event, by a statement of an Authorized
Officer of the Seller.
(iv) Material Adverse Effect. The occurrence of any event
or condition that, has, or could reasonably be
expected to have, a Material Adverse Effect.
(v) Downgrade of the Seller or the Servicer. Any
downgrade in the rating of any Indebtedness of the
Seller or AGCO U.S. by S&P or by Xxxxx'x or by any
recognized Canadian rating agency, including DBRS,
setting forth the Indebtedness affected and the
nature of such change.
(vi) Judgment and Proceedings. The entry of any judgment
or decree against the Seller or any of its Affiliates
if the aggregate amount of all judgments and decrees
then outstanding against the Seller or any of its
Affiliates exceeds U.S. $10,000,000 or the Canadian
Dollar Equivalent thereof or the institution of any
litigation, arbitration proceeding or governmental
proceeding against the Seller which has or could be
expected to have a Material Adverse Effect on the
Seller.
(vii) Defaults Under Other Agreements. The occurrence of
any payment default of U.S. $10,000,000 or the
Canadian Dollar Equivalent thereof or more or any
other event of default in either case under the terms
of any other financing arrangement pursuant to which
the Seller is a debtor or an obligor.
(b) Compliance with Laws and Preservation of Corporate Existence.
The Seller will comply in all material respects with all
applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject,
except where the failure to comply would not be reasonably
likely to have a Material Adverse Effect. The Seller will
preserve and maintain its corporate existence, rights,
franchises and privileges in the jurisdiction of its
incorporation, and qualify and remain qualified in good
standing as a foreign corporation in each jurisdiction where
its business is conducted, except where its failure to be so
qualified and in good standing could not reasonably be
expected to have a Material Adverse Effect.
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(c) Audits. The Seller will furnish to each Administrator from
time to time such information with respect to it and the
Dealer Receivables as such Administrator may reasonably
request. The Seller will, from time to time during regular
business hours as requested by any Administrator upon
reasonable notice and at the sole cost of the Seller, permit
such Administrator, or its agents or representatives, (i) to
examine and make copies of and abstracts from all Records in
the possession or under the control of the Seller relating to
the Dealer Receivables and the Related Security, including,
without limitation, the related Contracts, and (ii) to visit
the offices and properties of the Seller for the purpose of
examining such materials described in clause (i) above, and to
discuss matters relating to the Seller's financial condition
or the Dealer Receivables and the Related Security or the
Seller's performance under any of the Transaction Documents or
performance under the Contracts and, in each case, with any of
the officers or employees of the Seller having knowledge of
such matters, provided that (x) the Administrators of all
Related Groups shall coordinate with each other so as to
jointly arrange and conduct the visits contemplated in clause
(ii) and (y) in no single calendar year will the total number
of such visits exceed two.
(d) Keeping and Marking of Records and Books.
(i) The Seller will maintain and implement administrative
and operating procedures (including, without
limitation, an ability to recreate records evidencing
Dealer Receivables, Related Security and Collections
in the event of the destruction of the originals
thereof), and keep and maintain all documents, books,
records and other information reasonably necessary
for the collection of all Dealer Receivables and the
enforcement of all Related Security (including,
without limitation, records adequate to permit the
prompt identification of each new Dealer Receivable
and all Collections of and adjustments to each
existing Dealer Receivable). The Seller will give the
Agent (or its assigns) notice of any material change
in the administrative and operating procedures
referred to in the previous sentence.
(ii) The Seller will (x) on or prior to the date hereof,
xxxx its master data processing records and other
books and records relating to the Ownership Interests
with a legend describing the Ownership Interests and
(y) upon the request of any Administrator following
the occurrence of an Early Amortization Event (A)
xxxx each such Contract constituting chattel paper
under the UCC with a legend describing the Ownership
Interests and (B) deliver to the Agent all Contracts
(including, without limitation, all multiple
originals of any such Contract) relating to the
Dealer Receivables.
(e) Compliance with Contracts and Credit and Collection Policy.
The Seller will timely and fully (i) perform and comply with
all provisions, covenants and other promises required to be
observed by it under the Contracts related to the Dealer
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Receivables, and (ii) comply in all respects with the Credit
and Collection Policy in regard to each Dealer Receivable and
the related Contract, in the case of both (i) and (ii) except
to any extent which would not in any way materially impair the
ability of the Servicer to ultimately collect all amounts
payable in respect of the Dealer Receivables. The Seller will
pay when due any taxes payable in connection with the Dealer
Receivables unless contested in good faith.
(f) Financial Reporting. AGCO U.S. will maintain, for itself and
each of its Subsidiaries, a system of accounting established
and administered in accordance with generally accepted
accounting principles, and AGCO U.S. and/or the Seller, as
applicable, will furnish to the Agent (or its assigns):
(i) Annual Reporting. Within 100 days after the close of
each of its respective fiscal years, audited,
unqualified consolidated financial statements (which
shall include balance sheets, statements of income
and retained earnings and a statement of cash flows)
for AGCO U.S. and its consolidated subsidiaries for
such fiscal year certified in a manner reasonably
acceptable to the Agent (or its assigns) by Xxxxxx
Xxxxxxxx or other independent public accountants
reasonably acceptable to the Agent (or its assigns).
(ii) Quarterly Reporting. Within 45 days after the close
of the first three (3) quarterly periods of each of
its respective fiscal years, consolidated balance
sheets of AGCO U.S. as at the close of each such
period and statements of income and retained earnings
and a statement of cash flows for AGCO U.S. and its
consolidated subsidiaries for the period from the
beginning of such fiscal year to the end of such
quarter, all duly certified by an Authorized Officer.
(iii) Compliance Certificate. Together with the financial
statements required hereunder, a compliance
certificate in substantially the form of Exhibit E
signed by an Authorized Officer of the Seller and
dated the date of such annual financial statement or
such quarterly financial statement, as the case may
be.
(iv) Shareholders Statements and Reports. Promptly upon
the furnishing thereof to the shareholders of AGCO
U.S. or any of its Affiliates, copies of all
financial statements, reports and proxy statements so
furnished.
(v) SEC Filings. Promptly upon the filing thereof, copies
of all registration statements and annual, quarterly,
monthly or other regular reports which AGCO U.S. or
any of its Affiliates filed with the Securities and
Exchange Commission or any other securities or
similar commission in any jurisdiction.
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(vi) Change in Credit and Collection Policy. At least ten
(10) days prior to the effectiveness of any material
change in or amendment to the Credit and Collection
Policy, a notice indicating such change or amendment.
(vii) Other Information. Promptly, from time to time, such
other information, documents, records or reports
relating in any way to the Dealer Receivables or the
condition or operations, financial or otherwise, of
the Seller as the Custodian or the Agent (or their
respective assigns) may from time to time reasonably
request in order to protect the interests of the
Agent (and its assigns) under or as contemplated by
this Agreement.
(g) Ownership. The Seller shall take all necessary action to
establish and maintain, in favour of the Agent, for the
benefit of the Purchasers, a valid and perfected first
priority undivided percentage ownership interest in all Dealer
Receivables, Related Security and Collections to the full
extent contemplated herein, free and clear of any Adverse
Claims other than Adverse Claims in favour of the Agent for
the benefit of the Purchasers (including, without limitation,
the filing of all financing statements or other similar
instruments or documents necessary under the UCC (or any
comparable law) of all appropriate jurisdictions to perfect
the Agent's (for the benefit of the Purchasers) interest in
such Dealer Receivables, Related Security and Collections and
such other action as may be reasonably required to perfect,
protect or more fully evidence the interest of the Agent for
the benefit of the Purchasers as the Agent may reasonably
request). The Seller shall also take all such similar action
as required to perfect the interests of the Custodian
hereunder.
(h) Collections. The Seller shall cause (1) all proceeds from all
Lock-Boxes to be directly deposited by a Deposit Account Bank
into a Deposit Account and (2) each Lock-Box and Deposit
Account to be subject at all times to a Deposit Account
Agreement that is in full force and effect. In the event any
payments relating to Dealer Receivables are remitted directly
to the Seller or any Affiliate of the Seller, the Seller shall
remit (or shall cause all such payments to be remitted)
directly to a Deposit Account Bank and deposited into a
Deposit Account within two (2) Business Days following receipt
thereof and, at all times prior to such remittance, the Seller
shall itself hold or, if applicable, shall cause such payments
to be held in trust for the exclusive benefit of the Agent and
the Purchasers to the extent of their Ownership Interests
therein. The Seller shall maintain exclusive ownership,
dominion and control (subject to the terms of this Agreement)
of each Lock-Box and Deposit Account and shall not grant the
right to take dominion and control of any Lock-Box or Deposit
Account at a future time or upon the occurrence of a future
event to any Person, except to the Agent as contemplated by
this Agreement.
(i) Taxes. The Seller shall file all tax returns and reports
required by law to be filed by it and shall promptly pay all
taxes and governmental charges at any time owing (including,
without limitation, sales taxes and goods and services taxes),
except
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any such taxes which are not yet delinquent or are being
diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with generally
accepted accounting principles shall have been set aside on
its books.
Section 8.02 Negative Covenants of the Seller. Until the date on which the
Unpaid Obligations have been indefeasibly paid in full or reduced to zero
(including the indefeasible reduction to zero of all Investments) and this
Agreement terminates in accordance with its terms, the Seller hereby covenants
that:
(a) Name Change, Offices and Records. The Seller will not change
its name, identity or corporate structure (within the meaning
of Section 9-402(7) of any applicable enactment of the UCC in
the United States) or relocate its principal place of
business, domicile, chief executive office or any office where
Records are kept unless it shall have: (i) given each
Administrator at least thirty (30) days' prior written notice
thereof and (ii) delivered to the Agent all financing
statements, instruments and other documents reasonably
requested by the Agent in connection with such change or
relocation.
(b) Change in Payment Instructions to Obligors. The Seller will
not add or terminate any bank as a Deposit Account Bank, or
make any change in the instructions to Obligors regarding
payments to be made to any Lock-Box or Deposit Account in
respect of Dealer Receivables, unless the Agent shall have
received, at least ten (10) days before the proposed effective
date therefor, (i) written notice of such addition,
termination or change and (ii) with respect to the addition of
a Deposit Account Bank or a Deposit Account or Lock-Box, an
executed Deposit Account Agreement with respect to the new
Deposit Account or Lock-Box; provided, however, that the
Seller may make changes in instructions to Obligors regarding
payments on Dealer Receivables if such new instructions
require such Obligor to make payments to another existing
Deposit Account or Lock-Box.
(c) Modifications to Contracts and Credit and Collection Policy.
The Seller will not make, or consent to, any material change
to the Credit and Collection Policy that could reasonably be
expected to adversely affect the timely collectibility of the
Dealer Receivables other than those which (i) have been
approved in writing by each Administrator (such approval not
to be unreasonably withheld) or (ii) are required by
applicable law. Except as provided in Section 9.02(d), the
Seller will not, and will not consent to, any extension,
amendment or other modification to the terms of any Dealer
Receivable or any Contract related thereto other than in
accordance with the Credit and Collection Policy.
(d) Sales, Liens. The Seller shall not Transfer (by operation of
law or otherwise) or otherwise dispose of, or grant any option
with respect to, or create or suffer to exist any Adverse
Claim upon (including, without limitation, the filing of any
financing statement) or with respect to, any Dealer
Receivable, Related Security or Collections or other Pool
Asset, or upon or with respect to any Contract under
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which any Dealer Receivable arises, or any Lock-Box or Deposit
Account, or assign any right to receive income with respect
thereto (other than, in each case, the creation of the
interests therein in favour of the Custodian, the Agent and
the Purchasers provided for herein), and the Seller shall
defend the right, title and interest of the Custodian, the
Agent and the Purchasers in, to and under any of the foregoing
property, against all claims of third parties claiming through
or under the Seller. The Seller shall not create or suffer to
exist any Adverse Claim on any of its inventory, unless an
intercreditor agreement in form satisfactory to the Agent is
in force between the Agent on behalf of the Purchasers and any
other Person holding any such Adverse Claim.
(e) Merger. The Seller shall not amalgamate, merge or consolidate
with or into, or convey, Transfer, lease or otherwise dispose
of (whether in one transaction or in a series of transactions,
and except as otherwise contemplated herein) all or any
material part of its assets (whether now owned or hereafter
acquired) to, or acquire all or any material part of the
assets of, any Person.
(f) Accounting. The Seller will not, and will ensure that none of
its Affiliates (including AGCO U.S.) will, account for or
treat (whether in financial statements, for tax purposes or
otherwise) the transactions contemplated hereby in any manner
other than the sale of Receivables by the Seller to the
Purchasers.
Section 8.03 Affirmative Covenants of the Servicer. Until the date on
which the Unpaid Obligations have been indefeasibly paid in full or reduced to
zero (including the indefeasible reduction to zero of all Investments) and this
Agreement terminates in accordance with its terms, the Servicer hereby covenants
as set forth below:
(a) Financial Reporting. The Servicer will maintain, for itself
and each of its Subsidiaries (including, without limitation,
the Seller), a system of accounting established and
administered in accordance with generally accepted accounting
principles, and furnish to each Administrator:
(i) Annual Reporting. Within 100 days after the close of
each of its fiscal years, audited, consolidated
financial statements (which shall include balance
sheets, statements of income and retained earnings
and a statement of cash flows) for the Servicer and
its consolidated subsidiaries for such fiscal year
certified without qualification by Xxxxxx Xxxxxxxx or
other independent public accountants acceptable to
each Administrator.
(ii) Quarterly Reporting. Within 45 days after the close
of the first three (3) quarterly periods of each of
its fiscal years, consolidated balance sheets of the
Servicer as at the close of each such period and
statements of income and retained earnings and a
statement of cash flows for the Servicer and its
consolidated subsidiaries for the period from the
beginning of such fiscal year to the end of such
quarter, all certified by an Authorized Officer of
the Servicer.
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(iii) Compliance Certificate. Together with the financial
statements required hereunder, a compliance
certificate in substantially the form of Exhibit E
signed by the Servicer's Authorized Officer and dated
the date of such annual financial statement or such
quarterly financial statement, as the case may be.
(iv) Shareholders Statements and Reports. Promptly upon
the furnishing thereof to the shareholders of the
Servicer copies of all financial statements, reports
and proxy statements so furnished.
(v) S.E.C. Filings. Promptly upon the filing thereof,
copies of all registration statements and annual,
quarterly, monthly or other regular reports which the
Servicer or any of its Subsidiaries files with the
Securities and Exchange Commission.
