Exhibit 10.b
THIS MASTER RECEIVABLES TRANSFER AND SERVICING AGREEMENT is made on 21 June 2005
BETWEEN:
(1) FRANCE TITRISATION, a societe anonyme incorporated under the laws of
France, licensed by the Autorite des marches financiers as a societe
de gestion, whose registered office is located at 41, avenue de
l'Opera, 75002 Paris (France), registered with the Trade and
Companies Register of Paris under number 353 053 531, represented for
the purposes hereof by a duly authorised representative whose name
appears on the signature page, acting for itself and for the account
of the FCC CROWN RECEIVABLES EUROPE (the Management Company);
(2) BNP PARIBAS, a societe anonyme incorporated under the laws of France,
whose registered office is at 16, boulevard des Italiens, 75009 Paris
(France), registered with the Trade and Companies Register of Paris
under number 662 042 449, licensed as a credit institution in France
by the Comite des Etablissements de Credit et des Entreprises
d'Investissement, represented for the purposes hereof by a duly
authorised representative whose name appears on the signature page
(the Custodian);
(3) each of the entities listed in Part A of Schedule 1 of Appendix 1,
represented for the purposes hereof by a duly authorised
representative whose name appears on the signature page (the French
Sellers or the French Servicers);
(4) each of the entities listed in Part B of Schedule 1 of Appendix 1,
represented for the purposes hereof by a duly authorised
representative whose name appears on the signature page (the English
Sellers or the English Servicers, the French Sellers and the English
Sellers are hereinafter referred to collectively as the Sellers and
the French Servicers and the English Servicers are hereinafter
referred to collectively as the Servicers);
(5) CROWN EMBALLAGE FRANCE SAS, a societe par action simplifiee
incorporated under the laws of France, whose registered office is
located at 67, rue Arago, 93400 Saint Ouen (France), registered with
the Trade and Companies Register of Bobigny under number 954 200 838,
represented for the purposes hereof by a duly authorised
representative whose name appears on the signature page (the French
Administrative Agent); and
(6) CROWN PACKAGING UK PLC, a Public Limited Company incorporated under
the laws of England and Wales, whose registered office is located at
Downsview Road, Wantage, Oxfordshire, OX12 9BP (United-Kingdom),
registered under number 178090, represented for the purposes hereof
by a duly authorised representative whose name appears on the
signature page (the English Administrative Agent, the French
Administrative Agent and the English Administrative Agent are
hereinafter referred to collectively as the Administrative Agents),
(together, the Parties and each a Party).
WHEREAS:
A. The Management Company and the Custodian have decided to establish a
fonds commun de creances, known as FCC CROWN RECEIVABLES EUROPE,
governed by the provisions of Articles L. 214-43 et seq. of the
French Code monetaire et financier (previously Law no. 88-1201 of 23
December 1988), of the Decree n(degree) 2004-1255 of 24 November 2004
and the FCC Regulations dated the same date as this Agreement, for
the purposes of purchasing Receivables from the Sellers and issuing
the Units.
B. The Sellers wish to sell and the Management Company, on behalf of the
FCC, wishes to purchase Receivables from the Sellers relating to Sale
of Products carried out by the Sellers under Contracts entered into
between the Sellers and Debtors in the ordinary course of business
with the benefit of all related ancillary security and other rights,
if any, on the terms and subject to the conditions of this Master
Receivables Transfer and Servicing Agreement.
C. It is intended that the Senior Units to be issued by the FCC on any
Interest Payment Date will be subscribed by Eliopee. The Seller Units
and the Subordinated Units will be subscribed by the Parent Company.
D. The FCC delegates to each Seller, acting as Servicer, the task of
managing and collecting the relevant Receivables sold by it, for the
account of the FCC, on the terms and conditions set out in this
Master Receivables Transfer and Servicing Agreement.
E. The French Sellers and the French Servicers appoint the French
Administrative Agent, and the English Sellers and the English
Servicers appoint the English Administrative Agent, to act as their
agent (mandataire) in connection with certain administrative tasks to
be carried out pursuant to the Securitisation Programme.
IT IS HEREBY AGREED:
Page 2
SECTION I:
DEFINITIONS AND INTERPRETATION
1 DEFINITIONS AND INTERPRETATION
1.1 INCORPORATION OF DEFINITIONS
In this Master Receivables Transfer and Servicing Agreement (including the
Recitals, the Appendixes and the Schedules) (hereinafter referred to as this
Agreement), except as so far as the context otherwise requires, capitalised
words and expressions shall have the same meanings as set out in the Master
Definitions Agreement of even date executed by the Parties.
1.2 PRINCIPLES OF CONSTRUCTION
This Agreement incorporates the principles of construction set out in clause 3
of the Master Definitions Agreement as though the same were set out in full in
this Agreement. In the event of any conflict between the provisions of this
Agreement and the principles of construction set out in the Master Definitions
Agreement, the provisions of this Agreement shall prevail.
1.3 COMMON TERMS
This Agreement incorporates the common terms set out in clause 4 of the Master
Definitions Agreement as though the same were set out in full in this Agreement.
In the event of any conflict between the provisions of this Agreement and the
common terms set out in the Master Definitions Agreement, the provisions of this
Agreement shall prevail.
Page 3
SECTION II:
ASSIGNMENT OF RECEIVABLES
2 COMMITMENT TO SELL THE RECEIVABLES TO THE FCC
2.1 COMMITMENT TO SELL
Subject to the terms and conditions of this Agreement, the Sellers agree to sell
to the FCC, on each Transfer Date, all title to and rights in the Eligible
Receivables, from the FCC Establishment Date (inclusive) until the Final
Termination Date (exclusive).
2.2 ACCEPTANCE
Subject to the terms and conditions of this Agreement and in particular subject
to the satisfaction (or waiver) of all of the conditions precedent set out in
Schedule 6 of Appendix 1 and in Schedule 2 of the relevant Seller's Appendix,
the FCC accepts the undertaking of the Sellers pursuant to Clause 2.1 and agrees
to accept the offer for sale of the Eligible Receivables made by the Sellers.
2.3 SELECTION OF THE RECEIVABLES
On each Cut-Off Date immediately preceding a given Transfer Date, the Sellers
shall select the Receivables to be offered for sale to the FCC through an
Individual Transfer Offer in accordance with Clause 3.1. Each Receivable shall
comply with the Eligibility Criteria set out in Schedule 2 of Appendix 1 and,
where relevant in Schedule 1 of the relevant Seller's Appendix.
If, on a given Transfer Date, a Seller has transferred one or more Receivables
relating to a given Debtor to the FCC in accordance with the terms and
conditions of this Agreement, such Seller is obligated to offer for sale to the
FCC on all subsequent Transfer Dates all Receivables for such Debtor, provided
that these Receivables shall comply with the Eligibility Criteria set out in
Schedule 2 of Appendix 1 and, where relevant in Schedule 1 of the relevant
Seller's Appendix.
2.4 FINANCING ELIGIBILITY CRITERIA
At the latest on each Information Date immediately preceding the relevant
Transfer Date, the Management Company shall have verified the compliance of each
Eligible Receivable with the Financing Eligibility Criteria set out in Schedule
23 of Appendix 1.
The Parties expressly acknowledge that, pursuant to the FCC Regulations, Senior
Units and Seller Units issued by the FCC, on the FCC Establishment Date and on
each subsequent Interest Payment Date are backed by Eligible Financing
Receivables only.
Page 4
3 OFFER AND ACCEPTANCE
The sale and transfer of the Eligible Receivables to the FCC shall be performed,
with respect to each Cut-Off Period, in accordance with the procedure
contemplated in Clauses 3.1 to 3.5.
3.1 INDIVIDUAL TRANSFER OFFER
No later than 10.00 a.m. on each Information Date immediately preceding the
relevant Transfer Date:
(a) each Seller shall deliver to the relevant Administrative Agent an
Individual Transfer Offer in the form set out in Schedule 4 of
Appendix 1 together with an usable, accurate and complete Computer
File substantially in the form set out in Schedule 26 of Appendix 1,
in which each Eligible Receivable included in the relevant Individual
Transfer Offer shall be designated and identified (designee et
individualisee); and
(b) each Administrative Agent shall deliver to the Management Company
(with a copy to the Custodian) the relevant Consolidated Transfer
Offer in the form set out in Schedule 19 of Appendix 1, comprising
all the Individual Transfer Offers received from the relevant Sellers
together with the corresponding Computer File attached thereto, in
accordance with Sub-clause (a) above.
Each Individual Transfer Offer shall be irrevocable and binding on each Seller
when delivered to the Management Company through the intermediary of the
relevant Administrative Agent.
3.2 CONSISTENCY TESTS
No later than 4.00 p.m. on each Calculation Date immediately preceding the
relevant Transfer Date, the Management Company shall have performed the
Consistency Tests. Pursuant to the provisions of Part F of Schedule 6 of
Appendix 1, should any of the Consistency Tests be not satisfied in all respects
for any reason whatsoever, the FCC shall be prohibited from accepting any
Individual Transfer Offer and the corresponding Consolidated Transfer Offer on
that Calculation Date and on the corresponding Transfer Date.
3.3 ACCEPTANCE
Subject to the terms and conditions of this Agreement and, in particular,
subject to the satisfaction (or waiver) of the conditions precedent set out in
Schedule 6 of Appendix 1 and, where relevant, in Schedule 2 of the relevant
Seller's Appendix, the Management Company shall, no later than 4.00 p.m. on each
Calculation Date immediately preceding the relevant Transfer Date, unless the
Management Company delivers a Notice of Refusal in the form of Schedule 21 of
Appendix 1 to the relevant Administrative Agent pursuant to which any Individual
Transfer Offer received from any Seller on the relevant Information Date shall
be refused, accept such Individual Transfer Offer by delivering an Acceptance to
the relevant Administrative Agent, in the form of Schedule 20 of Appendix 1.
Page 5
The procedure referred to in this Sub-clause shall constitute an acceptance by
the Management Company to acquire from the relevant Seller all of the Seller's
title to, and rights in, the Eligible Receivables to be transferred to the
Management Company on the following Transfer Date, pursuant to the terms and
conditions of this Agreement.
If between the issuance of the relevant Acceptance on the said Calculation Date
and the relevant Transfer Date (included), any of the conditions precedent set
out in Schedule 6 of Appendix 1 and, where relevant, in Schedule 2 of the
relevant Seller's Appendix is not any longer fulfilled with respect to such
Seller, it is hereby expressly acknowledged and agreed that the relevant
Acceptance shall be automatically (de plein droit) null and void and with no
formalities in respect of the Eligible Receivables (if any) offered for transfer
in such Individual Transfer Offer and, the relevant transfer of such Eligible
Receivables shall be rescinded forthwith and automatically (de plein droit).
3.4 NO EFFECTIVE TRANSFER
The Parties agree that the delivery of an Acceptance by the Management Company
of the Individual Transfer Offers shall not result in the transfer of title to
the corresponding Eligible Receivables and that the transfer of the title to
such Eligible Receivables shall only be effected in accordance with Clause 4.2.
3.5 NO INDEPENDENT INVESTIGATION
Without prejudice to the statutory requirements of the Management Company under
all applicable laws and regulations, the Parties acknowledge and agree that
before issuing any Acceptance, neither the Management Company nor the Custodian
will make any independent investigation in relation to the Seller, the
Receivables (including any Ancillary Right), the Debtors, the Contracts or
compliance with the Eligibility Criteria of any Debtors or Receivables. The
relevant Acceptance shall be made by the Management Company on the assumption
that:
(a) each of the representations and warranties given by the Sellers as
referred to in Clause 25 and each of the representations and
warranties given by the Servicers as referred to in Clause 26, as
applicable, is true and accurate in all material respects when
rendered or deemed to be repeated and that each of the undertakings
given by the Sellers as referred to in Clause 25 and each of the
undertakings given by the Servicers as referred to in Clause 26 shall
be complied with at all relevant times; and
(b) each of the Eligibility Criteria is satisfied on the corresponding
Information Date and Transfer Date, the compliance of such
Eligibility Criteria being an essential and determining condition
(condition essentielle et determinante) for the FCC, the Management
Company and the Custodian, without which the FCC, the Management
Company and the Custodian would not have entered into this Agreement.
Page 6
4 ASSIGNMENT OF RECEIVABLES
4.1 PROCEDURE
Subject to acceptance by the Management Company of any Individual Transfer Offer
on each Calculation Date pursuant to Clause 3, each Seller hereby undertakes to
perform all actions set out in Clauses 4.2 and 4.3 in order to ensure that no
later than 12.00 p.m. on the corresponding Transfer Date all of Seller's title
to and rights in the Receivables listed in such Individual Transfer Offer shall
be assigned to the FCC.
4.2 TRANSFER DOCUMENT
Each transfer of Eligible Receivables together with any Ancillary Rights
relating thereto from any Seller to the FCC shall be performed by way of
Transfer Document (acte de cession de creances) complying with Articles L.
214-43 et seq. of the French Code monetaire et financier and with the Decree.
No later than 10.00 a.m. on any Transfer Date, the Seller, having issued an
Individual Transfer Offer on the Information Date immediately preceding the
relevant Transfer Date, shall send, via the relevant Administrative Agent, to
the Management Company by fax and messenger the corresponding Transfer Document
(acte de cession de creances) in compliance with the form set out in Schedule 5
of Appendix 1, duly executed and dated by the relevant Seller, together with an
usable, accurate and complete Transfer File substantially in the form set out in
Schedule 26 of Appendix 1, in which each Eligible Receivable included in the
relevant Transfer Document shall be designated and identified (designee et
individualisee).
No later than 12.00 p.m. on the relevant Transfer Date, the Management Company
shall deliver the relevant Transfer Document to the Custodian, who shall keep it
under its own responsibility in accordance with FCC Regulations.
4.3 EFFECT
Pursuant to the provisions of Article L. 214-43 of the French Code monetaire et
financier, the Eligible Receivables together with any Ancillary Rights relating
thereto shall be sold and transferred to the FCC by delivery to the Management
Company of the relevant Transfer Document. Such transfer, as a matter of French
law, shall be valid between the FCC and the Seller and enforceable against third
parties (including the Debtors) without any further formalities, irrespective of
the law governing the Eligible Receivables and the law of the country where the
Debtors are located, as at the date affixed on the relevant Transfer Document
upon its delivery by the relevant Seller to the Management Company. The Parties
hereby expressly acknowledge and agree that the relevant transfer of Eligible
Receivables shall be automatically and without any further formality rescinded
(resolu de plein droit) if the Initial Purchase Price (or the Purchase Price, as
the case may be) is not paid to the relevant Administrative Agent in accordance
with Clause 5.2.2.
Page 7
4.4 ADDITIONAL FORMALITIES
Notwithstanding the provisions of Clause 4.3, each of the Sellers and the
Management Company expressly agree and acknowledge that the assignment of
Eligible Receivables from Sellers to the FCC, in compliance with this Clause 4,
may not be enforceable against certain Debtors until notice of the sale of such
Eligible Receivables has been given to the relevant Debtor in accordance with
the law governing the Eligible Receivables (other than French law) or the law of
the country where such Debtors are located (other than French law). However, the
Management Company (or, as the case may be, the Back-Up Servicer) may, at all
times, inform the relevant Seller that it believes appropriate to make, carry
out or comply with such notifications, filings, acts, registrations and other
formalities, as may, in the reasonable opinion of the Management Company (or, as
the case may be, the Back-Up Servicer), be required to ensure that the
assignment of the Eligible Receivables becomes enforceable against the
corresponding Debtors, subject always to the provisions of Clause 8.
4.5 NO FORMALITIES IN RELATION TO ANCILLARY RIGHTS
Notwithstanding any provision in this Agreement to the contrary, and in
particular Clause 4.3, the Parties expressly acknowledge and agree that they
will not comply with the additional specific formalities, if any, which might be
required under any applicable laws and regulations for the transfer to the FCC
of any Ancillary Rights to be enforceable or perfected. Consequently, the
Parties expressly acknowledge and agree to all legal, economic and factual
consequences which may arise, relating to, inter alia (but not limited to),
validity, efficiency, effectiveness or enforceability of the transfer or
retransfer of any such Ancillary Right.
4.6 FAILURE TO PERFORM
Should any Seller, for any reason which is the fault of the Seller, fail to
strictly perform any of the steps, procedures or formalities and/or to deliver
the documents as set out herein, particularly (but without limitation) Clause
4.2, within the required timeframe, such Seller shall indemnify the FCC for any
reasonable costs incurred by the FCC directly or indirectly as a result of such
failure of the Seller.
5 PURCHASE PRICE
5.1 DETERMINATION OF THE PURCHASE PRICE
The Purchase Price for the Eligible Receivables offered for transfer by means of
an Individual Transfer Offer on any Information Date shall be equal to the
aggregate of the Net Invoices Amounts of the corresponding Eligible Receivables
as set out in such Individual Transfer Offer. No later than 4.00 p.m. on the
Calculation Date immediately preceding the relevant Transfer Date, the
Management Company shall notify the Purchase Price amount for the Transferred
Receivables to the Sellers, via the relevant Administrative Agent.
Page 8
5.2 PAYMENT OF THE PURCHASE PRICE
The Purchase Price for the Transferred Receivables shall be payable in Euro and
in Sterling in accordance with Sub-clauses 5.2.2 and 5.2.3.
5.2.1 Computation of the Initial Purchase Price and the Deferred Purchase Price
In relation to each Transfer Date (other than the FCC Establishment Date), the
Management Company will calculate the Purchase Price, the Initial Purchase Price
and the Deferred Purchase Price with respect to the Eligible Receivables offered
for sale and transfer on such Transfer Date and, no later than 4.00 p.m. on the
Calculation Date immediately preceding the relevant Transfer Date, the
Management Company shall notify such amounts to the Sellers, via the relevant
Administrative Agent.
5.2.2 Payment of the Initial Purchase Price
The Initial Purchase Price payable in respect of the Eligible Receivables
offered for sale and transfer on any Secondary Transfer Date (or the Purchase
Price payable in respect of the Eligible Receivables offered for sale and
transfer on any Principal Transfer Date) shall be payable by the FCC no later
than 3.00 p.m. on the Secondary Transfer Date (or the Principal Transfer Date,
as relevant) immediately following the Calculation Date on which the Initial
Purchase Price (or the Purchase Price, as relevant) has been calculated by the
Management Company, by transferring the Initial Purchase Price (or the Purchase
Price, as relevant) to the credit of the relevant Administrative Agent Account
by debiting the FCC General Account, provided that the Administrative Agents
shall receive the Initial Purchase Price (or the Purchase Price, as relevant) in
the capacity as legal agent (mandataire) of the Sellers in accordance with
Clauses 21 and 22.
5.2.3 Payment of the Deferred Purchase Price
The Deferred Purchase Price payable in respect of the Eligible Receivables
offered for sale and transfer on any Secondary Transfer Date shall be payable by
the FCC no later than 3.00 p.m. on the next Secondary Transfer Date or at the
latest on the next Principal Transfer Date, by transferring the Deferred
Purchase Price to the credit of the relevant Administrative Agent Account by
debiting the FCC General Account, provided that the Administrative Agents shall
receive the Deferred Purchase Price in the capacity as legal agent (mandataire)
of the Sellers in accordance with Clauses 21 and 22.
5.3 DISCHARGE
Payment of the Purchase Price in compliance with Clause 5.2 shall result in the
full and definitive discharge of the FCC's payment obligations in respect of the
Transferred Receivables. Each Seller hereby irrevocably undertakes, that upon
payment of the Purchase Price in accordance with Clause 5.2, it will not assert
any claim against the FCC, and hereby releases and waives any such claim, for
payment by the FCC of any amounts in respect of the Purchase Price.
Page 9
6 FAILURE TO CONFORM TO THE ELIGIBILITY CRITERIA
6.1 REMEDIES
If, at any time after the execution of this Agreement, any Party becomes aware
that any of the Eligibility Criteria relating to any Transferred Receivable was
false or incorrect on the corresponding Information Date or Transfer Date, that
Party shall inform the other parties without delay by written notice, and the
relevant Seller may remedy the breach by the earliest of:
(a) three (3) Business Days from the day such Seller becomes aware of
such breach; or
(b) three (3) Business Days following receipt of the written notice sent
by any other party to this Agreement.
