EXHIBIT 10b
Schedule A
Dated as of 10 March 2003
ZEUNA STAERKER GmbH & Co KG
as Seller and Servicer
GALLEON CAPITAL CORPORATION
as Purchaser
STATE STREET GLOBAL MARKETS, LLC,
as Administrator
STATE STREET BANK AND TRUST COMPANY
as Relationship Bank
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SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
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[FRESHFIELDS BRUCKHAUS DERINGER LOGO]
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TABLE OF CONTENTS
CLAUSE 1 DEFINITIONS AND RELATED MATTERS 5
1.1 Defined Terms 5
1.2 Other Interpretative Matters 5
1.3 Other Definitional Provisions 6
CLAUSE 2 ASSIGNMENT AND PURCHASE PROCEDURES 6
2.1 Assignment of Receivables 6
2.2 Transfer of Related Assets 7
2.3 Purchase Procedures; Reinvestments 8
2.4 Incremental Purchases 9
2.5 Purchase Price 10
2.6 Limitation on all Purchases 10
CLAUSE 3 PROCESSING OF COLLECTIONS; SETTLEMENTS 10
3.1 Regular Processing of Collections 10
3.2 Remittance of Collections and Other Payments 11
3.3 The Servicer Package 13
3.4 The Servicer's Fee Calculations 13
3.5 Deemed Collections 13
3.6 Reinvestment of Certain Collections; Payment of 14
Remaining Collections
CLAUSE 4 FEES, COMPUTATIONS AND WITHHOLDING TAXES 16
4.1 The Servicer's Fee 16
4.2 Payments and Computations etc 16
4.3 Changes in Withholding Tax Rates 17
CLAUSE 5 PURCHASE CONDITIONS 18
CLAUSE 6 REPRESENTATIONS AND WARRANTIES OF THE SELLER 19
6.1 Organisation 19
6.2 Power, Authorisation and Non-Contravention 19
6.3 Enforceability: Valid Sale 20
6.4 Financial Condition 20
6.5 Litigation 21
6.6 Ownership of Receivables 21
6.7 Eligible Receivables 21
6.8 Accuracy of Information 21
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6.9 Taxes 22
6.10 Compliance with Applicable Laws 22
6.11 Consumer Protection Laws 22
6.12 Location of Records 22
6.13 Extended Retention of Title Rights 22
CLAUSE 7 COVENANTS OF THE SELLER 23
7.1 Legal Matters 23
7.2 Books and Records 23
7.3 Audits 23
7.4 Credit and Collection Policy 24
7.5 Reporting Requirements of the Seller 24
7.6 Sale, Liens, Etc. 25
7.7 VAT 25
7.8 Mergers, Acquisitions, Sales, Etc. 26
7.9 Restricted Payments 26
7.10 Changes to Organisational Documents 27
7.11 Exercise of Rights 27
7.12 Payments to Other Bank Accounts 27
7.13 Servicer Reports 27
CLAUSE 8 ADMINISTRATION AND COLLECTION 27
8.1 Rights of the Administrator 27
8.2 Designation of the Servicer 29
8.3 Duties of the Servicer 30
8.4 Application of Collections 31
8.5 Responsibilities of the Seller 32
8.6 Further Action Evidencing Purchases 32
CLAUSE 9 TERMINATION EVENTS 33
9.1 Termination Events 33
9.2 Remedies on Termination 36
CLAUSE 10 THE ADMINISTRATOR AND THE RELATIONSHIP BANK 36
10.1 Authorisation and Action 36
10.2 The Administrator's and The Relationship Bank's Reliance etc. 36
10.3 State Street Capital, State Street Bank and their Affiliates 37
CLAUSE 11 ASSIGNMENT 37
11.1 Assignments 37
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11.2 Rights of the Collateral Agent 38
11.3 Seller's Assignment 38
CLAUSE 12 Mandatory Repurchases and Indemnification 38
12.1. Mandatory Repurchase Obligations 38
12.2. Indemnity 39
CLAUSE 13 MISCELLANEOUS 40
13.1 Amendments, Waivers, etc. 40
13.2 Notices, etc. 41
13.3 Set Off 41
13.4 Binding Effect; Survival 41
13.5 Costs, Expenses and Taxes 42
13.6 No Proceedings 42
13.7 Restructuring 42
13.8 Confidentiality 43
13.9 Execution in Counterparts; Integration 44
13.10 Governing Law 44
13.11 Consent to Jurisdiction; Waiver of Immunities 44
13.12 No Recourse Against Other Parties 44
13.13 Effectiveness of Agreement
Schedule 1 Definitions
Schedule 2 Priority of Payments
Schedule 3 Standard Terms and Conditions
Schedule 4 Credit and Collection Policy
Schedule 5 Records Locations
Schedule 6 Form of Notice of Sale
Attachement A to the Notice of Sale
Attachement B to the Notice of Sale
Schedule 7 Form of Incremental Offer
Schedule 8 Cut-Off Dates of the Seller
Execution Pages
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THIS RECEIVABLES PURCHASE AGREEMENT dated as of 10 March 2003 (as amended,
supplemented or otherwise modified from time to time) (this "AGREEMENT") is made
BETWEEN
(1) ZEUNA STAERKER GMBH & CO KG, a limited partnership organised under the
laws of the Federal Republic of Germany, having its registered office
at Au(beta)ere Uferstra(beta)e 61-73, 86154 Augsburg, Federal Republic
of Germany, with Novaferra Eisen GmbH, a German limited liability
company, having its registered office at Au(beta)ere Uferstra(beta)e
61-73, 86154 Augsburg, Federal Republic of Germany as its sole general
partner (the "GENERAL PARTNER"), as seller (in such capacity, the
"SELLER") and as initial servicer (the "SERVICER");
(2) GALLEON CAPITAL CORPORATION, a company incorporated under the laws of
the State of Delaware, with its registered office at c/o J.H.
Management Corporation, One International Place, Room 516, Boston,
Massachusetts 02110, United States of America (the "PURCHASER");
(3) STATE STREET GLOBAL MARKETS, LLC, a corporation incorporated under the
laws of the State of Massachussets, with its registered office at 225
Franklin Street, Boston, Massachusetts 02110, United States of America
(the "ADMINISTRATOR"); and
(4) STATE STREET BANK AND TRUST COMPANY, a credit institution incorporated
in Massachusetts, having its registered office at 225 Franklin Street,
Boston, Massachusetts 02110, United States of America (the
"RELATIONSHIP BANK").
THE PARTIES HERETO AGREE AS FOLLOWS:
1. DEFINITIONS AND RELATED MATTERS
1.1 DEFINED TERMS
In this Agreement, unless otherwise specified:
(a) capitalised terms are used as defined in Schedule 1; and
(b) accounting terms shall be interpreted, and accounting
determinations and computations made, in accordance with those
generally accepted accounting principles that are legally
relevant for the preparation of the financial statements
referred to in Clause 6.4 ("GAAP").
1.2 OTHER INTERPRETATIVE MATTERS
In this Agreement, unless otherwise specified:
(a) "INCLUDING" means including without limitation; and
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(b) for the purposes of calculating any fee or any other amount
accrued or accreted over a period of time, the first day of
such period shall be included and the last day excluded.
1.3 OTHER DEFINITIONAL PROVISIONS
The words "HEREOF", "HEREIN" and "HEREUNDER" and words of similar
import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. References
in this Agreement to any "CLAUSE", "SUB-CLAUSE", "SCHEDULE" and
"EXHIBIT" are references to such Clause or sub-clause of, or such
Schedule or Exhibit to, this Agreement unless otherwise specified.
2. ASSIGNMENT AND PURCHASE PROCEDURES
2.1 ASSIGNMENT OF RECEIVABLES
(a) The Seller may, in accordance with the procedures set forth in
this Agreement offer to sell and assign Eligible Receivables
and Related Assets to the Purchaser prior to the occurrence of
a Termination Event, unless such sale and assignment shall
result in the Purchaser's Total Investment exceeding the
Purchase Limit. The Purchaser shall accept any such offer in
accordance with the provisions of Clause 2.3 of this
Agreement.
(b) The Seller hereby assigns in advance to the Purchaser all of
its present and future Receivables which shall be offered for
sale to the Purchaser pursuant to the terms of this Agreement
upon the condition precedent (aufschiebende Bedingung) that
the Purchaser has accepted such offer (in accordance with
Clause 2.3 or Clause 2.4, as applicable). The Purchaser hereby
accepts such assignment.
(c) The Seller hereby further sells and assigns all actual or
contingent, present or future claims against any tax authority
for the refund of value added tax following the default on any
of the Sold Receivables (or any part thereof) by any of the
Obligors. To the extent that the assignment of such refund
claim requires certain actions or declarations in a specific
form the Seller agrees to obtain and complete together with
the Purchaser such form and provide it to the relevant tax
authority. To the extent that the refund claim may not be
separately assigned because it will be set off against the
obligation of the Seller to pay value added tax the Seller
shall pay to the Purchaser as a deemed collection an amount
equal to such refund claim promptly after such refund claim
has become due.
(d) The parties hereto agree that any sale and assignment of
Receivables hereunder
(i) shall be without recourse, i.e. upon assignment of
the Sold Receivables the credit risk of the
respective Obligors shall vest in the Purchaser;
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(ii) shall be undisclosed, i.e. except for the events
specified in this Master Agreement no assignment of
Sold Receivables will be disclosed to the respective
Obligors.
2.2 TRANSFER OF RELATED ASSETS
In the case of goods underlying Sold Receivables which have been
delivered to Obligors subject to retention of title by the Seller, the
Seller hereby transfers to the Purchaser its retained interest in such
goods (Vorbehaltseigentum). The Seller's assignment of the claim for
possession of such goods is in substitution for the transfer of
physical possession of such goods (Herausgabeanspruch). The Seller
hereby assigns all such claims for possession, whether present or
future, to the Purchaser. The Purchaser hereby accepts the foregoing
assignments and transfers. If the Seller is ever in possession of any
such goods, the Seller shall act as the Purchaser's agent. The Seller
shall be obligated to transfer without undue delay any other security
interests the Seller may obtain in any Related Assets to the Purchaser.
To the extent that title to the Related Assets cannot be transferred by
mere agreement between the Seller and the Purchaser as provided in the
foregoing paragraph, the Seller and the Purchaser agree that:
(a) insofar as Related Assets governed by German law are
concerned:
(i) any transfer of possession (Ubergabe) necessary to
transfer title in a Related Asset, in particular in
relation to cheques, bills of exchange or
Vorbehaltseigentum, is replaced by, as the case may
be:
(1) the Seller holding such instruments of debt
or other movables in custody for the
Purchaser free of charge (unentgeltliche
Verwahrung); and/or
(2) assigning hereby to the Purchaser all claims
for return against the relevant persons
which are in actual possession of such
instrument or movable;
(ii) any notice to be given in order to effect transfer of
title shall, immediately be given by the Seller in
such form as the Administrator requires and the
Seller hereby agrees that if it fails to give such
notice, the Administrator is hereby irrevocably
authorised to give such notice on behalf of the
Seller; and
(iii) any other thing to be done or form or registration to
be effected shall be immediately done and effected by
the Seller at its own cost; and
(b) insofar as Related Assets governed by the law of any other
jurisdiction are concerned:
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(i) the Seller shall do all acts and things at its own
cost which, under applicable law, are necessary to be
done in order to effect transfer of title; and
(ii) insofar as applicable law does allow, sub-paragraphs
(a) (i), (ii) and (iii) shall apply mutatis mutandis
to such Related Assets.
2.3 PURCHASE PROCEDURES: REINVESTMENTS
(a) Subject to and in accordance with the provisions of this Agreement, the
Seller shall be entitled on each Augsburg Business Day, to apply all
Collections for the purchase of additional Receivables (each such
purchase is referred to as a "REINVESTMENT"), unless instructed
otherwise in writing by the Purchaser prior to such purchase. The
aggregate amount of the Unpaid Balances of the Receivables purchased in
the aforementioned manner on a particular Augsburg Business Day shall
not exceed the amount of Collections available to the Seller on such
Augsburg Business Day.
(b) The Seller shall be entitled to offer for sale Receivables to the
Purchaser by preparing a Notice of Sale substantially in the form of
Schedule 6 hereto and containing all information regarding the relevant
Receivables as is required by such form. All information shall be given
as of the date of such Notice of Sale. The Notice of Sale shall be
signed by an authorized representative of the Seller. Such preparing
and signing of a Notice of Sale by the Seller shall constitute an
irrevocable offer by the relevant Seller for sale of all Receivables
offered in the Notice of Sale and Related Assets to the Purchaser. Such
offer shall be received by the Servicer on behalf of the Purchaser. In
addition, all data contained in the Notice of Sale shall be recorded on
a computer disk. Any Notices of Sale prepared in accordance with this
Clause 2.3 shall be delivered to the Administrator on the Report Date
immediately following their preparation.
(c) The Aggregate Purchase Price to be specified in the Notice of Sale will
be determined by the Seller on the basis of Clause 2.5. In connection
with any such Reinvestment the Seller is entitled to Collections in the
amount of the difference between the Aggregate Unpaid Balance of the
Receivables purchased and the relating Aggregate Purchase Price.
(d) The offer for sale made to the Purchaser as described above shall be
accepted by the Seller on behalf of the Purchaser by countersigning the
Notice of Sale in the name of the Purchaser. Payment of the Purchase
Price shall be made on the Augsburg Business Day following such
acceptance either by (i) set-off against the Purchaser's claim for
transferring to it the relevant Collections, or by (ii) transfer of an
amount equal to the Aggregate Purchase Price from the Collection
Account to the Seller Account.
(e) In addition to the representations and warranties set forth under
Clause 6, the following representations and warranties shall be deemed
to be made by the Seller to the Purchaser each time the Seller accepts
an offer for sale of Receivables on behalf of the Purchaser in
accordance with this provision:
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(i) all information contained in the relevant Notice of Sale and
in the delivered electronic data lists is true and accurate;
(ii) no Termination Event or Unmatured Termination Event has
occurred or is existing.
(iii) the sale of the Receivables offered in the relevant Notice of
Sale shall not result in the Purchaser's Total Investment
exceeding the Purchase Limit.
(iv) the sale of the Receivables offered in the relevant Notice of
Sale shall not result in any Concentration Limits being
exceeded.
2.4 INCREMENTAL PURCHASES
(a) On each Settlement Date following a Report Date the Seller shall be
entitled to offer Receivables to the Purchaser on behalf of the Seller
in accordance with this provision the purchase of which will increase
the Purchaser's Total Investment. To that end the Seller shall attach
to the Servicer Package to be delivered in accordance with Clause 3.3
an offer in the form of Schedule 7 hereto and containing all
information required to be given therein by 11.00 a.m. (Augsburg local
time) on the Reporting Date (an "INCREMENTAL OFFER"). Such delivery of
an Incremental Offer by the Servicer to the Program Administrator shall
constitute an irrevocable offer of the Seller for sale of the
Receivables offered in the Incremental Offer and all Related Assets to
the Purchaser.
(b) Upon timely receipt of the Servicer Package along with an Incremental
Offer, the Purchaser shall accept such offer by transferring on the
following Settlement Date the Aggregate Purchase Price specified in the
relevant Incremental Offer to the Seller Account.
(c) In addition to the representations and warranties set forth under
Clause 6, the following representations and warranties shall be deemed
to be made by the Seller to the Purchaser on each Report Date:
(i) all information contained in the Incremental Offer delivered
on this Reporting Date is true and accurate;
(ii) no Termination Event or Unmatured Termination Event has
occurred or is existing.
(iii) the sale of the Receivables offered in the relevant
Incremental Offer shall not result in the Purchaser's Total
Investment exceeding the Purchase Limit.
(iv) the sale of the Receivables offered in the relevant
Incremental Offer shall not result in an exceeding of the
Concentration Limits.
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2.5 PURCHASE PRICE
The "Purchase Price" to be paid to the Seller for each Purchase shall
be equal to the aggregate Unpaid Balance of all Sold Receivables less
the aggregate Discount for such Receivables as determined by the
Seller, acting for and on behalf of the Administrator in accordance
with this Agreement.
2.6 LIMITATION ON ALL PURCHASES
Without limiting the provisions of Clause 2.4 and Clause 5 hereof, the
Seller acknowledges that no Purchase shall in any event be made
hereunder to the extent that, after giving effect to such Purchase the
Purchaser's Total Investment would exceed the Purchase Limit unless the
Administrator shall have specifically agreed in writing to increase
such limit in which case, and for as long as such increase has been
agreed. The Administrator shall not consent to increase the foregoing
limit without the prior consent of the Liquidity Purchasers and written
confirmation from each of the Rating Agencies then rating the
Commercial Paper Notes that such higher exposure will not result in a
downgrading or withdrawal of the ratings of the Commercial Paper Notes.