(vi) Change in Credit and Collection Policy. At least ten
(10) days prior to the effectiveness of any material
change in or amendment to the Credit and Collection
Policy, a notice indicating such change or amendment.
(vii) Other Information. Promptly, from time to time, such
other information, documents, records or reports
relating to the Dealer Receivables or the condition
or operations, financial or otherwise, of the
Servicer as any Administrator may from time to time
reasonably request.
(b) Notices. The Servicer will notify each Administrator in
writing of any of the following promptly upon learning of the
occurrence thereof, describing the same and, if applicable,
the steps being taken with respect thereto:
(i) Early Amortization Events or Potential Early
Amortization Events. The occurrence of each Early
Amortization Event and each Potential Early
Amortization Event, by a statement of an Authorized
Officer of the Servicer.
(ii) Servicer Default. The occurrence of any Servicer
Default.
(iii) Material Adverse Effect. The occurrence of any event
or condition that, has, or could reasonably be
expected to have, a Material Adverse Effect.
(c) Compliance with Laws and Preservation of Corporate Existence.
The Servicer will comply in all material respects with all
applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject,
other than where failure would not result in a Material
Adverse Effect. The Servicer will preserve and maintain its
corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and qualify and remain
qualified in good standing as a foreign corporation in each
jurisdiction where its
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business is conducted other than where failure to so qualify
would not have a Material Adverse Effect.
(d) Audits. The Servicer will, from time to time during regular
business hours as requested by any Administrator upon
reasonable notice and at the sole cost of the Servicer, permit
any Administrator, or its agents or representatives, (i) to
examine and make copies of and abstracts from all Records in
the possession or under the control of the Servicer relating
to the Dealer Receivables and the Related Security, including,
without limitation, the related Contracts, and (ii) to visit
the offices and properties of the Servicer for the purpose of
examining such materials described in clause (i) above, and to
discuss matters relating to the Servicer's financial condition
or the Dealer Receivables and the Related Security or the
Servicer's performance under any of the Transaction Documents
or performance under the Contracts, in each case, with any of
the officers or employees of the Servicer having knowledge of
such matters; provided that they will not interfere with the
conducting of Servicer's business and, provided further, (x)
the Administrators of all Related Groups shall coordinate with
each other so as to jointly arrange and conduct the visits
contemplated in clause (ii) and (y) in no single calendar year
will the total number of such visits exceed two.
(e) Keeping and Marking of Records and Books.
(i) The Servicer will maintain and implement
administrative and operating procedures (including,
without limitation, an ability to recreate records
evidencing Dealer Receivables in the event of the
destruction of the originals thereof), and keep and
maintain all documents, books, records and other
information reasonably necessary for the collection
of all Dealer Receivables (including, without
limitation, records adequate to permit the prompt
identification of each new Dealer Receivable and all
Collections of and adjustments to each existing
Dealer Receivable). The Servicer will give each
Administrator notice of any material change in the
administrative and operating procedures referred to
in the previous sentence.
(ii) The Servicer will (A) on or prior to the date hereof,
xxxx its master data processing records and other
books and records relating to the Ownership Interests
with a legend describing the Ownership Interests and
(B) upon the request of any Administrator following
the occurrence of an Early Amortization Event (x)
xxxx each Contract constituting chattel paper under
the UCC with a legend describing the Ownership
Interests and (y) deliver to the Agent all such
Contracts (including, without limitation, all
multiple originals of any such Contract) relating to
the Dealer Receivables.
(f) Compliance with Contracts and Credit and Collection Policy.
The Servicer will timely (i) perform and comply with all
provisions, covenants and other promises
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required to be observed by it under the Contracts related to
the Dealer Receivables, and (ii) comply in all respects with
the Credit and Collection Policy in regard to each Dealer
Receivable and the related Contract except where, in the case
of each of both clauses (i) and (ii) such failure to perform
or comply would not have a Material Adverse Effect.
(g) Collections. The Servicer shall cause (1) all proceeds from
all Lock-Boxes to be directly deposited by a Deposit Account
Bank into a Deposit Account and (2) each Lock-Box and Deposit
Account to be subject at all times to a Deposit Account
Agreement that is in full force and effect. In the event any
payments relating to Dealer Receivables are remitted directly
to the Servicer or any Affiliate of the Servicer, the Servicer
shall remit (or shall cause all such payments to be remitted)
directly to a Deposit Account Bank and deposited into a
Deposit Account within two (2) Business Days following receipt
thereof and, at all times prior to such remittance, the
Servicer shall itself hold or, if applicable, shall cause such
payments to be held in trust for the exclusive benefit of the
Agent and the Purchasers to the extent of their interests
therein.
(h) Taxes. The Servicer shall file all tax returns required by law
to be filed by it and shall promptly pay all taxes and
governmental charges at any time owing (including, without
limitation, sales taxes and goods and services taxes), except
any such taxes which are not yet delinquent or are being
diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with generally
accepted accounting principles shall have been set aside on
its books.
Section 8.04 Negative Covenants of the Servicer. Until the date on which
the Unpaid Obligations have been indefeasibly paid in full or reduced to zero
(including the indefeasible reduction to zero of all Investments) and this
Agreement terminates in accordance with its terms, the Servicer hereby covenants
that:
(a) Change in Payment Instructions to Obligors. The Servicer will
not add or terminate any bank as a Deposit Account Bank, or
make any change in the instructions to Obligors regarding
payments to be made to any Lock-Box or Deposit Account in
respect of Dealer Receivables, unless the Agent shall have
received, at least ten (10) days before the proposed effective
date therefor, (i) written notice of such addition,
termination or change and (ii) with respect to the addition of
a Deposit Account Bank or a Deposit Account or Lock-Box, an
executed Deposit Account Agreement with respect to the new
Deposit Account or Lock-Box; provided, however, that the
Servicer may make changes in instructions to Obligors
regarding payments on Dealer Receivables if such new
instructions require such Obligor to make payments to another
existing Deposit Account or Lock-Box.
(b) Modifications to Contracts and Credit and Collection Policy.
The Servicer will not make any material change to the Credit
and Collection Policy that could
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reasonably be expected to adversely affect the timely
collectibility of the Dealer Receivables other than those
which (i) have been approved in writing by each Administrator
(such approval not to be unreasonably withheld) or (ii) are
required by applicable law. Except as provided in Section
9.02(d), the Servicer will not extend, amend or otherwise
modify the terms of any Dealer Receivable or any Contract
related thereto other than in accordance with the Credit and
Collection Policy.
ARTICLE IX
ADMINISTRATION AND COLLECTION
Section 9.01 Designation of Servicer.
(a) The servicing, administration and collection of the Dealer
Receivables shall be conducted by such Person (the "Servicer")
so designated from time to time in accordance with this
Section 9.01. AGCO U.S. is hereby designated as, and hereby
agrees to perform the duties and obligations of, the Servicer
pursuant to the terms of this Agreement. The Agent may at any
time following the occurrence of a Servicer Default designate
as Servicer, and direct the Custodian to designate (and the
Custodian will do so upon such direction) any Person to
succeed AGCO U.S. or any successor Servicer.
(b) Without the prior written consent of each Administrator and
the Majority Purchasers (which consent shall not be
unreasonably withheld), AGCO U.S. shall not be permitted to
delegate any of its duties or responsibilities as Servicer to
any Person other than (i) the Seller (but subject to Section
9.01(d)) and (ii) with respect to certain Defaulted
Receivables, outside collection agencies in accordance with
its customary practices. The Seller shall not be permitted to
further delegate to any other Person any of the duties or
responsibilities of the Servicer delegated to it by AGCO U.S.
If at any time the Agent shall, in accordance with the
provisions hereof, designate as Servicer any Person other than
AGCO U.S., all duties and responsibilities theretofore
delegated by AGCO U.S. to the Seller may, at the discretion of
the Agent, be terminated forthwith on notice given by the
Agent to AGCO U.S. and to the Seller.
(c) Notwithstanding the foregoing subsection (b), (i) so long as
it is Servicer hereunder, AGCO U.S. shall be and remain
primarily liable to the Agent and the Purchasers for the full
and prompt performance of all duties and responsibilities of
the Servicer hereunder and (ii) the Agent and the Purchasers
shall be entitled to deal exclusively with AGCO U.S. in
matters relating to the discharge by the Servicer of its
duties and responsibilities hereunder. The Agent and the
Purchasers shall not be required to give notice, demand or
other communication to any Person other than AGCO U.S. in
order for communication to the Servicer and its sub-Servicer
or other delegate with respect thereto to be accomplished.
AGCO U.S., at all times that it is the Servicer, shall be
responsible for providing
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any sub-Servicer or other delegate of the Servicer with any
notice given to the Servicer under this Agreement.
(d) Notwithstanding anything else contained herein, the Servicer
may not delegate to the Seller the right to, and the Seller
shall not (and has no authority to) contract for, or conclude
contracts in the name of, any Purchaser and neither the
Servicer nor the Seller is permitted to (nor has authority to)
establish an office or other fixed place of business of any
Purchaser in Canada. To the extent any responsibilities of the
Servicer hereunder involve or require the Servicer to contract
for, or conclude a contract in the name of, any Purchaser,
such servicing responsibility shall be fulfilled solely by the
Servicer (and not by the Seller) and the Servicer is
authorized to take such action, but only from a place of
business in the United States. The Servicer may not, directly
or indirectly, delegate such responsibility to any Person
(including the Seller) which is a resident of Canada or has a
permanent establishment in Canada for purposes of the Income
Tax Act (Canada), except upon consent of the Agent, and in any
event, any such Person to whom the Servicer delegates any such
responsibility, may only carry out such delegated
responsibility from a place of business in the United States
and shall not, in any manner whatsoever, carry out any such
delegated responsibility in Canada. None of the functions,
obligations or authority of the Servicer shall be carried out
in Canada.
Section 9.02 Duties of Servicer.
(a) The Servicer shall take or cause to be taken such actions as
may be reasonably necessary to collect each Dealer Receivable
from time to time, all in accordance with applicable laws,
rules and regulations, with reasonable care and diligence, and
in accordance with the Credit and Collection Policy.
(b) The Servicer will instruct all Obligors to pay all Collections
directly to a Lock-Box or Deposit Account. The Servicer shall
maintain in full force and effect a Deposit Account Agreement
substantially in the form of Exhibit B with each bank party to
a Deposit Account at any time. In the case of any remittances
received in any Lock-Box or Deposit Account that shall have
been identified, to the reasonable satisfaction of the
Servicer, to not constitute Collections or other proceeds of
the Dealer Receivables or the Related Security, the Servicer
shall promptly remit such items to the Person identified to it
as being the owner of such remittances. From and after the
date the Agent delivers to any Deposit Account Bank a
Collection Notice pursuant to Section 9.03, the Agent may
request that the Servicer, and the Servicer thereupon promptly
shall instruct all Obligors with respect to the Dealer
Receivables, to remit all payments thereon to a new depositary
account specified by the Agent and, at all times thereafter,
the Seller and the Servicer shall not deposit or otherwise
credit, and shall not permit any other Person to deposit or
otherwise credit to such new depositary account any cash or
payment item other than Collections.
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(c) The Servicer shall administer the Collections in accordance
with the procedures described herein and in Article IV. The
Servicer shall set aside and hold in trust for the account of
the Seller and the Purchasers their respective shares of the
Collections of Dealer Receivables in accordance with
Article IV. The Servicer shall, upon the request of any
Administrator, segregate, in a manner reasonably acceptable to
such Administrator, all cash, checks and other instruments
received by it from time to time constituting Collections from
the general funds of the Servicer or the Seller prior to the
remittance thereof in accordance with Article IV. If the
Servicer shall be required to segregate Collections pursuant
to the preceding sentence, the Servicer shall segregate and
deposit with a bank designated by the Agent such allocable
share of Collections of Dealer Receivables set aside for the
Purchasers on the first Business Day following receipt by the
Servicer of such Collections, duly endorsed or with duly
executed instruments of transfer.
(d) The Servicer may, in accordance with the Credit and Collection
Policy, extend the maturity of any Dealer Receivable or adjust
the outstanding balance of any Dealer Receivable as the
Servicer determines to be appropriate to maximize Collections
thereof. Notwithstanding anything herein to the contrary, from
and after the Termination Date until this Agreement is
terminated, neither the Seller nor the Servicer shall, without
the consent of the Agent, grant any discount or take any other
action the effect of which would be to reduce the outstanding
balance of any Dealer Receivable or modify the obligation of
any Obligor to pay the full outstanding balance of any Dealer
Receivable or extend the maturity thereof.
(e) The Servicer shall hold in trust for the Seller and the
Purchasers to the extent of their interests therein all
Records that (i) evidence or relate to the Dealer Receivables,
the related Contracts and Related Security or (ii) are
otherwise necessary or desirable to collect the Dealer
Receivables and shall, as soon as reasonably practicable upon
demand of the Agent, make available to the Agent all such
Records, at the offices of the Servicer. The Servicer shall,
as soon as practicable following receipt thereof turn over to
the Seller or other owner thereof any cash collections or
other cash proceeds received with respect to Indebtedness
owing to the Seller not constituting Dealer Receivables. The
Servicer shall, from time to time at the reasonable request of
any Purchaser, furnish to such Purchaser (promptly after any
such request) a calculation of the amount set aside for the
Purchaser pursuant to Article IV.
(f) Any payment by an Obligor in respect of any indebtedness owed
by it to the Seller shall, except as otherwise specified by
such Obligor or otherwise required by contract or law and
unless otherwise instructed by the Agent, be applied in
accordance with the methodology set out in for the application
of such payments in the Credit and Collection Policy.
(g) Upon receipt of any cash collections or other cash proceeds of
any Dealer Receivable, the Servicer shall determine the
portion thereof which relate to
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interest, yield, finance charges or similar amounts payable
and provided for under the related Contract (but, for greater
certainty, not including any discount on the principal balance
thereof applied in connection herewith) and ascertain the
amount of any withholding tax payable in respect of such
portion. The Servicer shall remit all such withholding taxes
to the applicable governmental authority within all time
requirements imposed by applicable law, and shall provide such
receipts or other evidence of such remittances as the Agent
may request from time to time.