6.2 PROCEDURE
If the breach referred to in Clause 6.1 is not remedied in a manner reasonably
satisfactory to the Management Company, or is not capable of being remedied
within the timeframe specified in the said Clause 6.1, the Parties shall:
(a) subject to the provisions of Sub-clause (b) below, proceed as
follows:
(i) no later than 10.00 a.m. on the next Information Date
following the expiration of the time periods in Clause 6.1,
the relevant Seller, via the relevant Administrative Agent,
shall deliver to the Management Company a computer file
listing, designating and identifying such Affected
Receivables (designee et individualisee);
(ii) no later than 4.00 p.m. on the Calculation Date following
the Information Date in Sub-clause 6.2(a)(i), the
Management Company shall notify the relevant Seller, via
the relevant Administrative Agent, the detailed
calculations of the Retransferred Amount corresponding to
such Affected Receivables;
(iii) no later than 10.00 a.m. on the Retransfer Date following
the Calculation Date in Sub-clause 6.2(a)(ii), the transfer
of such Affected Receivables shall be automatically and
without any further formality rescinded (resolu de plein
droit);
(iv) no later than 10.00 a.m. on the Retransfer Date following
the Calculation Date in Sub-clause 6.2(a)(ii), the relevant
Seller, via the relevant Administrative Agent, shall credit
the FCC General Account with the corresponding
Retransferred Amount;
(v) in respect of each Cut-Off Period, each Servicer, by no
later than 2.00 p.m. one (1) Business Day before the
Payment Date or Interest Payment Date shall pass an
irrevocable order for a wire transfer with the following
libelle "Repurchases -- Crown Securitisation" for
Page 10
French Sellers and through SWIFT with an MT101 order for
English Sellers in order that by no later than 10.00 a.m.
on the corresponding Transfer Date, all Retransfer Prices
received in Euro and in Sterling in respect of the
Affected Receivables to be repurchased are transferred to
the FCC Collection Account.
(b) in the event that an Affected Receivable does not exist, or no longer
exists, the relevant Seller and, where applicable, the Management
Company, shall not be obligated to comply with Sub-clause
6.2(a)(iii), but shall comply with Sub-clauses 6.2(a)(i), (ii), (iv)
and (v).
6.3 CONSEQUENCES
Compliance with Clause 6.2 shall result in the discharge and full release of any
claim that the FCC might have had against such Seller on the basis of the
inaccuracy of the representations and warranties with respect to any Affected
Receivable, provided that this shall not affect the FCC's rights resulting from
any other inaccuracy of the representations and warranties in respect of any
other Transferred Receivable.
7 OPTION TO REPURCHASE
Pursuant to Article L. 214-43 of the French Code monetaire et financier, each
Seller shall have the right, but not the obligation, to request the Management
Company to transfer back to it one or more Defaulted Receivables by delivering
to the Management Company, no later than 10.00 a.m. on the Information Date
immediately preceding a Transfer Date, via the relevant Administrative Agent, an
Individual Retransfer Request in the form set out in Schedule 25 of Appendix 1.
For the avoidance of doubt, the Parties hereto agree and acknowledge that such
right shall be exercised by the Sellers:
(a) on an exceptional basis; and
(b) because of external constraints only, such as tax reasons; and
(c) only for Defaulted Receivables which are definitely unrecoverable.
Upon receipt of an Individual Retransfer Request from the relevant
Administrative Agent, the Management Company shall be free to accept or reject,
in whole or in part, the corresponding Individual Retransfer Request. If any
Individual Retransfer Request is not accepted by the Management Company by 10.00
a.m. on the Transfer Date immediately following the Information Date on which
the Individual Retransfer Request was delivered to it, such Individual
Retransfer Request shall automatically and with no formalities lapse.
In respect of each Cut-Off Period, each Servicer, by no later than 2.00 p.m. one
(1) Business Day before the Payment Date or Interest Payment Date shall pass an
irrevocable order for a wire transfer with the following libelle "Repurchases --
Crown Securitisation" for French Sellers and through SWIFT with an MT101 order
for English Sellers in order that by no later than 10.00 a.m. on the
corresponding Transfer
Page 11
Date, all Retransfer Prices received in Euro and in Sterling in respect of the
Defaulted Receivables to be repurchased are transferred to the FCC Collection
Account.
8 PERFECTION OF TRANSFER AGAINST DEBTORS
The FCC acknowledges and agrees that it shall not serve any Notice of Transfer
to any Debtor unless as provided below.
Upon the occurrence of a Seller Termination Date with respect to any Seller, and
without prejudice to any other rights of the FCC pursuant to the terms and
conditions of the Securitisation Transaction Documents, the Management Company
(or, as the case may be, the Back-Up Servicer) may serve a written Notice of
Transfer substantially in the form set out in Schedule 7 of the relevant
Seller's Appendix at any time as from the date immediately following the Seller
Termination Date for the purpose of instructing the Debtors of that Seller to
direct all future payments related to the Eligible Receivables originated by
that Seller to the FCC.
9 LIQUIDATION OF THE FCC
Pursuant to the provisions of the Decree, the Management Company may or shall
decide to liquidate the FCC in accordance with, and subject to the provisions of
the FCC Regulations.
In the event that the Management Company decides to liquidate the FCC in
accordance with the provisions of the FCC Regulations, it shall be entitled to
offer to the relevant Seller the possibility to repurchase the outstanding
Transferred Receivables in whole, but not in part, within a single transaction,
for a repurchase price determined in accordance with the provisions of the FCC
Regulations. In such event, the relevant Seller shall have the discretionary
right to refuse such proposal.
The relevant Seller shall not be entitled to accept the offer made by the
Management Company unless the repurchase price applicable to the retransfer of
the Transferred Receivables is equal to the market value of such Transferred
Receivables, provided that such repurchase price shall in any event be
sufficient so as to allow the Management Company to pay all principal and
interest amounts due and payable in respect of the outstanding Units after the
payment of all liabilities of the FCC ranking higher in the Orders of Priority,
failing which such retransfer of the Transferred Receivables shall not take
place. If the relevant Seller accepts the Management Company's offer, the
assignment of the Transferred Receivables shall take place within five (5)
Business Days following that acceptance and the relevant Seller shall pay the
repurchase price by wire transfer to the credit of the relevant FCC Account.
If the relevant Seller refuses the Management Company's offer, the Management
Company will use its best endeavours to assign the remaining outstanding
Transferred Receivables to a credit institution or such other entity authorised
by the French law and regulations to acquire the Transferred Receivables under
similar terms and conditions.
The Management Company shall liquidate the FCC on the FCC Liquidation Date.
Page 12
Any Liquidation Surplus (boni de liquidation) shall be paid to the holder of the
Subordinated Units as final payment of principal and interest of the said
Subordinated Units.
Page 13
SECTION III:
SERVICING AND COLLECTION OF RECEIVABLES
10 APPOINTMENT OF THE SERVICERS
10.1 APPOINTMENT AND RESPONSIBILITIES
Pursuant to the provisions of Article L. 214-46 of the French Code monetaire et
financier, each Seller, acting in its capacity as Servicer, will continue to
perform the management, servicing and collection of the Transferred Receivables
originated by it and sold to the FCC.
To this end, the Management Company hereby appoints each Servicer, with effect
from the FCC Establishment Date, as its legal agent (mandataire) pursuant to
Articles 1984 et seq. of the French Code civil to act solely (conjointement et
sans solidarite) on behalf of the FCC in connection with the management,
collection and servicing of the Transferred Receivables originated by it in its
capacity as Seller, which shall include:
(a) performing all functions, duties and obligations under the
Securitisation Transaction Documents to which the Servicer is a
party;
(b) establishing and maintaining each of the Collection Accounts in the
name of the Servicer with the relevant Collection Account Bank and
operating the Collection Accounts;
(c) collecting all sums due in relation to the Transferred Receivables
into the Collection Accounts, including taking any necessary
enforcement action against the Debtors of the Transferred
Receivables;
(d) providing certain data administration and cash management services in
relation to the Transferred Receivables and reporting three times per
month on the performance of the Transferred Receivables; and
(e) performing those other functions as specifically provided for in this
Agreement,
in all such cases on behalf of the FCC as provided for in this Agreement and the
Securitisation Transaction Documents.
10.2 ACCEPTANCE OF APPOINTMENT
Each Servicer accepts the appointment under Clause 10.1 under the terms and
conditions of this Agreement.
In the event that a new Seller accedes, from time to time, to the Securitisation
Programme pursuant to Clause 24.3:
Page 14
(a) the FCC shall appoint, pursuant to this Clause 10, such new Seller as
a new Servicer under the terms and conditions of this Agreement, in
connection with the Transferred Receivables originated by such Seller
in its capacity as Seller; and
(b) such new Seller shall accept such appointment under the terms and
conditions of this Agreement.
10.3 AUTHORITY OF THE SERVICERS
During the term of appointment under this Agreement, each Servicer shall,
subject to the terms and conditions of this Agreement, have the full power,
authority and right to do or cause to be done any and all things which it
reasonably considers necessary, desirable or convenient for, or incidental to
the performance of its duties, but always subject to compliance with the
Servicing Procedures and provide that no action shall be taken which affects the
FCC's or the Servicer's rights under the Securitisation Transaction Documents.
Furthermore, each Servicer shall ensure that there is devoted to the performance
of its obligations under this Agreement (including but not limited to, doing
what is necessary to collect all amounts owed by the Debtors in connection with
the Transferred Receivables) at least the same amount of time, attention, level
of skill, care and diligence, as would be devoted if it were acting solely for
its own entire benefit.
Each Servicer shall only provide to the FCC the limited duties and services set
out in this Agreement. The Servicers shall have no authority whatsoever in
determining operation and financial policies in respect of the Securitisation
Programme and each Servicer acknowledges that all powers to determine such
policies (including the determination of whether or not any particular policy is
for the benefit of the Securitisation Programme) are, and shall at all times
remain, vested in the FCC. The Servicers shall not be conferred any powers to
enter into contracts in the name of the FCC.
11 SUB-CONTRACTS
11.1. Subject to the provisions herein, each Servicer may sub-contract or
delegate any part of the administrative services to be provided by it
under this Agreement to any third party provided that:
(a) notwithstanding any provisions to the contrary, including without
limitation, in the contractual arrangements between the relevant
Servicer and such appointed third party, the appointment of such
third party shall not in any way release or discharge the relevant
Servicer from liability under this Agreement and exempt the relevant
Servicer from any liabilities or obligations under this Agreement;
(b) the FCC shall have no liability to the appointed third party in
relation to any cost, claim, charge, loss, liability, damage or
expense suffered or incurred by such third party;
Page 15
(c) such third party accepts in substance the rights and obligations of
the relevant Servicer in respect of the management and of the
servicing of the Transferred Receivables;
(d) such third party irrevocably waives all rights of contractual
recourse (responsabilite contractuelle), of any form, nature, and on
any ground, which it may have against the FCC until one year and one
day has elapsed following the Legal Maturity Date;
(e) the appointment of such third party shall comply with the relevant
provisions of the French Code monetaire et financier and of the
Decree; and
(f) the appointment of any such third party shall be subject to the prior
written consent of the Management Company, which consent shall not be
unreasonably withheld.
11.2 Without prejudice to Clause 11.1, the Parties acknowledge and agree that
each Servicer has delegated to Crown Emballage France SAS in France and Crown
Packaging UK PLC in the United-Kingdom, respectively, certain of its
administrative duties relating to the Debtors credit monitoring, invoicing
process, collection, chasing-up, calculations and reporting to be performed by
each Servicer. It being understood that, notwithstanding such delegation:
(a) the Management Company shall, except to the extent provided otherwise
in the Securitisation Transaction Documents, deal exclusively with
the relevant Servicer (or the relevant Administrative Agent) in
respect of matters relating to the performance by the relevant
Servicer of its obligations under this Agreement and any notice
given, demand or other communication made to the relevant Servicer
shall be deemed to be given or made to the relevant Administrative
Agent and vice versa;
(b) the relevant Servicer shall be responsible for providing Crown
Emballage France SAS or, as the case may be, Crown Packaging UK PLC
with any notice given to such Servicer under this Agreement, to the
extent, in the judgment of the relevant Servicer that it is necessary
to do so; and
(c) the relevant Servicer shall ensure that Crown Emballage France SAS
or, as the case may be, Crown Packaging UK PLC expressly and
irrevocably undertakes to waive all rights of contractual recourse
(responsabilite contractuelle), of any form, nature, and on any
ground, which it may have against the FCC until one year and one day
has elapsed following the Legal Maturity Date.
12 COLLECTION ACCOUNTS
12.1 BANK ACCOUNTS
Each Servicer confirms that, as at the date of this Agreement, each Collection
Account set out in Schedule 3 of Appendix 1 in respect of each such Servicer has
been established with the relevant Collection Account Bank and it has entered
into a
Page 16
Collection Account Bank Agreement as necessary under applicable French or
English law with each Collection Account Bank regulating the operation of the
relevant account.
12.2 COLLECTION ACCOUNT SECURITY AGREEMENT
Each Servicer participating in the Securitisation Programme as a Seller shall
have executed and perfected, pursuant to applicable French or English law, with
the FCC and, as the case may be, the relevant Collection Account Bank a
Collection Account Security Agreement in respect of its Collection Account,
pursuant to which the rights and interest of the FCC in the amounts standing at
any time to the credit of each Collection Account shall be secured for the
benefit of the FCC. Such Collection Accounts will be established for the purpose
of the Securitisation Programme in the form of French "comptes specialement
affectes" for the French Servicers and trust accounts for the English Servicers.
Any relevant Collection Account Security Agreement supersedes and/or supplements
the relevant Collection Account Bank Agreement entered into on or before the FCC
Establishment Date.
12.3 CHANGES TO COLLECTION ACCOUNTS
Each Servicer undertakes to the FCC that it will maintain each of the Collection
Accounts in its current form with the relevant Collection Account Bank, and each
Servicer undertakes that it will not make any changes, other than changes
necessary under applicable law, to any Collection Account save as provided in
Sub-clause below. Each Servicer undertakes not to create or permit to arise or
subsist any security interest whatsoever over or in relation to any Collection
Account save as permitted pursuant to the FCC Transaction Documents.
Each Servicer shall be entitled to change a Collection Account provided that:
(a) it notifies all relevant Debtors of the new Collection Account
details and instructs the relevant Debtors to make payments in
respect of the Transferred Receivables to the new Collection Account;
(b) the relevant Collection Account Bank has a short term rating of at
least P-1 by Moody's;
(c) it maintains, in accordance with the terms of this Agreement, any
Collection Account being replaced by the new Collection Account for
at least twelve (12) months after complying with Sub-clause (a); and
(d) the new Collection Account becomes subject to a Collection Account
Security Agreement, pursuant to applicable French or English law.
12.4 COLLECTION ACCOUNT BANK RATING
If the short term rating by Moody's of any Collection Account Bank shall fall
below P-1, the relevant Servicer shall, within 15 calendar days after the
occurrence of such event:
Page 17
(a) terminate the Collection Account Bank Agreement; and
(b) replace such Collection Account Bank in accordance with the
requirements of Clause 12.3.
12.5 ADDITIONAL COLLECTION ACCOUNTS
Each Servicer undertakes, where necessary, to establish an additional Collection
Account in respect of any new Seller and to enter into a Collection Account Bank
Agreement and a Collection Account Security Agreement with each bank with whom
such additional Collection Account is maintained, in each case, on substantially
similar terms as any agreements entered into under Clauses 12.1 and 12.2 and
with the prior approval of the Management Company, such approval not to be
unreasonably withheld.
Each Servicer shall notify the account number of any additional Collection
Account to the Management Company promptly after the account has been
established.
12.6 OPERATION OF ACCOUNTS
Each Servicer shall operate each of the Collection Accounts in accordance with
this Agreement, subject to the provisions of the relevant Collection Account
Bank Agreement, Collection Account Security Agreement and applicable law.
Furthermore, each of the Servicers and the Administrative Agents undertakes to
the Management Company and the Custodian that it will not give any instruction
to transfer funds from any of the Collection Accounts unless such instruction is
given in accordance with its duties under, and subject to the terms of, this
Agreement, the Collection Account Bank Agreement and the Collection Account
Security Agreement.
12.7 COLLECTION RECORDS
Each Servicer shall establish and maintain records in respect of its Collection
Accounts and such records shall allow for the separate identification of all FCC
Collections received in respect of each Transferred Receivable into that
Collection Accounts on each Business Day, provided that such records shall at
all times include all historical entries in the Collection Accounts since the
FCC Establishment Date.
The Servicers or, as the case may be, the Administrative Agents, shall make
available as soon as possible upon request such records to the Management
Company and the Custodian.
13 COLLECTIONS OF RECEIVABLES
13.1 COLLECTIONS
Subject to and in accordance with the provisions of this Agreement, each
Servicer shall:
Page 18
(a) collect all amounts due from the Debtors in respect of the
Transferred Receivables in an efficient and timely manner; and
(b) in connection with the FCC Collections, present all documents
necessary, including bank payments undertakings, in support of such
amounts due from any Debtor to the relevant Collection Account Bank
in an efficient and timely manner.
13.2 RECONCILIATION OF THE COLLECTIONS
In respect of each Collection Period, each Servicer shall on the corresponding
Transfer Date, determine with respect to each amount credited into the relevant
Collection Account during that Collection Period, if such amount is (i) an FCC
Collection or (ii) any other Collection.
13.3 INSTRUCTIONS TO THE COLLECTION ACCOUNT BANKS
In respect of each Collection Period, each Servicer, by no later than 2.00 p.m.
one (1) Business Day before the Payment Date or Interest Payment Date, shall
pass an irrevocable order of a wire transfer with the following libelle
"Collections -- Crown Securitisation" for French Sellers and through SWIFT with
an MT101 order for English Sellers, in order that by no later than 10.00 a.m. on
the corresponding Payment Date or Interest Payment Date, all FCC Collections
received in Euro and in Sterling in respect of the Transferred Receivables are
transferred to the FCC Collection Account.
Upon the occurrence of a Servicer Trigger Event and by no later than 9.00 a.m.
on each calendar day, all amounts, in Euro or in Sterling, standing to the
credit of each Collection Account at close of business on the preceding day,
shall be automatically transferred to the FCC Collection Account in accordance
with the provisions of the relevant Collection Account Security Agreement.
13.4 DILUTIONS
In respect of each Cut-Off Period, each Servicer, by no later than 2.00 p.m. one
(1) Business Day before the Payment Date or Interest Payment Date, shall pass an
irrevocable order of a wire transfer with the following libelle "Dilutions --
Crown Securitisation" for French Sellers and through SWIFT with an MT101 order
for English Sellers in order that by no later than 10.00 a.m. on each Payment
Date or Interest Payment Date immediately following that Cut-Off Period, all New
Dilutions in Euro and in Sterling in respect of the Transferred Receivables are
transferred to the FCC General Account.
If a Servicer Trigger Event occurs during the Amortisation Period, each Seller
shall transfer by no later than 10.00 a.m. on the immediately following Interest
Payment Date or Payment Date, as relevant, the Dilution Reserve Shortfall.
Page 19
13.5 APPORTIONMENT OF COLLECTIONS
Each Servicer agrees that if a Debtor makes a general payment to a Collection
Account which includes the payment of one or more Receivables and any other
monies due, and such Debtor makes no apportionment as to the payment, the
Servicer shall apply such payment firstly to any amount due pursuant to a
relevant Transferred Receivable secondly to any other Receivable due and thirdly
to any other payment.
14 CONTRACTUAL DOCUMENTS AND FILES
The Custodian is charged with the custody of the assets of the FCC.
Nevertheless, in accordance with the provisions of Article 20 of the Decree,
each Servicer shall act as depository of the Transferred Receivables, in
compliance with the following cumulative conditions:
(a) the Custodian shall ensure, under its own liability, the custody of
the Transfer Documents (actes de cession de creances) evidencing the
assignment of such Transferred Receivables to the FCC; and
(b) each Servicer shall ensure, under its own liability, the custody of
the Files and other agreements and instruments relating to such
Transferred Receivables, shall implement to that effect custody
procedures and shall procure that a regular and independent internal
supervision of such procedures is carried out annually.
Consequently, each Servicer shall maintain, implement and keep the Files and
accounting, management and administrative information systems, procedures and
records in a form which is adequate (i) to generate accurate, complete and
reliable information regarding the portfolio of Transferred Receivables and in a
manner such that the Transferred Receivables are designated and identified
(designees et individualisees) on any date, (ii) to enforce the Transferred
Receivables without any delay, (iii) to identify in an efficient and timely
manner the aggregate of all FCC Collections, any New Dilutions, any
Unanticipated Dilutions and any Consumed Anticipated Dilutions, and any
Recoveries in relation to the Transferred Receivables and (iv) to identify the
Files from the records and other documents which relate to other receivables or
agreements maintained by or on behalf of the Servicer or any other person.