3. PROCESSING OF COLLECTIONS; SETTLEMENTS
3.1 REGULAR PROCESSING OF COLLECTIONS
(a) (i) The Purchaser at all times thereafter until the Final
Payment Date shall maintain the Transaction Account;
(ii) the Seller shall ensure that, as soon as possible but
no later that 31 May 31 2003, the Account No. 2 will
be established with The Bank of America, Frankfurt am
Main, such Account shall be designated as Collection
Account and shall be pledged for the benefit of the
Purchaser pursuant to the Pledge Agreement and that
such Account is notified to the Obligors as the
Account on which payments on the Sold Receivables
shall exclusively be made.
(ii) the Seller shall at all times until the Final Payment
Date maintain (at its own expense, including without
limitation, all transaction fees and expenses), the
Collection Account and, after the Pledge Agreement
has been entered into, the pledge granted on it
pursuant to the Pledge Agreement.
(b) The Purchaser shall maintain the existing authorisation of the
Transaction Account Bank to receive and execute the
instructions of the Administrator, or its designee, with
respect to the operation of the Transaction Account. Without
limiting the generality of the foregoing, the Purchaser shall
maintain the existing authorisation of the Transaction Account
Bank to receive, disburse or transfer funds at such times and
in such manner as may be specified by the Administrator or its
designee from time to time, provided that any instructions
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issued by or under the authority of the Administrator to the
Transaction Account Bank shall be in accordance with this
Agreement.
(c) Subject to limitations of liability set forth in this
Agreement, the Administrator accepts the authority granted by
the Purchaser and shall operate Transaction Accounts to the
extent permitted by the Transaction Account Bank in accordance
with the terms and conditions of this Agreement.
(d) From time to time as may be required during the term of this
Agreement, the Purchaser shall maintain limited, revocable,
powers of attorney to the Servicer for the purpose of
operating the Collection Account. Without limiting the
generality of the foregoing, for as long as the Servicer is so
authorised, the Servicer may make deposits to, withdrawals
from, or transfer funds to or from the Collection Account at
such times and in such manner as the Servicer determines,
provided that:
(i) the Purchaser may terminate the power of attorney
granted to the Servicer at any time following the
occurrence of a Termination Event, an Unmatured
Termination Event or Servicer Transfer Event, as the
case may be, by delivering notice of such termination
to the Servicer and the Collection Account Bank; and
(ii) the Servicer agrees to cease withdrawing or
transferring funds from the Collection Account upon
receiving notice from the Administrator (acting for
and on behalf of the Purchaser) that the Servicer's
power of attorney has been revoked.
(e) The Seller continues to procure that the Eligible Obligors
shall remit payments in respect of Sold Receivables directly
to the Collection Account. If any Obligor should remit payment
to the Seller or the Servicer rather than to the Collection
Account, and such payment constitutes a Collection of a
Receivable (whether such payment is in the form of cash,
cheques, or any similar instruments), it shall be immediately
turned over to the Servicer (if such payment is received by
the Seller) and the Servicer shall not later than three
Augsburg Business Days after receiving such Collection,
deposit it to the Collection Account.
3.2 REMITTANCE OF COLLECTIONS AND OTHER PAYMENTS
(a) Subject to Clause 3.2 (d), for each Settlement Period, the
Servicer shall transfer an amount equal to the aggregate of
all Collections received in respect of Sold Receivables during
such Settlement Period and not applied towards Reinvestments
pursuant to Clause 3.6 to the Purchaser by making payment to
the Transaction Account. Such payments shall be made by the
close of business of the Augsburg Business Day immediately
following the relevant Cut-Off Date. If at any time it is
determined to the satisfaction of the Administrator that
amounts deposited to the Transaction Account:
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(i) are not actual or deemed Collections on Sold
Receivables; or
(ii) constitute Collections representing payments on Sold
Receivables received prior to the relevant Cut-Off
Date that were not included in the Unpaid Balance of
such Sold Receivables for purposes of calculating the
relevant Purchase Price;
the Administrator shall forthwith give notice to the Servicer
of such determination and not later than two Augsburg Business
Days after issuing such notice make payment of such amounts to
the Seller's Account.
(b) On each Settlement Date, the Seller shall pay to the
Administrator for the account of the Purchaser all other
amounts due to the Purchaser on such date pursuant to the
Transaction Documents, including VAT recovered pursuant to
Clause 7.7 during the month that ended on the preceding
Cut-Off Date.
(c) Based on the information set forth in the Servicer Package
delivered on the preceding Report Date, the Administrator
shall on each Settlement Date disburse the aggregate of:
(i) the balance standing to the credit of the Transaction
Account on such Settlement Date; and
(ii) all funds received by the Purchaser or the
Administrator on such Settlement Date pursuant to
Clauses 12.1, 12.2 and 13.5;
to the Persons and in such amounts as are specified in
Schedule 2, and, if the sum of the foregoing amounts is less
than the total amount required to pay all Persons specified in
Schedule 2, then according to the order of priority set out
therein.
(d) Upon request of the Administrator, after the occurrence and
during the continuance of a Termination Event, an Unmatured
Termination Event or a Servicer Transfer Event, the Servicer
shall remit or cause to be remitted to the Collection Account
or to the Administrator all Collections received in respect of
Sold Receivables and all other amounts described in the
foregoing sub-clause (b) on a weekly basis, or on a daily
basis if directed to do so by the Administrator, and there
shall be an additional "Cut-Off Date" on the second Business
Day of each relevant week and an additional "Report Date",
"Billing Date" and "Settlement Date" on successive one
Business Day intervals after such Cut-Off Date. Following the
occurrence of a Termination Event or Servicer Transfer Event,
the Servicer shall segregate all cash, cheques and other
instruments received by it from time to time constituting
Collections of Sold Receivables as the Administrator may
direct and deposit in the Collection Account designated by the
Administrator all such cash, cheques and other instruments as
soon as practicable and in any event on the first Augsburg
Business Day following receipt by the Servicer of such
Collections and will give
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such payment instructions and take such other steps as the
Administrator may reasonably require.
(e) The Servicer shall not be authorised or permitted to make any
withdrawals from the Collection Account other than as
specifically provided in this Clause 3.
3.3 THE SERVICER PACKAGE
On or before 9.00 a.m., CET, on each Report Date, the Servicer shall
deliver to the Administrator and the Purchaser a Servicer Package,
dated such Report Date. Such Servicer Package shall be accompanied by
such information as the Administrator or the Purchaser may reasonably
request for the purpose of effecting an accounting and settlement
hereunder on the immediately following Settlement Date.
3.4 THE SERVICER'S FEE CALCULATIONS
On each Billing Date, the Administrator shall notify the Servicer of
the amount of the Servicer's Fee accrued during the Settlement Period
preceding such Billing Date.
3.5 DEEMED COLLECTIONS
(a) If on any day:
(i) the Unpaid Balance of any Sold Receivable is reduced,
cancelled or adjusted as a result of:
(A) any defective, rejected, returned,
repossessed or foreclosed goods;
(B) any inaccuracies or clerical errors in the
Contract (including cancellation of
duplicate invoices, cancelling and
re-issuing of invoices in subsequent
Settlement Periods, cancelling invoices on
account of failing to correctly identify the
obligor, inaccuracies or errors in the
Standard Terms and Conditions, etc.);
(C) any defective or rejected services;
(D) subsequent negotiation or agreement with any
Obligor concerning the amount that an
Obligor is required to pay for sold goods,
the sale of which by the Seller to the
Obligor has given rise to the Sold
Receivable;
(E) any discount or adjustment by the Seller or
any other Person or any obligation of the
Seller or any other Person to make such a
discount or adjustment (including on account
of credits, rebates,
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chargebacks, inventory transfers and
allowances for early payments and including,
for the avoidance of doubt, any discount
arrangement entered into in relation to
payments of Obligors made by way of bills of
exchange, cheques or other instruments, but
excluding any adjustment on account of such
Sold Receivable having been collected in
whole or in part or having been written off
or written down as a result of a good faith
determination that the Obligor is not
creditworthy); or
(F) a setoff in respect of any claim by the
Obligor thereof against the Seller or any
other Person (whether such claim arises out
of the same or a different transaction);
(ii) any Sold Receivable is reduced, cancelled or adjusted
and the Seller's representation and warranty to the
Purchaser that such Sold Receivable was an Eligible
Receivable was not true when made; or
(iii) any Sold Receivable is subject to other security
interests or the Purchaser does not have a valid and
perfected interest therein notwithstanding the
assignment of security to the Purchaser pursuant to
Clause 2.1;
then the Seller shall be deemed to have received a Collection
of such Sold Receivable in the amount of such reduction,
cancellation or adjustment on the date of such reduction,
cancellation or adjustment.
(b) Not later than the first Business Day after the Seller is
deemed pursuant to this Clause 3.5 to have received any
Collections, the Seller shall transfer to the Collection
Account or make payment to the credit of the Collection
Account in immediately available funds in the amount of such
deemed Collections, and the Servicer shall allocate such
deemed Collections to the same extent as if such Collections
had actually been received on the date of such delivery by the
Servicer.
3.6 REINVESTMENT OF CERTAIN COLLECTIONS: PAYMENT OF REMAINING COLLECTIONS
(a) On the close of business on each Business Day during the
period from the Effective Date to the Termination Date, the
Servicer shall, out of all Collections received on such day
relating to Sold Receivables and Related Assets:
(i) set aside and hold in trust for the Purchaser an
amount equal to the sum of the estimated amount of
the Earned Discount (based on rate information
provided by the Administrator), all other amounts due
to the Purchaser, the Administrator or the
Relationship Bank hereunder (in each case, accrued
through such day) and not previously so set aside;
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(ii) apply the Collections relating to Sold Receivables
and not required to be set aside pursuant to
sub-clause (a)(i) to Reinvestments, provided that:
(x) if the then given Purchaser's Total
Investment would exceed the Purchase Limit,
then the Servicer shall not reinvest, but
shall set aside and hold for the benefit of
Purchaser, a portion of such Collections
which, together with other of such
Collections previously set aside and then so
held, shall equal the amount necessary to
reduce the Purchaser's Total Investment to
the Purchase Limit; and
(y) if any of the conditions precedent to
Purchases (subject to the proviso set forth
in this Agreement), are not satisfied, then
the Servicer shall not reinvest any of such
remaining Collections, but shall set them
aside and hold them in trust for the benefit
of the Purchaser;
(iii) without prejudice to Clause 3.2(a), make available to
the Seller the Collections applied to Reinvestments
pursuant to sub-clause (a)(ii).
(b) The Servicer shall set aside and hold in trust for the benefit
of Purchaser all Collections which, pursuant to sub-clause
(a)(ii), may not be reinvested in Eligible Receivables and
Related Assets. If, prior to the date when such Collections
are required to be paid to the Administrator for the benefit
of Purchaser pursuant to sub-clause (c)(iii), the amount of
Collections so set aside exceeds the amount, if any, necessary
to reduce the Purchaser's Total Investment to the Purchase
Limit, and the conditions precedent to Purchases (subject to
the proviso set forth in this Agreement) are satisfied, then
the Servicer shall apply the remaining portion of the
Collections (or, if less, a portion of such Collections equal
to the amount of such excess) to the making of a Reinvestment.
(c) Payments of Amounts Set Aside:
(i) On or before 12.00 noon (CET) on the last day of each
Yield Period with respect to that portion of the
Asset Interest funded by a Liquidity Purchase or a
Credit Draw, the Administrator shall notify the
Servicer of the amount of Earned Discount accrued in
respect of such portion of the Asset Interest during
such Yield Period and the Servicer shall pay such
amount to the Administrator on such day out of the
Collections set aside pursuant to sub-clause (a)(i).
(ii) The Servicer shall pay all amounts of Collections set
aside pursuant to sub-clause (a)(i) and not applied
pursuant to sub-clause (c)(i) to the Administrator on
the Settlement Date for each Settlement Period, as
provided herein.
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(iii) The Servicer shall pay all amounts set aside pursuant
to sub-clause (b) to the Administrator for the
account of the Purchaser (A) on the last day of the
then current Yield Period for any portion of the
Asset Interest funded by a Liquidity Purchase or a
Credit Draw, and (B) on the Settlement Date for each
Settlement Period, in an amount not exceeding that
portion of the Asset Interest funded by Commercial
Paper Notes; provided, however, that
(x) no such payment shall be made under sub-clause
(a)(ii)(x) above with respect to that portion of the
Asset Interest funded by a Credit Draw unless the
Aggregate Purchaser's Total Investment, if any,
funded by Commercial Paper Notes or Liquidity
Purchases shall have been reduced to zero; and
(y) no payment shall be made under sub-clause (a)(ii)(y)
above unless the Aggregate Purchaser's Total
Investment, if any, funded by Liquidity Purchases
shall have been reduced to zero.
(d) Wherever in this Clause 3.6 the Servicer shall set aside and
hold in trust for the Purchaser certain amounts out of all
Collections received relating to purchased Eligible
Receivables and Related Assets, in relation to such portion to
be set aside and held in trust for the Purchaser the Servicer
shall not be entitled to withdraw or transfer any funds from
the Collection Account and the powers of attorney granted to
the Servicer pursuant to Clause 3.1(d) shall, as between the
Purchaser and the Servicer, be restricted and shall not apply
to such portion.
4. FEES, COMPUTATIONS AND WITHHOLDING TAXES
4.1 THE SERVICER'S FEE
From the date hereof until the Final Payout Date, the Servicer shall be
entitled to receive from Collections, payable as provided in Clause
3.2, a fee (the "SERVICER'S FEE") which shall accrue during each
Settlement Period, at a rate of 1.0 % per annum on the Receivables
Balance at the opening of the Servicer's business on the first day of
such Settlement Period. Subject to Clause 3.2, the Servicer's Fee
accrued during each Settlement Period shall be paid in arrears on each
Settlement Date and on the Final Payout Date.
4.2 PAYMENTS AND COMPUTATIONS ETC
(a) All amounts to be transferred or paid by the Seller or the
Servicer to the Administrator or any other Person hereunder
shall be paid or deposited in accordance with the terms
hereof, without setoff, deduction or counterclaim, not later
than 11:00 a.m., CET, on the day when due in immediately
available Euros to the Transaction Account.
(b) The Seller or the Servicer, as applicable, shall, to the
extent permitted by applicable law, pay to the Purchaser
interest on all amounts not paid or
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deposited when due by the Seller or the Servicer, as
applicable, hereunder at a rate per annum equal to the sum of
the Base Rate from time to time in effect plus a margin of 3 %
p.a., payable on demand; provided that such interest rate
shall not at any time exceed the maximum rate permitted by
applicable law.
(c) All computations of interest and the Servicer's Fee shall be
made on the basis of a year of 360 days for the actual number
of days (including the first day but excluding the last day)
elapsed.
(d) Each calculation or report made by the Administrator hereunder
shall be conclusive and binding upon the parties hereto for
all purposes of this Agreement in the absence of manifest
error.
(e) It is of the essence of this Agreement that the parties hereto
make the various payments hereunder in EUR. The obligation of
each party to make each payment in EUR shall not be discharged
or satisfied by any tender, or any recovery pursuant to any
judgement, which is expressed in or converted into any other
currency (including the payment of damages for breach of this
Agreement) until and except to the extent such tender or
recovery shall result in the actual receipt by the receiving
party in EUR of the amount expressed to be payable in that
currency. The obligation of each party to make payments in EUR
shall be enforceable as an alternative or additional claim for
the purpose of recovery of the amount (if any) by which such
actual receipt shall fall short of the full amount of EUR and
shall not be affected by judgement being obtained for any
other sum due under this Agreement.
(f) After the occurrence and during the continuance of any
Programme Liquidation Event in respect of the Purchaser (as
notified to the Seller and the Servicer by the Administrator),
all of the Seller's and the Servicer's rights to payments
(other than Purchase Price payments, payments under Clause
4.3, and Collections in respect of Receivables that are not
Sold Receivables) from the Purchaser hereunder shall be
subordinated and subject to the prior payment in full and in
cash of all Commercial Paper Notes, amounts payable under
related interest rate and currency exchange contracts and all
amounts payable to the Purchaser Parties in respect of the
financing of the Purchases hereunder. To the extent any such
amount is owed by the Purchaser at a time when the Purchaser
does not have sufficient funds available to pay such amount in
full (whether as a result of the preceding sentence or
otherwise), payment of such amount shall be deferred until
such time as the Purchaser has such funds available. Neither
the Seller nor the Servicer shall have any right to set off or
net any amount owed by the Purchaser hereunder against any
amount owed by the Seller or the Servicer (as the case may be)
hereunder except as set forth in Clause 4.3.