Section 9.03 Collection Notices. The Agent is authorized at any time after
the occurrence and during the continuation of a Cash Control Event to date and
to deliver to the Deposit Account Banks the Collection Notices. The Seller
hereby Transfers to the Agent for the benefit of the Purchasers, effective when
the Agent delivers such notice, the exclusive ownership and control of each
Lock-Box and the Deposit Accounts. In case any authorized signatory of the
Seller whose signature appears on a Deposit Account Agreement shall cease to
have such authority before the delivery of such notice, such Collection Notice
shall nevertheless be valid as if such authority had remained in force. The
Seller hereby authorizes the Agent, and agrees that the Agent shall be entitled
at any time after the occurrence and during the continuation of a Cash Control
Event to (i) endorse the Seller's name on checks and other instruments
representing Collections, (ii) enforce the Dealer Receivables, the related
Contracts and the Related Security and (iii) take such action as shall be
necessary or desirable to cause all cash, checks and other instruments
constituting Collections of Dealer Receivables to come into the possession of
the Agent rather than the Seller.
Section 9.04 Responsibilities of the Seller. Anything herein to the
contrary notwithstanding, the exercise by the Agent, the Custodian, the
Administrators and the Purchasers of their rights hereunder shall not release
the Servicer or the Seller from any of their duties or obligations with respect
to any Dealer Receivables or under the related Contracts. None of the Agent, the
Custodian or the Purchasers shall have any obligation or liability with respect
to any Dealer Receivables or related Contracts, nor shall any of them be
obligated to perform the obligations of the Seller.
Section 9.05 Reports and Other Information. The Servicer shall prepare and
forward to each Administrator, on each Reporting Date and at such times as any
Administrator shall reasonably request, a duly completed Monthly Report
containing information accurate as of the last day of the calendar month then
most recently ended. The Servicer shall determine the Net Eligible Receivables
Balance, the aggregate Investment and the Credit Enhancement in connection with
each Purchase hereunder.
Section 9.06 Servicer Fees. In consideration of the agreement of AGCO U.S.
to act as Servicer hereunder, the Purchasers hereby agree that, so long as AGCO
U.S. shall continue to perform as Servicer hereunder, the Servicer shall be
entitled to retain out of Collections, a fee (the "Servicer Fee") on each
Payment Date equal to 1% per annum of the Outstanding Balance of the Dealer
Receivables at the beginning of the calendar month then most recently ended as
compensation for its servicing activities. The Servicer Fee shall be payable
solely out of Collections available for such purpose pursuant to Article IV. In
the event such Collections are insufficient to pay the
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accrued and unpaid Servicer Fee in full, the Servicer shall have no claim
against the Seller, the Agent or any Administrator for such deficiency. In the
event the Agent shall, in accordance with the provisions hereof, designate as
Servicer any Person other than AGCO U.S., then the Servicer Fee payable to such
successor Servicer shall be such fee as shall be agreed in writing between such
successor Servicer and the Agent; provided that in no event shall such Servicer
Fee exceed 2% per annum on the average daily Outstanding Balance of the Dealer
Receivables.
Section 9.07 Servicer Defaults. The occurrence of any one or more of the
following events shall constitute a "Servicer Default":
(a) The Servicer shall fail to make any payment or deposit to the
Custodian, the Agent, any Purchaser or any Administrator
required under the provisions of Section 4.05 of this
Agreement when due and such failure shall continue for one (1)
Business Day after such due date;
(b) The Servicer shall fail to make any payment or deposit
required under the provisions hereof or of the other
Transaction Documents (other than those contemplated in (a)
hereinabove) when due and such failure shall continue for five
(5) Business Days after such due date;
(c) The Servicer shall fail to perform or observe any term,
covenant or agreement hereunder or under any other Transaction
Document (other than as referred to in paragraph (a) or (b))
and such failure shall continue for fifteen (15) days after
the earlier of (i) the date on which the Servicer obtains
knowledge thereof and (ii) the date on which written notice
thereof is given to the Servicer;
(d) Any representation, warranty, certification or statement made
by the Servicer in this Agreement, any other Transaction
Document or in any other document delivered pursuant hereto or
thereto shall prove to have been incorrect in any material
respect when made or deemed made and either (i) the failure of
such representation, warranty, certification or statement to
be true and correct shall have a Material Adverse Effect or
(ii) such representation, warranty, certification or statement
shall continue to be incorrect;
(e) (i) The Servicer or any of its Subsidiaries shall generally
not pay its debts as such debts become due or shall admit in
writing its inability to pay its debts generally or shall make
a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any such Person
seeking to adjudicate it bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its
debts under any law relating to bankruptcy, arrangement,
insolvency or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or any
substantial part of its property or any such Person shall be
appointed, whether under private right or pursuant to any such
proceeding, or (ii) any such Person shall take any corporate
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action to authorize any of the actions set forth in clause (i)
above in this subsection (e);
(f) The Custodian ceases to hold the Pool Assets as agent and
bailee for the Seller and the Purchaser or the Agent for the
benefit of the Purchasers shall cease to have a valid and
perfected first priority ownership interest in the Dealer
Receivables, the Related Security, the Collections with
respect thereto and the Deposit Accounts;
(g) The long-term senior unsecured debt of AGCO U.S. shall not be
rated at least B+ by S&P and at least B1 by Xxxxx'x;
(h) A material adverse change shall have occurred in the
collectibility of the Dealer Receivables generally or of any
material portion of the Dealer Receivables; or
(i) One or more final judgments for the payment of money in excess
of U.S. $10,000,000 or the Canadian Dollar Equivalent thereof
shall be entered against the Servicer, and such judgment shall
continue unsatisfied and in effect for fifteen (15)
consecutive days without a stay of execution; or
(j) The failure of the Servicer to pay any Indebtedness when due
in excess of U.S. $10,000,000 or the Canadian Dollar
Equivalent thereof and the continuance of such failure after
the applicable grace period, if any, specified in the
agreement or instrument relating to such Indebtedness; or the
default by the Servicer in the performance of any term,
provision or condition contained in any agreement under which
any such Indebtedness was created or is governed, the effect
of which is to cause, or to permit the holder or holders of
such Indebtedness to cause, such Indebtedness to become due
prior to its stated maturity; or any such Indebtedness of the
Servicer shall be declared to be due and payable or required
to be prepaid (other than by a regularly scheduled payment)
prior to the date of maturity thereof;
provided, however, that notwithstanding the foregoing, a delay in or a failure
of performance referred to in clause (a) and (b) for a period of five (5)
Business Days, or referred to under clauses (c) or (d) for a period of fifteen
(15) days (in addition to any period provided in (a), (b), (c) or (d) (together,
the "Additional Grace Periods") shall not constitute a Servicer Default until
the expiration of such Additional Grace Periods, if such delay or failure could
not be prevented by the exercise of reasonable diligence by the Servicer and
such delay was caused by force majeure. For greater certainty, any reference in
this Section 9.07 to the Servicer includes AGCO U.S., whether or not acting in
its capacity as Servicer hereunder.
Section 9.08 Replacement of the Servicer. If AGCO U.S. is removed as
Servicer pursuant to Section 10.02 following the occurrence of an Early
Amortization Event, AGCO U.S. shall take all actions necessary, or that the
Agent may reasonably request, to facilitate the prompt and efficient transfer of
responsibilities of the Servicer to any successor Servicer designated by the
Agent, including without limitation, transferring to the Agent or such successor
all Records,
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correspondence and documents (including computer software) requested by the
Agent or such successor and to permit the Agent and such successor to have
access to, and to copy, all software used by AGCO U.S. in the collection,
administration or monitoring of the Dealer Receivables, Related Security and
Collections. In connection therewith, the Agent may enter into a separate
servicing agreement with any such successor Servicer relating to the rights and
obligations of such successor as Servicer hereunder and, to the extent of any
inconsistency between such servicing agreement and this Agreement regarding such
rights and obligations, such servicing agreement shall control; provided that
the Agent shall use reasonable efforts to minimize any such inconsistency to the
extent such inconsistency would have a material adverse effect on the Seller.
ARTICLE X
EARLY AMORTIZATION EVENTS
Section 10.01 Early Amortization Events. The occurrence of any one or more
of the following events shall constitute an "Early Amortization Event":
(a) The Seller shall fail to make any payment or deposit required
hereunder or under any other Transaction Document when due and
such failure shall remain unremedied for five (5) Business
Days;
(b) The Seller shall fail to perform or observe any term, covenant
or agreement hereunder or under any other Transaction Document
(other than as referred to in paragraph (a)) and such failure
shall continue for fifteen (15) days after the earlier of (i)
the date on which the Seller obtains knowledge thereof and
(ii) the date on which written notice thereof is given to the
Seller;
(c) Any representation, warranty, certification or statement made
by the Seller in this Agreement, any other Transaction
Document or in any other document delivered pursuant hereto or
thereto shall prove to have been incorrect in any material
respect when made or deemed made and either (i) the failure of
such representation, warranty, certification or statement to
be true and correct shall have a Material Adverse Effect or
(ii) such representation, warranty, certification or statement
shall continue to be incorrect;
(d) Any Servicer Default shall occur and be continuing;
(e) (i) The Seller or any of its Subsidiaries shall generally not
pay its debts as such debts become due or shall admit in
writing its inability to pay its debts generally or shall make
a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any such Person
seeking to adjudicate it bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its
debts under any law relating to bankruptcy, arrangement,
insolvency or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or any
substantial part of its
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property or any such Person shall be appointed, whether under
private right or pursuant to any such proceeding, or (ii) any
such Person shall take any corporate action to authorize any
of the actions set forth in clause (i) above in this
subsection (e);
(f) The Custodian ceases to hold the Pool Assets as agent and
bailee for the Seller and the Purchaser or the Agent for the
benefit of the Purchasers shall cease to have a valid and
perfected first priority ownership interest in the Dealer
Receivables, the Related Security, the Collections with
respect thereto and the Deposit Accounts;
(g) The Seller shall be required to register as an "investment
company" by the provisions of the Investment Company Act of
1940, as amended;
(h) As at the end of any calendar month, (i) the Variable Dilution
Ratio shall exceed 5.0%, (ii) the average of the Planned
Dilution Ratios for the three most recently ended calendar
months shall exceed 20%, (iii) the average of the Payment
Rates for the three most recently ended calendar months shall
be less than (x) if such three calendar month period shall end
with the month of February, March, April or May, 4.0% and (y)
in all other cases, 9.0%, (iv) the average of the Default
Ratios for the three most recently ended calendar months shall
exceed 3% or (v) the Default Ratio shall exceed 5%;
(i) The aggregate Ownership Interests shall exceed 100% and shall
continue as such until the earlier of (i) two Business Days
following the date either the Seller or the Servicer has
actual knowledge thereof and (ii) the next Payment Date;
(j) Failure of the Seller to pay any Indebtedness when due in
excess of U.S. $10,000,000 or the Canadian Dollar Equivalent
thereof and the continuation of such failure after the
applicable grace period, if any, specified in the agreement or
instrument relating to such Indebtedness, or the default by
the Seller in the performance of any term, provision or
condition contained in any agreement under which any such
Indebtedness was created or is governed, the effect of which
is to cause, or to permit the holder or holders of such
Indebtedness to cause, such Indebtedness to become due prior
to its stated maturity; or any such Indebtedness of the Seller
shall be declared to be due and payable or required to be
prepaid (other than by a regularly scheduled payment) prior to
the date of maturity thereof;
(k) One or more final judgments for the payment of money in excess
of U.S. $10,000,000 or the Canadian Dollar Equivalent thereof
shall be entered against Seller and such judgment shall
continue unsatisfied and in effect for fifteen (15)
consecutive days without a stay of execution; or
(l) After the date hereof, any Purchaser or the Agent shall
determine, acting reasonably, that it has or is deemed to have
a permanent establishment within
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Canada solely as a result of the transactions contemplated
hereby or any act or failure to act of the Seller or the
Servicer.
Section 10.02 Remedies. Upon the occurrence and during the continuation of
an Early Amortization Event, the Agent may, or upon the direction of the
Majority Purchasers shall, take any of the following actions: (i) replace and
instruct the Custodian to replace (and the Custodian shall do so upon such
instruction) the Person then acting as Servicer, (ii) declare the Termination
Date to have occurred, whereupon the Termination Date shall forthwith occur,
without demand, protest or further notice of any kind, all of which are hereby
expressly waived by each of the Seller and the Servicer; provided, however, that
upon the occurrence of an Early Amortization Event described in Section
10.01(e), or of an actual or deemed entry of an order for relief with respect to
the Seller or the Servicer under the Federal Bankruptcy Code, the Bankruptcy and
Insolvency Act (Canada) or any other applicable bankruptcy or insolvency
legislation, the Termination Date shall automatically occur, without demand,
protest or any notice of any kind, all of which are hereby expressly waived by
each of the Seller and the Servicer, (iii) to the fullest extent permitted by
applicable law, declare that the Yield Rate shall be equal to the Base Rate plus
2% for all outstanding Ownership Interests, (iv) deliver the Collection Notices
to the Deposit Account Banks, (v) enter into such Currency Protection Agreements
as the Agent, in its sole discretion, shall consider necessary or desirable in
the circumstances (and, notwithstanding the inclusion of Swap Costs as a
Purchaser Obligation, the Seller shall forthwith on demand by the Agent, pay to
the Agent all Swap Costs incurred in connection therewith) and (vi) notify
Obligors of the Custodian's and the Purchasers' interest in the Dealer
Receivables and require all Collections in connection with all Dealer
Receivables to be paid to the Agent or as may otherwise be designated by the
Agent. Further, in the event of a Potential Early Amortization Event arising as
a result of a Servicer Default under Section 9.07(a), (b), (c) or (d), during
the Additional Grace Periods applicable to such Servicer Defaults (and unless
the relevant actions or omissions are remedied prior to the expiration of the
applicable Additional Grace Periods) the Purchasers shall not be required to
make any Purchases, of whatever type, of any Dealer Receivables. If the Agent or
any Purchaser enters into any Currency Protection Agreement in connection
herewith, as provided in this Section 10.02, and any amounts are paid thereunder
to the Agent or any such Purchaser by the counterparty thereto, such amounts (to
the extent paid in connection herewith) shall be applied to the payment of all
Unpaid Obligations, including to the reduction to zero of all Investments, and
to the extent that there are any excess such amounts after all Unpaid
Obligations have been indefeasibly paid in full or reduced to zero, such excess
shall be paid to the Seller as additional purchase price for the Ownership
Interests. The aforementioned rights and remedies shall be in addition to all
other rights and remedies of the Custodian, the Agent and the Purchasers
available under this Agreement, by operation of law, at equity or otherwise, all
of which are hereby expressly preserved, including, without limitation, all
rights and remedies provided under the UCC, all of which rights shall be
cumulative.