Each Servicer shall deliver to, or procure the delivery to the Custodian of, a
Custody Procedures Report in the form set out in Schedule 7 of Appendix 1 which
shall contain (i) sufficient information in order for the Custodian to be able
to verify that appropriate safe custody procedures are in place to guarantee the
existence and the safekeeping of the Transferred Receivables and the Ancillary
Rights attached thereto (if any) and that the Transferred Receivables are
managed and serviced for the exclusive benefit of the FCC, and (ii) the
conclusions of the internal review referred to above, together with a
certificate certifying the conformity between the Transferred Receivables and
the corresponding Files.
Upon the occurrence of a Servicer Termination Date in relation to a given
Servicer, such Servicer shall, in respect of the Transferred Receivables then
outstanding,
Page 20
immediately deliver, or procure the delivery, to the Back-Up Servicer of the
Files which shall be kept in safe custody and under its control until 12 months
after the termination of the mission of the Back-Up Servicer, provided that the
relevant Servicer shall have the right to make and retain such copies of any
such records as it desires.
It is expressly agreed that each Servicer shall perform its undertakings under
this Clause 14 at its own cost and expense.
15 MANAGEMENT OF THE DEBTOR ACCOUNTS
In accordance with the Servicing Procedures, each Servicer shall procure that a
Debtor Account in respect of each Debtor is established and maintained, which
shall set out the following information:
(a) the Outstanding Amount of the Transferred Receivables of that Debtor;
(b) all FCC Collections received on the relevant Collection Account in
respect of the Transferred Receivables of that Debtor;
(c) the amounts of Latent Anticipated Dilutions, Consumed Anticipated
Dilutions and Unanticipated Dilutions in respect of the Transferred
Receivables corresponding to each Debtor;
(d) the sum of the amounts still unpaid in respect of any Transferred
Receivables which is a Defaulted Receivable in respect of each
Debtor;
(e) all amounts in respect of Recoveries in respect of each Defaulted
Receivable corresponding to each Debtor; and
(f) more generally, all information data and calculation data which are
to be included in each Individual Report,
provided that:
(i) each Debtor Account shall record at all times all
historical entries in that Debtor Account as from the date
on which the corresponding Receivable is identified in the
accounting system of the relevant Seller;
(ii) all data must be recorded on a Transferred Receivable by
Transferred Receivable basis and, where relevant, on an
aggregate basis; and
(iii) all data must be recorded in the relevant Debtor Account by
the relevant Servicer in an efficient and timely manner.
Page 21
16 REPORTS
16.1 INDIVIDUAL REPORT
No later than 10.00 a.m. on each Information Date, each Servicer shall provide
the relevant Administrative Agent with the Individual Report in form and
substance as provided in Schedule 14 of Appendix 1.
16.2 CONSOLIDATED REPORT
No later than 10.00 a.m. on each Information Date, the relevant Administrative
Agent shall provide the Management Company with the Individual Reports and the
Consolidated Report for the immediately preceding Cut-Off Period in form and
substance as provided in Schedule 15 of Appendix 1.
16.3 ADDITIONAL INFORMATION
Each Servicer shall provide, within five (5) Business Days of receiving such a
request from the Management Company or Custodian, additional information
relevant to the Transferred Receivables (including information related to
enforceability or collectability of the Transferred Receivables), the Sellers,
the Servicers, the Debtors or the Collection Accounts as the Management Company
or the Custodian may from time to time reasonably require for the performance of
their obligations under the Securitisation Transaction Documents.
17 ENFORCEMENT
In the event of default by any Debtor in relation to a Transferred Receivable,
the relevant Servicer shall apply the Servicing Procedures, or to the extent the
Servicing Procedures are not applicable to the default in question, such
Servicer shall act in a wise and prudent manner provided that:
(a) any substantial amendment to or substitution of the Servicing
Procedures requires the prior written consent of the Management
Company;
(b) in taking such action in relation to any particular Debtor which is
in default, the Servicer shall apply the Servicing Procedures unless
the Servicer:
(i) has obtained prior written instructions from the Management
Company, acting always in the best interests of the
Unitholders, setting forth the actions to be taken in
relation to the particular default;
(ii) reasonably believes that in not applying the Servicing
Procedures, it will enhance recovery prospects or minimise
loss relating to the Transferred Receivables; and
(iii) notifies the Management Company in advance and with
sufficient detail concerning the particular Debtor and the
corresponding
Page 22
Transferred Receivable so as to allow the Management
Company to object to the action proposed to be taken by
the Servicer.
In performing their obligations under this Agreement, the Servicers shall comply
with all requirements of applicable laws, regulations and directives,
administrative requirements, licence, authorisation, or injunctions made by any
applicable government, supra-national body, state, municipality, district,
canton, authority, court or tribunal that are relevant to the Servicers in
performing their obligations under this Agreement. In addition, the Servicers
shall have obtained from the Management Company, and the Management Company
undertakes to provide the Servicers with any appropriate power of attorney, if
necessary, in order to perform their obligations under this Agreement.
18 RECORDS
18.1 MAINTENANCE OF RECORDS
Each Servicer shall maintain the back-up system implemented by the Crown Group
in the event of the destruction, loss or damage of the information regarding the
Transferred Receivables.
18.2 ACCESS TO RECORDS
If the information provided to the Management Company or the Custodian by the
relevant Servicer pursuant to Clause 16.3 is not satisfactory in the reasonable
opinion of the Management Company or the Custodian, the Management Company or
the Custodian (represented by their duly authorised officers, employees or
agents) shall be permitted, subject to a two (2) Business Days prior notice:
(a) to access to the relevant Servicer premises during normal business hours, in
order to:
(i) verify, audit and inspect all information, systems,
records, books and contractual documentation maintained by
it relating to the Transferred Receivables; and
(ii) copy all information, systems, records, books and
contractual documentation maintained by it relating to the
Transferred Receivables to the extent strictly necessary to
preserve the Management Company or the Custodian rights
under the FCC Transaction Documents;
(b) to inspect and satisfy itself that the electronic systems used by the
relevant Servicer in relation to the Transferred Receivables
designate and identify (identifient et individualisent) each
Transferred Receivable and provide the Management Company with the
information to which the Management Company is entitled pursuant to
the FCC Transaction Documents and the applicable laws and
regulations; and
Page 23
(c) to take other reasonable steps to verify or obtain information
concerning any of the Transferred Receivables,
provided that any reasonable and justified costs incurred by the Management
Company and the Custodian under this Clause 18.2 shall be paid by the relevant
Servicer.
18.3 AUDIT OF THE COMPUTER FILES, THE INDIVIDUAL REPORTS AND THE CONSOLIDATED
REPORTS
Notwithstanding Clause 18.2, the Reporting Auditor shall audit on a yearly
basis, in the name and on behalf of the Management Company, the process relating
to the production of the Computer Files, Individual Reports and Consolidated
Reports related to a given French Seller and a given English Seller.
If the results of the audit carried out by the Reporting Auditor are not
satisfactory in the reasonable opinion of the Management Company, the Reporting
Auditor, acting in the name and on behalf of the Management Company, shall be
entitled to audit the process relating to the production of all Computer Files,
Individual Reports and Consolidated Reports of all French Sellers and English
Sellers.
18.4 ADJUSTMENTS
In the event that any amount paid pursuant to this Agreement shall be determined
(after consultation between the parties in good faith) to have been incorrect,
the Parties shall again consult in good faith in order to agree upon an
appropriate method for rectifying such error so that the amounts received by all
relevant parties are those which they would have received if no such error had
been made.
19 SERVICING FEE
In consideration for all services performed by the Servicers under this
Agreement which relate to the collection and administration of the Transferred
Receivables, the FCC shall pay:
(a) for the collection and management activities in relation to the
relevant Transferred Receivables (including administrative activity
and reminders which can not be qualified as recovery activity), the
Servicing Fee to each Servicer, subject to the relevant Order of
Priority. Such Servicing Fee shall be paid on each Principal Transfer
Date; and
(b) for the recovery activities that the Servicers may provide in respect
of the relevant Transferred Receivables, an all inclusive recovery
fee (which shall include value added tax, if any, and any
disbursements whatsoever). The recovery fee in respect of recovery
services shall be payable on the first Principal Transfer Date
following receipt by the Management Company of an invoice from the
relevant Servicer evidencing the provision of recovery services by
it.
Page 24
Without prejudice to the right to receive the Servicing Fee or the recovery fee,
as the case may be, the Servicers shall not be entitled to any additional
compensation for the performance of their obligations under this Agreement.
20 TERMINATION OF APPOINTMENT
20.1 SERVICER TERMINATION DATE
Upon the occurrence of a Servicer Termination Date (other than a Servicer
Termination Date due to an Early Amortisation Event) in respect of any Servicer:
(a) the Management Company shall be entitled to terminate the appointment
of the relevant Servicer (but not any other Servicer) by notifying
such termination in writing to such Servicer and to the corresponding
Administrative Agent, provided that this termination shall be
automatically (de plein droit) effective as from the date of such
notification;
(b) the Management Company shall be entitled to substitute the Back-Up
Servicer to the Servicer, pursuant and subject to Clause 20.3; and
(c) notwithstanding the termination of the appointment of the relevant
Servicer, the representations, warranties and undertakings of that
Servicer shall survive for so long as there continues to exist any
obligation of that Servicer under this Agreement.
20.2 ADMINISTRATIVE AGENT TERMINATION DATE
Upon the occurrence of an Administrative Agent Termination Date (other than an
Administrative Agent Termination Date due to an Early Amortisation Event) in
respect of any Administrative Agent:
(a) the Administrative Agent Termination Date shall also be a Servicer
Termination Date with respect to each and every Servicer (whether or
not there is any Servicer Event of Default) having appointed the
relevant Administrative Agent, with the consequences set out in
Clause 20.1;
(b) the appointment of the relevant Administrative Agent shall be
automatically (de plein droit) terminated with effect from the
termination date of the appointment of all the relevant Servicers;
and
(c) notwithstanding the termination of the appointment of the relevant
Administrative Agent, the representations, warranties and
undertakings of such Administrative Agent shall survive for so long
as there continues to exist any obligations of such Administrative
Agent under this Agreement.
20.3 SUBSTITUTION
Upon the occurrence of a Servicer Termination Date (other than a Servicer
Termination Date due to an Early Amortisation Event) in respect of any Servicer,
the Management Company shall be entitled (but not obliged) to substitute the
Back-Up
Page 25
Servicer, in relation to such Servicer's rights and obligations under this
Agreement in accordance with, and subject to, the provisions of Article L.
214-46 of the French Code monetaire et financier. In connection with such
substitution:
(a) the Back-Up Servicer shall be a credit institution;
(b) the Management Company (or the Back-Up Servicer) shall inform the
Debtors of the Transferred Receivables originated by the relevant
Servicer of the transfer of the servicing of the Transferred
Receivables to the Back-Up Servicer by delivering to the said Debtors
a written Notice of Transfer substantially in the form set out in
Schedule 7 of the relevant Seller's Appendix; and
(c) the Management Company (or the Back-Up Servicer) shall notify such
Debtors, by means of such Notice of Transfer, to make all payments
with respect to the Transferred Receivables to the FCC Collection
Account or to any new bank accounts opened in the name or for the
benefit of the FCC.
Upon the occurrence of an Administrative Agent Termination Date (other than an
Administrative Agent Termination Date due to an Early Amortisation Event), and
consequently the Servicer Termination Date in respect of each Servicer having
appointed the relevant Administrative Agent, the Management Company shall be
entitled (but not obliged) to substitute, in relation to such Servicers' rights
and obligations under this Agreement, the Back-Up Servicer. In connection with
such termination, the provisions of this Sub-clause shall apply mutatis mutandis
to each such Servicer.
20.4 REDELIVERY OF RECORDS
Upon the termination of the appointment of a Servicer, the relevant Servicer and
the relevant Administrative Agent (to the extent that it holds records for the
account of that Servicer) shall:
(a) to the fullest extent permitted by applicable law, immediately
deliver and make available to the Management Company or the Custodian
(or any person appointed by them) originals of the Files, records
(including, without limitation, computer records and books of
records, relating in particular to the relevant Collection Accounts
and the Debtor Accounts), accounts, papers, registers, computer tapes
and discs (or duplicates thereof), statements, correspondence and
documents in its possession or under its control relating to the
relevant Transferred Receivables and any funds or other assets
(including the FCC Collections) then held by the Servicers or the
relevant Administrative Agent (to the extent it holds records for the
account of that Servicer) on behalf of the Management Company or the
Custodian; and
(b) immediately take such action related to the redelivery of records as
the Management Company or the Custodian (or any person appointed by
them) may reasonably require.
Page 26
20.5 DUTIES OF THE BACK-UP SERVICER
With effect from the FCC Establishment Date, pursuant to the provisions of
Article L. 214-46 of the French Code monetaire et financier, the Management
Company has appointed GE Factofrance, as Back-Up Servicer, in order to act on
behalf of the FCC in performing certain duties in connection with the management
and the collection of the Transferred Receivables, in accordance with, and
subject to, the provisions of the Back-Up Servicing Agreement.
20.6 FEES UPON TERMINATION
Upon termination of appointment of a Servicer, such Servicer shall be entitled
to receive the part of the Servicing Fee referred to in Clause 19 accrued up to
the date on which the relevant Servicer Event of Default occurred but shall not
be entitled to any other or further compensation. Such Servicing Fee shall be
paid by the Management Company on the date payable under this Agreement if no
termination had occurred, subject always to the provisions of this Agreement and
of any other FCC Transaction Document.
Page 27
SECTION IV:
RELATIONSHIP BETWEEN THE PARTIES AND CHANGES TO PARTIES
21 APPOINTMENT OF THE FRENCH ADMINISTRATIVE AGENT
21.1 APPOINTMENT AND AUTHORITY OF THE FRENCH ADMINISTRATIVE AGENT
Each French Seller and each French Servicer, acting solely (conjointement et
sans solidarite) between each of them and with each of the other Sellers and
Servicers, hereby appoints the French Administrative Agent as its legal agent
(mandataire) pursuant to Articles 1984 et seq. of the French Code civil to take
such action in its name and on its behalf and to exercise and carry out such
powers, discretions, authorities and duties as specifically provided under this
Agreement and such powers as the French Administrative Agent reasonably
considers as incidental thereto, in all cases in the name and on behalf of the
French Sellers and the French Servicers.
Without any limitation to the generality of the foregoing, the French
Administrative Agent shall:
(a) perform, in the name and on behalf of the French Sellers, all the
steps required under the operational procedure contemplated in Clause
3 in relation to the sale and transfer of the Eligible Receivables to
the FCC; and
(b) perform, in the name and on behalf of the French Sellers and the
French Servicers, the following obligations in accordance with the
provisions of the FCC Transaction Documents:
(i) deliver, on behalf of the French Sellers and French
Servicers, to the Management Company and to the Custodian
all documents in accordance with the provisions of the FCC
Transaction Documents, including without limitation the
Individual Reports and the Consolidated Reports;
(ii) receive any payment due to each French Seller and French
Servicer under the FCC Transaction Documents;
(iii) provide data administration services in relation to the
Receivables on a consolidated basis;
(iv) pay any amount due and payable by each French Seller and
French Servicer under the FCC Transaction Documents; and
(v) receive from or give to the Management Company or Custodian
any notices, mails, or documents as provided pursuant to
the FCC Transaction Documents.
Page 28
21.2 ACCEPTANCE OF APPOINTMENT
The French Administrative Agent confirms that it has received a copy of all the
FCC Transaction Documents to which a French Seller and a French Servicer is a
party and expressly accepts the appointment under Clause 21.1 on the terms and
subject to the conditions of this Agreement.
21.3 LIABILITIES
In connection with its powers, authorities and duties under the FCC Transaction
Documents, the French Administrative Agent shall not assume, and shall not be
deemed to assume, any obligations or duties other than those derived from its
capacity as legal agent (mandataire), such legal agency being specifically
provided by this Agreement.
Notwithstanding any provision to the contrary in this Agreement, the appointment
of the French Administrative Agent shall not in any way release or discharge the
French Sellers and the French Servicers from their obligations, duties and
liabilities under the FCC Transaction Documents.
The FCC shall have no liability whatsoever to the French Administrative Agent in
relation to any cost, claim, charge, loss, liability, damage or expense suffered
or incurred by the French Administrative Agent.
21.4 DURATION OF THE APPOINTMENT
The appointment and authority of the French Administrative Agent shall be valid
as from the date of this Agreement and remain in full force until the occurrence
of an Administrative Agent Termination Date in accordance with Schedule 13 of
Appendix 1.
21.5 FEES
In consideration for the services performed by it, in the name and on behalf of
which it is acting pursuant to a separate agreement entered into between the
French Sellers, the French Servicers and the French Administrative Agent, the
French Administrative Agent shall receive compensation from the French Sellers
and the French Servicers.
22 APPOINTMENT OF THE ENGLISH ADMINISTRATIVE AGENT
22.1 APPOINTMENT AND AUTHORITY OF THE ENGLISH ADMINISTRATIVE AGENT
Each English Seller and each English Servicer, acting solely between each of
them and with each of the other Sellers and Servicers, hereby appoints the
English Administrative Agent as its legal agent to take such action in its name
and on its behalf and to exercise and carry out such powers, discretions,
authorities and duties as specifically provided under this Agreement and such
powers as the English Administrative Agent reasonably considers as incidental
thereto, in all cases in the name and on behalf of the English Sellers and the
English Servicers.
Page 29
Without any limitation to the generality of the foregoing, the English
Administrative Agent shall:
(a) perform, in the name and on behalf of the English Sellers, all the
steps required under the operational procedure contemplated in Clause
3 in relation to the sale and transfer of the Eligible Receivables to
the FCC; and
(b) perform, in the name and on behalf of the English Sellers and the
English Servicers, the following obligations in accordance with the
provisions of the FCC Transaction Documents:
(i) deliver, on behalf of the English Sellers and English
Servicers, to the Management Company and to the Custodian
all documents in accordance with the provisions of the FCC
Transaction Documents, including without limitation the
Individual Reports and the Consolidated Reports;
(ii) receive any payment due to each English Seller and English
Servicer under the FCC Transaction Documents;
(iii) provide data administration services in relation to the
Receivables on a consolidated basis;
(iv) pay any amount due and payable by each English Seller and
English Servicer under the FCC Transaction Documents; and
(v) receive from or give to the Management Company or Custodian
any notices, mails, or documents as provided pursuant to
the FCC Transaction Documents.
22.2 ACCEPTANCE OF APPOINTMENT
The English Administrative Agent confirms that it has received a copy of all the
FCC Transaction Documents to which an English Seller and an English Servicer is
a party and expressly accepts the appointment under Clause 22.1 on the terms and
subject to the conditions of this Agreement.
22.3 LIABILITIES
In connection with its powers, authorities and duties under the FCC Transaction
Documents, the English Administrative Agent shall not assume, and shall not be
deemed to assume, any obligations or duties other than those derived from its
capacity as legal agent, such legal agency being specifically provided by this
Agreement.
Notwithstanding any provision to the contrary in this Agreement, the appointment
of the English Administrative Agent shall not in any way release or discharge
the English Sellers and the English Servicers from their obligations, duties and
liabilities under the FCC Transaction Documents.
Page 30
The FCC shall have no liability whatsoever to the English Administrative Agent
in relation to any cost, claim, charge, loss, liability, damage or expense
suffered or incurred by the English Administrative Agent.
22.4 DURATION OF THE APPOINTMENT
The appointment and authority of the English Administrative Agent shall be valid
as from the date of this Agreement and remain in full force until the occurrence
of an Administrative Agent Termination Date in accordance with Schedule 13 of
Appendix 1.
22.5 FEES
In consideration for the services performed by it, in the name and on behalf of
which it is acting pursuant to a separate agreement entered into between the
English Sellers, the English Servicers and the English Administrative Agent, the
English Administrative Agent may receive compensation from the English Sellers
and the English Servicers.
23 RIGHT OF RECOURSE
23.1 NO LIABILITY AGAINST THE FCC
Each of the Parties irrevocably waives all rights of contractual recourse
(responsabilite contractuelle), of any form, nature, and on any ground
whatsoever, which it may have against the FCC.
23.2 OBLIGATIONS SEVERAL
The obligations of each Party are several (conjointes et non solidaires).
Failure by any Party to perform its obligations under this Agreement does not
affect the obligations of any other party under this Agreement. The rights of
each Party under or in connection with this Agreement are separate and
independent rights from the rights of any other party to this Agreement.