4.3 CHANGES IN WITHHOLDING TAX RATES
The Seller and the Purchaser intend for Purchases hereunder to be
neutral from the perspective of withholding tax. Therefore, the Seller
agrees to reimburse the Purchaser
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for the amount of any withholding tax actually suffered with respect to
Collections above what was assumed in determining the Purchase Price
for the relevant Receivable(s). Similarly, the Purchaser agrees to make
additional payments to the Seller in the amount of any increased actual
Collections received as a result of the application of any withholding
tax at a lower rate than was assumed in determining the Purchase Price
of the relevant Receivable(s). Amounts payable pursuant to this Clause
4.3 in respect of each Settlement Period shall be netted, and the
appropriate net amount (if any) shall be paid to the appropriate party
on each Settlement Date following such Settlement Period.
5. PURCHASE CONDITIONS
Each Purchase hereunder (and the Purchaser's obligation to pay any
Purchase Price therefor) shall be subject, inter alia, to the further
conditions precedent that:
In relation to each Reinvestment, on the date of such Purchase the
following statements shall be true (and the Seller shall be deemed to
have certified that and, by delivering the Notice of Sale with respect
to the Reinvestments having occurred during the preceding Settlement
Period to which the relevant Notice of Sale relates, shall be deemed to
have confirmed):
(i) the representations and warranties contained in Clause 6
(other than, in the case of each Purchase, those set forth in
Clause 6.4 (a)) are true and correct on and as of such day as
though made on and as of such day;
(ii) no Termination Event or Unmatured Termination Event has
occurred and is continuing, or would result from such
Purchase;
(iii) the Termination Date has not occurred; and
(iv) the aggregate Unpaid Balance of all Receivables being subject
to Reinvestments having occurred during the preceding
Settlement Period, as confirmed in the relevant Notice of
Sale, shall be EUR 1,000,000 or greater.
6. REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser as follows (it
being agreed that the Seller shall not represent or warrant as to the
collectability of any Receivable):
6.1 ORGANISATION
The Seller is validly existing as a limited partnership under the laws
of the Federal Republic of Germany with the General Partner as its sole
general partner; the Seller is duly qualified to do business and
possesses all necessary licenses and approvals in each jurisdiction in
which the nature of its business requires such qualification,
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licenses or approvals, except where the failure to have or maintain
such qualifications, licenses or approvals is not reasonably likely to
have a Material Adverse Effect.
6.2 POWER, AUTHORISATION AND NON-CONTRAVENTION
The execution, delivery and performance by the Seller of the
Transaction Documents to which either of them is a party, including the
sale of Receivables thereunder:
(a) are within the powers of the Seller;
(b) have been duly authorised by all necessary action on the part
of the Seller;
(c) do not violate or constitute (with or without notice or lapse
of time or both) a default under:
(i) the organisational documents of the Seller;
(ii) any contractual restriction binding on or affecting
the properties of the Seller; or
(iii) any law, rule, regulation, order, writ, judgement,
injunction or decree binding the properties of the
Seller;
(d) do not result in the imposition of any Adverse Claim on the
properties of the Seller other than in connection with the
transactions contemplated by the Transaction Documents; and
(e) do not require any authorisation, approval or other action by,
or notice to or filing with, any governmental authority or
regulatory body (except for any of such which have been
obtained, made or given, which are in full force and effect
and copies of which have been given to the Administrator).
6.3 ENFORCEABILITY: VALID SALE
This Agreement constitutes, and each other Transaction Document to be
signed by the Seller when duly executed and delivered will constitute,
a legal, valid and binding obligation of the Seller enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganisation or other similar laws affecting
the enforcement of creditors' rights generally. This Agreement has been
duly executed and delivered by the Seller and each Purchase hereunder
shall constitute a valid sale, transfer, and assignment of the relevant
Sold Receivables and their Related Assets to the Purchaser pursuant to
which the Purchaser shall obtain ownership of such Sold Receivables and
Related Assets free and clear of any Adverse Claim, except that with
respect to the goods underlying such Sold Receivables, the Purchaser
shall obtain a valid security interest in such underlying goods, free
and clear of any Adverse Claims other than the Adverse Claims, if any,
with respect to such
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underlying goods, enjoyed by suppliers of components, raw materials or
parts to the Seller.
6.4 FINANCIAL CONDITION
(a) The consolidated balance sheet and profit and loss accounts of
the Seller and its consolidated Subsidiaries as at 31 December
1999 (the "STATEMENT"), and the related statement of
consolidated cash flows (sources and uses of funds) and
statement of changes in partners' equity for the fiscal year
then ended, in each case certified by Deloitte & Touche,
copies of which have been furnished to the Administrator,
fairly present in all material respects the financial
condition of the Seller and its consolidated Subsidiaries as
at such date and the results of the operations of the Seller
and its consolidated Subsidiaries for the period ended on such
date, all in accordance with GAAP consistently applied. Since
the date of such financial statements, there has been no
material adverse change in the financial condition,
operations, assets or business of the Seller and its
consolidated Subsidiaries, taken as a whole.
(b) The Seller is not insolvent (zahlungsunfahig) or overindebted
(uberschuldet).
6.5 LITIGATION
There is no pending or, to the knowledge of the Seller, threatened
litigation, action, proceeding or labour controversy affecting the
Seller or any of their respective Subsidiaries, or any of their
respective properties, businesses, assets or revenues, which (a) might
reasonably be expected to have a Material Adverse Effect, (b) asserts
the invalidity of any Transaction Document, or (c) seeks to prevent the
consummation of any of the transactions contemplated by any Transaction
Document.
6.6 OWNERSHIP OF RECEIVABLES
Immediately before its sale hereunder, each Sold Receivable and its
Related Assets were owned by the Seller free and clear of any Adverse
Claim, other than, with respect to the goods underlying such Sold
Receivables, any Adverse Claim enjoyed, if any, by suppliers of
components, raw materials or parts to the Seller.
6.7 ELIGIBLE RECEIVABLES
Each Receivable included in each Purchase was an Eligible Receivable on
the date of such Purchase, and all data set forth in each Notice of
Sale relating to the Reinvestments occurring during the preceding
Settlement Period were correct in every material respect on the date of
such Purchase.
6.8 ACCURACY OF INFORMATION
All written information furnished on or before the date on which this
representation is made or deemed made or repeated by the Seller or any
of its Affiliates to the Purchaser, the Administrator or the
Relationship Bank for purposes of, or in
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connection with, this Agreement and all other Transaction Documents or
any transaction contemplated hereby or thereby, is true and accurate in
every material respect on the date as of which such information is
dated or certified, and is not incomplete by omitting to state a
material fact or any fact necessary to make the statements contained
therein not misleading on the date as of which such information is
dated or certified, provided that the Seller or any of its Affiliates
may update and correct any such information previously furnished by the
Seller or such Affiliate that is inaccurate or misleading in any
material respect, which shall be deemed to cure from and after the date
such correction is provided to the parties who previously received the
related inaccurate information, the inaccuracy of the representation
and warranty made herein with respect to such information (without
affecting the rights of the Purchaser, the Administrator or the
Relationship Bank as a result of the existence of such inaccuracy prior
to the time such cure is effected).
6.9 TAXES
The Seller has filed all tax returns and reports required by law to
have been filed by it and has paid all taxes and governmental charges
owed by the Seller, as the case may be, except any such taxes or
charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with the GAAP shall have been set aside on its books or where the
failure to file such returns or pay such taxes or charges is not
reasonably likely to have a Material Adverse Effect.
6.10 COMPLIANCE WITH APPLICABLE LAWS
The Seller is in compliance with the requirements of all applicable
laws, rules, regulations, and orders of all governmental authorities,
except for violations which would not, individually or in the
aggregate, be reasonably likely to have a Material Adverse Effect.
6.11 CONSUMER PROTECTION LAWS
No Contract relating to any Sold Receivable or any transaction
contemplated by such Contract, and no Purchase or other transaction
contemplated hereby, requires compliance with any law on consumer
contracts or consumer protection or any similar law of any relevant
jurisdiction (including sections 491 et seq. of the German Civil Code).
6.12 LOCATION OF RECORDS
The Seller (individually and as the Servicer) keeps all of the Records
relating to Sold Receivables at one or more of the locations specified
in Schedule 5a or at such other locations as have been approved in
advance by the Administrator.
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6.13 EXTENDED RETENTION OF TITLE RIGHTS
In the event a Sold Receivable is sold hereunder, which is subject to
an extended retention of title right (verlangerter Eigentumsvorbehalt)
of suppliers of the Seller,
(a) the aggregate of the parts of such Sold Receivable assigned to
such suppliers does not exceed 80% of the purchase price to be
paid by the Purchaser to the Seller for the Sold Receivable;
(b) the contracts concluded with such suppliers are such which are
customary in the Seller's business as of the time of sale of
such Sold Receivable; such contracts provide in particular for
a right of the Seller to collect the Sold Receivables on
behalf of the respective supplier holding the extended
retention of title right.
7. COVENANTS OF THE SELLER
From the date hereof until the Final Payout Date, unless the
Administrator and Relationship Bank shall otherwise consent in writing,
the Seller shall comply with the restrictions made applicable to them
by this Clause 7.
7.1 LEGAL MATTERS
The Seller shall comply in all material respects with all applicable
laws, rules, regulations and orders; and shall preserve and maintain
its existence, rights and franchises, except, in each case, where the
failure to comply with such laws, rules, regulations or orders or to
preserve or maintain any right or franchise could not reasonably be
expected to have a Material Adverse Effect.
7.2 BOOKS AND RECORDS
The Seller shall maintain administrative and operating procedures
(including an ability to recreate records evidencing Sold Receivables
in the event of the destruction of the originals thereof), and keep and
maintain all documents, books, records and other information,
reasonably necessary or advisable for the collection of all Sold
Receivables (including records adequate to permit the identification of
each Sold Receivable and all Collections of and adjustments to each
Sold Receivable); and the Seller shall not change the locations at
which it keeps Records without the advance written consent of the
Administrator.
7.3 AUDITS
(a) The Seller shall permit the Administrator, the Relationship
Bank or any of their agents or representatives, at any time
during regular business hours, (i) to examine and make copies
and extracts from the Records, including the Contracts
relating to the Sold Receivables, (ii) to visit the offices
and properties of the Seller for the purpose of examining the
Records and to discuss matters relating to the Sold
Receivables or the Seller's performance hereunder with any of
the officers or employees of the Seller having knowledge of
such
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matters and (iii) to meet with the Seller's independent auditors, to
review such auditors' work papers relating to any letter delivered
pursuant to Clause 8.3 (d) and otherwise to review with such auditors
the Records; it being understood that the Administrator intends to make
such visits at least twice in each calendar year, provided, however,
that in the case of any aforementioned audit, meeting, or examination
of records which is not required to take place at the offices or
properties of the Seller, the time and place of such audit, meeting, or
examination of records may take place shall be agreed upon by the
Seller and the Administrator.
(b) Without limiting the provisions of sub-clause (a) above, the
Seller shall, on request of the Administrator made from time
to time, permit accountants or other auditors acceptable to
the Administrator to conduct, at the Seller's expense, a
review of the Records, provided that the Administrator shall
cause the auditors to use all reasonable commercial efforts to
minimise any disruption to the Seller's business in the course
of conducting any such review of the Records.
(c) Notwithstanding anything in this Clause 7.3 to the contrary,
unless a Servicer Transfer Event has occurred and is
continuing, the Seller shall not be obligated to pay the
expenses of more than two such reviews during the twelve month
period following the date of this Agreement and one such
review during any subsequent twelve month period.
7.4 CREDIT AND COLLECTION POLICY
The Seller shall comply in all material respects with the Credit and
Collection Policy with regard to each Sold Receivable and each Contract
related thereto and not make any change in the Credit and Collection
Policy which would impair the collectability of any Sold Receivable
(other than adjustments that give rise to deemed Collections in respect
thereof pursuant to Clause 3.5), reduce materially the creditworthiness
required of the Seller's customers or otherwise adversely affect the
Purchaser's interests or remedies under any Transaction Document.
7.5 REPORTING REQUIREMENTS OF THE SELLER
The Seller shall furnish to the Administrator:
(a) as soon as available, and in any event within two months after
the end of each quarter other than the final quarter, and
within three months after the end of the final quarter, of
each fiscal year of the Seller, copies of the Seller's
unaudited balance sheet, profit and loss accounts, and
statement of changes in partners' equity, prepared in
conformity with GAAP, duly certified by the chief financial
officer of the Seller, together with a certificate from such
officer;
(b) as soon as available and in any event within six months after
the end of each fiscal year of the Seller, copies of the
Seller's balance sheet, profit and loss accounts and statement
of changes in partners' equity, prepared in conformity
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with GAAP, duly certified by Deloitte & Touche or such other
firm of accountants approved by the Administrator, together
with a certificate from Deloitte & Touche or such other firm
of accountants approved by the Administrator and including the
statement of cash flow (sources and uses of funds);
(c) (i) as soon as available and in any event within 120 days
after the end of each fiscal year of the Shareholder, copies
of the Shareholder's annual balance sheet (and an annual
profit and loss statement), certified by a designated
financial officer of the Shareholder and prepared on a
consolidated basis in conformity with GAAP;
(ii) as soon as available, and in any event within 60 days
after the end of each fiscal quarter of each fiscal
year of the Shareholder (other than the last fiscal
quarter of each fiscal year), copies of the
Shareholder's quarterly balance sheet (and profit and
loss statement) for the period from the beginning of
the fiscal year to the close of such quarter),
certified by a designated financial officer of the
Shareholder;
(iii) each time financial statements of the Shareholder are
furnished pursuant to clauses (c)(i) or (c)(ii), a
certificate signed by a designated financial officer,
dated the date of such financial statements
confirming (A) that the Shareholder maintains a
system of accounting established and administered in
accordance with GAAP and (B) that the financial
statements furnished to the Administrator are in
compliance with GAAP;
(iv) promptly upon becoming available, a copy of each
report or proxy statement filed by the parent of the
Shareholder with the Securities and Exchange
Commission or any exchange;
(d) as soon as the Seller learns of the occurrence of any
Termination Event or Unmatured Termination Event, notice of
such event, followed (as soon as practicable and in any event
within five Business Days of such notice) by a written
statement of the chief financial officer or chief accounting
officer of the Seller setting forth details of such event and
the action that the Seller proposes to take with respect
thereto;
(e) as soon as possible and in any event within three Business
Days of the Seller learning thereof, notice of:
(i) any previously undisclosed litigation, action or
proceeding which could reasonably be expected to have
a Material Adverse Effect;
(ii) any material adverse development in any previously
disclosed litigation; and
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(iii) the assertion of any Adverse Claim on or against any
Sold Receivable or Related Asset (other than any
Adverse Claim enjoyed by suppliers of components, raw
materials or parts to the Seller prior to any attempt
to foreclose on such Adverse Claim);
(f) prior to its effective date, notice of any change in the
Credit and Collection Policy;
(g) within four Business Days of receipt of a request from the
Administrator for the same, an interim Servicer Package for
purposes of computing the Purchaser's Total Investment, the
aggregate Unpaid Balance of all Receivables, the aggregate
Collections being held in the Collection Account and the
amount of Receivables that have become Defaulted Receivables,
Delinquent Receivables or Diluted Receivables since the date
of the last Servicer Package, in each case as of a date
specified by the Administrator; and
(h) so soon as is practicable, such other information, documents,
records or reports as the Administrator may from time to time
reasonably request.
7.6 SALES, LIENS, ETC.
Except pursuant to the Transaction Documents, the Seller shall not
sell, assign (by operation of law or otherwise) or otherwise dispose
of, or create or suffer to exist any Adverse Claim upon, any Sold
Receivable, any Related Asset, or any bank account to which any
Collections of any Sold Receivable are sent, or any right to receive
income or proceeds from or in respect of any of the foregoing, other
than, with regard to the goods underlying such Sold Receivables, if
any, any Adverse Claim enjoyed by suppliers of components, raw
materials or parts to the Seller.
7.7 VAT
The Seller shall use its best efforts promptly to recover VAT with
respect to any Sold Receivable to the extent permitted by applicable
law.
7.8 MERGERS, ACQUISITIONS, SALES, ETC.
The Seller shall not be a party to any merger or consolidation, or
purchase or otherwise acquire, in one or in a series of transactions,
all or substantially all of the assets or any stock or other equity
interest of any class of, or any partnership or joint venture interest
in, any other Person, or, sell, transfer, convey or lease all or
(except in the ordinary course of its business) any substantial part of
its assets (other than sales of Receivables hereunder or otherwise)
unless prior to and after giving effect to any such transaction no
Termination Event has occurred. Any entity (i) into which the Seller
may be merged or consolidated, (ii) that may result from any merger,
conversion, or consolidation to which the Seller is a party, or (iii)
that may succeed by purchase and assumption to all or substantially all
of the business of the Seller, where the Seller in any of the foregoing
cases is not the surviving entity, which entity in any of the foregoing
cases shall execute an agreement of assumption to perform every
obligation
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of the Seller and the Servicer under this Agreement, shall be the
successor to the Seller and the Servicer under this Agreement without
any further action on the part of any of the parties to this Agreement,
subject to receipt by the Administrator of any legal opinions,
officer's certificates or other documents that the Administrator may
reasonably require.