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ARTICLE XI
INDEMNIFICATION
Section 11.01 Indemnities.
(a) Seller Indemnities. Without limiting any other rights that the
Custodian, the Agent, any Administrator or any Purchaser may
have hereunder or under applicable law, the Seller hereby
agrees to indemnify the Custodian, the Agent, each
Administrator and each Purchaser and their respective assigns,
officers, directors, agents and employees (each an
"Indemnified Party") from and against any and all damages,
losses, claims, taxes, liabilities, costs, expenses and for
all other amounts payable, including reasonable attorneys' or
lawyers' fees (which attorneys or lawyers may be employees of
the Custodian, the Agent or such Purchaser) and disbursements
(on a solicitor and his own client basis) (all of the
foregoing being collectively referred to as "Indemnified
Amounts") awarded against or incurred by any of them arising
out of or as a result of this Agreement or the acquisition,
either directly or indirectly, by the Custodian, the Agent or
a Purchaser of an interest in the Dealer Receivables
excluding, however:
(A) Indemnified Amounts to the extent a final judgment of
a court of competent jurisdiction holds that such
Indemnified Amounts resulted from gross negligence or
wilful misconduct on the part of the Indemnified
Party seeking indemnification;
(B) Indemnified Amounts to the extent the same include
losses in respect of Dealer Receivables that are
uncollectible on account of the insolvency,
bankruptcy or lack of creditworthiness or other
failure to pay of the related Obligor where such
failure is not caused by any action or inaction on
the part of the Seller or AGCO U.S. in connection
with any Dealer Receivable or Dealer Agreement;
(C) taxes (other than taxes imposed by Canada or any
jurisdiction thereof) imposed by the jurisdiction in
which such Indemnified Party is organized or in which
it is otherwise doing business on or measured by the
overall net income of such Indemnified Party;
provided, however, that nothing contained in this sentence shall limit the
liability of either the Seller or the Servicer or limit the recourse of the
Custodian, the Agent or the Purchasers to either the Seller or the Servicer for
amounts otherwise specifically provided to be paid by such Person under the
terms of this Agreement. Without limiting the generality of the foregoing
indemnification, the Seller shall indemnify each Indemnified Party for
Indemnified Amounts (including, without limitation, losses in respect of
uncollectible receivables, regardless of whether reimbursement therefor would
constitute recourse to the Seller or the Servicer) resulting from:
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(i) breach of any representation or warranty
made by the Seller or the Servicer (or any
officers of any such Person) under or in
connection with this Agreement, any other
Transaction Document or any other
information or report delivered by any such
Person pursuant hereto or thereto, which
shall have been false or incorrect when made
or deemed made;
(ii) the failure by the Seller or the Servicer to
comply with any applicable law, rule or
regulation with respect to any Dealer
Receivable or Contract related thereto, or
the nonconformity of any Dealer Receivable
or Contract included therein with any such
applicable law, rule or regulation or any
failure of the Seller to keep or perform any
of its obligations, express or implied, with
respect to any Contract;
(iii) any failure of the Seller or the Servicer to
perform its duties, covenants or other
obligations in accordance with the
provisions of this Agreement or any other
Transaction Document;
(iv) any products liability, personal injury or
damage suit, or similar claim arising out of
or in connection with merchandise, insurance
or services that are the subject of any
Contract or any Dealer Receivable;
(v) any dispute, claim, offset or defense (other
than discharge in bankruptcy of the Obligor)
of the Obligor to the payment of any Dealer
Receivable arising on or prior to the
Termination Date (including, without
limitation, a defense based on such Dealer
Receivable or the related Contract not being
a legal, valid and binding obligation of
such Obligor enforceable against it in
accordance with its terms), or any other
claim resulting from the sale of the
merchandise or service related to such
Dealer Receivable or the furnishing or
failure to furnish such merchandise or
services;
(vi) the commingling of Collections of Dealer
Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding
related to or arising from this Agreement or
any other Transaction Document, the
transactions contemplated hereby, the use of
the proceeds of a purchase, the ownership of
the Ownership Interests or any other
investigation, litigation or proceeding
relating to the Seller or the Servicer in
which any Indemnified Party becomes involved
as a result of any of the transactions
contemplated hereby;
(viii) any inability to litigate any claim against
any Obligor in respect of any Dealer
Receivable as a result of such Obligor being
immune from civil and commercial law and
suit on the grounds of sovereignty or
otherwise from any legal action, suit or
proceeding;
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(ix) any Early Amortization Event described in Section
10.01(d);
(x) any failure of the Seller to have had (but for the
transactions contemplated hereby) legal and
equitable title to, and ownership of any Dealer
Receivable and the Related Security and Collections
with respect thereto, free and clear of any Adverse
Claim; or any failure of the Seller to have a first
priority perfected security (or equivalent) interest
in the Equipment the sale of which gave rise to any
Dealer Receivable;
(xi) any failure to vest and maintain vested in the Agent
and the Purchasers, or to Transfer to the Agent and
the Purchasers, legal and equitable title to, and
ownership of, a first priority perfected undivided
percentage ownership interest (to the extent of the
Ownership Interests contemplated hereunder) in the
Dealer Receivables, the Related Security and the
Collections, free and clear of any Adverse Claim;
(xii) the failure to have filed, or any delay in filing,
financing statements or other similar instruments or
documents under the UCC of any applicable
jurisdiction or other applicable laws with respect
to any Dealer Receivable, the Related Security and
Collections with respect thereto, and the proceeds
of any thereof, whether at the time of any
Incremental Purchase or Reinvestment Purchase or at
any subsequent time;
(xiii) any action or omission by either the Seller or the
Servicer which reduces or impairs the rights of the
Custodian, the Agent or the Purchasers with respect
to any Dealer Receivable or the value of any such
Dealer Receivable;
(xiv) any attempt by any Person to void any Incremental
Purchase or Reinvestment Purchase hereunder under
statutory provisions or common law or equitable
action;
(xv) the failure of any Dealer Receivable treated as or
represented to be an Eligible Receivable at any time
by the Seller or the Servicer (including, without
limitation, for purposes of calculating the Net
Eligible Receivables Balance) to be an Eligible
Receivable as of such time; or
(xvi) any tax or governmental fee or charge or impost of
any kind or nature whatsoever, including without
limitation, any sales, excise, transfer, goods and
services, business or property tax and customs
duties, and any instalment, penalty or interest in
respect of any thereof (but, for greater certainty,
not including any taxes to the extent excluded from
these indemnities pursuant to clause (iii) above in
this Section 11.1) which may be imposed on the Agent
or any Purchaser by reason of or in connection with
any of the transactions contemplated by this
Agreement including the purchase or ownership of any
Ownership Interest or any interest therein or
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any merchandise which secure any Dealer Receivable
or Related Security or in connection with any other
rights or assets Transferred hereunder or the
entitlement to a receipt of any amount hereunder or
otherwise in connection herewith and including,
without limitation, any tax or other amounts which
any Obligor or any Servicer is obligated by law to
withhold from any amounts otherwise payable to the
Purchasers. For greater certainty, the Seller
acknowledges and agrees that it is the intention of
the parties that the Seller bear the risk, under
this Section 11.1, of any withholding tax on
Collections, other than any such withholding tax
which the Servicer is required to remit under
Section 9.02(g).
(b) Servicer Indemnities. Without limiting any other rights that
any Indemnified Party may have hereunder or under applicable
law, the Servicer hereby agrees to indemnify each Indemnified
Party from and against any and all Indemnified Amounts
relating to or resulting from:
(i) any representation or warranty made by the Servicer
(or any officers of the Servicer) in writing under
or in connection with this Agreement, any other
Transaction Document or any other information or
report delivered by any such Person pursuant hereto
or thereto, which shall have been false or incorrect
when made or deemed made;
(ii) the failure by the Servicer to comply with any
applicable law, rule or regulation with respect to
any Dealer Receivable or Contract related thereto;
(iii) any failure of the Servicer to perform its duties,
covenants or other obligations in accordance with
the provisions of this Agreement or any other
Transaction Document;
(iv) the commingling of Collections of Dealer Receivables
at any time with other funds;
(v) any failure of the Seller to have had (but for the
transactions contemplated hereby) legal and
equitable title to, and ownership of any Dealer
Receivable and the Related Security and Collections
with respect thereto, free and clear of any Adverse
Claim (other than as created hereunder);
(vi) any failure to have Transferred legal title to the
Pool Assets to the Custodian, or any failure to vest
and maintain vested in the Agent and the Purchasers,
or to Transfer to the Agent and the Purchasers,
legal and equitable title to, and ownership of, a
first priority perfected undivided percentage
ownership interest (to the extent of the Ownership
Interests contemplated hereunder) in the Dealer
Receivables arising on or prior to the Termination
Date and the Related Security and the Collections
with
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respect thereto free and clear of any Adverse Claim
created by or arising as a result of a claim against
Servicer;
(vii) the failure to have filed, or any delay in filing,
financing statements or other similar instruments or
documents under the UCC of any applicable
jurisdiction or other applicable laws with respect
to any Dealer Receivable, the Related Security and
Collections with respect thereto, and the proceeds
of any thereof, to the extent the Servicer is
required to file the same, whether at the time of
any Incremental Purchase or Reinvestment Purchase or
at any subsequent time;
(viii) any action or omission by the Servicer (other than
in accordance with or as contemplated by this
Agreement or any other Transaction Document) which
reduces or impairs the rights of the Custodian, the
Agent or the Purchasers with respect to any Dealer
Receivable or the value of any such Dealer
Receivable; or
(ix) the failure of any Dealer Receivable treated as or
represented to be an Eligible Receivable at any time
by the Servicer (including, without limitation, for
purposes of calculating the Net Eligible Receivables
Balance) to be an Eligible Receivable as of such
time.
Section 11.02 Increased Cost and Reduced Return.
(a) If, due to either (i) the introduction of or any change in or
in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central
bank or other governmental agency or authority (whether or
not having the force of law), there shall be any increase in
the cost to any Affected Party with respect to this Agreement
or any Conduit Funding Agreement or in connection with its
obligations under this Agreement or any Conduit Funding
Agreement related to this Agreement for which the Affected
Party is not entitled to payment hereunder, then the Seller
shall from time to time, upon demand by such Affected Party
(with a copy of such demand to the Agent), pay to such
Affected Party additional amounts sufficient to compensate
such Affected Party for such increased cost. A certificate
setting forth in reasonable detail the amount of such
increased cost submitted to the Seller by such Affected Party
shall be conclusive and binding for all purposes, absent
manifest error.
(b) Without duplication of (a), if either (i) the introduction
following the date of this Agreement of, or any change
following the date of this Agreement in or in the
interpretation of, any law or regulation or (ii) the
compliance by any Affected Party with any law or regulation
or any guideline or request or any written interpretation
from any central bank or other governmental authority issued
after the date of this Agreement (whether or not having the
force of law), affects the amount of capital required to be
maintained by such Affected Party or any corporation
controlling such Affected Party and the amount of such
capital is
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increased by or based upon this Agreement or any Conduit
Funding Agreement related to this Agreement or an Affected
Party's obligations under this Agreement or a Conduit Funding
Agreement, then, upon demand by such Affected Party (with a
copy of such demand to be sent to the Agent related to this
Agreement), the Seller shall pay to such Affected Party, from
time to time as specified by such Affected Party, additional
amounts sufficient to compensate such Affected Party or such
controlling corporation in the light of such circumstances. A
certificate setting forth in reasonable detail such amounts
submitted to the Seller by such Affected Party shall be
conclusive and binding for all purposes, absent manifest
error.
(c) Notwithstanding anything herein to the contrary, the Seller
shall not be obligated to pay any amounts under Section
11.02(a) or (b), to the extent such amounts resulted from an
increased cost incurred or an increased capital requirement
imposed more than 90 days prior to the date of the
certificate in which such amounts were set forth; provided,
that, for purposes of the foregoing, any such increased cost
or increased capital requirement shall be deemed to have been
incurred or imposed, as applicable, on the date on which such
increased cost is actually incurred or such increased capital
requirement is actually imposed, whether or not such
increased cost or increased capital requirement relates back
to a period of time prior to such date.
(d) Each Affected Party shall use reasonable efforts (consistent
with its internal policy and legal and regulatory
restrictions) to reduce or eliminate any claim for
compensation pursuant to this Section 11.02, provided that
nothing contained herein shall obligate any Affected Party to
take any action which, in the opinion of such Affected Party,
is unlawful or otherwise disadvantageous to such Affected
Party.
Section 11.03 Taxes.
(a) Any and all payments by the Seller or the Servicer hereunder
shall be made free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Purchaser, each
Administrator and the Agent, net income taxes and franchise
taxes that are imposed on such Purchaser or the Agent and, in
the case of each Purchaser, franchise taxes and net income
taxes that are imposed on such Purchaser (all such
non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as
"Taxes"). If the Seller shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder to
any Purchaser or the Agent, (i) the sum payable shall be
increased as may be necessary so that, after making all
required deductions (including deductions applicable to
additional sums payable under this Section 11.03), such
Purchaser or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) the Seller shall make such
deductions and (iii) the
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Seller shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Seller agrees to pay any present or future
stamp or documentary taxes, sales taxes and goods and
services taxes or any other excise, transfer or property
taxes, charges or similar levies that arise from any payment
made or Transfer hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement
(hereinafter referred to as "Other Taxes").
(c) The Seller will indemnify each Purchaser and the Agent for
(i) the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 11.03)
paid by such Purchaser or the Agent (as the case may be) and
(ii) any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto other
than those resulting from such Purchaser's or the Agent's
wilful or negligent failure to pay such Taxes or Other Taxes;
provided that a Purchaser or the Agent, as appropriate,
making a demand for indemnity payment shall provide the
Seller, at its address referred to in Section 14.02, with a
certificate from the relevant taxing authority or from a
responsible officer of such Purchaser or the Agent stating or
otherwise evidencing that a Purchaser or the Agent has made
payment of such Taxes or Other Taxes and will provide a copy
of or extract from documentation, if available, furnished by
such taxing authority evidencing assertion or payment of such
Taxes or Other Taxes.
(d) Within 30 days after the date of any payment of Taxes, the
Seller will furnish to the Agent, at its address referred to
in Section 14.02, appropriate evidence of payment thereof.