23.3 OBLIGATIONS IN RESPECT OF THE TRANSFERRED RECEIVABLES
Notwithstanding any provisions of this Agreement or any other Securitisation
Transaction Document:
(a) without prejudice to Clause 6.1, the Sellers shall not be liable as
to the solvency of the Debtors nor the ability to collect the
Transferred Receivables (except to the extent attributable to the
failure to perform its obligations under the FCC Transaction
Documents) nor the efficiency or the economic value of any Ancillary
Rights relating to the Transferred Receivables; and
(b) the FCC shall have no obligation or liability in relation to the
Transferred Receivables or arising from the corresponding Contracts
and may not be required to perform any of the obligations whatsoever
of any Seller under the terms of said Contracts.
Page 31
In addition, pursuant to Article L. 214-48 of the French Code monetaire et
financier, the Management Company shall represent the FCC as against third
parties, in particular in any legal action or proceedings. Therefore, the
Unitholders shall not take, directly or indirectly, any action as against any
Debtor on the basis of the representations and warranties made by the Sellers in
respect of the Transferred Receivables.
24 CHANGES TO THE SELLERS
24.1 RESIGNATION OF A SELLER
Any Seller shall be entitled to exit from the Securitisation Programme and may
resign from being a Seller by delivering to the Management Company a Resignation
Letter in the form set out in Schedule 16 of Appendix 1.
The Management Company shall accept any Resignation Letter and notify the
relevant Seller and the relevant Administrative Agent of its acceptance provided
that no Seller Potential Event of Default, Seller Event of Default or Seller
Early Amortisation Event is continuing or would result from the acceptance of
the Resignation Letter, whereupon:
(a) the relevant Seller shall cease to be a Seller under the
Securitisation Programme;
(b) the relevant Seller shall inform the Management Company if it
requests the Management Company to transfer back to it one or more
Transferred Receivables in accordance with Clause 7;
(c) this Agreement shall automatically and without any further formality
terminate in respect of such Seller and shall, subject to Sub-clause
(d) below, be of no further effect vis-a-vis such Seller. For the
avoidance of doubt, such termination shall not affect the other
Sellers and the Transferred Receivables; and
(d) the representations, warranties and undertakings made by such Seller
shall survive for so long as there continues to exist any obligations
of such Seller under the FCC Transaction Documents.
24.2 MANDATORY CANCELLATION
It is acknowledged that a Seller Event of Default results if any Seller ceases
to be part of the Crown Group. Without prejudice to the provisions of Schedule
13 of Appendix 1, it is also acknowledged that each transfer of Eligible
Receivables from a Seller to the FCC shall be subject to the condition
subsequent (condition resolutoire) that such Seller does not cease to be part of
the Crown Group for any reason and in any way whatsoever. In the event that such
condition subsequent (condition resolutoire) occurs:
(a) all outstanding Transferred Receivables transferred from that Seller
to the FCC shall be deemed and treated as Affected Receivables;
Page 32
(b) the provisions set out in Clause 6.2 shall apply mutatis mutandis to
the relevant Transferred Receivables and the relevant Seller(s); and
(c) the Seller Termination Date with respect to the relevant Seller shall
occur, provided however that the representations, warranties and
undertakings of that Seller shall survive for so long as there
continues to exist any obligations of that Seller.
Upon satisfaction of all formalities and conditions referred to in this Clause,
this Agreement shall automatically and without any further formality (de plein
droit) terminate and shall, subject to Sub-clause (c) above, be of no further
effect vis-a-vis the said Seller. For the avoidance of doubt, such termination
shall not affect the other Sellers and Transferred Receivables.
24.3 ADDITIONAL SELLERS
The relevant Administrative Agent shall be entitled to make a request in writing
to the Management Company, for the addition to the Securitisation Programme of a
new Seller, provided that:
(a) the request from the relevant Administrative Agent shall conform with
Schedule 17 of Appendix 1;
(b) such new Seller is incorporated in France or in the United-Kingdom
and is part of the Crown Group;
(c) the Management Company shall approve, by written consent, the
addition of such new Seller within ninety (90) calendar days as from
the date of receipt of such request, such approval not to be
unreasonably withheld;
(d) the Management Company has received all of the documents and other
evidence listed in Part D of Schedule 6 of Appendix 1 in relation to
the proposed Seller, in form and substance satisfactory to the
Management Company;
(e) the proposed Seller delivers to the Management Company a duly
completed and executed Accession Letter in the form set out in
Schedule 18 of Appendix 1; and
(f) the reasonable and justified costs relating to the negotiation and
the drafting of the documentation required for the adaptation of the
Securitisation Transaction Documents (including the legal fees and
out-of-pockets expenses to be agreed in advance) for the accession of
the said new Seller to the Securitisation Programme shall be borne by
such new Seller or by any other company within the Crown Group.
Page 33
SECTION V:
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
25 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF THE SELLERS
Each Seller represents, warrants and undertakes to the Management Company and
the Custodian the matters set out in Schedule 8 of Appendix 1 and, where
relevant, in Schedule 3 of the relevant Seller's Appendix.
The acceptance by the Management Company of any Individual Transfer Offer shall
be given by the Management Company on the assumption that each of the
representations and warranties referred to in this Clause is true, accurate and
complete in all respects when rendered or deemed to be repeated and each of the
undertakings given by each Seller shall be complied with at all relevant times.
26 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF THE SERVICERS
Each Servicer represents, warrants and undertakes to the Management Company and
the Custodian the matters set out in Schedule 9 of Appendix 1 and, where
relevant, in Schedule 4 of the relevant Seller's Appendix.
Each Servicer acknowledges and agrees that the Management Company and the
Custodian are entering into the Securitisation Transaction Documents and are
taking part to the Securitisation Programme on the assumption that each of the
representations and warranties referred to in this Clause is true, accurate and
complete in all respects when rendered or repeated and each of the undertakings
given by each Servicer shall be complied with at all relevant times.
27 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF EACH ADMINISTRATIVE
AGENT
Each Administrative Agent represents, warrants and undertakes to the Management
Company and the Custodian the matters set out in Schedule 10 of Appendix 1 and,
where relevant, in Schedule 5 of the relevant Seller's Appendix.
Each Administrative Agent acknowledges and agrees that the Management Company
and the Custodian are entering into the Securitisation Transaction Documents and
are taking part to the Securitisation Programme on the assumption that each of
the representations and warranties referred to in this Clause is true, accurate
and complete in all respects when rendered or repeated and each of the
undertakings given by each Administrative Agent shall be complied with at all
relevant times.
Page 34
28 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF THE MANAGEMENT COMPANY
AND THE CUSTODIAN
Each of the Management Company and the Custodian represents, warrants and
undertakes to the Sellers, the Servicers and the Administrative Agents the
matters set out in Schedule 11 of Appendix 1.
Page 35
SECTION VI:
MISCELLANEOUS
29 PARTIAL INVALIDITY
Without prejudice to any other provision of this Agreement, if one or more of
the provisions of this Agreement is or becomes invalid, illegal or unenforceable
in any respect in any jurisdiction or with respect to any party, such
invalidity, illegality or unenforceability in such jurisdiction, shall not, to
the fullest extent permitted by the applicable law, render invalid, illegal or
unenforceable any other provisions of this Agreement or the affected provisions
in any other jurisdiction or with respect to any other party or parties to this
Agreement. The Parties agree to negotiate in good faith to replace the affected
provision, or portions of the said provision, with other valid and effective
agreements having substantially the same effect, having regard to the subject
matter and purpose of this Agreement. To the extent permitted by all applicable
laws and regulations, each party to this Agreement hereby waives any provision
of laws and regulations which would render any provision of this Agreement
unlawful or unenforceable in any respect.
It is hereby expressly acknowledged and agreed between all the parties to this
Agreement that:
(a) partial termination of this Agreement or of any transfer of
Receivable on the grounds that one or more of the Transferred
Receivables do not comply with the Eligibility Criteria; or
(b) partial termination of this Agreement or of any transfer of
Receivable which entails the retransfer of a Receivable pursuant to
Clauses 7; or
(c) termination of the appointment of the Servicers pursuant to Clause
20,
shall in no event, nor for any reason whatsoever, result in the termination of
the remaining portion of this Agreement or the relevant transfer of Receivables
in so far as they relate to Transferred Receivables other than the Receivables
affected by such termination or retransfer.
Similarly, the parties to this Agreement expressly agree that any invalidity
that may occur in relation to the transfer of a Receivable, for any reason
whatsoever, from a Seller to the FCC, shall not result in the invalidity of the
transfer of the other Receivables held by the FCC which are not explicitly
affected by such invalidity.
30 TRANSFER OF RIGHTS
The Parties may transfer any of their rights and obligations under this
Agreement only in accordance with the provisions of the Agreement Amongst
Participating Entities.
Page 36
31 AMENDMENTS
Any term of this Agreement may be amended or waived only in accordance with the
provisions of the Agreement Amongst Participating Entities.
32 INCREASE OF THE FCC MAXIMUM AMOUNT
The Parties acknowledge and agree that the Parent Company may request an
increase of the FCC Maximum Amount by delivery to the Liquidity Facility
Provider and the Management Company of a notice not later than forty five (45)
calendar days before the date on which it wishes this increase to take place.
The FCC Maximum Amount may thus be increased at any time subject to the
agreement of the Liquidity Facility Provider, the Management Company and
Eliopee.
33 GOVERNING LAW AND SETTLEMENT OF DISPUTES
33.1 GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in accordance
with the laws of France.
33.2 SETTLEMENT OF DISPUTES
The Parties submit to the exclusive jurisdiction of the Tribunal de Commerce de
Paris to settle any disputes, which may arise out of or in connection with this
Agreement.
In the event of any dispute which may arise between the Management Company and
the Custodian in connection with a determination and/or a calculation made by
the Management Company under any Securitisation Transaction Document, the
Management Company and the Custodian shall use their best endeavours to settle
their dispute on an amicable basis.
Page 37
Executed in Paris, in fourteen (14) originals,
on 21 June 2005
- ------------------------------------ ----------------------------------
FRANCE TITRISATION, BNP PARIBAS,
as Management Company as Custodian
Name: Pascal POMMIER Name: Caroline BECAVIN
Title: Authorised Signatory Title: Authorised Signatory
- ------------------------------------ ------------------------------------
CROWN EMBALLAGE FRANCE SAS, CROWN BEVCAN FRANCE SAS,
as French Seller, French Servicer as French Seller and French Servicer
and French Administrative Agent Name: Raymond METZGER
Title: Authorised Signatory
Name: Raymond METZGER
Title: Authorised Signatory
Page 38
- ------------------------------------ -----------------------------------
CROWN PACKAGING UK PLC, CROWN SPECIALITY PACKAGING UK PLC,
as English Seller, English Servicer as English Seller and English Servicer
and English Administrative Agent
Name: Paul BROWETT
Name: Paul BROWETT Title: Authorised Signatory
Title: Authorised Signatory
- ------------------------------------
CROWN AEROSOLS UK LTD,
as English Seller and English Servicer
Name: Paul BROWETT
Title: Authorised Signatory
Page 39
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 1
LIST OF SELLERS AND SERVICERS
Part A
List of French Sellers and French Servicers
- ------------------------------------ ---------------------------------- ---------------------------------
Name of French Seller/Servicer Registered office Registration number
- ------------------------------------ ---------------------------------- ---------------------------------
CROWN EMBALLAGE FRANCE SAS 67, rue Arago, 93400 Saint Ouen 954 200 838
(France)
- ------------------------------------ ---------------------------------- ---------------------------------
ZAC de Pre-a-Varois, BP18, 54670
CROWN BEVCAN FRANCE SAS Custines (France) 327 205 373
- ------------------------------------ ---------------------------------- ---------------------------------
Page 40
Part B
List of English Sellers and English Servicers
- ------------------------------------ ---------------------------------- ---------------------------------
Name of English Seller/Servicer Registered office Registration number
- ------------------------------------ ---------------------------------- ---------------------------------
Downsview Road, Wantage,
CROWN PACKAGING UK PLC Oxfordshire, OX 12 9BP,
United-Kingdom 178090
- ------------------------------------ ---------------------------------- ---------------------------------
Rock Valley Road, Mansfield,
CROWN SPECIALITY PACKAGING UK PLC Nottinghamshire, NG18 2EZ, 2398420
United-Kingdom
- ------------------------------------ ---------------------------------- ---------------------------------
Oddicroft Lane,
Sutton-in-Ashfield,
CROWN AEROSOLS UK LTD Nottinghamshire, NG17 5FS, 300739
United-Kingdom
- ------------------------------------ ---------------------------------- ---------------------------------
Page 41
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 2
ELIGIBILITY CRITERIA COMMON TO ALL RECEIVABLES
Subject to the Eligibility Criteria listed in Schedule 1 of the relevant
Seller's Appendix, which may, as the case may be, complete or prevail over the
Eligibility Criteria listed below, each Receivable offered for sale and transfer
by each Seller to the FCC shall, on the corresponding Information Date and
Transfer Date, satisfy the following Eligibility Criteria:
Part A
The Receivable and the underlying provisions
1. The Receivable exists and was originated in the ordinary course of
the Seller's business and represents the amount due for a Sale of
Products which has been invoiced to the corresponding Debtor;
2. The Receivable is represented by an Invoice, and each invoice number
relates to only one Invoice.
3. the Sale of Products from which the Receivable arises have been
entirely carried out and delivered by the relevant Seller, for its
own benefit.
Part B
Ownership of the Receivable - No third party rights
4. The Seller is the original creditor of the Receivable and did not
purchase it or acquire it otherwise from a third party.
5. Each Seller is the sole holder of the Receivable, to which it has
full and unrestricted title.
6. The Receivable is free and clear of any right that could be exercised
by third parties against the relevant Seller, or the FCC.
7. The Receivable is not subject to restrictions on transferability.
8. To the best knowledge of the Seller, the Receivable has not been
disputed by the corresponding Debtor on any ground whatsoever, and it
is not subject, inter alia, in whole or in part, to any prohibition
on payment, protest, lien, cancellation right, suspension, deduction,
set-off (other than those rights permitted by any applicable laws and
regulations and usual dilutions incurred by the Seller in the normal
course of its business such as commercial rebates, discounts for
early payments, returnable packaging, reprographic costs and
retroactive price adjustments), counter-claim or judgement, even if
the corresponding Debtor is a supplier of the Seller.
Page 42
Part C
Compliance with any applicable law - Validity of the obligations
9. The Sale of Products or the Services from which the Receivable arises
have been delivered or performed by the Seller in compliance with the
laws and regulations applicable to the Seller and the corresponding
Debtor.
10. The Receivable has arisen out of a valid and binding Contract or
Contractual Documents, enforceable in accordance with its respective
terms against the relevant Debtor, which does not contravene in any
material respect any relevant applicable laws, rules or regulations
applicable to the Seller and the corresponding Debtor and in respect
of which all required consents, approvals and authorisations have
been obtained.
11. The Receivable and the Contractual Documents relating to such
Receivable are governed by the laws and regulations of:
(a) France; or
(b) Germany; or
(c) United States of America; or
(d) England and Wales,
as relevant.
12. The Receivable and the Contractual Documents relating to such
Receivable constitute legal, valid and binding obligations of the
relevant Debtor and on third parties, including, without limitation
and in respect with the relevant Debtor, the obligation to pay the
relevant Amount Due, and such obligations are enforceable in
accordance with their respective terms subject only to any laws and
regulations applicable in the event that such relevant Debtor becomes
Insolvent.
Part D
Contractual Documents
13. The Receivable arises pursuant to a Contract or Contractual
Documents:
(a) with respect to which the Seller has performed all
obligations required to be performed by it thereunder in
order for the corresponding Debtor to be obliged to pay the
Receivable arising therefrom;
(b) as to which neither the Seller nor the corresponding Debtor
is in breach of its terms and which has not been contested
by the Seller or the corresponding Debtor on serious legal
ground; and
(c) which is in full force and effect and has not been
terminated or frustrated and is not subject to any right of
rescission or other
Page 43
defence; and there is no right or entitlement of any kind
for the non-payment of the Amount Due in respect of the
Receivable when due.
Part E
Servicing of the Receivable - Identification of the Receivable
14. The Receivable is serviced in compliance with the Servicing
Procedures.
15. The Receivable is designated and identified (designee et
individualisee) by the relevant Seller for ownership purposes at any
time.
Part F
Financial and tax characteristics of the Receivable
16. The Receivable is a non-interest bearing receivable other than
interest for late payment.
17. The Receivable is payable by the corresponding Debtor by way of wire,
cheque or any other means of payments (to the exclusion of
documentary credits) by which it is, or becomes, customary for
payments of the type of the Receivables to be made.
18. The payment of the Receivable is not subject to the performance of
any administrative action or step, or to the execution of any
document of any kind whatsoever, or to any formalities, either prior
to or after the purchase of such Receivable.
19. The Receivable is not subject to payment in kind and/or by the
delivery of goods to the Seller or the performance of services in
favour of the Seller.
20. The Receivable is not the object of or subject to any current account
relationship between the Seller and the corresponding Debtor.
21. The Due Date of the Receivable has not been extended beyond its
original date.
22. The Amount Due in respect of the Receivable includes the value added
tax (VAT) payable thereon (if any).
23. The payments due from the corresponding Debtor in connection with the
Receivable are not subject to withholding tax.
Part G
Debtor of the Receivable
24. The Debtor is a commercial company.
25. The Debtor is located in the same jurisdiction of incorporation of
the Seller.
26. The Debtor is not Insolvent.
Page 44
27. The Debtor is not part of the Crown Group.
28. In any event, the Debtor is not subject to any immunity of
jurisdiction and execution.
Page 45
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 3
LIST OF COLLECTION ACCOUNTS
..........................................................................................................
Crown Emballage France SAS Banque : BNP PARIBAS
Collection Account
..............................................................
Code IBAN FR76 3000 4021 4600 0103 0178 674
..........................................................................................................
..........................................................................................................
Crown Bevcan France SAS Collection Banque : BNP PARIBAS
Account
..............................................................
IBAN FR76 3000 4021 4600 0104 4010 874
..........................................................................................................
..........................................................................................................
Crown Packaging UK PLC Collection Bank : CITIBANK N.A., LONDON BRANCH
Account
..............................................................
Account Number : 10865656
..........................................................................................................
Page 46
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 4
FORM OF INDIVIDUAL TRANSFER OFFER
[Seller's letterhead]
FRANCE TITRISATION
(as Management Company)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
[CROWN EMBALLAGE FRANCE SAS { } CROWN PACKAGING UK PLC]
(as Administrative Agent)
[o]
[o]
[o]
[o]
Attention: [o]
Facsimile: [o]
copy (without the files) to:
BNP PARIBAS
(as Custodian)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
In [to be completed], on [to be completed]
Dear Sirs,
Re: FCC CROWN RECEIVABLES EUROPE -- Individual Transfer Offer No. [o]
We refer to Clause 3.1 of the Master Receivables Transfer and Servicing
Agreement (hereinafter the Agreement) dated 21 June 2005 entered into between,
inter alia, the Management Company, the Custodian, [to be completed] as Seller
and [Crown Emballage France SAS - Crown Packaging UK PLC] as Administrative
Agent.
Page 47
Unless otherwise defined herein, capitalised terms in this letter shall have the
meanings ascribed to them in the Agreement.
We, [name of Seller to be completed], hereby offer to sell and transfer to the
Management Company in compliance with the provisions of Clause 3.1 of the
Agreement, the Eligible Receivables (including any Ancillary Rights) with the
following financial characteristics:
Characteristics of the Eligible Receivables:
Aggregate of the Net Invoice Amounts: [o]
Number: [o]
Representations, warranties and undertakings:
This Individual Transfer Offer constitutes a representation and warranty by us
that, on the date of this Individual Transfer Offer (and on the corresponding
Transfer Date):
(a) each Receivable complies with all Eligibility Criteria referred to in
Schedule 2 of Appendix 1 and Schedule 1 of Appendix [2 - 3] of the
Agreement; and
(b) each representation and warranty referred to in Schedule 8 of
Appendix 1 and Schedule 3 of Appendix [2 - 3] of the Agreement is
true, complete, correct and accurate; and
(c) each undertaking referred to in Schedule 8 of Appendix 1 and Schedule
3 of Appendix [2 - 3] of the Agreement has been fully complied
with.
Payment instructions:
Transfer Date: [o]
The payment of the Purchase Price corresponding to the Eligible Receivables
shall be made in accordance with Clause 5.2 of the Agreement by crediting the
relevant Administrative Agent Account.
Pursuant to Clause 5.3 of the Agreement, the Administrative Agent shall receive
such payment in the name and on behalf of the Seller and that payment made on
the credit of the Administrative Agent Account shall result in the full and
definitive discharge of the FCC's payment obligations.