7.9 RESTRICTED PAYMENTS
The Seller shall not purchase or redeem, or permit any Subsidiary to
purchase or redeem, any partnership interests in the Seller, make any
distribution to partners or set aside any funds for any such purpose,
or repay, purchase or redeem, or permit any Subsidiary to purchase, any
of the Seller's subordinated indebtedness or indebtedness to partners.
7.10 CHANGES TO ORGANISATIONAL DOCUMENTS
The Seller shall provide prompt written notice to the Administrator of
any proposed changes to the Seller's partnership agreement or any of
the Seller's other financial arrangements with the Seller's partners
shareholders.
7.11 EXERCISE OF RIGHTS
The Seller shall not exercise any right it may have against any Obligor
of any Sold Receivable with respect to the termination of any Contract
or the repossession of any Related Asset without the prior written
consent of the Administrator, such consent not to be unreasonably
withheld.
7.12 PAYMENTS TO OTHER BANK ACCOUNTS
In accordance with the terms of this Agreement, the Seller shall pay or
cause to be paid all Collections of Receivables directly into the
Collection Account or such other accounts as are permitted under this
Agreement or approved by the Administrator from time to time. Should
for any reason an Obligor make a payment of a Collection into a bank
account other than as aforesaid or effect payment to the Seller in any
manner whatsoever, regardless of the instructions received by the
Seller, the Seller shall forthwith remit payment in amounts equal to
such Collection to the Servicer, who shall deposit the payment to the
Collection Account in accordance with Clause 3.1 (e).
7.13 SERVICER REPORTS
The Servicer shall provide the Administrator with monthly Servicer
reports for the immediately preceding Settlement Period in such form as
the Administrator may from time to time specify. A monthly Servicer
report shall be delivered to the Administrator on or before each Report
Date with respect to the immediately preceding Settlement Period.
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8. ADMINISTRATION AND COLLECTION
8.1 RIGHTS OF THE ADMINISTRATOR
(a) Upon the occurrence of a Termination Event or an Unmatured
Termination Event, the Administrator may itself notify, or
require the Seller or the Servicer to notify, some or all of
the Obligors of Sold Receivables of the Purchaser's ownership
of some or all of the Sold Receivables and the Related Assets
and direct that payments be made directly to the
Administrator, and the Seller or the Servicer (as the case may
be) shall comply with any such requirement.
(b) If the Seller fails to perform in any material respect any of
its agreements or obligations under this Agreement, the
Administrator or its designee may (but shall not be required
to) itself perform, or cause performance of, such agreement or
obligation, and the expenses of the Administrator or its
designee incurred in connection therewith shall be payable by
the Seller as provided in Clause 13.5.
(c) The Purchaser hereby grants to the Administrator, and the
Administrator accepts, an irrevocable mandate, effective upon
the occurrence of a Servicer Transfer Event, to debit from the
Collection Account any amounts standing or accruing to the
credit thereof, to request the Collection Account Bank to
transfer such amounts to any other account designated by the
Administrator and to take any other action permitted under
this Agreement.
(d) In order to enable the Administrator to effect the mandate
granted in sub-clause (c) above with greater accuracy, the
Servicer, pending the appointment of a substitute servicer,
shall, at the request of the Administrator, provide daily
reports to the Administrator detailing the Collections
received on each Business Day, each such report to be
delivered not later than 9:00 a.m., CET, on the next following
Business Day.
(e) Without prejudice to the provisions of Clauses 8.1 (a) to (d)
inclusive, the Seller irrevocably constitutes and appoints the
Administrator, with full power of substitution, as its true
and lawful attorney and agent, with full power and authority
in its name or otherwise, and in its place and stead, and for
its use and benefit at any time after the occurrence of a
Termination Event to take such action as the Administrator may
deem necessary or desirable in order to protect the interests
of the Purchaser and/or the Liquidity Purchasers and/or the
Administrator, and/or to perfect title to any of the Sold
Receivables, or Related Assets, including the redirection of
mail and the endorsement of drafts, cheques and other payment
media, to perform any agreement or obligation of the Seller
under or in connection with this Agreement, and to exercise
all other remedies of the Seller under this Agreement or
existing at law. In furtherance of the power herein granted,
the Seller will assist and co-operate with the Administrator
and provide such facilities as the Administrator may request.
The power of attorney hereby granted is given by way of
security, is coupled with an interest, and is irrevocable and
will extend to and be binding upon the successors and assigns
of the Seller. The Administrator is hereby released from the
restrictions under Section 181 of the German Civil Code.
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8.2 DESIGNATION OF THE SERVICER
(a) The servicing, administering and collection of the Sold
Receivables shall be conducted by the Person designated as the
Servicer hereunder ( the "SERVICER") from time to time in
accordance with this Clause 8.2. The Seller is hereby
designated as the initial Servicer and hereby agrees to act as
such. So long as the Seller is the Servicer, the Servicer may
use the Seller's Subsidiaries and sales representatives as its
agents and/or subcontractors to fulfil its duties under this
Agreement; provided that the Servicer shall remain liable for
the performance of its obligations under this Agreement.
(b) Upon or after the occurrence of any Termination Event (other
than any Termination Event described in Clauses 9.1 (i), (k)
or (l) or any event which, in the Administrator's reasonable
opinion, could have a material adverse effect on the Seller's
ability to perform its obligations as the Servicer hereunder
(any such Termination Event or other event being herein called
a "SERVICER TRANSFER EVENT"), the Administrator may designate
a new Servicer by written notice to the other parties to this
Agreement. The Seller agrees that upon notice of such
designation it shall:
(i) terminate its activities as the Servicer hereunder
and, in connection therewith, will take such actions
as may be requested by the Administrator or are
otherwise necessary to facilitate the orderly
transition of the performance of such activities to a
new Servicer; and
(ii) at the Administrator's or the Relationship Bank's
request, (A) assemble all of the documents,
instruments and other records (including, without
limitation, computer programs, tapes and disks,
cheques and bank drafts supplied by the Obligors)
which evidence the Sold Receivables (including the
relevant Contracts and Related Assets) or which are
otherwise necessary or desirable for purposes of
collecting such Sold Receivables, and make the same
available to the Administrator (or as it may direct)
at a place selected by the Administrator or the
Relationship Bank, and (B) segregate all cash,
cheques and other instruments received by it from
time to time constituting Collections of Sold
Receivables in a manner acceptable to the
Administrator and promptly upon receipt, remit all
such cash, cheques and instruments, duly endorsed or
with duly executed instruments of transfer, to the
Administrator or its designee.
(c) The Servicer's authorisation under this Agreement shall
terminate upon the Final Payout Date. The Seller hereby agrees
that the Servicer may take in the Seller's name any and all
steps which are necessary or advisable to endorse, negotiate
or otherwise realise on any writing or other right of any kind
held or otherwise enjoyed by the Seller in connection with any
Sold Receivable.
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(d) Prior to a Termination Event, the Administrator may, on behalf
of the Purchaser and at the Purchaser's expense, hire a
back-up servicer and deliver to it any information contained
in the Servicer Packages.
(e) Each of the Servicer, the Seller and the Purchaser hereby
authorises the Administrator, and grants to the Administrator
an irrevocable power of attorney, to take any and all steps in
the Seller's name and on behalf of the Servicer, the Seller
and the Purchaser which are necessary or desirable, in the
determination of the Administrator, to collect all amounts due
under any and all Sold Receivables, including, without
limitation, endorsing the Seller's name on cheques and other
instruments representing Collections and enforcing such Sold
Receivables and the provisions of the related Contracts that
concern payment and/or enforcement of rights to payment;
provided that the Administrator shall not exercise its rights
under the foregoing power of attorney unless a Servicer
Transfer Event shall have occurred and be continuing.
(f) The Seller acknowledges that the Purchaser Parties have relied
on the Seller's agreement to act as the Servicer hereunder in
their respective decisions to execute and deliver the
Transaction Documents and the documents, instruments and
agreements relating thereto. In recognition of the foregoing,
the Seller agrees not to resign as the Servicer voluntarily
unless the Seller is not permitted by law to serve in such
capacity.
8.3 DUTIES OF THE SERVICER
In addition to its obligations specified elsewhere in this Agreement,
the Servicer shall:
(a) use commercially reasonable efforts to collect (and to
preserve its ability either directly or through its
representatives to collect) at its own expense each Sold
Receivable from time to time (including repossessing and
remarketing equipment and presenting to the relevant Obligor
bank drafts for payment), all in accordance with applicable
laws, rules and regulations, with reasonable care and
diligence and in accordance with the Credit and Collection
Policy and in particular, but without prejudice to the
generality of the foregoing, exercise such enforcement
measures concerning amounts due from Obligors as it shall deem
reasonably appropriate. For this purpose, the Servicer is
hereby authorised to sue Obligors in the Federal Republic of
Germany or in any other competent jurisdiction in the
Servicer's own name and for the benefit of the Purchaser
(gewillkurte Proze(beta)standschaft), the Purchaser being
obliged, where necessary, to assist the Servicer in exercising
all rights and remedies under and in connection with the
relevant Sold Receivables and for these purposes, the Servicer
is released from the restrictions of Section 181 of the German
Civil Code;
(b) hold all of the Records at one or more of the locations
specified in Schedule 5 unless the Administrator shall have
agreed in advance to one or more alternative locations;
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(c) if the Servicer is not the Seller, deliver to the Seller, as
soon as practicable upon the Seller's demand, all of the
records in its possession that evidence or relate to
Receivables of the Seller other than Sold Receivables, and
copies of the Records;
(d) as soon as available and in any event within six months after
the end of the Seller's fiscal year, provide to the
Administrator a letter of Deloitte & Touche (or other
accounting firm satisfactory to the Administrator) addressed
to the Administrator confirming that it has performed the
following procedures:
(i) computed the mathematical accuracy of the
calculations contained in the Servicer Package
delivered on the Report Date immediately following
the end of such fiscal year;
(ii) verified the accuracy of the ageing and the
calculations of the Delinquency Ratio and the Default
Ratio contained in such Servicer Package as compared
with the Seller's internal receivables reports;
(iii) randomly selected 25 Receivables from the Sold
Receivables referenced in such Servicer Package, and
for each of such Receivables reviewed the underlying
Contracts and any correspondence with the relevant
Obligors, traced any Collections applied to such
Receivables, and reported to the Administrator any
inconsistencies between such Contracts,
correspondence and collections, on the one hand, with
such Servicer Package, on the other hand;
(iv) reviewed the statements for the Collection Account
and the Transaction Account supplied by the
Collection Account Bank and the Transaction Account
Bank and verified the period end balances set forth
in such Servicer Package; and
(v) reviewed the Sold Receivables that were written off
by the Servicer during the fiscal year preceding such
Servicer Package and reported to the Administrator
any variation from the Credit and Collection Policy;
and
(e) as soon as the Servicer learns of the occurrence of any
Termination Event or Unmatured Termination Event, provide
notice of such event to the Administrator, followed (as soon
as practicable and in any event within five Business Days of
such notice) by a written statement of an officer of the
Servicer setting forth details of such event.
8.4 APPLICATION OF COLLECTIONS
Any payment by an Obligor in respect of any indebtedness owed by it to
the Seller shall be applied in accordance with Section 366,
sub-paragraph 2 of the German Civil Code.
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8.5 RESPONSIBILITIES OF THE SELLER
Anything herein to the contrary notwithstanding:
(a) the Seller shall perform all of its obligations under the
Contracts related to the Sold Receivables to the same extent
as if the Sold Receivables and Related Assets had not been
sold hereunder, and the exercise by the Administrator or its
designee of its rights hereunder shall not relieve the Seller
from such obligations;
(b) none of the Administrator, the Relationship Bank, the
Collateral Agent or the Purchaser shall have any obligation or
liability with respect to any Sold Receivables or any
Contracts related thereto, nor shall any of them be obligated
to perform any of the obligations of the Seller's thereunder;
(c) the Seller promptly shall deliver to the Servicer, and the
Servicer shall hold on behalf of the Purchaser, all documents,
instruments and records (including, without limitation,
computer tapes or disks and bank drafts supplied by the
Obligors) that evidence or relate to Sold Receivables; and.
(d) the Seller hereby grants to the Servicer an irrevocable power
of attorney, with full power of substitution, coupled with an
interest to take in the name of the Seller all steps which are
necessary or advisable to endorse, negotiate or otherwise
realise on any writing or other right of any kind evidencing
or relating to any Collection on any Sold Receivable.
8.6 FURTHER ACTION EVIDENCING PURCHASES
The Seller agrees that from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents, and
take all further action that the Administrator or its designee may
reasonably request in order to perfect, protect or more fully evidence
the Purchases hereunder, or to enable the Purchaser or the
Administrator or its designee to exercise or enforce any of their
respective rights hereunder or under any Transaction Document. Without
limiting the generality of the foregoing, the Seller will:
(a) upon the request of the Administrator or its designee, execute
and file such instruments or notices, as may be necessary or
appropriate;
(b) mark conspicuously:
(i) each Contract evidencing each Sold Receivable; and
(ii) its master data processing records evidencing the
Sold Receivables and related Contracts
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with a legend, acceptable to the Administrator, evidencing
that the relevant Receivable and Related Assets have been sold
pursuant to this Agreement; and
(c) upon the request of the Administrator or its designee, supply
additional undated assignment notices in form and substance
satisfactory to the Administrator, executed in blank by the
Seller.
9. TERMINATION EVENTS
9.1 TERMINATION EVENTS
Each of the following events shall constitute "Termination Events"
hereunder:
(a) SERVICER COVENANTS
(i) the Servicer (if the Seller or its Affiliate is the
Servicer) shall fail to perform any of its material
obligations under any Transaction Document (other
than as referred to in sub-clause (ii) below) and
such failure shall remain unremedied for two Business
Days after the date that written notice of such
failure, requiring the same to be remedied, shall
have been given to the Servicer by the Administrator,
or after the date that a Responsible Officer of the
Servicer shall have actual knowledge of such failure;
or
(ii) the Servicer (if the Seller or its Affiliate is the
Servicer) shall fail to make any payment or deposit
to be made by it hereunder when due;
(b) REPRESENTATIONS AND WARRANTIES
(i) any representation or warranty made or deemed to be made by
the Seller (or any of its officers) under or in connection
with this Agreement shall prove to have been false or
incorrect in any material respect when made; or
(ii) any Servicer Package (if prepared by the Seller or any of its
Affiliates, or to the extent information therein was supplied
by the Seller or any of its Affiliates) or other reports,
financial statements or other information furnished by or on
behalf of the Seller or any of its Affiliates to the
Administrator, the Relationship Bank or the Purchaser in
connection with this Agreement shall prove to have been
inaccurate in any material respect as of the date it was dated
or (except as otherwise disclosed to the Administrator and the
Purchaser at such time) as of the date so furnished, or shall
prove to have contained any material misstatement of fact or
to have omitted to state a material fact or any fact necessary
to make the statements contained therein not materially
misleading;
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(c) SELLER COVENANTS
(i) the Seller shall fail to perform any of its
obligations under any Transaction Document (other
than those referred to in sub-clauses (ii) and (iii)
below) and any such failure shall remain unremedied
for 3 Business Days after the date that written
notice of such failure, requiring the same to be
remedied, shall have been given by the Administrator
to the Seller or after the date that a Responsible
Officer of the Seller shall have actual knowledge of
such failure;
(ii) the Seller shall fail to perform any of its
obligations under Clauses 7.6, 7.8 or 7.9; or
(iii) the Seller shall fail to make any payment or deposit
to be made by it hereunder when due;
(d) OTHER AGREEMENTS
a default shall have occurred and be continuing under any
instrument or agreement evidencing, securing or providing for
the issuance of indebtedness for borrowed money in excess
(individually or in the aggregate) of USD 20,000,000 (or its
equivalent in any other currency) of, or guaranteed by, the
Shareholder or any of the Shareholder's Subsidiaries, which
default (with or without the passage of time or the giving of
notice or both) would permit acceleration of the maturity of
such indebtedness, and such default shall have continued
unremedied, uncured or unwaived for a period long enough to
permit such acceleration; or any default under any agreement,
or instrument relating to the purchase of any receivables with
an outstanding unpaid balance in excess (individually or in
the aggregate) of USD 20,000,000 (or its equivalent in any
other currency) originated by the Shareholder or any of the
Shareholder's Subsidiaries, or any other event, shall occur
and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of
such default or other event is to terminate, or permit the
termination of, the commitment of any party to such agreement
or instrument to purchase or reinvest in receivables or rights
therein or to cause a termination to occur under such
agreement or instrument (in each case prior to the scheduled
termination or maturity date of such agreement or instrument);
(e) BANKRUPTCY
a Bankruptcy Event shall have occurred and remain continuing
with respect to
(i) the Seller;
(ii) the General Partner;
(iii) the Shareholder; or
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(iv) any other Shareholder's Subsidiary, if such
Bankruptcy Event would have a material adverse effect
on the Seller or the Shareholder;
(f) LITIGATION
(i) any litigation, arbitration proceedings or
governmental proceedings not disclosed in writing by
the Seller to the Administrator prior to the date of
execution and delivery of this Agreement is pending
against the Seller or any Affiliate of either of
them; or
(ii) any material development not so disclosed has
occurred in any litigation, arbitration proceedings
or governmental proceedings so disclosed, which, in
the case of either sub-clause (i) or this sub-clause
(ii), could in the opinion of the Administrator be
expected to have a Material Adverse Effect;
(g) POOL PERFORMANCE
(i) on any Cut-Off Date the Default Ratio shall be
greater than 2%;
(ii) on any Cut-Off Date the Delinquency Ratio shall be
greater than 5%;
(iii) on any Cut-Off Date the Dilution Ratio shall be
greater than 10%; and
(iv) on any given Settlement Date the Asset Interest shall
exceed 100%;
(h) MATERIAL ADVERSE EFFECT
there shall exist any event or occurrence that has caused, or
is reasonably likely to cause, a Material Adverse Effect;
(i) ADVERSE CLAIMS
Sold Receivables having an aggregate Unpaid Balance in excess
of EUR 500,000 shall become subject to one or more Adverse
Claims, other than any Adverse Claim of (or created by) the
Purchaser or the Administrator;
(j) CHANGE IN CONTROL
a Change in Control shall occur without the prior written
approval of the Administrator (provided that such approval, if
sought, shall not be unreasonably withheld);
(k) LIQUIDITY ASSET PURCHASE AGREEMENT
no new Liquidity Asset Purchase Agreement shall be obtained in
substitution for the then existing Liquidity Asset Purchase
Agreement on or before the 30th day prior to the expiration of
the commitments of the Liquidity Purchasers
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thereunder, or the existing Liquidity Asset Purchase Agreement
is terminated early for any reason;
(l) LIQUIDITY PURCHASER DOWNGRADING
a Downgrading Event with respect to a Liquidity Purchaser
shall have occurred and been continuing for not less than 45
days, and (i) the Downgraded Liquidity Purchaser shall not
have been replaced by a Qualifying Liquidity Purchaser
pursuant to a Liquidity Asset Purchase Agreement in form and
substance acceptable to the Purchaser and the Administrator,
and (ii) the commitment of such Downgraded Liquidity Purchaser
under the Liquidity Asset Purchase Agreement shall not have
been funded or collateralised in such a manner that such
Downgrading Event will not result in a reduction or withdrawal
of the credit rating applied to the Commercial Paper Notes by
any of the Rating Agencies then rating the Commercial Paper
Notes; and
(m) SHAREHOLDER DOWNGRADING
a downgrading in the rating of the Shareholder shall have
occurred with respect to the rating of its long term debt
securities or its business by Standard & Poor's Rating
Services below BB+ and Moody's Investors Service, Inc. below
Ba1.