(e) The Agent and each Purchaser that is not created or organized
under the laws of the United States or a political
subdivision thereof shall, to the extent that it may then do
so under applicable laws and regulations, deliver to the
Seller (with, in the case of each Purchaser, a copy to the
Agent) (i) within 15 days after the date hereof, or, if
later, the date on which such Purchaser becomes a Purchaser
pursuant to Section 13.01 hereof, two (or such other number
as may be from time to time prescribed by applicable laws or
regulations) duly completed copies of IRS Form 4224 or Form
1001 (or any successor forms or other certificates or
statements which may be required from time to time by the
relevant United States taxing authorities or applicable laws
or regulations), as appropriate, to permit the Seller to make
payments hereunder for the account of such Purchaser or the
Agent, as the case may be, without deduction or withholding
of United States federal income or similar taxes and (ii)
upon the obsolescence of or after the occurrence of any event
requiring a change in, any form or certificate previously
delivered pursuant to this Section 11.03(e), copies (in such
numbers as may from time to time be prescribed by applicable
laws or regulations) of such additional, amended or successor
forms, certificates or statements as may be required under
applicable laws or regulations to permit the Seller and the
Agent to make
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payments hereunder for the account of such Purchaser or the
Agent, as the case may be, without deduction or withholding
of United States federal income or similar taxes.
(f) For any period with respect to which a Purchaser or the Agent
has failed to provide the Seller with the appropriate form,
certificate or statement described in Section 11.03(e) (other
than if such failure is due to a change in law occurring
after the date of this Agreement), such Purchaser or the
Agent, as the case may be, shall not be entitled to
indemnification under Section 11.03(a) or 11.03(c) with
respect to Taxes imposed by the United States.
(g) Within 30 days of the written request of the Seller therefor,
the Agent and each Purchaser, as appropriate, shall execute
and deliver to the Seller such certificates, forms or other
documents which can be furnished consistent with the facts
and which are reasonably necessary to assist the Seller in
applying for refunds of taxes remitted hereunder.
Section 11.04 Other Costs and Expenses. The Seller shall pay to the
Custodian, the Agent, each Administrator and each Purchaser on demand all
reasonable costs and out-of-pocket expenses in connection with the preparation,
execution, delivery and administration of this Agreement, the transactions
contemplated hereby and the other documents to be delivered hereunder,
including without limitation, (i) the cost of the Agent's or any
Administrator's auditors auditing the books, records and procedures of the
Seller, (ii) rating agency fees incurred by any Administrator or Purchaser in
connection with the transactions contemplated hereby, and (iii) reasonable fees
and out-of-pocket expenses of legal counsel for the Custodian, the Agent, each
Administrator and each Purchaser with respect thereto and with respect to
advising the Custodian, the Agent, such Administrator or such Purchaser as to
its rights and remedies under this Agreement (on a solicitor and his own client
basis). The Seller shall pay to the Custodian, the Agent, each Administrator
and each Purchaser on demand any and all reasonable costs and expenses of such
Person, if any, including reasonable counsel fees and expenses in connection
with the enforcement of this Agreement and the other documents delivered
hereunder and in connection with any restructuring or workout of this Agreement
or such documents, or the administration of this Agreement following an Early
Amortization Event.
Section 11.05 Foreign Currency Obligations The Seller and the Servicer will
each make payment relative to each Unpaid Obligation and other amount due by
them in the currency (the "Original Currency") in which such Unpaid Obligation
or other amount is expressed. If the Seller or the Servicer makes payment
relative to any Unpaid Obligation or other amount to the Agent in a currency
(the "Other Currency") other than the Original Currency (whether voluntarily or
pursuant to an order or judgment of a court or tribunal of any jurisdiction),
such payment will constitute a discharge of the liability of such party
hereunder in respect of such Unpaid Obligation or other amount only to the
extent of the amount of the Original Currency which the Agent is able to
purchase, using the applicable rate of exchange provided in the definition
herein of "Equivalent Amount", with the amount it receives on the date of
receipt. If the amount of the Original Currency which the Agent is able to
purchase is less than the amount of such currency originally due in respect to
the relevant Unpaid Obligation or other amount, the
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Seller or the Servicer, as applicable, will indemnify and save the Agent
harmless from and against any loss or damage arising as a result of such
deficiency. This indemnity will constitute an obligation separate and
independent from the other obligations contained in this Agreement, will give
rise to a separate and independent cause of action, will apply irrespective of
any indulgence granted by the Agent and will continue in full force and effect
notwithstanding any judgment or order in respect of any amount due hereunder or
under any judgment or order.
Section 11.06 Commercial Paper Notes. Each Purchaser confirms that,
notwithstanding the definition herein of "Commercial Paper Notes", it is not
its current intention to issue Commercial Paper Notes having a term to maturity
in excess of 60 days.
ARTICLE XII
THE AGENT, ADMINISTRATORS AND CUSTODIAN
Section 12.01 Authorization and Action of Agent. Each Purchaser hereby
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement and the other Transaction
Documents to which the Agent is a party, as are delegated to the Agent by the
terms hereof and thereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement, the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall
be fully protected in so acting or refraining from acting) upon the
instructions of the Majority Purchasers, and such instructions shall be binding
upon all the Purchasers; provided, however, that the Agent shall not be
required to take any action which exposes it to personal liability or which is
contrary to this Agreement or applicable law. The Agent agrees to give to each
Purchaser prompt notice of each notice given to it by the Seller or the
Servicer pursuant to the terms of this Agreement. Each Purchaser hereby
authorizes the Agent to execute any UCC financing statements or similar filings
or registrations in connection herewith. None of the functions, obligations or
authority of the Agent shall be carried out, directly or indirectly, in Canada.
Section 12.02 Agents' Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by it or them under or in connection with this
Agreement, except for the gross negligence or wilful misconduct of the Agent.
Without limiting the generality of the foregoing, the Agent: (i) may treat the
Purchaser that made any purchase as the holder of the Ownership Interest
related thereto until receipt of actual notice to the contrary; (ii) may
consult with legal counsel (including counsel for the Seller), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Purchaser and shall not be responsible to any Purchaser
for any statements, warranties or representations (whether written or oral)
made in or in connection with this Agreement or any other Transaction Document;
(iv) shall not have any duty to ascertain or to inquire as to the performance
or observance of any of the terms, covenants or conditions of this Agreement or
any other Transaction Document on the part of the Seller or to inspect the
property (including the books and records) of the Seller; (v) shall not be
responsible to any Purchaser for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, the other
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Transaction Documents, or any other instrument or document furnished pursuant
hereto or thereto; and (vi) shall incur no liability under or in respect of
this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by facsimile) reasonably believed by it to
be genuine and signed or sent by the proper party or parties.
Section 12.03 Rabobank and Affiliates. Rabobank shall have the same rights
and powers hereunder and with respect to the Ownership Interests held by it, if
any, as any other Purchaser and may exercise the same as though it were not the
Agent, the Custodian or acting in any other capacity under any Transaction
Document or Conduit Funding Agreement, and the term "Purchaser" or "Purchasers"
shall, unless otherwise expressly indicated, include Rabobank in its individual
capacity as a Purchaser hereunder. Rabobank and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, enter into
currency protection and similar agreements with and generally engage in any
kind of business with, the Seller, any of its Affiliates, any Purchaser and any
Person who may do business with or own securities of the Seller or any such
Affiliate or such Purchaser, all as if Rabobank were not the Agent or the
Custodian or acting in any other capacity under any Transaction Document or
Conduit Funding Agreement, and without any duty to account therefor to the
Purchasers.
Section 12.04 Purchaser Credit Decision. Each Purchaser acknowledges that
it has, independently and without reliance upon the Agent or the Custodian or
any other Purchaser and based on such financial statements and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Transaction
Documents to which it is a party. Each Purchaser also acknowledges that it
will, independently and without reliance upon the Agent or the Custodian or any
other Purchaser and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and such other Transaction Documents.
Section 12.05 Indemnification. The Purchasers agree to indemnify each of
the Agent, the Custodian and their respective directors, officers and employees
(to the extent not reimbursed by the Seller), ratably in proportion to their
respective Investments, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against the Agent or the Custodian in any way relating
to or arising out of this Agreement, any of the other Transaction Documents or
the transactions contemplated hereby or thereby, or any action taken or omitted
by the Agent or the Custodian under this Agreement or any of the other
Transaction Documents, provided that no Purchaser shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
or the Custodian's gross negligence or wilful misconduct. Without limitation to
the foregoing, each Purchaser agrees to reimburse the Agent and the Custodian
promptly upon demand for such Purchaser's ratable share (computed based on the
ratio which such Purchaser's Investment bears to the aggregate of the
Investments hereunder) of any out-of-pocket expenses (including reasonable
counsel fees, on a solicitor and his own client basis) incurred by the Agent or
the Custodian in connection with the preparation, execution, delivery,
administration, modification, amendment, waiver or enforcement (whether
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through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement or any of the other
Transaction Documents, to the extent that such Agent or the Custodian is not
reimbursed for such expenses by the Seller. From and after the occurrence of
the Termination Date, the indemnification obligations of the Purchasers under
this Section 12.05 shall be calculated as if their respective Investments on
the day immediately prior to the Termination Date remained in effect.
Section 12.06 Successor Agent or Custodian. Rabobank may resign at any time
from its role as Agent or Custodian hereunder by giving written notice thereof
to the Purchasers and the Seller, and may be removed at any time with or
without cause by the Majority Purchasers upon written notice thereof to the
Agent and the Seller. Such resignation or removal shall become effective as set
forth below. The Majority Purchasers shall have the right to appoint a
successor Agent or Custodian, as applicable, provided that the Seller, the
Servicer and each Administrator shall have the right to approve the successor
Agent or Custodian, as applicable, which approval shall not be unreasonably
withheld. If no successor Agent or Custodian, as applicable, shall have been so
appointed by the Majority Purchasers and approved by the Seller, the Servicer
and each Administrator, and shall have accepted such appointment, within 30
days after the departing Agent's (or Custodian's) giving of notice of
resignation or the Majority Purchasers' removal of the departing Agent or
Custodian, as applicable, then the departing Agent (or Custodian, as
applicable) may, on behalf of the Purchasers, appoint a successor Agent (or
Custodian, as applicable), which successor Agent (or Custodian, as applicable)
shall have short-term debt ratings of at least A-1 from S&P and P-1 from
Xxxxx'x and shall be either a commercial bank having a combined capital and
surplus of at least U.S. $250,000,000 or an Affiliate of such an institution.
Upon the acceptance of any appointment as Agent or Custodian hereunder by a
successor Agent or Custodian, such successor Agent or Custodian shall thereupon
succeed to and become vested with all of the rights, powers, privileges and
duties of the departing Agent or Custodian, and the departing Agent or
Custodian shall be discharged from its duties and obligations under this
Agreement; provided that the appointment of such successor Agent or Custodian
shall not become effective until each Purchaser shall have received written
confirmation from each of the rating agencies then rating the Commercial Paper
Notes of such Purchaser that the rating of such Commercial Paper Notes would
not, as a result of such appointment, be reduced or withdrawn. Notwithstanding
anything contained to the contrary herein, until such time as such successor
Agent or Custodian shall have accepted such appointment as aforesaid, the
departing Agent or Custodian shall not be discharged from any of its duties and
obligations as the Agent or Custodian under this Agreement. After any departing
Agent's or Custodian's, as applicable, resignation or removal hereunder from
such role, the provisions of this Article XII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was such agent under
this Agreement.
Section 12.07 Authorization and Action of Administrator. Each Purchaser in
a Related Group hereby appoints and authorizes the Administrator for such
Related Group to take such action as agent on its behalf and to exercise such
powers under this Agreement and the other Transaction Documents to which such
Administrator is a party, as are delegated to such Administrator by the terms
hereof and thereof, together with such powers as are reasonably incidental
thereto. The Purchasers in a Related Group may at any time appoint a new
Administrator in accordance with
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the terms of the applicable Administrator Agreement. Upon the acceptance of any
appointment as Administrator hereunder by a successor Administrator, such
successor Administrator shall thereupon succeed to and become vested with all
of the rights, powers, privileges and duties of the departing Administrator,
and the departing Administrator shall be discharged from its duties and
obligations under this Agreement. None of the functions, obligations or
authority of the Agent shall be carried out, directly or indirectly, in Canada.
Section 12.08 Duties of the Custodian.
(a) The Custodian undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement and
any other agreements to which it has entered into in its
capacity as Custodian pursuant to the terms hereof.
(b) Notwithstanding any other provisions hereof:
(i) the Custodian shall not be personally liable for an
error of judgment made in good faith by the
Custodian, unless it shall be proved that the
Custodian was grossly negligent in ascertaining the
pertinent facts;
(ii) the Custodian shall not be personally liable with
respect to any action taken, suffered or omitted to
be taken by it in good faith in accordance with a
written direction from the Agent or the Purchasers
relating to the time of, method of and place of
conducting any proceeding for any remedy available
to the Custodian, or exercising any trust or power
conferred upon the Custodian under this Agreement
unless it shall be proved that the Custodian was
grossly negligent in ascertaining the pertinent
facts; and
(iii) the Custodian shall not be charged with knowledge of
any Early Amortization unless the Custodian receives
written notice of such failure from the Servicer,
the Seller or the Agent.
(c) The Custodian shall not be required to expend or risk its own
funds or otherwise incur financial liability in the
performance of any of its duties hereunder, or in the
exercise of any of its rights or powers. None of the
provisions contained in this Agreement shall in any event
require the Custodian to perform, or be responsible for the
manner of performance of, any of the obligations of the
Servicer under this Agreement except during such time, if
any, as the Custodian shall agreed in writing to be the
successor to, and to be vested with the rights, duties,
powers and privileges of, the Servicer in accordance with the
terms of this Agreement.
(d) The Custodian hereby acknowledges that its appointment by the
Seller and the Purchasers as agent and bailee pursuant to
this Agreement, is and is intended to be a limited
appointment in the capacity of an agent and bailee of
independent status acting in the ordinary course of its
business and there are no implied duties or obligations
except as expressly provided herein. The Custodian
acknowledges
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that its role in the transactions herein provided for is
limited to the functions specified in this Agreement and,
unless expressly stated to the contrary or otherwise required
by the context, all references in this Agreement to the
Custodian shall mean the Custodian acting as agent and bailee
for and on behalf of the Seller and the Purchasers. The
Custodian acknowledges that in such capacity it does not have
and agrees that it will not exercise or purport to exercise
any general power or general authority to conclude, enter
into or vary contracts collateral to this Agreement in the
name of or on behalf of the Seller or the Purchaser.