The Eligible Receivables are designated and identified (designees et
individualisees) on the Computer File attached hereto in compliance with Clause
3.1.
Page 48
Yours faithfully,
- -------------------------------------------------
[o],
as Seller
Title:
Name:
Page 49
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 5
FORM OF TRANSFER DOCUMENT
[Each Transfer Document has to be made with blank paper and drafted in whole
(including the date) in French language even for the English Sellers]
Acte de cession de creances
---------------------------
Date de signature et de remise de l'Acte de cession de creances (Transfer
Document) au Cessionnaire : le [date to be completed]
Conformement aux dispositions des Articles L. 214-43 et suivants du Code
monetaire et financier,
[NAME OF SELLER], une societe de droit [o], dont le siege social est situe [o],
immatriculee au registre du commerce et des societes de [o] sous le numero [o],
represente par [o], dument habilite aux fins des presentes, (le Cedant),
cede sans garantie ni recours quelconques autres que l'existence des creances et
des garanties qui s'y attachent et ceux prevus respectivement dans une
convention de cession intitulee "Master Receivables Transfer and Servicing
Agreement" (la Convention) en date du 21 juin 2005 selon les modalites et
obligations decrites dans la Convention,
AU FONDS COMMUN DE CREANCES CROWN RECEIVABLES EUROPE, dont le Reglement (FCC
Regulations) a ete signe en date du 21 juin 2005 (le Cessionnaire), represente
par France Titrisation, une societe anonyme immatriculee au Registre du Commerce
et des Societes de Paris sous le numero 353 053 531, dont le siege social est
situe 41 Avenue de l'Opera, 75002 Paris et represente par Monsieur Pascal
Pommier, dument habilite aux fins des presentes (la Societe de Gestion),
un lot de [number of receivables to be completed] creances (Receivables) d'un
montant global de [(euro) - (pound)][o]. Ces creances sont transmises,
designees et individualisees sur le fichier informatique joint (nOM du fichier :
[Transfer File name]).
La personne morale depositaire des actifs du Cessionnaire est BNP Paribas,
societe anonyme immatriculee au Registre du Commerce et des Societes de Paris
sous le numero 662 042 449, dont le siege social est situe au 16, boulevard des
Italiens, 75009 Paris, et representee par [o] (le Depositaire).
La presente cession de creances est soumise aux dispositions des Articles L.
214-43 a L. 214-48 du Code monetaire et financier relatives aux fonds communs de
creances.
Page 50
Elle emporte l'obligation pour le Cedant en sa qualite d'etablissement charge du
recouvrement de proceder, a la demande du Cessionnaire, a la conservation des
creances dans les conditions definies a l'Article 20 du Decret n(degree)
2004-1255 du 24 novembre 2004 ainsi qu'a tout acte necessaire a la conservation
des suretes, des garanties et des accessoires attaches a ces creances, a leur
modification eventuelle, a leur mise en jeu, a leur mainlevee et a leur
execution forcee.
Cet acte et le fichier informatique susvise sont etablis en un seul exemplaire
original et remis au Cessionnaire qui en donnera recu.
______________________________ ___________________________
FCC CROWN RECEIVABLES EUROPE [SELLER]
en qualite de Cessionnaire, represente par la en qualite de Cedant
Societe de Gestion
Nom : Nom :
Fonction : Fonction :
____________________________
Bon pour recu de BNP Paribas
en qualite de Depositaire
Nom :
Fonction :
Page 51
Translation for information purposes only
-----------------------------------------
Receivables transfer document
-----------------------------
Date of signature and of delivery of the transfer document to the Purchaser:
[date to be completed]
Pursuant to Articles L. 214-43 et seq. of the French Code monetaire et
financier,
[NAME OF SELLER], a company incorporated under the laws of [o], with its
registered office at [o], registered with the trade and company registry of [o]
under number [o], represented by [o], duly authorised for the purposes hereof,
(the Seller),
transfer without any guarantee and recourse other than relating to the existence
of the receivables and the attached security interests and other than those set
out in a transfer agreement entitled "Master Receivables Transfer and Servicing
Agreement" (the Agreement) dated 21 June 2005 in accordance with the terms and
conditions of the Agreement,
TO THE FONDS COMMUN DE CREANCES CROWN RECEIVABLES EUROPE, the Reglement (FCC
Regulations) of which has been executed on 21 June 2005 (the Purchaser),
represented by France Titrisation, a societe anonyme registered with the trade
and companies registry of Paris under number 353 053 531, whose registered
office is at 41, Avenue de l'Opera, 75002 Paris, represented by M. Pascal
Pommier, duly authorised for the purposes hereof (the Management Company),
a number of [number of receivables to be completed] receivables (Receivables) in
a global amount of [(euro) - (pound)][o]. Such receivables are transferred,
designated and identified (transmises, designees et individualisees) in the
attached computer file (name of file: [o]).
The legal entity acting as custodian of the assets of the Purchaser is BNP
Paribas, a societe anonyme registered with the trade and companies registry of
Paris under number 662 042 449, whose registered office is at 16, boulevard des
Italiens, 75009 Paris and represented by [o], duly authorised for the purposes
hereof (the Custodian).
This transfer of receivables is subject to the provisions of Articles L. 214-43
to L. 214-48 of the French Code monetaire et financier relating to debt mutual
funds.
Such transfer results in the obligation for the Seller, in its capacity as
servicer of the receivables, to ensure, at the request of the Purchaser, the
preservation of the receivables on the terms set out in Article 20 of the Decree
n(degree) 2004-1255 of 24 November 2004, and to perform any action necessary for
the preservation of the security, guarantees and collateral relating to the
receivables, for their possible amendment, for their release and for their
realisation.
This transfer document and the above-mentioned computer file are issued in a
unique original and delivered to the Purchaser, which shall acknowledge receipt
thereof.
Page 52
______________________________ __________________________
FCC CROWN RECEIVABLES EUROPE [SELLER]
acting as Purchaser, represented by the Management acting as Seller
Company
Name: Name:
Title: Title:
____________________________
Acknowledgement of receipt from BNP Paribas
acting as Custodian
Name:
Title:
Page 53
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 6
CONDITIONS PRECEDENT
Each event listed below, and where applicable, in Schedule 2 of the relevant
Seller's Appendix, shall constitute a condition precedent.
Part A
Conditions precedent prior to or on the Closing Date or the first Transfer Date
1. On or prior to the Closing Date, the Management Company shall have
received all the following documents in a form and substance
satisfactory to the Management Company:
(a) Copies of the latest version of the constitutional
documents (including the by-laws, the articles of
association and the certificate of incorporation from the
competent registers) of each Seller, each Servicer, each
Administrative Agent and the Parent Company certified by a
duly authorised representative of that company to be a true
and up to date copy of the original.
(b) Copies of the resolutions of the competent authority
(shareholders meeting, board meeting or others) of each
Seller, each Servicer, each Administrative Agent and the
Parent Company authorising the execution, delivery and
performance by them of the FCC Transaction Documents to
which they are party, certified by a duly authorised
representative of that company, which certificate shall
state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded.
(c) Copies of the latest audited financial statements of each
Seller, each Servicer, each Administrative Agent and the
Parent Company certified by a duly authorised
representative of that company.
2. On or prior to the Closing Date, the Management Company shall have
received, in a form and substance satisfactory to the Management
Company:
(a) legal opinions of Freshfields Bruckhaus Deringer as to
matters of French law, English law, New York law and German
law as to the sale of Receivables, enforceability of the
Securitisation Transaction Documents and other relevant
matters;
(b) legal opinion of Bingham & McCutchen LLP as to matters of
Commonwealth of Massachusetts law as to transferability of
Receivables and other relevant matters;
(c) legal opinions of Jones Day as to matters of French law and
English law as to due incorporation and corporate capacity
of each Seller,
Page 54
each Servicer, each Administrative Agent and the Parent
Company, due execution and authorisation of the FCC
Transaction Documents and other relevant matters,
a copy of which for information purposes only may be disclosed to the
Parent Company.
3. On the Closing Date, due execution and delivery of each of the
Securitisation Transaction Documents by the respective parties
thereto, and all documentation to be delivered therewith.
4. On or prior to the first Transfer Date, Moody's has confirmed that
the acquisition of Eligible Receivables by the FCC shall not entail
the downgrading of the rating of the BT Programme assigned by Moody's
below P-1 or the putting on credit watch with negative implication of
this rating.
5. On or prior to the first Transfer Date, the conditions precedent set
out in Part B below shall have been fully complied with.
Part B
Conditions precedent prior to each Transfer Date or each Principal
Transfer Date
Section 1
Conditions precedent prior to each Transfer Date
1. The Final Termination Date has not occurred.
2. No Seller Termination Date has occurred.
3. No Administrative Agent Termination Date has occurred.
4. No Parent Company Termination Date has occurred.
5. No Seller Potential Event of Default has occurred and is continuing.
6. No Administrative Agent Potential Event of Default has occurred and
is continuing.
7. No Parent Company Potential Event of Default has occurred and is
continuing.
8. The Management Company has received all confirmations,
representations, warranties, certificates and other reasonable
information or documents from all parties to the FCC Transaction
Documents which were required under the said FCC Transaction
Documents.
9. The Consistency Tests are satisfied in all respects and for each of
the Sellers that issued an Individual Transfer Offer on the relevant
Information Date.
Page 55
10. The Seller shall not have delivered a Resignation Letter nor exit
from the Securitisation Programme pursuant to Clause 24.1.
Section 2
Conditions precedent prior to each Principal Transfer Date
11. The FCC can issue, if need be, one or several Units in order to
obtain the financing required to fund the Purchase Price of the
Eligible Receivables, as contemplated in the FCC Regulations.
12. Eliopee has obtained the financing required to fund the acquisition
of Senior Units necessary to permit the FCC to hold all the Eligible
Receivables referred to in the corresponding Consolidated Transfer
Offer or, as the case may be, Individual Transfer Offers, as
contemplated by the BT Programme.
13. The acquisition of new Eligible Receivables and/or the issuance of
new Units shall not result in the deterioration of the level of
protection against loss offered to Unitholders previously issued as
outlined in Article 9 of the Decree.
Part C
Other conditions precedent required to be delivered
1. On or prior to each Principal Transfer Date, the Management Company
shall have received confirmation that the Seller Units and the
Subordinated Units issued, as the case may be, by the FCC on such
Principal Transfer Date have been subscribed and paid by the Parent
Company.
2. Within forty-five (45) days after the Closing Date, the Management
Company has received, in a form and substance satisfactory to the
Management Company, an Auditor's Certificate in respect of the Parent
Company in the form set out in Schedule 22 of this Appendix 1.
Part D
Conditions precedent required to be delivered by a new Seller
On or prior to the Transfer Date on which a new Seller will accede to the
Securitisation Programme in accordance with Clause 24.3, the Management Company
shall have received, in a form and substance satisfactory to the Management
Company:
1. The documents set out in Sub-clauses (a) to (c) of Clause 1 of Part A
of this Schedule 6 of Appendix 1 in respect of the relevant new
Seller.
2. Due execution and delivery of a Collection Account Security Agreement
in respect of each Collection Account located in the relevant
jurisdiction.
3. Legal opinion of Jones Day as to matters of French law or English
law, as relevant, as to due incorporation and corporate capacity of
the new Seller and authorisation of the FCC Transaction Documents and
other relevant matters.
Page 56
4. A written confirmation from Moody's that the addition of the new
Seller shall not entail the downgrading of the rating of the BT
Programme assigned by Moody's below P-1 or the putting on credit
watch with negative implication of this rating.
5. Confirmation that the Eliopee Liquidity Facility Agreement has been
amended (if need be) in order to reflect the addition of the new
Seller, provided that the Liquidity Facility Provider shall be
entirely free to refuse to amend the Eliopee Liquidity Facility
Agreement and its failure to answer within the time period referred
to in Sub-clause (c) of Clause 24.3 shall be construed as a negative
answer.
Part E
Benefit of the conditions precedent
The conditions precedent referred to in this Schedule 6 of Appendix 1 and in
Schedule 2 of the relevant Seller's Appendix are for the sole benefit of the
FCC. Therefore, the FCC may, in its absolute discretion but always acting in the
interest of the Unitholders, and by written notice to the other parties to this
Agreement, waive in whole or in part any of the conditions precedent set out in
this Schedule 6 of Appendix 1 and in Schedule 2 of the relevant Seller's
Appendix or postpone the relevant conditions precedent or attach to such waiver
or postponement such requirements and further conditions as it shall see fit.
Part F
Conditions precedent not satisfied
If any of the conditions precedent referred to in Part A, Part B and Part C of
this Schedule 6 of Appendix 1 and in Schedule 2 of the relevant Seller's
Appendix for any reason whatsoever have not been satisfied (or waived in
accordance with Part E of this Schedule 6 of Appendix 1), the FCC shall be
prohibited from accepting any Individual Transfer Offers and the corresponding
Consolidated Transfer Offer on each Calculation Date and on each Transfer Date,
even if only one, or neither, of the Sellers are responsible for such non
compliance, except in the following cases:
(a) if the condition precedent not complied with is of the type referred
to in Sub-clause (2), (5) and (10) of Part B of this Schedule 6 of
Appendix 1 and in Schedule 2 of the relevant Seller's Appendix, the
Management Company shall be prohibited from issuing an Acceptance
only in relation to the Sellers responsible for such non compliance;
and
(b) if the condition precedent not complied with is of the type referred
to in Clauses (3) and (6) of Part B of Schedule 6 of Appendix 1, the
Management Company shall be prohibited from issuing an Acceptance
only in relation to the Sellers having appointed the relevant
Administrative Agent.
Page 57
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 7
FORM OF CUSTODY PROCEDURES REPORT
1. CROWN EUROPE - INTERNAL AUDIT DEPARTMENT
The purpose of Crown Europe's internal audit is to check the quality of the
Division's entities' internal control. The approach adopted is a risk-based
approach. In this regard, the team works from an annual plan and, among others,
audits of the production sites and the Shared Services Centres (which centres
are responsible for the accountancy and the pay of the factories placed under
the ERP J.D. Edwards).
The audits consist of assessing the controls related to the different management
processes of those sites by systematically applying a work programme. This
programme is developed in-house and complies with professional practices.
Some tests and reviews of the procedures and documentation are systematically
carried out in order to support the results. The internal auditor issues an
opinion on the quality and maturity of the system of internal control of the
audited site.
The audits systematically cover all the processes of the chain of clients:
o follow-up of the clients' accounts (billing and servicing);
o authorization of client's credit;
o follow-up of the ageing balances, of the unpaid receivables at their
maturity date as well as of the chasing-up;
o follow-up of disputes and rebates;
o follow-up of doubtful clients; and
o security of the clients data and bank references.
They also systematically cover the processes related to the cash management:
>> bank money orders and use of accounts;
>> authorizations of disbursement;
>> bank reconciliations;
>> overdrafts, guarantees, investments, hedge agreements; and
>> security of electronic transmissions.
Since Crown Europe is an affiliate of an American group quoted on the NYSE, it
has to comply (since 2004) with the American legislation on financial security
known as the "Sarbanes-Oxley Act". This Act requires companies to assess and to
certify the validity of their own system of internal control.
In this context, Crown Europe defined in 2004 the main risks related to its
activity and which are likely to lead to erroneous financial information.
Page 58
Crown Europe has since prepared formal documentation of the several thousands of
controls which enable it to cover those risks and which are carried out on a
daily, weekly, monthly, quarterly or yearly basis. Obviously, these controls
cover the "clients" cycle. They are assessed twice a year by internal teams in
accordance with criteria which have been defined by the Committee of Sponsoring
Organizations of the Treadway Commission ("COSO").
The assessment of the internal control is then reviewed by external auditors.
Price Waterhouse Coopers has issued a positive opinion of the efficiency of the
Crown Europe internal control. That assessment was set out by the group's
management in the Crown Europe 2004 Annual Report.
2. DOCUMENTATION STORAGE PROCEDURE IN CROWN SUBSIDIARIES
The documentation storage procedure in Crown subsidiaries are as follows:
2.1 Contracts
Contract with customers are kept either:
-> In France:
o for Food France: in the Central Legal Department of
Saint-Ouen in France for the Food France French clients;
o for Crown Speciality Packaging UK plc: for French clients,
in the Sales Department of the French Shared Service
Centre (Saint-Ouen), or in the Sales Department of the
plant in Vourles and Chatillon sur Seine);
o for Bevcan France SAS: for French multinational clients,
in the Sales Department of the French Shared Service
Centre (Saint-Ouen), for other clients in the Sales
Department of the plant in Custines.
-> In the UK: in the legal department of Crown Packaging UK
PLC, Downsview Road, Wantage, Oxfordshire, OX 12 9BP,
United-Kingdom.
2.2 Customer orders
Orders are received by e-mail, post and fax. In all cases, records of the orders
are kept for a minimum of 12 months either electronically (e-mail) or in paper
files by commercial/sales support function in each plant, ordered by clients.
2.3 Customer delivery notes
The original signed delivery notes (proofs of delivery) are generally kept by
the haulier and are made available to Crown at any time. The haulier usually has
an office on each Crown site or close from the site. These signed delivery notes
are usually kept for at least two years up to a maximum of five.
Electronic versions of the delivery notes are available and printable to Crown's
personnel through the JDE system.
Page 59
2.4 Invoices
Invoices are imaged while they are created by the system, as part of the
overnight posting process. They are subsequently stored electronically on
optical disk. They are accessible via the JDE system or the Imaging and Scanning
software by all personnel of Crown plants and personnel of the Shared Service
Centres. There is a daily back up of these files.
In case of invoices relating to invoicing originally supported by Crown and then
invoiced to the customers, they are issued and kept by each relevant service.
All scanned invoices are kept at the Shared Service Centres for 2 years, they
are then kept by an external storage company.
2.5 Addresses
The addresses of the different plants are as follows:
- -> CROWN EMBALLAGE FRANCE SAS
- - Shared Service Centre: 67 rue Arago, 93400 SAINT OUEN, 1er etage,
tel. 01 49 18 40 00;
- - Usine de Laon: rue Armand Brimbeuf, 02930 LAON, tel.03 23 23 69 00;
- - Usine de Boulogne sur mer: Boulevard industriel, Outreau, 62203
BOULOGNE SUR MER, tel. 03 21 10 19 19;
- - Usine "La Villeneuve": Route de Quimper, 29187 CONCARNEAU, tel. 02 98
50 40 40;
- - Usine "Centre Ville": 143 avenue de la Gare, 29187 CONCARNEAU, tel.
02 98 50 49 50;
- - Usine de Nantes: 19 Boulevard du Marechal Juin, 44104 NANTES, tel. 02
40 38 58 58;
- - Usine de Perigueux: 171 avenue du Marechal Juin, 24002 PERIGUEUX,
tel. 05 53 35 74 50;
- - Usine de Brive: Z.I. La Sarretie, rue Antoine Dubayle, 19100 BRIVE,
tel. 05 55 86 40 00;
- - Usine de Carpentras: 815 avenue des Marches, 84206 CARPENTRAS, tel.
04 90 63 68 00;
- - Usine de La Garenne: Avenue Noel Navoizat, 21400 CHATILLON SUR SEINE,
tel. 03 80 91 80 00;
- - Usine de Rouen: 191 route des Docks, 76121 LE GRAND QUEVILLY, tel. 02
35 18 26 26;
- - Usine de Vourles: chemin de la Plaine, 69390 VOURLES, tel. 04 72 31
99 50.
- -> CROWN BEVCAN FRANCE SAS
- - Usine de Custines: ZAC de Pre a Varois, B.P.18, 54670 CUSTINES, tel.
03 83 49 40 00.