9.2 REMEDIES ON TERMINATION
Upon the occurrence of a Termination Event (other than a Termination
Event described in Clause 9.1 (e) (i) or (ii)), the Administrator
shall, at the request of, or may, with the consent of the Purchaser, by
notice to the Seller declare the Termination Date to have occurred.
Upon the occurrence of a Termination Event described in Clause 9.1 (e)
(i) or (ii), the Termination Date shall occur automatically. After the
Termination Date has been declared or automatically occurred pursuant
to this Clause 9.2, the Administrator and the Purchaser shall have, in
addition to all rights and remedies under the Transaction Documents,
all other rights and remedies provided under all applicable laws.
10. THE ADMINISTRATOR AND THE RELATIONSHIP BANK
10.1 AUTHORISATION AND ACTION
Pursuant to other agreements between them, the Purchaser has appointed
and authorised the Administrator and the Relationship Bank (or their
respective designees) to take such action as agents on its behalf and
to exercise such powers under this Agreement as are delegated to the
Administrator or Relationship Bank by the terms hereof, together with
such powers as are reasonably incidental thereto.
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10.2 THE ADMINISTRATOR'S AND THE RELATIONSHIP BANK'S RELIANCE ETC.
Neither the Administrator, the Relationship Bank nor any of their
respective directors, officers, agents or employees shall be liable to
the Purchaser or any other holder of an interest in Sold Receivables
for any action taken or omitted to be taken by it or them under or in
connection with the Transaction Documents (including the servicing,
administering or collecting Sold Receivables as the Servicer pursuant
to Clauses 8.2 and 8.3), except for its or their own gross negligence
or wilful misconduct. Without limiting the generality of the foregoing,
each of the Administrator and the Relationship Bank may consult with
legal counsel (including counsel for the Seller), 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, and neither the Administrator
nor the Relationship Bank:
(a) makes any representation or warranty to the Purchaser or any
other holder of any interest in Sold Receivables (and neither
shall be responsible to the Purchaser or any such other holder
for any statements, or representations or warranties made in
or in connection with any Transaction Document);
(b) shall have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of any Transaction Document on the part of the
Seller or to inspect the property (including the books and
records) of the Seller;
(c) shall be responsible to the Purchaser or any other holder of
any interest in Sold Receivables for the due execution,
legality, validity, enforceability, genuineness, sufficiency
or value of any Transaction Document; or
(d) shall incur any liability to the Purchaser or any other holder
of an interest in Sold Receivables under or in respect of this
Agreement by acting upon any notice (including notice by
telephone), consent, certificate or other instrument or
writing (which may be by facsimile or telex) believed by it to
be genuine and signed or sent by the proper party or parties.
10.3 STATE STREET GLOBAL, STATE STREET BANK AND THEIR AFFILIATES
State Street Global Markets LLC, State Street Bank and any of their
respective Affiliates may generally engage in any kind of business with
the Seller, the General Partner or any Obligor, any of their respective
Affiliates and any Person who may do business with or own securities of
the Seller, the General Partner or any Obligor or any of their
respective Affiliates, all as if State Street Global Markets LLC was
not the Administrator and State Street Bank was not the Relationship
Bank and without any duty to account therefor to the Purchaser or any
other holder of an interest in the Sold Receivables.
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11. ASSIGNMENTS
11.1 ASSIGNMENTS
None of the Seller (individually or as the Servicer) or State Street
Bank, individually or as the Relationship Bank (except as otherwise
provided in other agreements between the Relationship Bank and the
Administrator), may assign any of its rights or delegate any of its
duties hereunder or any interest herein without the prior written
consent of the Administrator. The Purchaser and its assignees may
assign the Sold Receivables (or any portion thereof) or any of the
Purchaser's rights hereunder to any Person without the consent of the
Seller or the Servicer; provided that the Seller (and the Servicer, if
different from the Seller) shall be notified prior to any such
assignment. Upon any assignment by the Purchaser or its assignees, the
assignee receiving such assignment shall have all of the rights of the
Purchaser with respect to the Transaction Documents and the Sold
Receivables and Related Assets (or such portion thereof as has been
assigned).
11.2 RIGHTS OF THE COLLATERAL AGENT
The Seller acknowledges that the Purchaser shall assign and grant a
security interest in all of its rights in the Transaction Documents,
together with all of its rights and interest in the Sold Receivables
and their Related Assets, to the Collateral Agent to secure the
Purchaser's obligations under or in connection with the Commercial
Paper Notes, the Liquidity Asset Purchase Agreement, the Credit
Agreement and any letter of credit issued thereunder, and certain other
obligations of the Purchaser incurred in connection with the funding of
the Purchases hereunder. The Seller hereby agrees that, upon notice to
the Seller, the Collateral Agent may exercise all the rights of the
Administrator hereunder with respect to the Sold Receivables and
Related Assets (or any portions thereof), and Collections with respect
thereto, which are owned by the Purchaser, and all other rights and
interests of the Purchaser in, to or under this Agreement or any other
Transaction Document. Without limiting the foregoing, upon such notice
or at any time thereafter the Collateral Agent may give notices
pursuant to Clause 8, may give or require the Administrator to give
notice to the Transaction Account Bank as referred to in Clause 8 and
may direct the Obligors of Sold Receivables to make payments in respect
thereof directly to an account designated by it, in each case to the
same extent as the Administrator might have done.
12. MANDATORY REPURCHASES AND INDEMNIFICATION
12.1 MANDATORY REPURCHASE OBLIGATIONS
(a) MANDATORY REPURCHASES
The Seller shall be required (unless the Administrator, upon
request of the Purchaser, shall otherwise request in writing)
to repurchase a Sold Receivable if:
(i) any of the conditions precedent to the Purchase of
such Receivable specified in Clause 5.2 (b) was not
in fact satisfied (or waived in writing by the
Administrator) on the date of such Purchase;
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(ii) the Seller (acting as the Servicer) shall have
extended, amended or modified any of the terms of
such Receivable without the Administrator's advance
written consent; or
(iii) such Receivable shall have become subject to any
Adverse Claim after its Purchase hereunder in favour
of any Person claiming through, on behalf of or in
respect of the Seller or any of its Affiliates.
(b) PROVISIONS APPLICABLE TO ALL MANDATORY REPURCHASES
The Seller's obligation with respect to each such mandatory
repurchase shall be to repurchase the relevant Sold
Receivable(s) from the Purchaser on the applicable Settlement
Date following the Settlement Period in which such repurchase
obligation was identified and to make when due any other
payments related thereto and expressly provided for herein. On
such Settlement Date, the Seller shall pay to the
Administrator an amount equal to the original Purchase Price
of such Receivable, less the amount of any Collections
received on such Receivable, plus interest on such amount, at
the Discount used in determining the Purchase Price of such
Receivable, for the period from and including the original
date of Purchase to but excluding such Settlement Date. Upon
receipt of such amount and all other amounts then due
hereunder, the Purchaser shall reassign its right, title and
interest in and to such Receivable to the Seller, without any
recourse, representation or warranty (other than that such
Receivable is free of any Adverse Claim of (or created by) the
Purchaser or the Administrator), effective as of such
Settlement Date, whereupon (i) such Receivable shall no longer
be considered a "Sold Receivable" for purposes of this
Agreement (including the Servicer's Fee) and (ii) the
Administrator may and the Servicer shall promptly notify the
relevant Obligors to make payments to the Seller's Account or
to another account specified by the Seller. The Seller's
obligations to the Purchaser hereunder shall not be affected
by reason of any invalidity, illegality or irregularity of any
Sold Receivable or in connection with the sale thereof. The
Purchaser will from time to time execute and deliver such
documents as the Seller may reasonably request to confirm the
absence of any interest of the Purchaser in any Receivables
reassigned to the Seller pursuant hereto.
12.2 INDEMNITY
Without limiting any other rights which any such Person may have
hereunder, under any other Transaction Document or under applicable
law, the Seller hereby agrees to indemnify each Purchaser Party, each
of their respective Affiliates and all successors, transferees,
participants and assigns and all officers, directors, shareholders,
controlling persons, employees and agents of any of the foregoing (each
an "INDEMNIFIED PARTY"), forthwith on demand, from and against any and
all reasonable damages, losses, claims, liabilities and related costs
and expenses, including reasonable attorneys' fees and disbursements
(collectively, the "INDEMNIFIED AMOUNTS") awarded against or incurred
by any of them arising out of or relating to the Transaction Documents
or the ownership or financing of the Sold Receivables, their
- 39 -
Related Assets or any Contracts related thereto, excluding, however,
Indemnified Amounts (i) to the extent determined by a court of
competent jurisdiction to have resulted from gross negligence or wilful
misconduct on the part of such Indemnified Party, (ii) to the extent
that the same include losses in respect of Receivables and
reimbursement therefor would, directly or indirectly, constitute credit
recourse to the Seller for the amount of such Receivables not paid by
the related Obligors, (iii) to the extent that the same are or result
from lost profits, or (iv) to the extent that the same are or result
from taxes on or measured by the overall net income of such Indemnified
Party imposed by the jurisdiction of organisation or residence of such
Indemnified Party or the jurisdiction where any office through which
the Indemnified Party is acting for purposes of this Agreement is
located. Without limiting the foregoing (but subject to the foregoing
enumerated exclusions), the Seller shall indemnify each Indemnified
Party for Indemnified Amounts arising out of or relating to:
(a) any event described in Clause 9.1 (b) (notwithstanding any
investigation by or knowledge of any Indemnified Party);
(b) any failure of the Seller, as the Servicer or otherwise, to
perform any of its duties or obligations hereunder or under
any other Transaction Document, including any failure by the
Seller to comply with any applicable law, rule or regulation
with respect to any Sold Receivable or any Contract related
thereto, or the nonconformity of any Sold Receivable or any
Contract related thereto with any such applicable law, rule or
regulation;
(c) any claim resulting from the sale of the goods or services
related to any Sold Receivable or the furnishing or failure to
furnish such goods or services; or any product liability claim
arising out of or in connection with goods or services that
are the subject of any Sold Receivable;
(d) any Adverse Claim on any Sold Receivable or any of its Related
Assets that is attributable to the Seller or the Servicer, if
the Seller is then acting as the Servicer; or
(e) any tax or governmental fee or charge, (but not including
taxes described in sub-clause (iv) above), all interest or
penalties thereon or with respect thereto, and all
out-of-pocket costs and expenses, including the reasonable
fees and expenses of counsel in defending against the same,
which may arise by the purchase or ownership of, or any other
interest in, the Sold Receivables or their Related Assets.
13. MISCELLANEOUS
13.1 AMENDMENTS, WAIVERS, ETC.
No amendment of this Agreement shall be effective unless the same shall
be in writing and signed by the Seller, the Administrator, the
Relationship Bank and the Purchaser and, if the Seller is not the
Servicer, by the Servicer if such amendment adversely affects the
interests, rights or obligations of the Servicer qua the Servicer. No
waiver
- 40 -
of any provision of this Agreement or consent to any departure by the
Seller therefrom shall be effective without the written consent of the
Administrator, the Relationship Bank and the Purchaser. Any such waiver
or consent shall be effective only in the specific instance given. No
failure or delay on the part of any Indemnified Party to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
13.2 NOTICES, ETC.
All notices and other communications provided for under this Agreement
shall, unless otherwise stated herein, be in writing (including
facsimile communication) and shall be personally delivered or sent by
express mail or overnight courier or by certificate mail, postage
prepaid, or by facsimile, to the intended party at the address or
facsimile number of such party set forth under its name on the
signature pages hereof or at such other address or facsimile number as
shall be designated by such party in a written notice to the other
parties hereto. All such notices and communications shall be deemed to
be effective (a) if personally delivered, when delivered, (b) if sent
by express mail or overnight courier, on the second Business Day after
being sent (except that if the delivery receipt provides satisfactory
evidence that such courier package was delivered on a day other than
the second Business Day after being sent, then on the date of such
receipt), (c) if sent by certified mail, on the tenth Business Day
after being sent, and (d) if transmitted by facsimile, when sent,
receipt confirmed by telephone or electronic means (except that notices
and communications to the Administrator shall be effective only when
received).
13.3 SET OFF
Each of the Purchaser, State Street Global Markets LLC, individually
and as the Administrator, State Street Bank, individually and as the
Relationship Bank, each Liquidity Purchaser and the Credit Bank is
hereby authorised by the Seller at any time and from time to time, to
the fullest extent permitted by law, to set off and apply against any
amounts due from the Seller to such Person under the Transaction
Documents any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any
time owing by such Person to or for the credit or the account of the
Seller.
13.4 BINDING EFFECT; SURVIVAL
This Agreement shall be binding upon and inure to the benefit of the
Seller, the Administrator, the Relationship Bank, the Purchaser and
their respective successors and assigns, and the provisions of Clauses
12 and 13.3 shall inure to the benefit of the Indemnified Parties and
their respective successors and assigns. Clauses 13.6 and 13.7, the
rights and remedies with respect to any breach of any representation or
warranty made by the Seller pursuant to Clause 6 and the
indemnification and payment provisions of Clauses 4, 12 and Clause 13.5
shall be continuing and shall survive any termination of this
Agreement.
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13.5 COSTS, EXPENSES AND TAXES
In addition to its obligations under Clause 12, the Seller agrees to
pay on demand:
(a) all costs and expenses incurred by the Purchaser Parties and
their respective Affiliates in connection with:
(i) the negotiation, preparation, execution and delivery
of the Transaction Documents, any amendment of or
consent or waiver under any of the Transaction
Documents which is requested or proposed by the
Seller (whether or not consummated), or the
enforcement of any Transaction Document, including
the reasonable fees and expenses of counsel to any of
such Persons incurred in connection with any of the
foregoing; and
(ii) subject to Clause 7.3 (c), the administration
(including periodic auditing as provided for herein)
of this Agreement and the other Transaction
Documents, including all reasonable out-of-pocket
expenses (including reasonable fees and expenses of
independent accountants), incurred in connection with
any review of the Seller's books and records either
prior to the execution and delivery hereof or
pursuant to Clause 7.3; and
(iii) all stamp and other taxes (other than income or
franchise taxes levied by the jurisdiction in which
the relevant Person's principal executive office is
located, or by any jurisdiction in which a branch of
such Person is located) and fees payable or
determined to be payable in connection with the
execution, delivery, filing and recording of any
Transaction Document including, in particular any
German trade tax improved on a Purchasing Party as a
result of entering into the transactions contemplated
by the Transaction Documents.