Section 12.09 Certain Matters Affecting the Custodian. Notwithstanding
anything else contained herein:
(a) the Custodian may rely on and shall be protected in acting
on, or in refraining from acting in accord with, this
Agreement, any Monthly Report or any other certificate,
statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or
presented to it pursuant to this Agreement by the proper
party or parties;
(b) the Custodian may, following notice to the Seller and the
Agent, consult with counsel with respect to any questions as
to any of the provisions hereof or its duties hereunder, and
any opinion of counsel shall be full and complete
authorization and protection in respect of any action taken
or suffered or omitted by it hereunder and in good faith and
in accordance with such opinion of counsel. The reasonable
fees and expenses of such counsel shall be paid by the
Seller;
(c) the Custodian shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement or any
related agreements or instruments, or to institute, conduct
or defend any litigation hereunder or in relation hereto, at
the request, order or direction of any of the Purchasers or
the Seller, pursuant to the provisions of this Agreement,
unless such Persons shall have offered to the Custodian
reasonable security or indemnity reasonably satisfactory to
the Custodian against the costs, expenses and liabilities
which may be incurred therein or thereby;
(d) the Custodian shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed
by it to be authorized or within the rights or powers
conferred upon it by this Agreement or any related agreements
or instruments;
(e) the Custodian shall not be bound to make any investigation
into the facts of matters stated in any Monthly Report, or
any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, bond or
other paper or document;
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(f) the Custodian may execute any of the rights hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys or a sub-custodian, and the Custodian
shall not be responsible for any misconduct or negligence on
the part of any such agent, attorney or custodian appointed
with due care by it hereunder;
(g) the Custodian shall not be required to make any initial or
periodic examination of any documents or records related to
the Pool Assets for the purpose of establishing the presence
or absence of defects, the compliance by the Seller with its
representations and warranties or for any other purpose; and
(h) the Custodian may employ such experts, advisers, agents and
other assistants as it may reasonably require for the proper
discharge of its duties hereunder and may pay reasonable
remuneration for all such services performed for it in the
discharge of its duties hereunder. The cost of such services
shall be paid by the Seller.
Section 12.10 Suits for Enforcement. Without limiting anything else
contained herein, if an Early Amortization Event shall occur and be continuing,
the Custodian may, in accordance with a written direction from the Agent,
proceed to protect and enforce its rights and the rights of the Seller and the
Agent, as co-owners, under this Agreement by a suit, action or proceeding in
equity or at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of the execution of
any power granted in this Agreement or for the enforcement of any other legal,
equitable or other remedy as the Custodian, being advised by counsel, shall
deem most effectual to protect and enforce any of the rights of the Custodian,
the Purchasers and the Seller.
ARTICLE XIII
ASSIGNMENTS; PARTICIPATIONS; ADDITIONAL RELATED GROUPS
Section 13.01 Assignments and Participations.
(a) Neither the Seller nor the Servicer nor any Purchaser shall
have the right to assign its rights or obligations under this
Agreement except to the extent otherwise provided herein. The
Seller hereby agrees and consents to the complete or partial
assignment by any Purchaser of all or any portion of its
rights under, interest in, title to and obligations under
this Agreement to (i) any member of its Related Group or any
Conduit Funding Source and (ii) any other Person approved by
the Seller (such approval not to be unreasonably withheld),
and upon such assignment, (x) the assignee thereunder shall
be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to
such assignment, have the rights and obligations of a
Purchaser hereunder and (y) the Purchaser assignor thereunder
shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such assignment,
relinquish its rights and be released from its obligations
under this Agreement (and, in the case of an assignment
covering all or the remaining portion of an assigning
Purchaser's
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rights and obligations under this Agreement, such Purchaser
shall cease to be a party hereto).
(b) Nothing herein shall prohibit any Purchaser from pledging or
assigning as collateral any of its rights under this
Agreement to any Federal Reserve Bank in accordance with
applicable law and any such pledge or collateral assignment
may be made without compliance with this Section 13.01.
Section 13.02 Additional Related Groups. Upon the Seller's request, an
additional Related Group may be added to this Agreement at any time by the
execution and delivery of a Joinder Agreement by the members of such proposed
additional Related Group and each of the parties hereto, which execution and
delivery shall not be unreasonably refused by such parties. Upon the effective
date of such Joinder Agreement, (i) each Person specified therein as a
"Purchaser" shall become a party hereto as a Purchaser, entitled to the rights
and subject to the obligations of a Purchaser hereunder and (ii) each Person
specified therein as an "Administrator" shall become a party hereto as an
Administrator, entitled to the rights and subject to the obligations of an
Administrator hereunder. On or prior to the effective date of such Joinder
Agreement, the Seller, the new Purchaser and the new Administrator shall enter
into a fee letter for purposes of setting forth the fees payable to the members
of such Related Group in connection with this Agreement, which fee letter shall
be considered a "Fee Letter" for all purposes of this Agreement.
ARTICLE XIV
MISCELLANEOUS
Section 14.01 Waivers and Amendments.
(a) No failure or delay on the part of the Custodian, the Agent,
any Administrator or any Purchaser in exercising any power,
right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of
any such power, right or remedy preclude any other further
exercise thereof or the exercise of any other power, right or
remedy. The rights and remedies herein provided shall be
cumulative and nonexclusive of any rights or remedies
provided by law. Any waiver of this Agreement shall be
effective only in the specific instance and for the specific
purpose for which given.
(b) No provision of this Agreement may be amended, supplemented,
modified or waived except in writing in accordance with the
provisions of this Section 14.01(b). The Seller, the
Servicer, the Agent, the Custodian, each Administrator and
the Majority Purchasers, may enter into written modifications
or waivers of any provisions of this Agreement, provided,
however, that no such modification or waiver shall:
(i) without the consent of each affected Purchaser, (A)
extend the Liquidity Termination Date or the date of
any payment or deposit of Collections by the Seller
or the Servicer, (B) reduce the rate or extend the
time of payment of Yield (or any component thereof),
(C) reduce any fee payable
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to any Administrator for the benefit of the
Purchasers in its Related Group, (D) except pursuant
to Article XIII hereof, change the amount of the
Investment of any Purchaser, (E) amend, modify or
waive any provision of the definition of Majority
Purchasers or this Section 14.01(b), (F) consent to
or permit the assignment or Transfer by the Seller
of any of its rights and obligations under this
Agreement, (G) change the definition of "Eligible
Receivable" or "Credit Enhancement", or (H) amend or
modify any defined term (or any defined term used
directly or indirectly in such defined term) used in
clauses (A) through (G) above in a manner that would
circumvent the intention of the restrictions set
forth in such clauses;
(ii) without the written consent of the then Agent or
Custodian, as applicable, amend, modify or waive any
provision of this Agreement if the effect thereof is
to affect the rights or duties of such Agent or
Custodian; or
(iii) without the consent of each affected Administrator,
modify or waive any provision of this Agreement if
the effect thereof is to affect the rights or duties
of such Administrator.
Any modification or waiver made in accordance with this Section 14.01 shall
apply to each of the Purchasers equally and shall be binding upon the Seller,
the Purchasers, the Custodian, the Administrators and the Agent.
Notwithstanding anything herein to the contrary, (i) no amendment to this
Agreement shall become effective unless and until each rating agency then
rating any of the Commercial Paper Notes of the Purchasers hereunder confirms
that such amendment will not result in the reduction, withdrawal or suspension
of the then current rating of such Commercial Paper Notes and (ii) no waiver of
any of Section 10.01(h)(iii) or Section 10.01(h)(iv) for two consecutive months
shall become effective without the prior written consent of each rating agency
then rating any of the Commercial Paper Notes of the Purchasers hereunder.
Section 14.02 Notices. Except as provided below, all communications and
notices provided for hereunder shall be in writing (including bank wire,
telecopy or electronic facsimile transmission or similar writing) and shall be
given to the other parties hereto at their respective addresses or telecopy
numbers set forth on the signature pages hereof or at such other address or
telecopy number as such Person may hereafter specify for the purpose of notice
to each of the other parties hereto. Each such notice or other communication
shall be effective (i) if given by telecopy, upon the receipt thereof, (ii) if
given by mail, three (3) Business Days after the time such communication is
deposited in the mail with first class postage prepaid (provided that no party
hereto shall give any such notice or other communication by mail at a time when
there is, to their knowledge, any actual or apprehended disruption of postal
services in the applicable jurisdictions) or (iii) if given by any other means,
when received at the address specified in this Section 14.02. The Seller hereby
authorizes each Administrator to effect purchases and Settlement Period and
Alternative Rate selections based on telephonic notices made by any Person whom
such Administrator in good faith believes to be acting on behalf of the Seller.
The Seller agrees to deliver promptly to each Administrator a written
confirmation of each telephonic notice signed by an Authorized Officer of the
Seller; however, the absence of such confirmation
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shall not affect the validity of such notice. If the written confirmation
differs from the action taken by an Administrator, the records of such
Administrator shall govern absent manifest error.
Section 14.03 Ratable Payments. If any Purchaser, whether by setoff or
otherwise, has payment made to it with respect to any portion of the Unpaid
Obligations owing to such Purchaser (other than payments received pursuant to
Section 11.02 or 11.03) in a greater proportion than that received by any other
Purchaser entitled to receive a ratable share of such Unpaid Obligations, such
Purchaser agrees, promptly upon demand, to purchase for cash without recourse
or warranty a portion of such Unpaid Obligations held by the other Purchasers
so that after such purchase each Purchaser will hold its ratable proportion of
such Unpaid Obligations; provided that if all or any portion of such excess
amount is thereafter recovered from such Purchaser, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
Section 14.04 Protection of Ownership Interests of the Purchasers.
(a) The Seller agrees that from time to time, at its expense, it
will promptly execute and deliver all instruments and
documents, and take all actions, that may be necessary or
that the Agent or any Administrator may reasonably request,
to perfect, protect or more fully evidence the Ownership
Interests, or to enable the Custodian, the Agent, the
Administrators or the Purchasers to exercise and enforce
their rights and remedies hereunder. At any time following
the occurrence and during the continuation of a Cash Control
Event, the Agent may, or the Agent may direct the Seller or
the Servicer to, notify the Obligors of Dealer Receivables in
which the Seller has an interest, at the Seller's expense, of
the Ownership Interests of the Purchasers under this
Agreement and the Custodian's right and may also direct that
payments of all amounts due or that become due under any or
all Dealer Receivables in which the Seller has an interest be
made directly to the Agent or its designee. The Seller or the
Servicer (as applicable) shall, at any Purchaser's request,
withhold the identity of such Purchaser in any such
notification.
(b) If either the Seller or the Servicer fails to perform any of
its obligations hereunder, the Agent, any Administrator or
any Purchaser may (but shall not be required to) perform, or
cause performance of, such obligation, and the Agent's, such
Administrator's or such Purchaser's costs and expenses
incurred in connection therewith shall be payable by the
Seller as provided in Section 11.04. Each of the Seller and
the Servicer irrevocably authorizes the Agent at any time and
from time to time in the sole discretion of the Agent, and
appoints the Agent as its attorney-in-fact, to act on its
behalf (i) to execute on behalf of the Seller as debtor and
to file financing statements necessary in the Agent's sole
discretion to perfect and to maintain the perfection and
priority of the interest of the Agent and/or of the
Purchasers in the Dealer Receivables and (ii) to file a
carbon, photographic or other reproduction of this Agreement
or any financing statement with respect to the Dealer
Receivables as a financing statement in such offices as the
Agent in its sole discretion deems necessary or desirable to
perfect and to
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maintain the perfection and priority of the interests of the
Purchasers in the Dealer Receivables. This appointment is
coupled with an interest and is irrevocable.
Section 14.05 Confidentiality.
(a) Each of the Seller and the Servicer, the Agent, each
Administrator and Purchaser shall maintain and shall cause
each of its employees, directors and officers to maintain the
confidentiality of this Agreement and the other confidential
proprietary information with respect to the Agent, the
Custodian, the Administrators and the Purchasers, the Seller
and the Servicer and their respective businesses obtained by
it or them in connection with the structuring, negotiating
and execution of the transactions contemplated herein, except
that the Seller, the Servicer and each Purchaser and its
officers, directors and employees may disclose such
information to such Person's officers, directors and external
accountants and attorneys and lawyers and as required by any
applicable law, rule, direction, request or order of any
judicial, administrative or regulatory body or any stock
exchange, issued during any proceeding or otherwise.
(b) Anything herein to the contrary notwithstanding, each of the
Seller and the Servicer hereby consents to the disclosure of
any nonpublic information with respect to it (i) to the
Agent, the Custodian, the Administrators and the Purchasers
by each other, (ii) by the Agent, the Administrators or the
Purchasers to any prospective or actual assignee or
participant of any of them, (iii) by the Agent or any
Administrator to any rating agency or (iv) by the Agent or
any Administrator to any Commercial Paper Note dealer or
provider of a surety, guaranty or credit or liquidity
enhancement to a Purchaser or any entity organized for the
purpose of purchasing, or making loans secured by, financial
assets for which such Administrator acts as the
administrative or servicing agent and to any officers,
directors, employees, outside accountants and attorneys or
lawyers of any of the foregoing, provided each such Person is
informed of the confidential nature of such information and,
in the case of a Person described in clause (ii) or clause
(iv), agrees to maintain the confidentiality of such
information on the terms and conditions set forth in this
Section 14.05. In addition, the Purchasers, the
Administrators and the Agent may disclose any such nonpublic
information pursuant to any law, rule, regulation, direction,
request or order of any judicial, administrative or
regulatory authority or proceedings (whether or not having
the force or effect of law).
76
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Section 14.06 Bankruptcy Petition.
(a) The Seller, the Servicer, the Agent, each Administrator and
each Purchaser hereby covenants and agrees that, prior to the
date that is one year and one day after the latest maturing
Commercial Paper Note issued by any Purchaser (whether or not
issued to fund the purchase or maintenance of the Ownership
Interests of such Purchaser hereunder), it will not institute
against, or join any other Person in instituting against,
such Purchaser any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar
proceeding under the laws of the United States or any state
of the United States or any other applicable jurisdiction.