Page 60
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 8
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS COMMON TO ALL SELLERS
Part A
Representations and warranties of the Sellers
On the Closing Date, subject to the representations and warranties listed in
Schedule 3 of the relevant Seller's Appendix, which may, as the case may be,
supplement the representations and warranties listed below, each Seller
represents and warrants to the Management Company and the Custodian that:
1. Status: it is a company duly incorporated and validly existing under
the laws of its jurisdiction of incorporation in which the Parent
Company owns the Absolute Majority;
2. Powers and authorisations: all corporate actions, approvals,
consents, notice to or filing with any person have been taken,
fulfilled and done in order to ensure the execution, delivery and
performance by it of the FCC Transaction Documents to which it is a
party;
3. Legal validity: subject to any insolvency laws and laws affecting the
rights of creditors generally, its obligations arising under the FCC
Transaction Documents constitute, or when executed by it will
constitute, legal, valid and binding obligations enforceable against
it in accordance with their respective terms;
4. Pari passu ranking: its payment obligations under the terms of the
FCC Transaction Documents are and will be direct and general
obligations which rank pari passu with all its other unsecured
obligations and liabilities, present or future, actual or contingent,
save for unsecured obligations and liabilities accorded preferably
over its other unsecured obligations and liabilities pursuant to any
provision of the laws of its incorporation;
5. Non-violation: the execution and delivery of the FCC Transaction
Documents to which it is a party, and the performance of its
obligations thereunder and of any of the transactions contemplated in
any of them do not and will not contravene, breach or constitute a
default under or conflict or be inconsistent with or cause to be
exceeded any limitation on it or the powers of its directors imposed
by or contained in:
(a) any law, statute, decree, rule, regulation or licence to
which it or any of its assets or revenues is subject or of
any order, judgement, injunction, decree, resolution,
determination or award of any court or any judicial,
administrative, or governmental authority or organisation
which applies to it or any of its assets or revenues; or
Page 61
(b) any agreement, indenture, mortgage, deed of trust, bond
issue or any material document, instrument or obligation to
which it is a party or by which any of its assets or
revenues is bound or affected; or
(c) any document which contains or establishes its
constitution;
6. Consents: it has obtained and maintained in full force and effect all
authorisations, approvals, consents, agreements, licences, exemptions
and registrations and has made all filings, notarisations, payments
of any duty or tax and obtained all documents needed for the purposes
of:
(a) the execution and the delivery of the FCC Transaction
Documents to which it is a party, and the performance of
its obligations thereunder and of any of the transactions
contemplated in any of them;
(b) carrying on its activities (to the extent that such
authorisations, approvals, consents, agreements, licences,
exemptions, registrations, filings or documents are
necessary for it to observe or to perform its obligations
under the FCC Transaction Documents); and
(c) ensuring the effective sale and transfer of Eligible
Receivables to the FCC, subject to and in accordance with
the other provisions of this Agreement;
7. No default: no event has occurred which constitutes, or which with
the giving of notice and/or the lapse of time and/or a relevant
determination would constitute, a contravention of, or default under,
any applicable law, statute, decree, rule, regulation, order,
judgment, injunction, decree, resolution, determination or award or
any agreement, document or instrument by which it or any of its
assets is bound or affected, being a contravention or default which
affects or impedes, or would affect or impede, its ability to perform
its obligations under the terms of the FCC Transaction Documents to
which it is a party or affects, impedes or prohibits, or would
affect, impede or prohibit, the ability to assign or to collect the
Transferred Receivables;
8. Tax liabilities: all necessary returns have been delivered by it or
on its behalf to the relevant taxation authorities and it is not in
default in any material respect in the payment of any Taxes, and no
material claim is being asserted with respect to Taxes which is not
disclosed in its most recent financial statements;
9. No litigation: there is no litigation, arbitration or proceedings or
administrative request, claim or action before any jurisdiction,
court, administration, public body or governmental authority (unless
contested in good faith by the Seller) which are currently in
progress or pending or, to its knowledge, imminent against it or
against any of its assets, income or revenues that, if the outcome
was unfavourable, would affect or impede its ability to perform its
obligations under the terms of the FCC Transaction Documents to which
it is a party or would affect, impede or prohibit, the ability to
assign or to collect the Transferred Receivables;
Page 62
10. Accounts: its audited annual financial statements (as provided for by
all applicable laws and regulations) covering the last financial year
closed or its latest audited annual financial statements (as provided
for by all applicable laws and regulations) available on the Closing
Date have been prepared in accordance with the applicable accounting
principles, and they give a true, complete and fair view of its
results, its activities and its financial situation on the date
corresponding to the closing of the last financial year;
11. Insolvency: it is not Insolvent;
12. No Event of Default or Early Amortisation Event: no Seller Event of
Default or Seller Early Amortisation Event has occurred or is
continuing with respect to it;
13. Data protection: the disclosure of information relating to the Debtor
of each Receivable made in connection with an Individual Transfer
Offer or the assignment of each such Receivable as contemplated by,
and for the purposes envisaged by, this Agreement is not contrary to
data protection laws in the jurisdiction of its incorporation, and
any notifications to be made or approvals to be obtained under such
laws have been made or obtained;
14. Information: in relation to each Receivable, the information set out
in the accounting and computer systems and any other information and
statements of any kind supplied or to be supplied by the Seller to
the Management Company (including, without limitation, the
information set out in the relevant Computer File and Transfer File)
as evidence of or relating to each Receivable are true, accurate,
correct, complete, current and not misleading, subject to technical
errors;
15. Files: the Files are complete, true, accurate and current;
16. Identification of amounts: the amounts received in connection with
(i) the Transferred Receivables can be designated, identified and
segregated from the amounts pertaining to other receivables owned by
the relevant Seller and from the amounts pertaining to the other
Receivables, two (2) Business Days following the receipt of the said
amounts and (ii) the Eligible Financing Receivables can be
designated, identified and segregated from the amounts pertaining to
Non Eligible Financing Receivables and vice versa, two (2) Business
Days following the receipt of the said amounts;
17. Securitisation Programme: it knows (i) the procedures of the
Securitisation Programme to the extent necessary for the performance
of its obligations under the FCC Transaction Documents and (ii) the
terms and conditions of the FCC Transaction Documents as well as the
Eliopee Liquidity Facility Agreement, even though it is not a party
to this agreement and understands the consequences of this agreement;
18. Custody procedures: it has implemented procedures certifying the
existence of the Transferred Receivables and the security, guarantees
and collateral
Page 63
attached thereto and their safe custody and that such Transferred
Receivables are collected for the exclusive benefit of the FCC;
19. Confidentiality clauses: the Contractual Documents are not subject to
any confidentiality clause that expressly covers any information
relating to the Eligible Receivables or, in the event that such
Contractual Documents are subject to any other confidentiality
clause, the Seller's understanding of the negotiation that occurred
between it and the relevant Debtor with respect to the relevant
Contractual Documents is that, after having made all necessary due
diligence and research, such confidentiality clause intends to cover
technical and commercial items, trade secret, know-how or any other
items of that nature and therefore such confidentiality clause does
not affect, impede or prohibit, its ability to assign the Eligible
Receivables to the FCC and the ability of the FCC to collect the
Transferred Receivables. For the avoidance of doubt, Sub-clause 19(a)
of Part B of this Schedule 8 of Appendix 1 shall apply by the mere
existence of a claim, counter-claim or any other action (being based
on serious legal grounds or not) against the FCC, filed by a Debtor
or a third party on the basis of any confidentiality clause included
in any Contractual Document;
20. Economic and financial interests: the transactions contemplated in
the FCC Transaction Documents to which it is a party are in its
economic and financial interests, and completing those transactions
will not affect its financial condition as at the end of its last
financial year; and
21. Structured group: the Sellers, the Servicers, the French
Administrative Agent, the English Administrative Agent and the Parent
Company form a structured group with a strategy common to each of the
Sellers, the Servicers, the French Administrative Agent, the English
Administrative Agent and the Parent Company, and the Sellers, the
Servicers, the French Administrative Agent, the English
Administrative Agent and the Parent Company have close capital links.
To its knowledge, completing the transactions contemplated in the FCC
Transaction Documents to which they are party, and more generally,
the Securitisation Programme, do not prejudice the economic and
financial balance between the respective undertakings of each of the
Sellers, the Servicers, the French Administrative Agent, the English
Administrative Agent and the Parent Company, and those transactions
are entered into with an individual corporate benefit for each of
them.
Each representation and each warranty listed in Part A of this Schedule 8 of
Appendix 1 and in Part A of Schedule 3 of the relevant Seller's Appendix shall
be (i) expressly repeated on each Information Date by the remittance of an
Individual Transfer Offer and (ii) deemed to be repeated on each Transfer Date.
Part B
Undertakings of the Sellers
On the Closing Date, subject to the undertakings listed in Schedule 3 of the
relevant Seller's Appendix, which may, as the case may be, supplement the
undertakings listed below, each Seller undertakes to the Management Company and
the Custodian:
Page 64
1. Breach: to promptly inform the Management Company and the Custodian
in writing upon the occurrence of any Seller Potential Event of
Default or Seller Event of Default, as soon as it becomes aware of
such Seller Potential Event of Default or Seller Event of Default;
2. Consents: to obtain and maintain all authorisations, approvals,
consents, agreements, licences, exemptions and registrations and to
make all filings, notarisations, payments of any duty or tax and
obtain all documents, needed at any time for the purposes of:
(a) the execution and delivery of the FCC Transaction
Documents, and the performance of its obligations
thereunder and of any of the transactions contemplated in
the FCC Transaction Documents;
(b) carrying on its activities (to the extent that such
authorisations, approvals, consents, agreements, licences,
exemptions, registrations, filings or documents are
necessary for it to observe or to perform its obligations
under the FCC Transaction Documents); and
(c) ensuring the effective sale and transfer of Eligible
Receivables to the FCC, subject to and in accordance with
the other provisions of this Agreement;
3. Information: to deliver, within five (5) Business Days after having
received a prior notice to that effect from the Management Company or
the Custodian, information relating to the Transferred Receivables
(including information related to enforceability or collectability of
the Transferred Receivables) or to the Files as the Management
Company or the Custodian may from time to time reasonably require for
the performance of their obligations under the Securitisation
Transaction Documents;
4. Accuracy of information: to procure that (i) all information
contained in the Computer Files, the Transfer Files and the
Individual Reports furnished by it or on its behalf under the FCC
Transaction Documents is accurate in all respects on the date that
such information is stated or certified and (ii) all other
information or reports furnished by it or on its behalf under the FCC
Transaction Documents is accurate in all material respects on the
date that such information is stated or certified;
5. Provision of financial statements: to provide the Management Company
certified copies of its annual financial statements (as provided for
by all applicable laws and regulations) audited and certified without
qualifications by its auditors as soon as they become available and,
in any event, no later than nine (9) months after the end of the
financial year to which they relate, prepared in accordance with the
applicable accounting principles, and giving a true, complete and
fair view of the results, activities and financial situation of the
Seller at the end of the relevant financial period;
6. Execution of obligations: to perform and comply with, in all material
respects, on the due date and in full, all stipulations, commitments
and other
Page 65
obligations to which it may be subject by the Contractual Documents
relating to the Transferred Receivables;
7. Full compliance: to fully comply in all respects, in good faith and
in a timely manner, with the terms of the FCC Transaction Documents
to which it is a party;
8. Delivery of documents: at its own cost and expense, to deliver, upon
occurrence of an Event of Default, originals of the Files to the
Management Company, the Custodian or any person nominated by it
(including the Back-Up Servicer) as soon as practically possible upon
written request of the Management Company or the Custodian, in order
to enable the Management Company to enforce its rights in respect of
the Transferred Receivables;
9. Access: if the information provided to the Management Company or the
Custodian by the relevant Seller pursuant to Sub-clause 3 of Part B
of this Schedule 8 of Appendix 1 is not satisfactory in the
reasonable opinion of the Management Company or the Custodian, to
permit access to records in the conditions of the provisions set out
in Clause 18.2 which shall apply mutatis mutandis to the relevant
Seller;
10. No creation of rights: not to create and not to allow for the
creation or continuation of any right whatsoever (including any right
resulting from a seizure or enforcement) encumbering all or part of
the Transferred Receivables, except if and where expressly permitted
by the FCC Transaction Documents;
11. No assignment: not to sell, assign, transfer, subrogate in any way,
dispose of or encumber any of the Transferred Receivables or the
corresponding Contractual Documents or to attempt to carry out any
such action in any way whatsoever, except if and where expressly
permitted pursuant to the FCC Transaction Documents;
12. No action: not to take any initiative or action in respect of the
Transferred Receivables, the Contractual Documents or the Sale of
Products which would affect, impede or prohibit the ability to assign
or to collect the Transferred Receivables in whole or in part, or
which could harm, in any way, the rights of the Management Company in
the Transferred Receivables, except if and where expressly permitted
pursuant to the FCC Transaction Documents;
13. No waiver: not to waive any right under the Contractual Documents and
the Transferred Receivables, unless in compliance with the Servicing
Procedures or with the prior written consent of the Management
Company which shall not be unreasonably withheld;
14. Detailed information: to hold detailed information relating to any
FCC Collection, any New Dilutions, any Latent Anticipated Dilutions,
any Unanticipated Dilutions and any Consumed Anticipated Dilutions
until the FCC Termination Date and to:
Page 66
(a) allocate any FCC Collection, any New Dilutions, any Latent
Anticipated Dilutions, any Unanticipated Dilutions and any
Consumed Anticipated Dilutions to any Debtor Account within
two (2) Business Days following the receipt of the said
amounts;
(b) allocate and segregate any FCC Collection, any New
Dilutions, any Latent Anticipated Dilutions, any
Unanticipated Dilutions and any Consumed Anticipated
Dilutions from the amounts pertaining to other receivables
owned by the relevant Seller and from the amounts
pertaining to the other Transferred Receivables, at the
latest two (2) Business Days following the receipt of the
said amounts;
(c) allocate and segregate any FCC Collection, any New
Dilutions, any Latent Anticipated Dilutions, any
Unanticipated Dilutions and any Consumed Anticipated
Dilutions in respect of any Eligible Financing Receivable
from the amounts pertaining to any Non Eligible Financing
Receivable and vice versa, at the latest two (2) Business
Days following the receipt of the said amounts; and
(d) provide such information to the Management Company within
two (2) Business Days upon written request of the
Management Company;
15. Designation and identification: to designate and identify (designer
et individualiser), without any ambiguity on and after the relevant
Transfer Date and until it is fully repaid, in its computer and
accounting systems (including in the relevant Debtor Account) each
Transferred Receivable (including each Eligible Financing Receivable
and each Non Eligible Financing Receivable), all FCC Collections, all
New Dilutions, all Latent Anticipated Dilutions, all Unanticipated
Dilutions and all Consumed Anticipated Dilutions related to such
Transferred Receivables, through the recording of each Transferred
Receivable relating to each Debtor;
16. General duties:
(a) to give assistance, as required and within five (5)
Business Days after the receipt of a written request from
the Management Company, in providing or delivering any
item, form or document and in carrying out any formalities
or any acts that might reasonably be requested at any time
by the Management Company, in order to enable the
Management Company to exercise, protect, keep in effect or
establish proof of its rights to the Transferred
Receivables;
(b) if need be, to apply or exercise rights held against any
person in order to enable the Management Company to
exercise its rights arising out of the Transferred
Receivables, to the extent and in compliance with any
applicable laws and regulations, promptly after the receipt
of a written request from the Management Company; and
Page 67
(c) subject to the provisions of the relevant Collection
Account Security Agreement, to hold any FCC Collection
received by it in connection with any Transferred
Receivable after the relevant Transfer Date exclusively on
behalf and for the account of the Management Company;
17. Other undertaking: to perform at its own cost and expense any
reasonable action, for the account of the Management Company, in
relation to a negotiable instrument, a bill of exchange, a bank
cheque, a letter of credit or a similar instrument delivered by a
Debtor in respect of any Transferred Receivable. In addition, upon
the notification of the transfer of Receivables to its Debtors, the
Seller shall endorse all such negotiable instruments, bills of
exchange, bank cheques, letters of credit or similar instruments to
the Management Company or, if such endorsement is technically
impossible, deliver to the Management Company any and all such
negotiable instruments, bills of exchange, bank cheques, letters of
credit or similar instruments in respect of the Transferred
Receivables and generally take all measures deemed necessary by the
Management Company to preserve its rights under the Securitisation
Transaction Documents;
18. Indemnification - Non-performance:
(a) to indemnify the Management Company or ensure that the
Management Company is indemnified for any costs, damages,
losses, expenses or liabilities (including, but not limited
to, legal and out of pocket expenses) that are direct,
reasonable and justified and suffered by the Management
Company as a result of any non-performance by the Seller of
any of its obligations or breach or non compliance of any
of its representations or warranties made under this
Agreement; and
(b) to pay to the Management Company, at the latter's written
request, without delay, set-off, deduction or withholding
of any nature, the entire amount of such costs, damages,
losses, expenses or liabilities,
provided however, that the relevant Seller shall not be liable for
any costs, damages, losses, expenses or liabilities that result from
the gross negligence (faute grave) or wilful misconduct (dol) of the
Management Company;
19. Indemnification - Claims of third parties:
(a) to indemnify the Management Company or ensure that the
Management Company is indemnified, for any costs, damages,
losses, expenses or liabilities (including, but not
limited to, legal and out of pocket expenses) that are
direct, reasonable and justified and suffered by the
Management Company as a result of any action, third party
notice, counter claim or claim of any nature whatsoever,
filed by a Debtor or a third party on the basis of or in
connection with the Contractual Documents (including, but
not limited to, on
Page 68
the basis of any confidentiality clause included in any
Contractual Document) or the Sales of Products; and
(b) to pay to the Management Company, at the latter's written
request, without any set-off, deduction or withholding, the
entire amount of such costs, damages, losses, expenses and
liabilities,
provided however, that the relevant Seller shall not be liable for
any costs, damages, losses, expenses or liabilities that result from
the gross negligence (faute grave) or wilful misconduct (dol) of the
Management Company;
20. Set-off:
(a) not to engage any action which may give rise to a right of
the Debtor (or any third party) to set-off, counter claim,
refund, retention or any similar right which could give
rise to any deduction whatsoever or could result in any
other reason for not paying any amount due under the
Transferred Receivables, without the Management Company's
prior written consent; and
(b) to pay to the Management Company, at the latter's written
request, without any set-off, deduction or withholding, the
entire amount of any costs, damages, losses, expenses or
liabilities or damage that are direct, reasonable and
justified and suffered by the Management Company as a
result of any action contemplated in the above Sub-clause
(a);
21. Notifications: to notify the Management Company upon being notified
of or becoming aware of the occurrence of any Event of Default; and
22. Powers of attorney: not to revoke or attempt to revoke any power of
attorney granted by it in accordance with Clause 21 or Clause 22, as
relevant, and Schedule 2 of Appendix 3, unless such revocation
results from the mandatory application of any applicable law.
Each undertaking listed in Part B of this Schedule 8 of Appendix 1 and in Part B
of Schedule 3 of the relevant Seller's Appendix shall be (i) complied with at
all times from the Closing Date until the liabilities of the Seller under this
Agreement and any of the FCC Transaction Documents to which it is a party have
been fully discharged, (ii) expressly confirmed as fully complied with on each
Information Date by the remittance of an Individual Transfer Offer and (iii)
deemed to be confirmed as fully complied with on each Transfer Date.