13.6 NO PROCEEDINGS
The Seller, the Servicer, State Street Capital Markest LLC
(individually and as the Administrator) and State Street Bank
(individually and as the Relationship Bank) each hereby agrees that it
will not institute against the Purchaser, or join any other Person in
instituting against the Purchaser, any proceeding of the type referred
to in the definition of Bankruptcy Event until one year and one day
after the last day on which any Commercial Paper Notes shall have been
outstanding. The foregoing shall not limit any such party's right to
file any claim in or otherwise take any action with respect to any such
proceeding that was instituted by any Person other than such party.
13.7 RESTRUCTURING
It is hereby agreed by the parties to this Agreement that the
provisions herein expressed to be for the benefit of the Relationship
Bank, the Administrator and/or the Purchaser are intended to, and
create rights in favour of the Relationship Bank, the
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Administrator and/or the Purchaser as third parties, directly
enforceable by each of them in accordance with the provisions hereof or
under law (Vertrag zugunsten Dritter).
13.8 CONFIDENTIALITY
The Seller agrees that it will maintain the confidentiality of, and not
disclose to any third party:
(a) any information regarding the pricing in, or copies of, any
Transaction Document or any transaction contemplated thereby;
(b) any information regarding the organisation, business or
operations of the Purchaser generally; or
(c) any other information which is furnished by State Street
Global Markets LLC to any such party and which is designated
by State Street Global Markets LLC to such party in writing as
confidential; or
other than, in each case, any such information which is or becomes
generally available to the public or such party on a non-confidential
basis from a source other than the Administrator or was known to such
party on a non-confidential basis prior to its disclosure by the
Administrator; provided that such party may disclose any such
information (i) to the directors, employees, auditors, counsel or
affiliates of such party, each of whom shall be informed by such party
of the confidential nature of such information and of the terms of this
Clause 13.7, (ii) to any other party to this Agreement for the purposes
contemplated hereby, (iii) to any third party with the prior written
consent of the Administrator and pursuant to a written confidentiality
agreement in form and substance reasonably satisfactory to the
Administrator, (iv) as may be required by any regulatory body having or
claiming to have jurisdiction over such party or (v) in order to comply
with any law, order, regulation, regulatory request or ruling
applicable to such party; provided in the case of this sub-clause (v)
that such party will give prior notice to the Administrator of such
disclosure and use reasonable efforts to obtain and maintain
confidential treatment of the information so disclosed.
Each of the Purchaser and the Administrator severally agrees that it
will maintain the confidentiality of, and not disclose to any third
party any information which is furnished by the Seller or the Servicer
to the Administrator or the Purchaser and which, in the reasonable
opinion of the Purchaser or the Administrator, as the case may be, is
confidential other than, in each case, any such information which is or
becomes generally available to the public or such party on a
non-confidential basis from a source other than the Seller or the
Servicer or was known to such party on a non-confidential basis prior
to its disclosure by the Seller and Servicer; provided that such party
may disclose any such information (i) to the directors, employees,
auditors, counsel or affiliates of such party, each of whom shall be
informed by such party of the confidential nature of such information
and of the terms of this Clause 13.7, (ii) to any Person, if disclosure
of such information, is reasonably necessary to give effect to the
transactions contemplated hereby, (iii) as may be required by any
regulatory body
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having or claiming to have jurisdiction over such party or (iv) in
order to comply with any law, order, regulation, regulatory request or
ruling applicable to such party; provided in the case of this
sub-clause (iii) and (iv) that such party will give prior notice to the
Seller or Servicer, as the case may be, of such disclosure and use
reasonable efforts to obtain and maintain confidential treatment of the
information so disclosed.
13.9 EXECUTION IN COUNTERPARTS; INTEGRATION
This Agreement may be executed in any number of counterparts and by the
different parties 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. This Agreement,
together with the Transaction Documents, constitutes the entire
understanding among the parties hereto as to the subject matter hereof
and supersedes all prior oral or written understandings.
13.10 GOVERNING LAW
This Agreement and any other Transaction Document shall be exclusively
construed in accordance with and governed by the laws of the Federal
Republic of Germany without giving effect to conflict of laws
principles.
13.11 CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES
The Seller hereby irrevocably (a) submits to the jurisdiction of the
District Court (Landgericht) in Frankfurt am Main in any action or
proceeding arising out of or relating to this Agreement or any other
Transaction Document; (b) agrees that all claims in respect of any such
action or proceeding brought by the Seller may be heard and determined
only in such court and not in any other court; (c) waives, to the
fullest extent it may effectively do so, the defence of an inconvenient
forum to the maintenance or such action or proceeding; and (d) to the
extent that it has or hereafter may acquire the same, waives, in
respect of its obligations under or in connection with this Agreement
any immunity from the jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to
judgement, attachment in aid to execution, execution or otherwise) as
to itself or its property.
13.12 NO RECOURSE AGAINST OTHER PARTIES
The obligations of the Purchaser under this Agreement are solely the
obligations of the Purchaser. No recourse shall be had for the payment
of any amount owing in respect of any Purchase or for the payment of
any other obligation or claim arising out of or based on this Agreement
against any stockholder, employee, agent, affiliate, officer, director
or incorporator of the Purchaser.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorised, as of the date first
above written.
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SCHEDULE 1
Definitions
"ACCOUNT NO. 1" means the account held by the Purchaser at Stadtsparkasse
Augsburg: account no. [2084 085], bank sort code (BLZ) [720 500 00].
,,ACCOUNT NO. 2" means the account held by the Seller at Bank of America,
Frankfurt am Main: account no. [18008027], bank sort code (BLZ) 500 109 00;
which account shall be pledged pursuant to the Pledge Agreement for the benefit
of the Purchaser.
"ACCRUED COST RESERVE" means for any Settlement Period the sum of:
(i) the Earned Discount payable for such Settlement Period;
(ii) the Servicer's Fee payable for such Settlement Period; and
(iii) the Programme Costs payable for such Settlement Period.
"ADJUSTED TURNOVER DAYS" means the number of Turnover Days multiplied by two.
"ADMINISTRATOR" means State Street Global Markets LLC acting as the
Administrator for the Purchaser, together with any successors in such capacity.
"ADMINISTRATOR'S OFFICE" means the office of the Administrator at 225 Franklin
Street, Boston, Massachusetts 02110, United States of America, Attention:
Galleon Funds, or such other address as shall be designated by the Administrator
in writing to the Seller and the Purchaser.
"ADVERSE CLAIM" means any lien, mortgage, hypothecation, security interest,
charge, encumbrance or other right or claim of any Person other than the
assignment set forth in Clause 2.1.
"AFFILIATE" means, as to any Person, any other Person controlling, controlled
by, or under common control with, that Person.
"AGREEMENT" is defined in the preamble.
"AGGREGATE PURCHASE PRICE" means the sum of all Purchase Prices for the Offered
Receivables included in a Notice of Sale.
"AGGREGATE UNPAID BALANCE" means, at any time, the aggregate of Unpaid Balances
of outstanding Sold Receivables.
"ASSET INTEREST" means, with respect to any day during a Settlement Period (such
day is referred to in this definition as the "CALCULATION DAY"), an amount
(expressed as a percentage) determined in accordance with the following formula:
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([PTI + ACR + LCR + LR + DR]/NPB) x 100
where:
PTI = the Purchaser's Total Investment calculated as of the close of business
on the Calculation Day;
ACR = the Accrued Cost Reserve maintained for the Settlement Period in which
the Calculation Day falls;
LCR = the Liquidation Cost Reserve maintained for the Settlement Period in
which the Calculation Day falls;
LR = the Loss Reserve maintained for the Settlement Period in which the
Calculation Day falls;
DR = the Dilution Reserve maintained for the Settlement Period in which the
Calculation Day falls; and
NPB = the Net Pool Balance calculated as of the close of business on the
Calculation Day.
"AUGSBURG BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
commercial banks in Augsburg are not authorised or required to be closed.
"BANKRUPTCY EVENT" means, as to any Person, any of the following events:
(a) if a case or other proceeding is commenced, without the application or
consent of such Person, in any court, seeking the liquidation,
reorganisation, debt arrangement, dissolution, winding up or
composition or readjustment of debts of such Person, the appointment of
a trustee, receiver, custodian, liquidator, assignee, sequestrator or
other similar official for such Person or for any substantial part of
its property, or any similar action as to such Person under any law
relating to bankruptcy, insolvency, reorganisation, winding up or
composition or adjustment of debts, and such case or proceeding shall
continue unstayed or undismissed for a period of 30 days; or
(b) if such Person either (i) commences a case or other proceeding under
any applicable bankruptcy, insolvency, reorganisation, debt
arrangement, dissolution or other similar law now or hereafter in
effect, or (ii) consents to the appointment of or taking possession by
a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official for such Person or for any substantial part of
its property, or (iii) makes any general assignment for the benefit of
creditors, or fails to, or admits in writing its inability to, pay its
debts generally as they become due, or, if a corporation or similar
entity, its competent representative bodies resolves to implement any
of the foregoing procedures or take any of the actions described in
this sub-paragraph (b).
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"BASE RATE" means, on any date, a fluctuating per annum interest rate equal to
the rate of interest most recently announced by the Liquidity Agent as its 1
month EURIBOR rate or equivalent base rate.
"BILLING DATE" means, with respect to any Report Date, the second Business Day
following such Report Date, subject to Clause 3.2 (d).
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which commercial
banks in Munich, Augsburg, Boston, and New York are not authorised or required
to be closed.
"CET" means central European time.
"CHANGE IN CONTROL" means any of the following:
(a) at any time, a transfer of
(i) 50% or more in the aggregate of the shares (Geschaftsanteile)
(including all warrants, options, conversion rights, and other
rights to purchase or convert into such shares) or voting
rights (Stimmrechte) of the General Partner or
(ii) 50% or more of the partnership equity (Kapitalanteile) or
voting rights (Stimmrechte) of the Seller to a Person other
than the Shareholder, or
(b) the creation or imposition of any Adverse Claim on the shares
(Geschaftsanteile) of the General Partner the partnership equity
(Kapitalanteile) of the Seller.
"COLLATERAL AGENT" means Deutsche Bank and Trust Company Americas (New York) in
its capacity as collateral agent for the Purchaser's creditors, together with
any successors in such capacity.
"COLLECTION ACCOUNT" means, for the time being, Account No. 1 and, as soon as it
is available and pledged for the benefit of the Purchaser under the Pledge
Agreement, Account No. 2 and (iii) any other account so designated by the
Purchaser and approved by the Servicer.
"COLLECTION ACCOUNT BANK" means Stadtsparkasse Augsburg or Bank of America,
Frankfurt am Main, as the case may be.
"COLLECTIONS" means, as to any Receivable, (a) all cash collections and other
cash proceeds of such Receivable, including (i) bank transfers, Uberweisungen,
wire transfers, cheques, bills of exchange, direct debits (but excluding any
cash proceeds arising under any transaction as referred to in Clause 11.1) and
including proceeds of any Related Assets (including proceeds of sale or other
disposition of repossessed goods), (ii) insurance payments that the Seller or
the Servicer applies in the ordinary course of its business to such Receivable
and (iii) VAT recoveries made in respect of such Receivable and (b) amounts
deemed to have been received as a Collection pursuant to Clause 3.5.
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"COMMERCIAL PAPER NOTES" means USD or EUR denominated short-term promissory
notes issued by the Purchaser to fund the Purchases hereunder.
"CONCENTRATION LIMIT" means the percentage rate of the Net Pool Balance which
the Aggregate Unpaid Balance of Sold Receivables with respect to a single
Obligor and its affiliated companies may not exceed. The following Concentration
Limits shall apply for the following Obligors (for the definition of the
Obligors below please refer to the definition of "Eligible Obligors"):
- - Boysen: EUR 10,000,000;
- - Eberspacher: EUR 18,000,000;
- - BMW: EUR 15,000,000;
- - DaimlerChrysler: EUR 15,000,000;
- - Volvo: EUR 10,000,000;
- - NedCar: 5,000,000;
- - Karmann: EUR 3,000,000,
- - Volkswagen AG : EUR 5,000,000 and
- - Porsche: EUR 5,000,000.
"CONSOLIDATED NET INCOME" means the net income of the Seller calculated on the
basis of the audited consolidated balance sheet and profit and loss accounts of
the Seller and its consolidated Subsidiaries, duly certified by the Seller's
accountants.
"CONTRACT" means a contract between the Seller and any Person pursuant to or
under which such Person shall be obligated to make payments to the Seller for
the sale of goods from time to time, including any purchase orders and other
related agreements between the Purchaser and any such Person.
"CREDIT AGREEMENT" means that certain Credit Agreement, dated as of September
14, 1994, among the Purchaser, State Street Global Markets LLC, as
Administrator, and State Street Bank, as Credit Bank, as the same may be
amended, supplemented, and/or restated or otherwise modified from time to time.
"CREDIT AND COLLECTION POLICY" means those credit and collection policies and
practices relating to Contracts and Receivables described in Schedule 4 and as
modified without violating Clause 7.4.
"CREDIT BANK" means the lender under the Credit Agreement.
"CREDIT DRAWS" means loans or other extensions of credit to the Purchaser made
in connection with the Sold Receivables pursuant to the Credit Agreement.
"CUT-OFF DATE" means the last day of each fiscal month of the Seller as
specified in Schedule 8, subject to Clause 3.2 (d).
"DEFAULTED RECEIVABLE" means a Receivable: (a) as to which any payment, or part
thereof, remains unpaid for 180 days or more from the original due date for such
payment; or (b) as to
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which the Obligor thereof is subject to a Bankruptcy Event or an event that,
with lapse of time, will become a Bankruptcy Event.
"DEFAULT RATIO" means, on any Cut-Off Date, the ratio (expressed as a
percentage) computed by dividing (a) the aggregate Unpaid Balance of all
Receivables that became Defaulted Receivables during the Settlement Period
ending on such Cut-Off Date by (b) the Receivables Balance on such Cut-Off Date.
"DELINQUENCY RATIO" means, on any Cut-Off Date, the ratio (expressed as a
percentage) computed by dividing (a) the aggregate Unpaid Balance of all Sold
Receivables that are Delinquent Receivables on such Cut-Off Date by (b) the
Receivables Balance on such Cut-Off Date.
"DELINQUENT RECEIVABLE" means a Receivable that is not a Defaulted Receivable
and as to which any payment, or part thereof, remains unpaid for 90 days or more
from the original due date for such payment.
"DILUTED RECEIVABLE" means that portion of any Sold Receivable which is either
(a) reduced or cancelled as a result of (i) any defective or rejected goods or
services, or any failure by the Seller to deliver any goods or services or
otherwise to perform under the underlying Contract or invoice, or (ii) any
change in the terms of or cancellation of any Contract or invoice or any other
adjustment by the Seller which reduces the amount payable by the Obligor on the
related Sold Receivable or (iii) any set-off in respect of any claim by the
Obligor on the related Sold Receivable or (iv) any other claim pursuant to which
such Sold Receivable would give rise to a Deemed Collection under this Agreement
or (b) subject to any specific dispute, offset, counterclaim or defence
whatsoever (except the discharge in bankruptcy of the Obligor thereof).
"DILUTION" means, for any given Settlement Period, the sum of all amounts deemed
to be collected pursuant to Section 3.5 for such Settlement Period.
"DILUTION RATIO" means, with respect to a Settlement Period, the ratio
(expressed as a percentage) obtained by dividing (a) the aggregate Dilution for
such Settlement Period, by (b) the aggregate Unpaid Balance of all Receivables
owed by Eligible Obligors that were originated by the Seller during the
Settlement Period immediately preceding such Settlement Period.
"DILUTION RESERVE" means, during a Settlement Period, an amount equal to (a) the
product of (i) 10% times (ii) the Net Pool Balance if the relevant Dilution
Ratio is less than or equal to 6%, (b) an amount equal to the product of (i) 12%
times (ii) the Net Pool Balance if the relevant Dilution Ratio is greater than
6% but does not exceed 8% or (c) an amount equal to the product of (i) 14% times
(ii) the Net Pool Balance if the relevant Dilution Ratio is greater than 8%.
"DISCOUNT" means, with respect to a Purchase of Receivables, the aggregate of
the following amounts calculated in relation to the Settlement Period in which
such Purchase of Receivables occurs:
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(a) the Accrued Cost Reserve;
(b) the Liquidation Cost Reserve;
(c) the Loss Reserve; and
(d) the Dilution Reserve;
"DOWNGRADED LIQUIDITY PURCHASER" means a Liquidity Purchaser which has been the
subject of a Downgrading Event.