(b) Notwithstanding any provisions contained in this Agreement to
the contrary, no Purchaser shall be obligated to pay any
amount pursuant to this Agreement unless (i) such Purchaser
has received funds which may be used to make such payment and
which funds are not required to repay the Commercial Paper
Notes of such Purchaser when due and (ii) after giving effect
to such payment, either (x) there is sufficient liquidity
availability (determined in accordance with the program
documents governing such Purchaser's securitization program)
under all of such Purchaser's liquidity facilities to pay the
face amount of all outstanding Commercial Paper Notes of such
Purchaser when due or (y) all Commercial Paper Notes of such
Purchaser are paid in full. Any amount which a Purchaser does
not pay pursuant to the operation of the preceding sentence
shall not constitute a claim (as defined inss.101 of the
Bankruptcy Code) against or corporate obligation of such
Purchaser for any such insufficiency unless and until such
Purchaser satisfies the provisions of clauses (i) and (ii)
above. Failure of a Purchaser to make a payment for any
purchase of an Ownership Interest hereunder shall be deemed
to be an election of such Purchaser not to purchase such
Ownership Interest.
Section 14.07 Limitation of Liability. Except with respect to any claim
arising out of the wilful misconduct or gross negligence of a Purchaser, an
Administrator, the Custodian or the Agent, no claim may be made by either the
Seller or the Servicer or any other Person against any Purchaser, any
Administrator, the Custodian or the Agent or any of their respective
Affiliates, directors, officers, managers, employees, attorneys or agents for
any special, indirect, consequential or punitive damages in respect of any
claim for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement, or any act,
omission or event occurring in connection therewith; and each of the Seller and
the Servicer hereby waives, releases, and agrees not to xxx upon any claim for
any such damages, whether or not accrued and whether or not known or suspected
to exist in its favour.
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Section 14.08 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF OBJECTION
TO VENUE. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE PROVINCE OF ONTARIO, CANADA. EACH OF THE PARTIES HERETO
HEREBY AGREES TO THE JURISDICTION OF ANY FEDERAL COURT LOCATED IN NEW YORK, NEW
YORK. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY
OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
Section 14.09 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 14.10 Power of Attorney. The Seller and the Custodian each hereby
grants to the Agent and any officer or agent thereof (including any successor
Servicer appointed in accordance herewith), an irrevocable power of attorney,
with full power of substitution (including the power to delegate to any Person
from time to time), coupled with an interest, in the name of the Seller, the
Custodian or in the Agent's own name or in all or any of such names, to take
any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to take all such action
contemplated by Section 8.03 or 13.04(b) and, without limiting the generality
thereof, to take all such action following the occurrence of a Servicer Default
(i) to endorse, negotiate or otherwise realize on any writing, xxxx of
exchange, negotiable instrument or other right of any kind held or owned by the
Seller or the Custodian or transmitted to or received by the Agent or the
Purchasers or any Person acting on behalf thereof as payment on account or
otherwise in respect of any Dealer Receivables, (ii) to request or obtain any
consent or acknowledgement required for the Transfer to the Purchasers of the
Ownership Interests in any Dealer Receivable or Related Security or interest
therein which had not theretofore been obtained, or (iii) to xxx any Obligor.
The Seller and the Custodian each hereby ratifies all that said attorneys will
lawfully do or cause to be done by virtue of this Section 14.10.
Section 14.11 Integration; Binding Effect; Survival of Terms.
(a) This Agreement, each Deposit Account Agreement and the Fee
Letters contain the final and complete integration of all
prior expressions by the parties hereto with respect to the
subject matter hereof and shall constitute the entire
agreement among the parties hereto with respect to the
subject matter hereof, superseding all prior oral or written
understandings.
78
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(b) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and
permitted assigns (including any trustee in bankruptcy). This
Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its
terms and shall remain in full force and effect until all
Investment hereunder together with all interest, fees,
indemnities and other amounts due hereunder have been paid or
repaid in full, as the case may be.
Section 14.12 Counterparts; Severability; Section References. This Agreement
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
Agreement. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Unless otherwise expressly indicated, all references herein
to "Article," "Section," "Schedule" or "Exhibit" shall mean articles and
sections of, and schedules and exhibits to, this Agreement.
Section 14.13 Roles. Each of the Purchasers acknowledges that Rabobank and
its Affiliates act, or may in the future act, (i) as administrative agent for
Nieuw Amsterdam, (ii) as issuing and paying agent for the Commercial Paper
Notes of Nieuw Amsterdam, (iii) to provide credit or liquidity enhancement for
the timely payment for the Commercial Paper Notes of Nieuw Amsterdam, (iv) act
as counterparty under any Currency Protection Agreements entered into in
connection herewith and (v) to provide other services from time to time for
Nieuw Amsterdam (collectively, the "Rabobank Roles"). Without limiting the
generality of this Section 14.12, each Purchaser hereby acknowledges and
consents to any and all Rabobank Roles and agrees that in connection with any
Rabobank Role, Rabobank may take, or refrain from taking, any action that it,
in its discretion, deems appropriate, including, without limitation, in its
role as administrative agent for Nieuw Amsterdam.
Section 14.14 Further Assurances. The Seller agrees from time to time, at
the Agent's request and at the Seller's expense, to promptly execute and
deliver all further instruments and documents, and to take all further actions,
that may be necessary or desirable, or that may be reasonably requested, to
perfect, protect or more fully evidence the Transfer of the Pool Assets to the
Custodian and the Purchase by the Agent on behalf of the Purchasers of the
Ownership Interests under this Agreement, or to enable the Custodian, the
Purchasers or the Servicer to exercise and enforce their respective rights and
remedies hereunder. Without limiting the foregoing, the Seller will, upon the
request of the Custodian or the Agent, execute and file such financing or
continuation statements, or amendments thereto, and such other instruments and
documents, that may be necessary or desirable, or that the Custodian or the
Purchasers may reasonably request, to perfect, protect, vest or evidence the
Transfer to the Custodian of the Pool Assets and the sale to the Agent on
behalf of the Purchasers of the Ownership Interests. The Seller authorizes the
Custodian and the Agent to file financing, financing change or continuation
statements, and amendments thereto and assignments thereof, against the Seller
relating to the
79
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Transfer to the Custodian of the Pool Assets and the sale and assignment of the
Ownership Interests to the Purchasers without the signature of the Seller where
permitted by law.
Section 14.15 Characterization; Grant of Security Interest.
(a) It is the intention of the parties hereto that each Purchase
hereunder and each Transfer under Section 3.06 shall
constitute and be treated as an absolute and irrevocable
sale, which shall provide the applicable Purchaser with the
full benefits of ownership of the applicable Ownership
Interest and that the Seller and the Purchaser are joint
owners of the Pool Assets, as tenants in common. Except as
specifically provided in this Agreement, each sale of an
Ownership Interest hereunder is made without recourse to the
Seller; provided, however, that (i) the Seller shall be
liable to each Purchaser, each Administrator, the Custodian
and the Agent for all representations, warranties and
covenants made by the Seller pursuant to the terms of this
Agreement, and (ii) such sale does not constitute and is not
intended to result in an assumption by any Purchaser, any
Administrator, the Custodian or the Agent or any assignee
thereof of any obligation of the Seller or the Servicer or
any other Person arising in connection with the Dealer
Receivables, the Related Security, or the related Contracts,
or any other obligations of the Seller or the Servicer.
(b) In addition to any Ownership Interest which the Agent and/or
the Custodian may from time to time acquire pursuant hereto,
the Seller hereby grants to the Agent for the ratable benefit
of the Purchasers a valid security interest in all of the
Seller's right, title and interest in, to and under all
Dealer Receivables now existing or hereafter arising, the
Collections, each Deposit Account, all Related Security, all
other rights and payments relating to such Dealer Receivables
and all proceeds of any thereof prior to all other liens on
and security interests therein to secure the prompt and
complete payment of the Seller Obligations and all
obligations of all Obligors; provided, however, that the
Agent and the Purchasers hereby agree that no security
interest is granted in any cash collections or other property
included in any Deposit Account to the extent such cash
collections or other property does not constitute Dealer
Receivables, Related Security or Collections, and the
Servicer shall dispose of such cash collections or other
property as provided in Section 9.02(e) hereof. After an
Early Amortization Event, the Agent and the Purchasers shall
have, in addition to the rights and remedies that they may
have under this Agreement, all other rights and remedies
provided to a secured creditor after default under the UCC
and other applicable law, which rights and remedies shall be
cumulative.
Section 14.16 Limitation on Payments. Notwithstanding any provisions
contained in this Agreement to the contrary, none of the Purchasers or the
Agent shall, or shall be obligated to, pay any amount to the Seller or the
Servicer pursuant to this Agreement unless (i) such Purchaser or the Agent, as
applicable, has received Collections hereunder which may be used to make such
payment and which Collections are not required to repay the Commercial Paper
Notes of any Purchaser when due and (ii) after giving effect to such payment,
either (x) there is sufficient
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liquidity availability (determined in accordance with the program documents
governing each Purchaser's securitization program) under all of the Purchasers'
liquidity facilities to pay the Face Amount of all such outstanding Commercial
Paper Notes when due or (y) all such Commercial Paper Notes are paid in full;
provided, however, that the foregoing limitations on payments by any Purchaser
or the Agent shall not apply to any distributions of any amounts out of
Collections pursuant to Section 4.03 or 4.05. Any amount which any Purchaser or
the Agent does not pay pursuant to the operation of the preceding sentence
shall not constitute a claim (as defined in ss.101 of the United States
Bankruptcy Reform Act of 1978 (11 U.S.C. ss. 101, et seq.), as amended from
time to time) against or corporate obligation of such Purchaser or the Agent
for any such insufficiency unless and until such Purchaser or the Agent, as
applicable, satisfies the provisions of clauses (i) and (ii) above.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date
hereof.
AGCO CANADA, LTD.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
c/o AGCO Corporation
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
AGCO CORPORATION
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
AGCO Corporation
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
First Signature Page to
Receivables Purchase Agreement
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH, as an
Administrator, Agent and as Custodian
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Rabobank International
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Wing Ng
Fax: (000) 000-0000
NIEUW AMSTERDAM RECEIVABLES
CORPORATION, as a Purchaser
By: GLOBAL SECURITIZATION SERVICES, LLC,
its Attorney-in-Fact
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Global Securitization Services, LLC
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxx
Second Signature Page to
Receivables Purchase Agreement
82
EXHIBIT A
FORM OF MONTHLY REPORT
(Attached)
83
EXHIBIT B
FORM OF DEPOSIT ACCOUNT AGREEMENT
(Attached)
84
EXHIBIT C
[INTENTIONALLY DELETED]
(Attached)
85
EXHIBIT D
FORM OF PURCHASE NOTICE
[DATE]
Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank International", New York Branch,
as Agent
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Wing Ng
Re: Receivables Purchase Agreement
Ladies and Gentlemen:
Reference is hereby made to the Receivables Purchase Agreement, dated
as of -, 2001 (as amended or otherwise modified from time to time, the
"Receivables Purchase Agreement") by and among AGCO Canada, Ltd., as seller
(the "Seller"), AGCO Corporation, as servicer (in such capacity, the
"Servicer"), the "Purchasers" parties thereto, the "Administrators" parties
thereto and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank
International", New York Branch, as agent and custodian (in its capacity as
agent, the "Agent"). Capitalized terms used herein shall have the meanings
assigned to such terms in the Receivables Purchase Agreement.
The Seller hereby requests the following Incremental Purchase (the
"Proposed Purchase"):
------------------------------------------------------------ ---------------------------------------------------------
Requested increase in Investment (i.e.: Purchase Price) [U.S./CDN $]
------------------------------------------------------------ ---------------------------------------------------------
Business Day of Proposed Purchase
------------------------------------------------------------ ---------------------------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
The proceeds of the Proposed Purchase should be remitted to the Seller
by wire transfer in accordance with the following instructions:
[ACCOUNT NAME]
[ACCOUNT NO.]
[BANK NAME & ADDRESS]
[ABA #]
Reference:
Telephone advice to: [NAME] @ Tel. No. ()
The Seller hereby certifies that the conditions precedent in Section
7.02 of the Receivables Purchase Agreement are satisfied with respect to the
Proposed Purchase including,
86
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without limitation, that the following statements will be true on the date of
the Proposed Purchase (before and after giving effect to the Proposed
Purchase):
(i) the representations and warranties set forth in Sections 6.01
and 6.02 of the Receivables Purchase Agreement are true and correct in
all material respects on and as of the date of the Proposed Purchase
as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result from
the Proposed Purchase, that will constitute an Early Amortization
Event or Potential Early Amortization Event;
(iii) the Liquidity Termination Date has not occurred; and
(iv) immediately after giving effect to the Proposed Purchase, the
Net Eligible Receivables Balance shall be at least equal to the sum of
(i) the aggregate Investment of all Ownership Interests, plus (ii) the
Credit Enhancement;
Very truly yours,
AGCO CANADA, LTD.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
87
EXHIBIT E
FORM OF COMPLIANCE CERTIFICATE
To: Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank International", New York Branch, as Agent
This Compliance Certificate is furnished pursuant to the Receivables
Purchase Agreement, dated as of -, 2001 (as amended or otherwise modified from
time to time, the "Receivables Purchase Agreement") by and among AGCO Canada,
Ltd., as seller (the "Seller"), AGCO Corporation, as servicer (in such
capacity, the "Servicer"), the "Purchasers" parties thereto, the
"Administrators" parties thereto and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank International", New York Branch, as
agent and Custodian (in its capacity as agent, the "Agent"). Capitalized terms
used herein shall have the meanings assigned to such terms in the Receivables
Purchase Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected __________ of the Servicer.
2. I have reviewed the terms of the Receivables Purchase
Agreement and I have made, or have caused to be made under my supervision, a
detailed review of the transactions and conditions of the Servicer and the
Seller during the accounting period covered by the attached financial
statements.
3. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or event which
constitutes an Amortization Event or Potential Amortization Event during or at
the end of the accounting period covered by the attached financial statements
or as of the date of this Certificate[, except as set forth in paragraph 4
below].
[4. Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Seller and/or the Servicer has
taken, is taking, or proposed to take with respect to each such condition or
event:]
The foregoing certifications, together with the financial statements
delivered with this Certificate in support hereof, are made and delivered this
___ day of _________________, _____________.
88
EXHIBIT F
FORM OF DEALER AGREEMENT
(Attached)
89
EXHIBIT G
FORM OF SELLER'S COUNSEL OPINION LETTER
(Attached)
90
EXHIBIT H
FORM OF SERVICER'S COUNSEL OPINION LETTER
(Attached)
91
SCHEDULE I
LIST OF DEPOSIT ACCOUNTS AND DEPOSIT ACCOUNT BANKS
LOCK BOXES WITH BANK OF MONTREAL
DEPOSITED TO ACCOUNT #0000-0000-000
LOCK BOX # MAILING ADDRESS
---------- ---------------
0079 AGCO Canada, Ltd.
X.X. Xxx 0000
Xxxxxxx Xxxx
Xxxx Xx.0000
Xxxxxxxxxx, Xxxxxxx
X0X 0X0
92
SCHEDULE II
SPECIAL CONCENTRATION LIMITS
None.