Page 69
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 9
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS COMMON TO ALL SERVICERS
Part A
Representations and warranties of the Servicers
On the Closing Date, subject to the representations and warranties listed in
Schedule 4 of the relevant Seller's Appendix, which may, as the case may be,
supplement the representations and warranties listed below, each Servicer
represents and warrants to the Management Company and the Custodian that:
1. Status: it is a company duly incorporated and validly existing under
the laws of its jurisdiction of incorporation in which the Parent
Company owns the Absolute Majority;
2. Powers and authorisations: all corporate actions, approvals,
consents, notice to or filing with any person have been taken,
fulfilled and done in order to ensure the execution, delivery and
performance by it of the FCC Transaction Documents to which it is a
party;
3. Legal validity: subject to any insolvency laws and laws affecting the
rights of creditors generally, its obligations arising under the FCC
Transaction Documents constitute, or when executed by it will
constitute, its legal, valid and binding obligations enforceable
against it in accordance with their respective terms;
4. Pari passu ranking: its payment obligations under the terms of the
FCC Transaction Documents are and will be direct and general
obligations which rank pari passu with all its other unsecured
obligations and liabilities, present or future, actual or contingent,
save for unsecured obligations and liabilities accorded preferably
over its other unsecured obligations and liabilities pursuant to any
provision of the laws of its incorporation;
5. Non-violation: the execution and delivery of the FCC Transaction
Documents to which it is a party, and the performance of its
obligations thereunder and of any of the transactions contemplated in
any of them do not and will not contravene, breach or constitute a
default under or conflict or be inconsistent with or cause to be
exceeded any limitation on it or the powers of its directors imposed
by or contained in:
(a) any law, statute, decree, rule, regulation or licence to
which it or any of its assets or revenues is subject or of
any order, judgement, injunction, decree, resolution,
determination or award of any court or any judicial,
administrative, or governmental authority or organisation
which applies to it or any of its assets or revenues; or
Page 70
(b) any agreement, indenture, mortgage, deed of trust, bond
issue or any material document, instrument or obligation to
which it is a party or by which any of its assets or
revenues is bound or affected; or
(c) any document which contains or establishes its
constitution;
6. Consents: it has obtained and maintained in full force and effect all
authorisations, approvals, consents, agreements, licences, exemptions
and registrations and has made all filings or obtained all documents
needed for the purposes of:
(a) the execution and the delivery of the FCC Transaction
Documents to which it is a party, and the performance of
its obligations thereunder and of any of the transactions
contemplated in any of them; and
(b) carrying on its activities (to the extent that such
authorisations, approvals, consents, agreements, licences,
exemptions, registrations, filings or documents are
necessary for it to observe or to perform its obligations
under the FCC Transaction Documents);
7. No default: no event has occurred which constitutes, or which with
the giving of notice and/or the lapse of time and/or a relevant
determination would constitute, a contravention of, or default under,
any applicable law, statute, decree, rule, regulation, order,
judgment, injunction, decree, resolution, determination or award or
any agreement, document or instrument by which it or any of its
assets is bound or affected, being a contravention or default which
affects or impedes, or would affect or impede, its ability to perform
its obligations under the terms of the FCC Transaction Documents to
which it is a party or affects, impedes or prohibits, or would
affect, impede or prohibit, the ability to assign or to collect the
Transferred Receivables;
8. Tax liabilities: all necessary returns have been delivered by it or
on its behalf to the relevant taxation authorities and it is not in
default in any material respect in the payment of any Taxes, and no
material claim is being asserted with respect to Taxes which is not
disclosed in its most recent financial statements;
9. No litigation: there is no litigation, arbitration or proceedings or
administrative request, claim or action before any jurisdiction,
court, administration, public body or governmental authority (unless
contested in good faith by the Servicer) which are currently in
progress or pending or, to its knowledge, imminent against it or
against any of its assets, income or revenues that, if the outcome
was unfavourable, would affect or impede its ability to perform its
obligations under the terms of the FCC Transaction Documents to which
it is a party or would affect, impede or prohibit, the ability to
assign or to collect the Transferred Receivables;
10. Accounts: its audited annual financial statements (as provided for by
all applicable laws and regulations) covering the last financial year
closed or its latest audited annual financial statements (as provided
for by all applicable
Page 71
laws and regulations) available on the Closing Date have been
prepared in accordance with the applicable accounting principles, and
they give a true, complete and fair view of its results, its
activities and its financial situation on the date corresponding to
the closing of the last financial year;
11. Insolvency: it is not Insolvent;
12. No Event of Default or Early Amortisation Event: no Servicer Event of
Default or Servicer Early Amortisation Event has occurred or is
continuing with respect to it;
13. Licences: it has all necessary licences for carrying on the
enforcement and collection of the Receivables and the performance of
its obligations under the FCC Transaction Documents;
14. Servicing Procedures: it has complied with the Servicing Procedures
(in force at such time) in relation to the administration of each
such Receivable to the date on which it is transferred hereunder;
15. Custody procedures: it has implemented procedures certifying the
existence of the Transferred Receivables and the security, guarantees
and collateral thereto attached and their safe custody and that such
Transferred Receivables are collected for the exclusive benefit of
the FCC;
16. Securitisation Programme: it knows (i) the procedures of the
Securitisation Programme to the extent necessary for the performance
of its obligations under the FCC Transaction Documents and (ii) the
terms and conditions of the FCC Transaction Documents as well as the
Eliopee Liquidity Facility Agreement, even though it is not a party
to this agreement and understands the consequences of this agreement;
17. Economic and financial interests: the transactions contemplated in
the FCC Transaction Documents to which it is a party are in its
economic and financial interests, and completing those transactions
will not affect its financial condition as at the end of its last
financial year; and
18. Structured group: the Servicers, the Sellers, the French
Administrative Agent, the English Administrative Agent and the Parent
Company form a structured group with a strategy common to each of the
Servicers, the Sellers, the French Administrative Agent, the English
Administrative Agent and the Parent Company, and the Servicers, the
Sellers, the French Administrative Agent, the English Administrative
Agent and the Parent Company have close capital links. To its
knowledge, completing the transactions contemplated in the FCC
Transaction Documents to which they are party, and more generally,
the Securitisation Programme, do not prejudice the economic and
financial balance between the respective undertakings of each of the
Servicers, the Sellers, the French Administrative Agent, the English
Administrative Agent and the Parent Company and those transactions
are entered into with an individual corporate benefit for each of
them.
Page 72
Each representation and each warranty listed in Part A of this Schedule 9 of
Appendix 1 and in Part A of Schedule 4 of the relevant Seller's Appendix shall
be (i) expressly repeated on each Information Date and (ii) deemed to be
repeated on each Transfer Date.
Part B
Undertakings of the Servicers
On the Closing Date, subject to the undertakings listed in Schedule 4 of the
relevant Seller's Appendix, which may, as the case may be, supplement the
undertakings listed below, each Servicer undertakes to the Management Company
and the Custodian:
1. Breach: to promptly inform the Management Company and the Custodian
in writing upon the occurrence of any Servicer Potential Event of
Default or Servicer Event of Default, as soon as it becomes aware of
such Servicer Potential Event of Default or Servicer Event of
Default;
2. Consents: to obtain and maintain all authorisations, approvals,
consents, agreements, licences, exemptions and registrations and to
make all filings or obtain all documents, needed at any time for the
purposes of:
(a) the execution and delivery of the FCC Transaction
Documents, and the performance of any of the transactions
contemplated in the FCC Transaction Documents; and
(b) carrying on its activities (to the extent that such
authorisations, approvals, consents, agreements, licences,
exemptions, registrations, filings or documents are
necessary for it to observe or to perform its obligations
under the FCC Transaction Documents);
3. Maintain procedures: to establish, maintain and implement all
necessary accounting, management and administrative systems and
procedures (including but not limited to the Servicing Procedures),
electronic or otherwise, to establish and maintain accurate,
complete, reliable and up to date information regarding the
Transferred Receivables including, but not limited to, all
information contained in the Debtor Accounts, the Individual Reports
and the records relating to the relevant Collection Accounts;
4. Accuracy of information: to procure that (i) all information
contained in the Individual Reports furnished by it or on its behalf
under the FCC Transaction Documents is accurate in all respects on
the date that such information is stated or certified and (ii) all
other information or reports furnished by it or on its behalf under
the FCC Transaction Documents is accurate in all material respects on
the date that such information is stated or certified;
5. Provision of financial statements: to provide the Management Company
certified copies of its annual financial statements (as provided for
by all applicable laws and regulations) audited and certified without
qualifications by its auditors as soon as they become available and,
in any event, no later than nine (9) months after the end of the
financial year to which they relate,
Page 73
prepared in accordance with the applicable accounting principles, and
giving a true, complete and fair view of the results, activities and
financial situation of the Servicer at the end of the relevant
financial period;
6. Execution of obligations: to perform and comply with, in all material
respects, on the due date and in full, all stipulations, commitments
and other obligations to which it may be subject by the Contractual
Documents relating to the Transferred Receivables;
7. Full compliance: to fully comply in all respects, in good faith and
in a timely manner, with the terms of the FCC Transaction Documents
to which it is a party;
8. No creation of rights: not to create and not to allow for creation or
continuation of any right whatsoever (including any right resulting
from a seizure or enforcement) encumbering all or part of the
Transferred Receivables or any Collection Account, except if and
where expressly permitted by the FCC Transaction Documents;
9. No action: not to take any initiative or action in respect of the
Transferred Receivables, the Contractual Documents or the Sale of
Products which would affect, impede or prohibit the ability to assign
or to collect the Transferred Receivables in whole or in part, or
which could harm, in any way, the rights of the Management Company in
the Transferred Receivables, except if and where expressly permitted
pursuant to the FCC Transaction Documents;
10. No waiver: not to waive any right under the Contractual Documents and
the Transferred Receivables, unless in compliance with the Servicing
Procedures or with the prior written consent of the Management
Company which shall not be unreasonably withheld;
11. Detailed information: to hold detailed information relating to any
FCC Collection, any New Dilutions, any Latent Anticipated Dilutions,
any Unanticipated Dilutions and any Consumed Anticipated Dilutions
until the FCC Termination Date and to:
(a) allocate any FCC Collection, any New Dilutions, any Latent
Anticipated Dilutions, any Unanticipated Dilutions and any
Consumed Anticipated Dilutions to any Debtor Account within
two (2) Business Days following the receipt of the said
amounts;
(b) allocate and segregate any FCC Collection, any New
Dilutions, any Latent Anticipated Dilutions, any
Unanticipated Dilutions and any Consumed Anticipated
Dilutions from the amounts pertaining to other receivables
owned by the relevant Seller and from the amounts
pertaining to the other Transferred Receivables, at the
latest two (2) Business Days following the receipt of the
said amounts;
(c) allocate and segregate any FCC Collection, any New
Dilutions, any Latent Anticipated Dilutions, any
Unanticipated Dilutions and any
Page 74
Consumed Anticipated Dilutions in respect of any Eligible
Financing Receivable from the amounts pertaining to any
Non Eligible Financing Receivable and vice versa, at the
latest two (2) Business Days following the receipt of the
said amounts; and
(d) provide such information to the Management Company within
two (2) Business Days upon written request of the
Management Company;
12. Resources: to ensure that it has adequate personnel and other
resources (including information technology facilities, software and
software licences) and it will allocate office space, facilities,
equipment and staff sufficient to enable it to fulfil its obligations
under the FCC Transaction Documents to which it is a party;
13. Filings: to make all filings, give all notices and make all
registrations and other notifications required by, and will comply
with any legal requirements in the performance of its obligations
under, this Agreement and the other FCC Transaction Documents to
which it is a party;
14. Offices, records and books of accounts: not to relocate or permit the
relocation of any office where records relating to the Transferred
Receivables are kept without thirty (30) days' prior written notice
to the Management Company, provided that if the records are to be
moved outside the jurisdiction of incorporation of the relevant
Servicer then all action by the Servicer which the Management Company
reasonably considers necessary or appropriate to maintain the rights
of the Management Company in the Transferred Receivables shall have
been duly taken;
15. Co-operation: to fully co-operate with the Management Company and
provide it with such information and assistance as it shall
reasonably require in order to keep all registers and prepare interim
statements, final accounts and all returns required by law or by
relevant regulatory authorities and to fully co-operate with the
Management Company and provide it with such information in relation
to the Transferred Receivables and the operation of the transactions
contemplated in the FCC Transaction Documents as the Management
Company shall reasonably require in order to discharge its functions
and legal obligations;
16. No amendment of the Servicing Procedures: other than in relation to
those policies and procedures which are required by law or by any
governmental body or regulatory authority:
(a) not to make any significant change or amendment to the
Servicing Procedures without the consent of the Management
Company; and
(b) not to adopt any significant additional and/or alternative
policies and procedures in place of the Servicing
Procedures unless it informs the Management Company in
writing of any of the same, prior to their adoption,
Page 75
except if any such change, amendment or additional and/alternative
policies and procedures improve the Servicing Procedures;
17. Holding of title: to the extent that the Servicer holds or there is
held to its order or it receives or there is received to its order,
any property, interest, right, title or benefit in respect of the
Transferred Receivables and/or the proceeds of any of them
(including, without limitation, all moneys received, whenever paid,
in respect of, or referable to, such Transferred Receivables and the
relating Ancillary Rights), to apply or account for the same only in
accordance with the provisions in this Agreement and the other FCC
Transaction Documents to which it is a party and, until so applied or
accounted for, to hold such moneys and such other property, interest,
right, title or benefit for the benefit of the Management Company;
18. General duties:
(a) to give assistance, as required and within five (5)
Business Days after the receipt of a written request from
the Management Company, in providing or delivering any
item, form or document and in carrying out any formalities
or any acts that might reasonably be requested at any time
by the Management Company, in order to enable the
Management Company to exercise, protect, keep in effect or
establish proof of its rights to the Transferred
Receivables;
(c) if need be, apply or exercise rights held against any
person in order to enable the Management Company to
exercise its rights arising out of the Transferred
Receivables, to the extent and in compliance with any
applicable laws and regulations, promptly after the receipt
of a written request from the Management Company; and
(d) subject to the provisions of the Collection Account
Security Agreement, to hold any collection received by it
after the relevant Transfer Date exclusively on behalf and
for the account of the Management Company;
19. Other undertaking: to perform at its own cost and expense any
reasonable action, for the account of the Management Company, in
relation to a negotiable instrument, a bill of exchange, a bank
cheque, a letter of credit or a similar instrument delivered by a
Debtor in respect of any Transferred Receivable. In addition, upon
the notification of the transfer of Receivables to the Debtors of the
relevant Seller, the Servicer shall endorse all such negotiable
instruments, bills of exchange, bank cheques, letters of credit or
similar instruments to the Management Company or, if such endorsement
is technically impossible, deliver to the Management Company any and
all such negotiable instruments, bills of exchange, bank cheques,
letters of credit or similar instruments in respect of the
Transferred Receivables and generally take all measures deemed
necessary by the Management Company to preserve its rights under the
Securitisation Transaction Documents;
20. Indemnification - Non-performance:
Page 76
(a) to indemnify the FCC or ensure that the FCC is indemnified
for any costs, damages, losses, expenses or liabilities
(including, but not limited to, legal and out of pocket
expenses) that are direct, reasonable and justified and
suffered by the FCC as a result of any non-performance by
the Servicer of any of its obligations or breach or non
compliance of any of its representations or warranties made
under this Agreement; and
(b) to pay to the Management Company, at the latter's written
request, without delay, set-off, deduction or withholding
of any nature, the entire amount of such costs, damages,
losses, expenses or liabilities,
provided however, that the relevant Servicer shall not be liable for
any costs, damages, losses, expenses or liabilities that result from
the gross negligence (faute grave) or wilful misconduct (dol) of the
Management Company;
21. Indemnification - Claims of third parties:
(a) to indemnify the FCC or ensure that the FCC is indemnified,
for any costs, damages, losses, expenses or liabilities
(including, but not limited to, legal and out of pocket
expenses) that are direct, reasonable and justified and
suffered by the FCC as a result of any action, third party
notice, counter claim or claim of any nature whatsoever,
filed by a Debtor or a third party on the basis of or in
connection with the Contractual Documents or the Sales of
Products; and
(b) to pay to the Management Company, at the latter's written
request, without any set-off, deduction or withholding
whatsoever, the entire amount of such costs, damages,
losses, expenses and liabilities,
provided however, that the relevant Servicer shall not be liable for
any costs, damages, losses, expenses or liabilities that result from
the gross negligence (faute grave) or wilful misconduct (dol) of the
Management Company;
22. Set-off:
(a) not to engage any action which may give rise to a right of
the Debtor (or any third party) to set-off, counter claim,
refund, retention or any similar right which could give
rise to any deduction whatsoever or could result in any
other reason for not paying any amount due under the
Transferred Receivables, without the Management Company's
prior written consent; and
(b) to pay to the Management Company, at the latter's written
request, without any set-off, deduction or withholding
whatsoever, the entire amount of any costs, damages,
losses, expenses or liabilities or damage that are direct,
reasonable and justified and suffered by the FCC as a
result of any action contemplated in the above Sub-clause
(a);
Page 77
23. Notifications: to notify the Management Company upon being notified
of or becoming aware of the occurrence of any Event of Default;
24. Designation and identification: to designate and identify (designer
et individualiser), without any ambiguity on and after the relevant
Transfer Date and until it is fully repaid, in its computer and
accounting systems (including in the relevant Debtor Account) each
Transferred Receivable (including each Eligible Financing Receivable
and each Non Eligible Financing Receivable), all FCC Collections, all
New Dilutions, all Latent Anticipated Dilutions, all Unanticipated
Dilutions and all Consumed Anticipated Dilutions related to such
Transferred Receivables, through the recording of each Transferred
Receivable relating to each Debtor;
25. Deposits to Collection Accounts: to instruct all Debtors to remit all
their payments in respect of the Transferred Receivables into the
relevant Collection Account and if the Servicer shall receive any
collections, to promptly (and in any event within one (1) Business
Day) deposit the same into the applicable Collection Account, unless
expressly provided to the contrary in the FCC Transaction Documents;
26. Collection Account Ratio: that, on any Payment Date or Interest
Payment Date falling six (6) months after the Servicer enters into
the Securitisation Programme, the Collection Account Ratio in respect
of any relevant Collection Period shall not be less than 98%;
27. Collection Ratio: that, on any Payment Date or Interest Payment Date
falling six (6) months after the Servicer enters into the
Securitisation Programme, the Collection Ratio in respect of any
relevant Collection Period shall not exceed 2%;
28. Change in payment instructions to Debtors: not to make any change in
the instructions to Debtors regarding payments to be made in respect
of the Transferred Receivables or payment to be made to any
Collection Account save to notify details of any new Collection
Account opened in compliance with Clause 12.3; and
29. Powers of attorney: not to revoke or attempt to revoke any power of
attorney granted by it in accordance with Clause 21 or Clause 22, as
relevant, unless such revocation results from the mandatory
application of any applicable law.
Each undertaking listed in Part B of this Schedule 9 of Appendix 1 and in Part B
of Schedule 4 of the relevant Seller's Appendix shall be (i) complied with at
all times from the Closing Date until the liabilities of the Servicer under this
Agreement and any of the FCC Transaction Documents to which it is a party have
been fully discharged, (ii) expressly confirmed as fully complied with on each
Information Date and (iii) deemed to be confirmed as fully complied with on each
Transfer Date.
Page 78
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 10
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS COMMON TO THE ADMINISTRATIVE AGENTS
Part A
Representations and warranties of the Administrative Agents
On the Closing Date, subject to the representations and warranties listed in
Schedule 5 of the relevant Seller's Appendix, which may, as the case may be,
supplement the representations and warranties listed below, each Administrative
Agent represents and warrants to the Management Company and the Custodian that:
1. Status: it is a company duly incorporated and validly existing under
the laws of its jurisdiction of incorporation;
2. Powers and authorisations: all corporate actions, approvals,
consents, notice to or filing with any person have been taken,
fulfilled and done in order to ensure the execution, delivery and
performance by it of the FCC Transaction Documents to which it is a
party;
3. Legal validity: subject to any insolvency laws and laws affecting the
rights of creditors generally, its obligations arising under the FCC
Transaction Documents constitute, or when executed by it will
constitute, its legal, valid and binding obligations enforceable
against it in accordance with their respective terms;
4. Pari passu ranking: its payment obligations under the terms of the
FCC Transaction Documents are and will be direct and general
obligations which rank pari passu with all its other unsecured
obligations and liabilities, present or future, actual or contingent,
save for unsecured obligations and liabilities accorded preferably
over its other unsecured obligations and liabilities pursuant to any
provision of the laws of its incorporation;
5. Non-violation: the execution and delivery of the FCC Transaction
Documents to which it is a party, and the performance of its
obligations thereunder and of any of the transactions contemplated in
any of them do not and will not contravene, breach or constitute a
default under or conflict or be inconsistent with or cause to be
exceeded any limitation on it or the powers of its directors imposed
by or contained in:
(a) any law, statute, decree, rule, regulation or licence to
which it or any of its assets or revenues is subject or of
any order, judgement, injunction, decree, resolution,
determination or award of any court or any judicial,
administrative, or governmental authority or organisation
which applies to it or any of its assets or revenues; or
Page 79
(b) any agreement, indenture, mortgage, deed of trust, bond
issue or any material document, instrument or obligation to
which it is a party or by which any of its assets or
revenues is bound or affected; or
(c) any document which contains or establishes its
constitution;
6. Consents: it has obtained and maintained in full force and effect all
authorisations, approvals, consents, agreements, licences, exemptions
and registrations and has made all filings or obtained all documents
needed for the purposes of:
(a) the execution and the delivery of the FCC Transaction
Documents to which it is a party, and the performance of
its obligations thereunder and of any of the transactions
contemplated in any of them; and
(b) carrying on its activities (to the extent that such
authorisations, approvals, consents, agreements, licences,
exemptions, registrations, filings or documents are
necessary for it to observe or to perform its obligations
under the FCC Transaction Documents);
7. No default: no event has occurred which constitutes, or which with
the giving of notice and/or the lapse of time and/or a relevant
determination would constitute, a contravention of, or default under,
any applicable law, statute, decree, rule, regulation, order,
judgment, injunction, decree, resolution, determination or award or
any agreement, document or instrument by which it or any of its
assets is bound or affected, being a contravention or default which
affects or impedes, or would affect or impede, its ability to perform
its obligations under the terms of the FCC Transaction Documents to
which it is a party or affects, impedes or prohibits, or would
affect, impede or prohibit, the ability to assign or to collect the
Transferred Receivables;
8. Tax liabilities: all necessary returns have been delivered by it or
on its behalf to the relevant taxation authorities and it is not in
default in any material respect in the payment of any Taxes, and no
material claim is being asserted with respect to Taxes which is not
disclosed in its most recent financial statements;
9. No litigation: there is no litigation, arbitration or proceedings or
administrative request, claim or action before any jurisdiction,
court, administration, public body or governmental authority (unless
contested in good faith by the Administrative Agent) which are
currently in progress or pending or, to its knowledge, imminent
against it or against any of its assets, income or revenues that, if
the outcome was unfavourable, would affect or impede its ability to
perform its obligations under the terms of the FCC Transaction
Documents to which it is a party or would affect, impede or prohibit,
the ability to assign or to collect the Transferred Receivables;
10. Accounts: its audited annual financial statements (as provided for by
all applicable
Page 80
laws and regulations) covering the last financial year closed or its
latest audited annual financial statements (as provided for by all
applicable laws and regulations) available on the Closing Date have
been prepared in accordance with the applicable accounting
principles, and they give a true, complete and fair view of its
results, its activities and its financial situation on the date
corresponding to the closing of the last financial year;
11. Insolvency: it is not Insolvent;
12. No Event of Default or Early Amortisation Event: no Administrative
Agent Event of Default or Administrative Agent Early Amortisation
Event has occurred or is continuing with respect to it;
13. Securitisation Programme: it knows (i) the procedures of the
Securitisation Programme to the extent necessary for the performance
of its obligations under the FCC Transaction Documents and (ii) the
terms and conditions of the FCC Transaction Documents as well as the
Eliopee Liquidity Facility Agreement, even though it is not a party
to this agreement and understands the consequences of this agreement;
14. Economic and financial interests: the transactions contemplated in
the FCC Transaction Documents to which it is a party are in its
economic and financial interests, and completing those transactions
will not significantly and adversely affect its financial condition
as at the end of its last financial year; and
15. Structured group: the French Administrative Agent, the English
Administrative Agent, the Sellers, the Servicers and the Parent
Company form a structured group with a strategy common to each of the
French Administrative Agent, the English Administrative Agent, the
Sellers, the Servicers and the Parent Company, and the French
Administrative Agent, the English Administrative Agent, the Sellers,
the Servicers and the Parent Company have close capital links. To its
knowledge, completing the transactions contemplated in the FCC
Transaction Documents to which they are party, and more generally,
the Securitisation Programme, do not prejudice the economic and
financial balance between the respective undertakings of each of the
French Administrative Agent, the English Administrative Agent, the
Sellers, the Servicers and the Parent Company and those transactions
are entered into with an individual corporate benefit for each of
them.