"DOWNGRADING EVENT" with respect to any Person means the lowering of the rating
with regard to the short-term securities of such Person to below (a) A-1 by
Standard & Poor's Rating Services, a division of The McGraw-Hill Companies,
Inc., or (b) P-1 by Moody's Investors Service, Inc.
"EARNED DISCOUNT" means for any given Settlement Period an amount determined in
accordance with the following formula:
[PTI x BR x ED]/360
where:
PTI = the Purchaser's Total Investment (which, in the case of the first
Settlement Period shall be determined by the Administrator at least two
Business Days prior to the first Settlement Date, and for any
Settlement Period thereafter, shall be determined as of the close of
business on the Cut-Off Date immediately preceding the relevant
Settlement Period);
BR = the Base Rate applicable for such Settlement Period; and
ED = the actual number of days elapsed, or to elapse, during such Settlement
Period.
"EFFECTIVE DATE" is 14 March 2003.
"ELIGIBLE JURISDICTION" means the Federal Republic of Germany.
"ELIGIBLE OBLIGOR" means
- - DaimlerChrysler AG ("DAIMLERCHRYSLER");
- - BMW AG ("BMW");
- - Volkswagen AG ("VW");
- - Volvo Personvagnar AB, Volvo Cars Europe Industry NV ("VOLVO")
as long as they have along-term rating of not less than BBB by Standard & Poor's
Rating Services, a division of McGraw -Hill Companies, Inc., or its successor,
or not less than Baa2 by Moody's Investors Service, Inc. or its successor, or
the equivalent long-term or short-term
- 50 -
rating (as applicable) of such other rating agency as may be approved by the
Administrator from time to time; and
- - Friedrich Boysen GmbH & Co. KG ("BOYSEN");
- - Eberspacher GmbH & Co. KG ("EBERSPACHER");
- - Wilhelm KARMANN GmbH (,,KARMANN");
- - Dr. Ing. h.c. F. Porsche AG ("PORSCHE");
- - NedCar Netherlands Car. B.V. ("NEDCAR");
and any other Obligor expressly approved from time to time by both the
Administrator acting for and on behalf of the Purchaser, and the Rating Agencies
then rating the Commercial Paper Notes.
"ELIGIBLE RECEIVABLE" means a Receivable:
(a) the Obligor of which (i) is an Included Obligor, (ii) is an Eligible
Obligor and (iii) is not an Affiliate of the Seller or the General
Partner, and not an officer, employee or agent of the Seller;
(b) which is not a Defaulted Receivable, a Delinquent Receivable, or a
Diluted Receivable or, as to which any payment, or part thereof,
remains unpaid for 30 days or more from the original due date for such
payment;
(c) with respect to which the representation and warranty of the Seller in
Clause 6.6 is true;
(d) the sale of which does not violate any law or contractual obligation of
the Seller or the General Partner or any of their respective Affiliates
(including any obligation arising out of any Contract relating to such
Receivable);
(e) which is freely transferable or for which prior written consent to the
assignment under this Agreement has been obtained by the Seller,
provided, however, that in the case of BMW or DaimlerChrysler no such
consent shall be required;
(f) with respect to which the Seller can transfer good title, and the sale
of which is not void or voidable as a matter of law or contract and the
transfer of which, or of any Related Asset, is not subject to stamp tax
or any other duty;
(g) which arises under a Contract that (i) has been duly authorised and
that, together with such Sold Receivable, is in full force and effect
and constitutes the legal, valid and binding obligation of the Obligor
of such Receivable enforceable against such Obligor in accordance with
its terms and (ii) is subject to the Standard Terms and Conditions;
(h) which is not subject to any dispute, set off, counterclaim or defence
whatsoever;
(i) which, together with the Contract related thereto, does not violate in
any material respect any laws, rules or regulations applicable thereto
and as to which no party to the
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Contract related thereto is in violation of any such law, rule or regulation in
any material respect if such violation would impair the collectability of such
Receivable;
(j) which was originated by the Seller, in the normal course of the
Seller's business and satisfies all applicable requirements of the
relevant Credit and Collection Policy and which has not been reassigned
to the Seller, as the case may be, pursuant to Clause 2.9;
(k) the Obligor of which is a Person who will use the goods purchased in
connection with such Receivable solely for business (and not consumer)
purposes;
(l) which arose from the sale of equipment in which the Seller retained
title and in which such title is fully perfected by all necessary
action and is, after giving effect to the purchase of such Receivable
hereunder, prior to any other Adverse Claim on such equipment other
than, with respect to the goods underlying such Receivable, any Adverse
Claim enjoyed by suppliers of components, raw materials or parts to the
Seller;
(m) which is owing to the Seller by an Eligible Obligor;
(n) which is payable in Euro and governed by German law;
(o) which is documented or recorded by the Seller in the normal course of
its business and for which all such documents or records necessary to
create, evidence and service the obligation of the Obligor are in the
possession of the Seller;
(p) which does not require the relevant Obligor to withhold any amount from
payment of the Receivable on account of any tax; and
(q) which is payable by an Obligor with respect to which none of the
Individual Obligor Default Ratio, Individual Obligor Dilution Ratio and
Individual Obligor Delinquency Ratio has been exceeded.
"EURIBOR" means in relation to any amount denominated in euros on which interest
for a given period is to accrue:
(a) the percentage rate per annum equal to the offered quotation which
appears on the page of the Telerate Screen which displays the European
Interbank Offered Rate for Deposits in euros of the relevant amount
(currently expected to be page "248") for such period at or about 11:00
am (Brussels time) on the quotation date for such period, or if such
page or such service is not or shall cease to be available or relevant,
such other page or such other service for the purpose of displaying the
average European Interbank Offered Rate for euros as the Administrator
shall select, acting reasonably; or
(b) if no such quotation for euros for the relevant period is displayed and
the Administrator has not selected an alternative service on which a
quotation is displayed, the arithmetic mean (rounded upwards to four
decimal places) of the rates
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(as notified to the Administrator) at which each of the Euro Reference
Banks were offering to prime banks in the Euro interbank market
deposits in euros for such amount and for such period at or about 11:00
am (Brussels time) on the quotation date for such period.
"EURO REFERENCE BANKS" means three of the banks (none of which shall be located
in the same financial centre) selected by the Administrator and whose offered
rates would have been used for the purposes of the Telerate Screen rate referred
to in paragraph (a) of the definition of EURIBOR if the events leading to the
application of paragraph (b) of the definition of EURIBOR had not occurred, in
each case acting through its principal office located in a financial centre
within a participating member state.
"FINAL PAYOUT DATE" means the date following the Termination Date on which all
Sold Receivables have been collected or determined to be Defaulted Receivables
and all amounts payable by the Seller under the Transaction Documents have been
paid in full.
"GAAP" is defined in Clause 1.1.
"GENERAL PARTNER" is defined in the preamble.
"HEDGE COUNTERPARTY" means State Street Bank.
"INCLUDED OBLIGOR" means, at any time, each Obligor, except any Obligor as to
whom the Administrator has, at least three Business Days prior to the date of
determination, given notice to the Seller of the Purchaser's good faith belief
that such Obligor is not creditworthy or that such Obligor's creditworthiness
has been called into significant question.
"INDEMNIFIED AMOUNTS" is defined in Clause 12.2.
"INDEMNIFIED PARTY" is defined in Clause 12.2.
"INDIVIDUAL OBLIGOR DEFAULT RATIO" means the Default Ratios applying for the
following individual Obligors (for the definition of the Obligors below please
refer to the definition of "Eligible Obligors"):
- - Eberspacher: 2%;
- - Boysen: 2%
- - Karmann: 2%
- - Porsche: 2%
- - NedCar: 2%
"INDIVIDUAL OBLIGOR DELINQUENCY RATIO" means the Delinquency Ratios applying for
the following individual Obligors (for the definition of the Obligors below
please refer to the definition of "Eligible Obligors"):
- - Eberspacher: 5%;
- - Boysen: 5%
- - Karmann: 5%
- 53 -
- - Porsche: 5%
- - NedCar: 5%
"INDIVIDUAL OBLIGOR DILUTION RATIO" means the Dilution Ratios applying for the
following individual Obligors (for the definition of the Obligors below please
refer to the definition of "Eligible Obligors"):
- - Eberspacher: 10%;
- - Boysen: 10%
- - Karmann: 10%
- - Porsche: 10%
- - NedCar: 10%
"LIQUIDATION COST RESERVE" means for any given Settlement Period an amount equal
to:
(a) the sum of:
(i) the Servicer's Fee (expressed as a percentage);
(ii) 1%; and
(iii) 150% of the Base Rate (established for such Settlement
Period),
multiplied by:
(b) the Purchaser's Total Investment (which, in the case of the first
Settlement Period shall be determined by the Administrator at least two
Business Days prior to the first Settlement Date, and for any
Settlement Period thereafter, shall be determined as of the close of
business on the Cut-Off Date immediately preceding the relevant
Settlement Period);
multiplied by:
(c) the quotient obtained by dividing:
(i) the Adjusted Turnover Days in the immediately preceding
Settlement Period;
by:
(ii) 360.
"LIQUIDITY AGENT" means State Street Bank, as agent for the Liquidity
Purchasers, or any successor in such capacity.
"LIQUIDITY ASSET PURCHASE AGREEMENT" means and includes (a) the liquidity asset
purchase agreement dated on or about the date hereof among the Purchaser, the
Administrator, the
- 54 -
Liquidity Purchasers and the Liquidity Agent, and (b) any other agreement
hereafter entered into by the Purchaser providing for the transfer of Sold
Receivables to the Liquidity Purchasers against advancement of funds upon the
occurrence of any of the triggering events set out therein.
"LIQUIDITY PURCHASE" means a purchase made by the Liquidity Purchasers under the
Liquidity Asset Purchase Agreement.
"LIQUIDITY PURCHASER" means each purchaser under the Liquidity Asset Purchase
Agreement.
"LOSS RESERVE" means 2% for any Settlement Period 2% of the Net Pool Balance as
of the close of business on the immediately preceding Cut-Off Date.
"MASTER CURRENCY EXCHANGE AGREEMENT" means the currency exchange agreement dated
as of September 14, 1994 between the Purchaser and the Hedge Counterparty.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
(a) the financial condition, operations, assets or business of the Seller,
the General Partner or (so long as the Servicer is the Seller or an
Affiliate of the Seller) the Servicer;
(b) the ability of the Seller or (so long as the Servicer is the Seller or
an Affiliate of the Seller) the Servicer to perform its obligations
under any Transaction Document;
(c) the validity, enforceability or collectability of the Sold Receivables
taken as whole;
(d) the Purchaser's rights and interests pursuant to the Agreement; or
"NET POOL BALANCE" means, at any time, an amount equal to the Aggregate Unpaid
Balance of all Sold Receivables, that are Eligible Receivables, minus the
Aggregate Unpaid Balance of (i) any Defaulted Receivables, (ii) Delinquent
Receivables and (iii) of any Purchased Receivables exceeding any Concentration
Limits.
"NET INCOME" means the net income of the Seller calculated on the basis of the
audited consolidated balance sheet and profit and loss accounts of the Seller
duly certified by the Seller's accountants.
"NOTICE OF SALE" means a duly completed notice, executed by a Responsible
Officer of the Seller, substantially in the form of Schedule 6, confirming all
Reinvestments (Einzelkaufvertrag) having occurred hereunder during the preceding
Settlement Period to which such Notice of Sale relates and specifying the
relevant Settlement Period and the other information provided for in such
Schedule 6.
"OBLIGOR" means a Person obligated to make payments on a Receivable, including
any guarantor.
"OFFERED RECEIVABLES" means Receivables that have been offered in accordance
with Clause 2.3 or 2.4.
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"PERMITTED INVESTMENTS" means any deposit or other investment with a maturity
not longer than, or otherwise available within, one Business Day in the
Purchaser's name at any financial institution with a rating of its short-term
securities equal to or higher than (a) A-1 by Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc., and (b) P-1 by Moody's
Investors Service, Inc.
"PERSON" means an individual, partnership, corporation, joint stock company,
trust, unincorporated association, joint venture, government or any agency or
political subdivision thereof or any other entity.
"PLEDGE AGREEMENT" means the pledge agreement, which shall be entered into
between the Seller, the Purchaser and the Collection Account Bank 2, which shall
create a pledge over the Account No. 2.
"PROGRAMME COSTS" means the amount determined by the Administrator to be the sum
of (a) the Earned Discount, (b) accrued Programme Fee, (c) accrued Unused Fee,
and (d) other Purchaser costs and expenses relating to the Sold Receivables
other than the Servicer's Fee.
"PROGRAMME FEE" means a fee which shall accrue during each Settlement Period, at
a rate of 0.57 % per annum calculated on each Cut-Off Date on the Purchaser's
Total Investment as at the relevant date.
"PROGRAMME LIQUIDATION EVENT" means, any Bankruptcy Event which has occurred and
is continuing with respect to the Purchaser.
"PURCHASE" means a purchase (Einzelkaufvertrag) of Receivables by the Purchaser
from the Seller pursuant to the terms of this Agreement.
"PURCHASE DATE" means each Settlement Date.
"PURCHASE LIMIT" means EUR 50,000,000.
"PURCHASE PRICE" is defined in Clause 2.5.
"PURCHASER" means Galleon Capital Corporation, a Delaware corporation, together
with its successors and assigns.
"PURCHASER PARTY" means each of the Purchaser, any assignee or participant of
the Purchaser, any Liquidity Purchaser, the Liquidity Agent, the Credit Bank,
the Collateral Agent, the Relationship Bank, the Administrator and any sub-agent
of the Administrator.
"PURCHASER'S CURRENT TOTAL INVESTMENT" means the Purchaser's Total Investment as
of the immediately preceding Cut-Off Date.
"PURCHASER'S TOTAL INVESTMENT" means at any time the aggregate of all Purchase
Price payments made denominated in EUR (including, for the avoidance of doubt,
any Collections applied towards Reinvestments pursuant to Clause 3.6(a)(ii), but
excluding any Collections
- 56 -
set aside pursuant to Clause 3.6) for all Sold Receivables less all amounts
applied against such aggregate Purchase Prices and distributed to the Purchaser
pursuant to Schedule 2, provided that the Purchaser's Total Investment shall not
be considered reduced by any distribution of any amount if at any time such
distribution is rescinded or must otherwise be returned for any reason.
"QUALIFYING LIQUIDITY PURCHASER" means a Liquidity Purchaser with a rating of
its short-term securities equal to or higher than (a) A-1 by Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies, Inc., and (b) P-1 by
Moody's Investors Service, Inc. or the equivalent long term rating (as
applicable) of any Rating Agency.
"RATING AGENCIES" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and Moody's Investors Service, Inc., and/or such
other Rating Agencies as may be approved by the Administrator from time to time,
and "RATING AGENCY" means any one of such rating agencies.
"RECEIVABLE" means any right to payment from an Obligor (including interest or
finance charges) as set out in an invoice, a bill of lading received by the
Obligor or as otherwise communicated to the Obligor, as the case may be, arising
from or in relation to the sale of goods or the rendering of services by the
Seller to an Obligor who is a resident of and is acting through an office in an
Eligible Jurisdiction and who is not a government or a governmental subdivision
or agency.
"RECEIVABLES BALANCE" means, at any time, the aggregate Unpaid Balance of all
Sold Receivables at such time.
"RECORDS" means books, documents, instruments and other records (including
computer programs, tapes and disks) which evidence the Sold Receivables and/or
their Related Assets, or which are otherwise necessary or desirable to collect
the Sold Receivables, including bank drafts supplied by Obligors.
"RELATED ASSETS" means, as to any Receivable, all of the Seller's right, title
and interest in and to, but not its obligations relating to:
(a) all Contracts that relate to such Receivable (including the right to
terminate such Contracts on the grounds of late payment or
non-payment);
(b) all goods (including returned goods, repossessed goods and work in
progress), if any, relating to the sale which gave rise to such
Receivable (including any title retained by the Seller pursuant to any
relevant Contract or pursuant to any applicable law);
(c) all insurance policies, deposits, indemnities, letters of credit, bills
of exchange, cheques, other negotiable instruments, warranties,
retention of title and other agreements and arrangements not created or
made by the Purchaser and all other security interests or liens and
property subject thereto from time to time purporting to secure payment
of such Receivable, whether pursuant to the Contract related to such
Receivable or otherwise;
- 57 -
(d) all guarantees and other agreements or arrangements of whatever
character from time to time supporting or securing payment of such
Receivable;
(e) all of the Records; and
(f) all proceeds of such Receivable and the foregoing at any time arising
out of the resale, redemption or other disposal (net of collection
costs), or dealing with, or judgments relating to any of the foregoing,
any debts represented thereby and all rights of action against any
Person in connection therewith.
"RELATIONSHIP BANK" means State Street Bank, acting as a referral agent for the
Purchaser, together with any successors in such capacity.