93
SCHEDULE III
PRINCIPAL PLACE OF BUSINESS OF SELLER; DOMICILE,
LOCATION OF RECORDS; QST/HST/GST NUMBERS OF SELLER
1. Principal Place of Business, Domicile and Chief Executive
Office of Seller:
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx
X0X 343
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
2. Locations of Records:
None, except the places of business specified in paragraph 1
above.
3. Tax Numbers:
GST: 135739381 RT0001
HST: 135739381 RT0001
QST: 1015816020 TQ0001
94
SCHEDULE IV
LIST OF CLOSING DOCUMENTS
1. Purchase Notice dated as of the date of the initial purchase (the
"Initial Closing Date").
2. Written notification from the Agent as to whether the Purchasers
intend to make the purchase specified in the Purchase Notice.
3. Copies of search reports of all relevant searches conducted against
the Seller and its predecessor names in Ontario, Quebec and
Saskatchewan.
4. Certificates of Status (or of Compliance) of the Seller for the
jurisdiction of its chief executive office and each other jurisdiction
where it conducts business.
5. Certificate of Good Standing of the Servicer.
6. Certificate of the Secretary or Assistant Secretary of the Seller
attaching its
(a) Certificate and Articles of Incorporation;
(b) By-laws;
(c) Resolution of the board of directors of the Seller
authorizing the execution, delivery and performance of this
Agreement and the other Transaction Documents; and
(d) an incumbency certificate with the names and signatures of
the Authorized Officers of the Seller.
7. Certificate of the Secretary or Assistant Secretary of the Servicer
attaching its
(a) Certificate and Articles of Incorporation;
(b) By-laws;
(c) Resolution of the board of directors of the Servicer
authorizing the execution, delivery and performance of this
Agreement and the other Transaction Documents; and
(d) an incumbency certificate with the names and signatures of
the Authorized Officers of the Servicer.
8. Monthly Report dated as of June 26, 2001.
9. Compliance Certificates dated as of June 26, 2001.
10. Copies of all consents, waivers and amendments to existing credit
facilities that are necessary in connection with this Agreement.
11. A favourable opinion of legal counsel for the Seller dated the Initial
Closing Date and substantially in the form of Exhibit G.
95
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12. A favourable opinion of legal counsel for the Servicer dated the
Initial Closing Date and substantially in the form of Exhibit H.
13. A favourable opinion of counsel to the Purchasers dated the date of
the Initial Closing Date in form acceptable to the Purchaser.
14. Two originally executed copies of this Agreement, the Assignment
Agreement and the Fee Letter in each case duly executed by or on
behalf of the Seller.
15. Two originally executed copies of the Deposit Account Agreements
entered into amongst the Seller, the Agent and each Deposit Bank in
respect of each Lock-Box and Deposit Account established and
maintained by the Seller in accordance with this Agreement.
16. A certificate executed by Authorized Officers of the Seller, dated the
Initial Closing Date, to the effect as follows, and the following
shall be true and correct as at such time (i) the representations and
warranties made herein are true and correct as of the Initial Closing
Date, as if made on such date; (ii) the Seller and the Servicer are
each in compliance with all of their obligations under this Agreement;
and (iii) no Early Amortization Event or Potential Amortization Event
has occurred and is continuing, or would result from the Transfer of
the Ownership Interest on such date, and also addressing certain other
matters, as reasonably required by the Agent, including the solvency
of the Seller and that the Eligible Receivables Balance as of the day
immediately prior to the Initial Closing date is not less than the
Eligible Receivables Balance as of June 26, 2001.
17. Original copies of all registrations filed on or prior to the Initial
Closing Date, with respect to Ontario, Saskatchewan and Quebec and as
may be necessary or, in the reasonable opinion of the Agent, desirable
under the laws of each such jurisdiction to preserve, perfect and
protect the Purchasers' ownership interest in the Ownership Interest
being Transferred hereunder together with favourable registration and
search reports, of local counsel to the Agent in the Province of
Quebec in form and substance acceptable to the Agent.
18. Executed copies of all discharges, releases or subordination
agreements, if any, which the Agent requests with respect to
registrations or Adverse Claims of any Person in any Pool Assets,
together with copies of the relevant financing change statements or
other discharge or release statements with the registration
particulars stamped thereon, and copies of any estoppel letters which
the Agent shall reasonably request to confirm that any registration
made in favour of any Person, does not and will not be relied upon to
perfect or protect an adverse claim in any Pool Assets.
96
SCHEDULE V
SELLER NAMES
AGCO Canada, Ltd.
97
-------------------------------------------------------------------------------
RECEIVABLES PURCHASE AGREEMENT
dated as of June 26, 2001
among
AGCO CANADA, LTD.,
as Seller,
AGCO CORPORATION,
as Servicer,
THE PURCHASERS PARTY HERETO
THE ADMINISTRATORS PARTY HERETO
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL", NEW YORK BRANCH,
as Agent and Custodian
-------------------------------------------------------------------------------
98
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS..................................................................................1
Section 1.01 Certain Defined Terms........................................................................1
Section 1.02 Other Terms.................................................................................20
ARTICLE II TRANSFER TO CUSTODIAN.......................................................................20
Section 2.01 Deposit with Custodian......................................................................20
Section 2.02 Acceptance by Custodian.....................................................................20
Section 2.03 Appointment of Custodian....................................................................20
Section 2.04 Power of Custodian..........................................................................21
ARTICLE III PURCHASE FACILITY...........................................................................21
Section 3.01 Purchase Facility...........................................................................21
Section 3.02 Incremental Purchases.......................................................................21
Section 3.03 Reinvestment Purchases......................................................................22
Section 3.04 Investment Reductions and Reductions in Maximum Program Amount..............................22
Section 3.05 Maximum Ownership Interests.................................................................23
Section 3.06 Transfers...................................................................................23
Section 3.07 Denomination of Investment..................................................................24
ARTICLE IV PAYMENTS AND COLLECTIONS....................................................................24
Section 4.01 Seller Obligations..........................................................................24
Section 4.02 Collections Received by Seller; Deemed Collections..........................................25
Section 4.03 Collections Prior to Termination Date.......................................................25
Section 4.04 Collections Following Termination Date......................................................26
Section 4.05 Application of Collections..................................................................26
Section 4.06 Payment Requirements........................................................................27
Section 4.07 Collection Account..........................................................................28
Section 4.08 Payment Rescission..........................................................................28
Section 4.09 Setoff......................................................................................28
ARTICLE V YIELD AND FEES..............................................................................29
Section 5.01 Yield Payments..............................................................................29
Section 5.02 Suspension of the Adjusted Eurodollar Rate..................................................29
Section 5.03 Fees........................................................................................29
-i-
99
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 5.04 Break Costs.................................................................................29
Section 5.05 Settlement of Currency Protection Agreements................................................30
ARTICLE VI REPRESENTATIONS AND WARRANTIES..............................................................31
Section 6.01 Representations and Warranties of the Seller................................................31
(a) Corporate Existence and Power...............................................................31
(b) Power and Authority; Due Authorization Execution and Delivery...............................31
(c) No Conflict.................................................................................31
(d) Governmental Authorization..................................................................32
(e) Actions, Suits..............................................................................32
(f) Binding Effect..............................................................................32
(g) Accuracy of Information.....................................................................32
(h) Use of Proceeds.............................................................................32
(i) Good Title..................................................................................32
(j) Perfection..................................................................................33
(k) Places of Business..........................................................................33
(l) Collections.................................................................................33
(m) Ownership of the Seller.....................................................................33
(n) Not a Holding Company or an Investment Company..............................................33
(o) Compliance with Law.........................................................................34
(p) Names.......................................................................................34
(q) Compliance with Credit and Collection Policy................................................34
(r) Material Adverse Effect.....................................................................34
(s) Eligible Receivables........................................................................34
(t) Enforceability of Contracts.................................................................34
(u) Solvency....................................................................................35
Section 6.02 Representations and Warranties of the Servicer..............................................35
(a) Corporate Existence and Power...............................................................35
(b) Power and Authority; Due Authorization Execution and Delivery...............................35
(c) No Conflict.................................................................................36
(d) Governmental Authorization..................................................................36
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(e) Actions, Suits..............................................................................36
(f) Binding Effect..............................................................................36
(g) Accuracy of Information.....................................................................36
(h) Collections.................................................................................37
(i) Material Adverse Effect.....................................................................37
(j) Not a Holding Company or an Investment Company..............................................37
(k) Compliance with Law.........................................................................37
(l) Compliance with Credit and Collection Policy................................................37
Section 6.03 Representations and Warranties of the Purchasers............................................38
ARTICLE VII CONDITIONS OF PURCHASES.....................................................................38
Section 7.01 Conditions Precedent to Initial Purchase....................................................38
Section 7.02 Conditions Precedent to All Purchases and Reinvestment Purchases............................38
ARTICLE VIII COVENANTS...................................................................................39
Section 8.01 Affirmative Covenants of the Seller and AGCO U.S............................................39
(a) Notices.....................................................................................39
(b) Compliance with Laws and Preservation of Corporate Existence................................40
(c) Audits......................................................................................41
(d) Keeping and Marking of Records and Books....................................................41
(e) Compliance with Contracts and Credit and Collection Policy..................................41
(f) Financial Reporting.........................................................................42
(g) Ownership...................................................................................43
(h) Collections.................................................................................43
(i) Taxes.......................................................................................43
Section 8.02 Negative Covenants of the Seller............................................................44
(a) Name Change, Offices and Records............................................................44
(b) Change in Payment Instructions to Obligors..................................................44
(c) Modifications to Contracts and Credit and Collection Policy.................................44
(d) Sales, Liens................................................................................44
(e) Merger......................................................................................45
(f) Accounting..................................................................................45
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Section 8.03 Affirmative Covenants of the Servicer.......................................................45
(a) Financial Reporting.........................................................................45
(b) Notices.....................................................................................46
(c) Compliance with Laws and Preservation of Corporate Existence................................46
(d) Audits......................................................................................47
(e) Keeping and Marking of Records and Books....................................................47
(f) Compliance with Contracts and Credit and Collection Policy..................................47
(g) Collections.................................................................................48
(h) Taxes.......................................................................................48
Section 8.04 Negative Covenants of the Servicer..........................................................48
(a) Change in Payment Instructions to Obligors..................................................48
(b) Modifications to Contracts and Credit and Collection Policy.................................48
ARTICLE IX ADMINISTRATION AND COLLECTION...............................................................49
Section 9.01 Designation of Servicer.....................................................................49
Section 9.02 Duties of Servicer..........................................................................50
Section 9.03 Collection Notices..........................................................................52
Section 9.04 Responsibilities of the Seller..............................................................52
Section 9.05 Reports and Other Information...............................................................52
Section 9.06 Servicer Fees...............................................................................52
Section 9.07 Servicer Defaults...........................................................................53
Section 9.08 Replacement of the Servicer.................................................................54
ARTICLE X EARLY AMORTIZATION EVENTS...................................................................55
Section 10.01 Early Amortization Events...................................................................55
Section 10.02 Remedies....................................................................................57
ARTICLE XI INDEMNIFICATION.............................................................................58
Section 11.01 Indemnities.................................................................................58
(a) Seller Indemnities..........................................................................58
(b) Servicer Indemnities........................................................................61
Section 11.02 Increased Cost and Reduced Return...........................................................62
Section 11.03 Taxes.......................................................................................63
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Section 11.04 Other Costs and Expenses....................................................................65
Section 11.05 Foreign Currency Obligations................................................................65
Section 11.06 Commercial Paper Notes......................................................................66
ARTICLE XII THE AGENT, ADMINISTRATORS AND CUSTODIAN.....................................................66
Section 12.01 Authorization and Action of Agent...........................................................66
Section 12.02 Agents' Reliance, Etc.......................................................................66
Section 12.03 Rabobank and Affiliates.....................................................................67
Section 12.04 Purchaser Credit Decision...................................................................67
Section 12.05 Indemnification.............................................................................67
Section 12.06 Successor Agent or Custodian................................................................68
Section 12.07 Authorization and Action of Administrator...................................................68
Section 12.08 Duties of the Custodian.....................................................................69
Section 12.09 Certain Matters Affecting the Custodian.....................................................70
Section 12.10 Suits for Enforcement.......................................................................71
ARTICLE XIII ASSIGNMENTS; PARTICIPATIONS; ADDITIONAL RELATED GROUPS......................................71
Section 13.01 Assignments and Participations..............................................................71
Section 13.02 Additional Related Groups...................................................................72
ARTICLE XIV MISCELLANEOUS...............................................................................72
Section 14.01 Waivers and Amendments......................................................................72
Section 14.02 Notices.....................................................................................73
Section 14.03 Ratable Payments............................................................................74
Section 14.04 Protection of Ownership Interests of the Purchasers.........................................74
Section 14.05 Confidentiality.............................................................................75
Section 14.06 Bankruptcy Petition.........................................................................76
Section 14.07 Limitation of Liability.....................................................................76
Section 14.08 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO VENUE........................77
Section 14.09 WAIVER OF JURY TRIAL........................................................................77
Section 14.10 Power of Attorney...........................................................................77
Section 14.11 Integration; Binding Effect; Survival of Terms..............................................77
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Section 14.12 Counterparts; Severability; Section References..............................................78
Section 14.13 Roles.......................................................................................78
Section 14.14 Further Assurances..........................................................................78
Section 14.15 Characterization; Grant of Security Interest................................................79
Section 14.16 Limitation on Payments......................................................................79
EXHIBITS
Exhibit A Form of Monthly Report
Exhibit B Form of Deposit Account Agreement
Exhibit C [intentionally deleted]
Exhibit D Form of Purchase Notice
Exhibit E Form of Compliance Certificate
Exhibit F Form of Dealer Agreement
Exhibit G Form of Seller's Counsel Opinion Letter
Exhibit H Form of Servicer's Counsel Opinion Letter
SCHEDULES
Schedule I List of Deposit Accounts and Deposit Account Banks
Schedule II Special Concentration Limits
Schedule III Principal Place of Business of Seller; Locations of Records
Schedule IV List of Closing Documents
Schedule V Seller Names
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