"REPORT DATE" means, subject to Clause 3.2 (d), in respect to any Cut-Off Date,
the seventh day following such Cut-Off Date, provided that if the seventh day
following such Cut-Off Date is not an Augsburg Business Day, then the Report
Date shall fall on the next following Augsburg Business Day after the seventh
day following the Cut-Off Date.
"RESPONSIBLE OFFICER" of any Person means the president, the general manager
(Geschaftsfuhrer) or any of the managing directors of such Person.
"SELLER" is defined in the preamble.
"SELLER'S ACCOUNT" means such account of the Seller specified by written notice
from the Seller to the Administrator from time to time.
"SERVICER" is defined in Clause 8.2 (a).
"SERVICER PACKAGE" means, with respect to any Cut-Off Date, (a) a report, signed
by a Responsible Officer of the Servicer summarising (i) the Receivables Balance
and the balances of the Collection Account and Transaction Account, in each case
as at such Cut-Off Date, (ii) (A) the total Collections received during the
Settlement Period ending on such Cut-Off Date, (B) the aggregate Unpaid Balance
of Receivables generated by the Seller during such Settlement Period, (C) the
Receivables Balance on such Cut-Off Date, (D) the aggregate Unpaid Balance of
Sold Receivables that became Delinquent Receivables or Defaulted Receivables
during such Settlement Period and (E) the Default Ratio and the Delinquency
Ratio as measured on such Cut-Off Date; and (b) a computer disc containing the
foregoing data.
"SERVICER TRANSFER EVENT" is defined in Clause 8.2 (b).
"SERVICER'S FEE" is defined in Clause 4.1.
"SETTLEMENT DATE" means with respect to any Report Date, the fourth Business Day
following such Report Date, subject to Clause 3.2 (d).
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"SETTLEMENT PERIOD" means the period from and including the day after any
Cut-Off Date to and including the next following Cut-Off Date; provided that the
last Settlement Period shall end on the Final Payout Date.
"SHAREHOLDER" means Arvin Meritor, being the sole shareholder of the General
Partner and the holder of all shares (Kommanditanteile) of the Seller.
"SHAREHOLDER'S SUBSIDIARY" means a Person over which the Shareholder and/or any
of its subsidiaries can exercise control as defined in Section 17 of the German
Stock Corporation Act (Aktiengesetz).
"SOLD RECEIVABLE" means a Receivable that has been sold and assigned under this
Agreement.
"STANDARD TERMS AND CONDITIONS" means those standard contract terms and
conditions of the Seller., as the case may be, and each Eligible Obligor for the
relevant Eligible Jurisdiction.
"STATEMENT" is defined in Clause 6.4 (a).
"STATE STREET BANK" means State Street Bank and Trust Company, a bank organised
under the laws of the State of Massachusetts.
"SUBSIDIARY" means a Person over which the Seller, the General Partner and/or
their other Subsidiaries can exercise control as defined in Section 17 of the
German Stock Corporation Act (Aktiengesetz).
"TERMINATION DATE" means the earliest of: (a) the second anniversary of the date
hereof; (b) the date of termination (whether by scheduled expiration,
termination on default or otherwise) of the commitment of the Liquidity
Purchasers under the Liquidity Asset Purchase Agreement or the Credit Bank's
commitment under the Credit Agreement; and (c) the date on which the Termination
Date is declared (or deemed automatically) to have occurred pursuant to Clause
9.2.
"TERMINATION EVENT" is defined in Clause 9.1.
"TRANSACTION ACCOUNT" means the account held by the Purchaser at the Transaction
Account Bank or such other account as designated by the Purchaser as a
Transaction Account. Deutsche Bank AG London 925 799 900, DEUTGB2L, reference:
State Street/CTAS/JPotter/Galleon, to be wired via Deutsche Bank AG Frankfurt,
DEUTDEFF
"TRANSACTION ACCOUNT BANK" means Deutsche Bank AG, London.
"TRANSACTION DOCUMENTS" means this Agreement, any Notice of Sale and any other
documents to be executed and delivered pursuant hereto.
"TURNOVER DAYS" means, with respect to any Settlement Period, the product
obtained by multiplying (a) the quotient obtained by dividing (i) the Net Pool
Balance as of the first day of such Settlement Period by (ii) the aggregate
amount of Collections received on Sold
- 59 -
Receivables during such Settlement Period by (b) the number of days in such
Settlement Period.
"UNMATURED TERMINATION EVENT" means any event which, with the giving of notice
or lapse of time, or both, would become a Termination Event.
"UNPAID BALANCE" of any Receivable means at any time the unpaid amount thereof,
including any VAT with respect thereto, less, in the case of any Receivable
originated in any jurisdiction that subjects any payments on Receivables to
withholding tax, the aggregate scheduled amount of any withholding taxes payable
by the Obligor or by the Seller in respect of such Receivable.
"UNUSED FEE" means, for any given Settlement Period, a fee payable for the
Liquidity Asset Purchase Agreement determined in accordance with the following
formula:
(0.25% x {[(102% x PL)- PCTI] x UFD})/360
where:
PL = the Purchase Limit;
PCTI = the Purchaser's Current Total Investment (which in the case of the
first Settlement Period shall be equal to the Purchaser's Total
Investment as determined by the Administrator at least two Business
Days prior to the first Settlement Date); and
UFD = the number of days in such Settlement Period.
"USD" means U.S. Dollar, being the lawful currency of the United States of
America.
"VAT" means value added tax.
"YIELD PERIOD" with respect to any portion of the Asset Interest funded by a
Liquidity Purchase or a Credit Draw means:
(a) the period commencing on the date of the making of a Liquidity Purchase
or Credit Draw (whichever is latest) and ending such number of days
thereafter as the Administrator shall select; and
(b) each period commencing on the last day of the immediately preceding
Yield Period for the related portion of the Asset Interest and ending
such number of days thereafter as the Administrator shall select;
provided, however, that:
(i) any such Yield Period (other than a Yield Period consisting of one day)
which would otherwise end on a day that is not a Business Day shall be
extended to the next succeeding Business Day (unless the related
portion of the Asset Interest shall be
- 60 -
accruing Earned Discount at a rate determined by reference to EURIBOR,
in which case if such succeeding Business Day is in a different
calendar month, such Yield Period shall instead be shortened to the
immediately preceding Business Day);
(ii) in the case of Yield Periods of one day for any portion of the Asset
Interest, (A) the initial Yield Period shall be the date such Yield
Period commences as described in clause (a) above; and (B) any
subsequently occurring Yield Period which is one day shall, if the
immediately preceding Yield Period is more than one day, be the last
day of such immediately preceding Yield Period, and if the immediately
preceding Yield Period is one day, shall be the next day following such
immediately preceding Yield Period; and
(iii) in the case of any Yield Period for any portion of the Asset Interest
which commences before the Termination Date and would otherwise end on
a date occurring after such Termination Date, such Yield Period shall
end on such Termination Date and the duration of each such Yield Period
which commences on or after the Termination Date for such Portion of
the Asset Interest shall be of such duration as shall be selected by
the Administrator.
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SCHEDULE 2
PRIORITY OF PAYMENTS
Pursuant to Clause 3.2(c), the Administrator shall disburse funds from the
Transaction Account on each Settlement Date to the following Persons in the
following amounts and, if the sum of such amounts is less than the total amount
of such funds, in the following order of priority:
(a) FIRST, to the extent payable to any Purchaser Party or any Indemnified
Party pursuant to Clauses 12.2 or 13.5 of the Receivables Purchase
Agreement, to the Administrator in an amount equal to the aggregate of
such amounts received from the Seller pursuant to such Clauses and/or
agreements (for the benefit of the relevant Persons);
(b) SECOND, if the Servicer is a Person other than the Seller, to the
Servicer in an amount equal to the accrued Servicer's Fee payable to
such Servicer and not previously paid;
(c) THIRD, to the Purchaser in an amount equal to the accrued and unpaid
Programme Costs of the types described in paragraph (a) (Earned
Discount) of the definition thereof (disregarding, in the case of any
interest under the Liquidity Asset Purchase Agreement or the Credit
Agreement, any margins over specified base rates) with respect to the
Commercial Paper Notes, Liquidity Loans and/or Credit Draws that
financed the purchase of such Receivables;
(d) FOURTH, to the Purchaser in an amount equal to the accrued and unpaid
Programme Costs of the types described in paragraphs (b) and (c) of the
definition thereof (disregarding, in the case of any interest under the
Liquidity Asset Purchase Agreement or the Credit Agreement, any margins
over specified base rates) with respect to the Commercial Paper Notes,
Liquidity Loans and/or Credit Draws that financed the purchase of such
Receivables;
(e) FIFTH, so long as no Termination Event has occurred and is continuing
or would result from such payment, to the Purchaser in an amount equal
to the accrued and unpaid Programme Costs of the type described in
paragraph (d) of the definition thereof;
(f) SIXTH, to the Purchaser in reduction of the Purchaser's Total
Investment until reduced to zero;
(g) SEVENTH, to the Purchaser in an amount equal to the accrued and unpaid
Programme Costs of the type described in paragraph (d) of the
definition thereof (to the extent not payable under paragraph (e) of
this Schedule 2);
(h) EIGHTH, so long as no Termination Event of the type described in
sub-clause (g) of Clause 9.1 has occurred and is continuing, to the
Servicer in an amount equal to the accrued and unpaid Servicer's Fee,
if any, not paid pursuant to paragraph (b) of this Schedule 2;
(i) NINTH, to the Servicer in an amount equal to the accrued and unpaid
Servicer's Fee, if any, not paid pursuant to paragraphs (b) and (h) of
this Schedule 2; and
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(j) TENTH, to the Seller all amounts standing to the credit of the
Transaction Account after payment of the amounts set forth in (a)
through (i) above, by way of a success fee in respect of the collection
of Sold Receivables.
- 63 -
SCHEDULE 3
STANDARD TERMS AND CONDITIONS
[of the Seller and each Eligible Obligor]
(ATTACHED)
- 64 -
SCHEDULE 4
CREDIT AND COLLECTION POLICY
(ATTACHED)
- 65 -
SCHEDULE 5
RECORDS LOCATIONS
ZEUNA STAERKER GMBH & CO KG
AuBere UferstraBe 61-73
86154 Augsburg
Federal Republic of Germany
- 66 -
SCHEDULE 6
FORM OF NOTICE OF SALE
[Letterhead of Zeuna Staerker GmbH & Co KG]
Date:
To: State Street Global Markets LLC
as the Administrator, acting for
and on behalf of Galleon Capital Corporation
225 Franklin Street
Boston
Massachusetts 02110
U.S.A.
Attention: Galleon Funds
RE: RECEIVABLES PURCHASE AGREEMENT, DATED AS OF 10 MARCH 2003, AMONG ZEUNA
STAERKER GMBH & CO KG, GALLEON CAPITAL CORPORATION, STATE STREET GLOBAL MARKETS
LLC AND STATE STREET BANK AND TRUST COMPANY (AS FROM TIME TO TIME AMENDED,
SUPPLEMENTED OR NOVATED, THE "AGREEMENT")
Ladies and Gentlemen
1. We refer you to the above-captioned Agreement. Except as otherwise
provided herein, capitalised terms in this letter shall have the
meaning ascribed to them in the Agreement.
2. Without affecting the validity of each Reinvestment made pursuant to
the terms of the Agreement and having occurred during the previous
Settlement Period, we hereby confirm that (i) the Reinvestments listed
in Attachment A hereto have occurred at such time as is specified in
Attachment A hereto and that (ii) we have applied the relevant
Collections towards such Reinvestments pursuant to the terms of the
Agreement.
3. The aggregate Unpaid Balance of all Receivables being subject to
Reinvestments having occurred during the previous Settlement Period to
which this Notice of Sale relates exceeds the minimum threshold of [EUR
1,000,000] as set out in Clause 5.2(b)(iv) and is EUR [MID DOT]. A
calculation (made in accordance with the "Settlement Report" attached
to this Notice of Sale) of (i) the aggregate Unpaid Balance of all
Receivables having being sold under Reinvestments during the preceding
Settlement Period that are owed by each Obligor and its Affiliates and
(ii) the Unpaid Balance of each of such Receivable, and (iii) an ageing
of such Receivables is attached hereto.
4. We warrant that each of the representations referred to in Clause 6 of
the Receivables Purchase Agreement is true on and as of the date
hereof.
- 67 -
5. The provisions of the Receivables Purchase Agreement apply to this
notice and the related Reinvestments.
6. We confirm that the Receivables having been sold under Reinvestments
during the preceding Settlement Period were not and are not subject to
withholding tax when paid by the Obligor.
7. The aggregate Purchase Price for the Receivables having been sold under
Reinvestments during the preceding Settlement Period to which this
Notice of Sale relates is EUR [MID DOT].
Very truly yours
ZEUNA STAERKER GMBH & CO KG, A LIMITED PARTNERSHIP
BY NOVAFERRA EISEN GMBH, its General Partner
By:
Title:
By:
Title:
- 68 -
ATTACHMENT A TO THE NOTICE OF SALE
LIST OF ELIGIBLE RECEIVABLES HAVING BEEN SOLD UNDER REINVESTMENTS
DURING THE PRECEDING SETTLEMENT PERIOD
OBLIGORS UNPAID BALANCE DATE OF ORIGINATION DUE DATE
(WITH VAT NO.)
- 69 -
ATTACHMENT B TO THE NOTICE OF SALE
[FORM OF SETTLEMENT REPORT]
- 70 -
SCHEDULE 7
[FORM OF INCREMENTAL OFFER]
- 71 -
SCHEDULE 8
[CUT-OFF DATES OF THE SELLER]
MONTH CUT-OFF DATE
- ---------------------------------------------------------------------------
February 2003 02 March 2003
- ---------------------------------------------------------------------------
March 2003 30 March 2003
- ---------------------------------------------------------------------------
April 2003 04 May 2003
- ---------------------------------------------------------------------------
May 2003 01 June 2003
- ---------------------------------------------------------------------------
June 2003 29 June 2003
- ---------------------------------------------------------------------------
July 2003 03 August 2003
- ---------------------------------------------------------------------------
August 2003 31 August 2003
- ---------------------------------------------------------------------------
September 2003 28 September 2003
- ---------------------------------------------------------------------------
October 2003 02 November 2003
- ---------------------------------------------------------------------------
November 2003 30 November 2003
- ---------------------------------------------------------------------------
December 2003 28 December 2003
- ---------------------------------------------------------------------------
January 2004 01 February 2004
- ---------------------------------------------------------------------------
February 2004 29 February 2004
- ---------------------------------------------------------------------------
March 2004 28 March 2004
- ---------------------------------------------------------------------------
April 2004 02 May 2004
- ---------------------------------------------------------------------------
May 2004 30 May 2004
- ---------------------------------------------------------------------------
June 2004 27 June 2004
- ---------------------------------------------------------------------------
July 2004 01 August 2004
- ---------------------------------------------------------------------------
August 2004 29 August 2004
- ---------------------------------------------------------------------------
September 2004 03 October 2004
- ---------------------------------------------------------------------------
October 2004 07 November 2004
- ---------------------------------------------------------------------------
November 2004 05 December 2004
- ---------------------------------------------------------------------------
December 2004 02 January 2005
- ---------------------------------------------------------------------------
January 2005 06 February 2005
- ---------------------------------------------------------------------------
February 2005 06 March 2005
- ---------------------------------------------------------------------------
March 2005 03 April 2005
- ---------------------------------------------------------------------------
- 72 -
EXECUTION PAGES
ZEUNA STAERKER GMBH & CO KG
as Seller and Servicer
By: NOVAFERRA EISEN GMBH
its General Partner
(ON BEHALF OF ZEUNA STAERKER GMBH & CO KG
By:
Title:
Address: AuBere UferstraBE 61-73
86154 Augsburg
Federal Republic of Germany
Tel: +49 821 410 3240
Fax: +49 821 410 3234
Attn: Mark Benedickter, Thomas Rust - ABS Transaktion
GALLEON CAPITAL CORPORATION
as Purchaser
By:
Title:
Address: c/o J.H. Management Corporation
One International Place
Room 516
Boston
Massachusetts 02110
United States of America
Tel: +1 617 951 7690
Fax: +1 617 951 7050
Attn: Galleon Funds
- 73 -
STATE STREET GLOBAL MARKETS LLC
as Administrator
By:
Title:
Address: State Street Global Markets LLC
c/o State Street Bank GmbH
Brienner StraBe 59
80333 Munchen
Federal Republic of Germany
Tel: +49 89 55 878 0
Fax: +49 89 55 878 300
Attn: Galleon Funds - Investment Banking
STATE STREET BANK AND TRUST COMPANY
as Relationship Bank
By:
Title:
Address: 225 Franklin Street
Boston
Massachusetts 02110
United States of America
Tel: +1 617 6544020
Facsimile: +1 617 3504020
Attn: Galleon Funds