Each representation and each warranty listed in Part A of this Schedule 10 of
Appendix 1 and in Part A of Schedule 5 of the relevant Seller's Appendix shall
be (i) expressly repeated on each Information Date and (ii) deemed to be
repeated on each Transfer Date.
Part B
Undertakings of the Administrative Agents
On the Closing Date, subject to the undertakings listed in Schedule 5 of the
relevant Seller's Appendix, which may, as the case may be, supplement the
undertakings listed
Page 81
below, each Administrative Agent undertakes to the Management Company and the
Custodian:
1. Breach: to promptly inform the Management Company and the Custodian
in writing upon the occurrence of any Administrative Agent Potential
Event of Default or Administrative Agent Event of Default, as soon as
it becomes aware of such Administrative Agent Potential Event of
Default or Administrative Agent Event of Default;
2. Consents: to obtain and maintain all authorisations, approvals,
consents, agreements, licences, exemptions and registrations and to
make all filings or obtain all documents, needed at any time for the
purposes of:
(a) the execution and delivery of the FCC Transaction
Documents, and the performance of any of the transactions
contemplated in the FCC Transaction Documents; and
(b) carrying on its activities (to the extent that such
authorisations, approvals, consents, agreements, licences,
exemptions, registrations, filings or documents are
necessary for it to observe or to perform its obligations
under the FCC Transaction Documents);
3. Information: to deliver, within five (5) Business Days of receiving
such a request from the Management Company or Custodian, additional
information relevant to the Transferred Receivables (including
information related to enforceability or collectability of the
Transferred Receivables), the Sellers, the Servicers, the Debtors or
the Collection Accounts as the Management Company or the Custodian
may from time to time reasonably require for the performance of their
obligations under the Securitisation Transaction Documents;
4. Accuracy of information: to procure that (i) all information
contained in the Computer Files, the Transfer Files, the Individual
Reports and the Consolidated Reports furnished by it under the FCC
Transaction Documents is accurate in all respects on the date that
such information is stated or certified and (ii) all other
information or reports furnished by it or on its behalf under the FCC
Transaction Documents is accurate in all material respects on the
date that such information is stated or certified;
5. Provision of financial statements: to provide the Management Company
certified copies of its annual financial statements (as provided for
by all applicable laws and regulations) audited and certified without
qualifications by its auditors as soon as they become available and,
in any event, no later than nine (9) months after the end of the
financial year to which they relate, prepared in accordance with the
applicable accounting principles, and giving a true, complete and
fair view of the results, activities and financial situation of the
Administrative Agent at the end of the relevant financial period;
Page 82
6. Full compliance: to fully comply in all respects, in good faith and
in a timely manner, with the terms of the FCC Transaction Documents
to which it is a party;
7. Co-operation: to fully co-operate with the Management Company and
provide it with such information and assistance as it shall
reasonably require in order to keep all registers and prepare interim
statements, final accounts and all returns required by law or by
relevant regulatory authorities and to fully co-operate with the
Management Company and provide it with such information in relation
to the Transferred Receivables and the operation of the transactions
contemplated in the FCC Transaction Documents as the Management
Company shall reasonably require in order to discharge their
functions and legal obligations;
8. Filings: to make all filings, give all notices and make all
registrations and other notifications required by, and will comply
with any legal requirements in the performance of its obligations
under, this Agreement and the other FCC Transaction Documents to
which it is a party;
9. Indemnification - Non-performance:
(a) to indemnify the FCC or ensure that the FCC is indemnified
for any costs, damages, losses, expenses or liabilities
(including, but not limited to, legal and out of pocket
expenses) that are direct, reasonable and justified and
suffered by the FCC as a result of any non-performance by
the French Administrative Agent or the English
Administrative Agent of any of its obligations or breach or
non compliance of any of its representations or warranties
made under this Agreement; and
(b) to pay to the Management Company, at the latter's written
request, without delay, set-off, deduction or withholding
of any nature, the entire amount of such costs, damages,
losses, expenses or liabilities,
provided however, that the relevant Administrative Agent shall not be
liable for any costs, damages, losses, expenses or liabilities that
result from the gross negligence (faute grave) or wilful misconduct
(dol) of the Management Company; and
10. Notifications: to notify the Management Company upon being notified
of or becoming aware of the occurrence of any Event of Default.
Each undertaking listed in Part B of this Schedule 10 of Appendix 1 and in Part
B of Schedule 5 of the relevant Seller's Appendix shall be (i) complied with at
all times from the Closing Date until the liabilities of each of the French
Administrative Agent and the English Administrative Agent under this Agreement
and any of the FCC Transaction Documents to which it is a party have been fully
discharged, (ii) expressly confirmed as fully complied with on each Information
Date and (iii) deemed to be confirmed as fully complied with on each Transfer
Date.
Page 83
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 11
REPRESENTATIONS AND WARRANTIES OF THE MANAGEMENT COMPANY AND THE CUSTODIAN
Part A
Representations and warranties of the Management Company
On the Closing Date, the Management Company represents and warrants to the other
parties to this Agreement, that:
1. Status: it is a French societe anonyme, duly incorporated and validly
existing under the law of France and licensed by the Autorite des
marches financiers as a management company of fonds communs de
creances under Regulation no. 94-01 of 9 March 1994 (as amended);
2. Consents: it has the power to own its assets and carry on its
business as it is being conducted;
3. Powers and authorisations: it has the power to enter into, perform
and deliver, and has taken all necessary action to authorise its
entry into, performance and delivery of, any Securitisation
Transaction Document to which it is a party and the transactions
contemplated thereunder; and
4. Legal validity: the obligations expressed to be assumed by it in this
Agreement and in any Securitisation Transaction Document to which it
is a party are, subject to any insolvency laws and laws affecting the
rights of creditors generally, legal, valid, binding and enforceable
obligations.
Part B
Representations and warranties of the Custodian
On the Closing Date, the Custodian represents and warrants to the other parties
to this Agreement, that:
1. Status: it is a French societe anonyme, duly incorporated and validly
existing under the law of France and licensed in France by the Comite
des Etablissements de Credit et des Entreprises d'Investissement as a
credit institution (etablissement de credit);
2. Consents: it has the power to own its assets and carry on its
business as it is being conducted;
3. Powers and authorisations: it has the power to enter into, perform
and deliver, and has taken all necessary action to authorise its
entry into, performance and delivery of, any Securitisation
Transaction Document to which it is a party and the transactions
contemplated thereunder; and
Page 84
4. Legal validity: the obligations expressed to be assumed by it in this
Agreement and in any Securitisation Transaction Document to which it
is a party are, subject to any insolvency laws and laws affecting the
rights of creditors generally, legal, valid, binding and enforceable
obligations.
Each representation and each warranty listed in this Schedule 11 of Appendix 1
shall be deemed to be repeated on each Transfer Date.
Page 85
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 12
POTENTIAL EVENTS OF DEFAULT COMMON TO ALL SELLERS, SERVICERS,
ADMINISTRATIVE AGENTS AND PARENT COMPANY
Part A
Seller, Servicer, Administrative Agent and Parent Company Potential
Events of Default
Each of the following events shall constitute a Seller, Servicer, Administrative
Agent or Parent Company Potential Event of Default as applicable and the Parties
acknowledge that in the FCC Transaction Documents, a Potential Event of Default
by a Seller may be referred to as a Seller Potential Event of Default, by a
Servicer as a Servicer Potential Event of Default, by an Administrative Agent as
an Administrative Agent Potential Event of Default and by the Parent Company as
a Parent Company Potential Event of Default:
1. Breach of obligations: any failure by the Seller, Servicer,
Administrative Agent or Parent Company to comply with or perform any
of its undertakings and its other obligations (other than those in
respect of which a failure constitutes a Seller, Servicer,
Administrative Agent or Parent Company Event of Default) under any of
the FCC Transaction Documents to which it is a party; or
2. Misrepresentation: any representation or warranty made (or deemed to
have been made) by the Seller, Servicer, Administrative Agent or
Parent Company (other than those in respect of which Clause 6
(Failure to conform to the Eligibility Criteria) is applicable) in
any of the FCC Transaction Documents to which it is a party proves to
have been incorrect or inaccurate when made (or deemed to have been
made); or
3. Invalidity: subject to Clause 29, any provision of any of the FCC
Transaction Documents is or becomes, for any reason, invalid or
unenforceable; or
4. Material adverse event: any event or series of events (other than
those referred to in Sub-clauses (1), (2) or (3) above) occurs,
and which, in all cases set out in Sub-clauses (1), (2), (3) or (4) above and in
the Management Company's reasonable opinion:
(a) results in, or is likely to give rise to, a default of the FCC's own
obligations, undertakings, representations or warranties under any of
the FCC Transaction Documents to which it is a party; or
(b) affects, or is likely to affect, significantly the ability of the
relevant Seller, Servicer, Administrative Agent or Parent Company to
perform its obligations
Page 86
under the terms of this Agreement or under any other FCC Transaction
Documents to which it is a party; or
(c) affects, or is likely to affect, significantly the recoverability of
the Transferred Receivables; or
(d) entails, or is likely to entail, the downgrading of the rating of the
BT Programme assigned by Moody's below P-1 or the putting on credit
watch with negative implication of this rating.
Part B
Consequences of a Seller, Servicer, Administrative Agent and Parent Company
Potential Event of Default
Upon the occurrence of any Seller, Servicer, Administrative Agent or Parent
Company Potential Event of Default referred to in Part A of this Schedule 12 of
Appendix 1 in respect of any Seller, Servicer, Administrative Agent or Parent
Company, as applicable:
(a) the first party to the FCC Transaction Documents to be aware of such
Seller, Servicer, Administrative Agent or Parent Company Potential
Event of Default shall immediately notify the relevant Seller,
Servicer or the Parent Company as well as the Management Company, the
Custodian and the relevant Administrative Agent of the occurrence of
such Seller, Servicer, Administrative Agent or Parent Company
Potential Event of Default;
(b) the Consultation Period relating to the relevant Seller, Servicer,
Administrative Agent or Parent Company shall immediately start;
(c) with respect to a Seller Potential Event of Default only, the
relevant Seller (but not any other Seller) shall not be entitled to
make any additional Individual Transfer Offers and the Management
Company shall not be entitled to accept any existing or new
Individual Transfer Offer from such Seller until the end of the
Consultation Period relating to such Seller and provided that the
said Consultation Period does not end into a Seller Event of Default;
(d) with respect to an Administrative Agent Potential Event of Default
only, no Seller having appointed the relevant Administrative Agent
(but not any other Seller) shall be entitled to make any Individual
Transfer Offer and the Management Company shall not be entitled to
accept any existing or new Consolidated Transfer Offer or Individual
Transfer Offers from such Administrative Agent (but not the other
Administrative Agent) until the end of the Consultation Period
relating to the relevant Administrative Agent and provided that the
said Consultation Period does not end into an Administrative Agent
Event of Default; and
(e) with respect to a Parent Company Potential Event of Default only, no
Seller shall be entitled to make any Individual Transfer Offer and
the Management Company shall not be entitled to accept any existing
or new Consolidated
Page 87
Transfer Offer or Individual Transfer Offers from all Sellers and the
Administrative Agents until the end of the Consultation Period
relating to the Parent Company and provided that the said
Consultation Period does not end into a Parent Company Event of
Default.
Page 88
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 13
EVENTS OF DEFAULT AND EARLY AMORTISATION EVENTS COMMON TO ALL SELLERS,
SERVICERS, ADMINISTRATIVE AGENTS AND PARENT COMPANY
Part A
Seller, Servicer, Administrative Agent and Parent Company Events of Default and
Early Amortisation Events
Each of the events mentioned in Sub-clauses (1) to (10) in Part A of this
Schedule 13 of Appendix 1 shall constitute a Seller, Servicer, Administrative
Agent or Parent Company Event of Default as applicable and the Parties
acknowledge that in the FCC Transaction Documents, an Event of Default by a
Seller may be referred to as a Seller Event of Default, by a Servicer as a
Servicer Event of Default, by an Administrative Agent as an Administrative Agent
Event of Default and by the Parent Company as a Parent Company Event of Default.
The events mentioned in Sub-clause (11) in Part A of this Schedule 13 of
Appendix 1 shall constitute a Seller, Servicer, Administrative Agent or Parent
Company Early Amortisation Event as applicable and the Parties acknowledge that
in the FCC Transaction Documents, an Early Amortisation Event by a Seller may be
referred to as a Seller Early Amortisation Event, by a Servicer as a Servicer
Early Amortisation Event, by an Administrative Agent as an Administrative Agent
Early Amortisation Event and by the Parent Company as a Parent Company Early
Amortisation Event. The event mentioned in Sub-clause (12) in Part A of this
Schedule 13 of Appendix 1 shall constitute a Parent Company Event of Default.
1. Failure to pay: the Seller, Servicer, Administrative Agent or Parent
Company fails to pay any amount due under any of the FCC Transaction
Documents to which it is a party on the due date, except where such
failure arises solely from technical failure in the banking system
unrelated to it and where the amount in question is paid within two
(2) Business Days of the due date.
2. Change of business: the Seller, Servicer, Administrative Agent or
Parent Company changes or threatens to change the nature or scope of
its business, suspends or threatens to suspend all or substantially
all of its business operations which it now conducts, or any
governmental authority expropriates or threatens to expropriate all
or part of its assets and in the Management Company's reasonable
opinion, such event:
(a) results in, or is likely to give rise to, a default of the
FCC's own obligations, undertakings, representations or
warranties under any of the FCC Transaction Documents to
which it is a party; or
(b) affects, or is likely to affect significantly, the ability
of the relevant Seller, Servicer, Administrative Agent or
Parent Company to perform its obligations under the terms
of this Agreement or under any other FCC Transaction
Documents to which it is a party; or
Page 89
(c) affects, or is likely to affect, significantly the
recoverability of the Transferred Receivables; or
(d) entails, or is likely to entail, the downgrading of the
rating of the BT Programme assigned by Moody's below P-1
or the putting on credit watch with negative implication
of this rating.
3. Insolvency: the Seller, Servicer, Administrative Agent or Parent
Company is Insolvent.
4. Effectiveness of transfer: the validity of the sale and transfer of
the Transferred Receivables between the relevant Seller and the FCC
or the enforceability of the same against any third party, including
the relevant Debtors, is challenged on serious legal grounds by any
person or entity (including the relevant Seller, the FCC or the
Debtors).
5. Seller, Servicer, Administrative Agent or Parent Company Potential
Event of Default: at the end of a Consultation Period relating to the
relevant entity, a Seller, Servicer, Administrative Agent or Parent
Company Potential Event of Default has not been remedied within the
relevant Consultation Period to the Management Company's
satisfaction.
6. Change of control: the Seller, Servicer, Administrative Agent or
Parent Company ceases to be part of the Crown Group.
7. Absence of transfer: the Seller, having already transferred some of
its Eligible Receivables to the FCC, has not offered for sale and
transfer Eligible Receivables on three (3) successive Transfer Dates,
for any reason whatsoever.
8. Cross default: any indebtedness of the Seller, Servicer,
Administrative Agent or Parent Company aggregating fifty million US
dollars ($50,000,000.00) (or the euro equivalent thereof) becomes due
or capable of being declared due before its stated maturity or is not
paid on maturity or on demand (if so payable), or, in the case of a
guarantee, is not discharged at maturity or when called.
9. French Sellers Auditor's Certificate: the Management Company has not
received, within forty-five (45) days after the Closing Date, in a
form and substance satisfactory to the Management Company, an
Auditor's Certificate in respect of the French Sellers in the form
set out Schedule 6 of Appendix 2.
10. Parent Company Auditor's Certificate: the Management Company has not
received, within forty-five (45) days after the Closing Date, in a
form and substance satisfactory to the Management Company, an
Auditor's Certificate in respect of the Parent Company in the form
set out Schedule 22 of Appendix 1.
11. Tax Deductions and Supplementary Costs: the Seller, Servicer,
Administrative Agent or Parent Company does not wish or is not
entitled to
Page 90
bear, under applicable law, all or part of the Tax Deductions or
Supplementary Costs as provided under the Agreement Amongst
Participating Entities or the Guarantee Agreement, as applicable.
12. Secondary Financial Covenant: the Secondary Financial Covenant is not
met.
Part B
Consequences of a Seller, Servicer, Administrative Agent or Parent Company Event
of Default or Early Amortisation Event
The occurrence of any Seller, Servicer, Administrative Agent or Parent Company
Event of Default or Early Amortisation Event referred to in Part A of this
Schedule 13 of Appendix 1 in respect of any Seller, Servicer, Administrative
Agent or Parent Company shall have the following consequences as applicable:
(a) With respect to a Seller Event of Default or Seller Early
Amortisation Event, the relevant Seller (but not any other Seller)
shall not be entitled to make any additional Individual Transfer
Offers and the Management Company shall not be entitled to accept any
existing or new Individual Transfer Offers from such Seller.
(b) With respect to a Seller Event of Default or Seller Early
Amortisation Event, the Seller Termination Date in relation to the
relevant Seller shall occur and the relevant Seller shall exit from
the Securitisation Programme and shall cease permanently to have the
status of Seller with effect from such Seller Termination Date,
except that the representations, warranties and undertakings of that
Seller shall survive for so long as there continues to exist any
obligations of such Seller.
(c) With respect to a Seller Event of Default, except if such Seller
Event of Default occurs as a result of Sub-clause 7 of the Part A of
this Schedule 13 of Appendix 1, the provisions of Clause 8 shall
apply and the Management Company and/or the Back-Up Servicer may
serve on any Debtor of the said Seller (but not on any Debtor of the
other Sellers) a written Notice of Transfer in accordance with the
said Clause 8.
(d) With respect to a Servicer Event of Default or Servicer Early
Amortisation Event, the Servicer Termination Date in relation to the
relevant Servicer shall occur and the relevant Servicer shall exit
from the Securitisation Programme and shall cease permanently to have
the status of Servicer with effect from such Servicer Termination
Date, except that the representations, warranties and undertakings of
that Servicer shall survive for so long as there continues to exist
any obligations of such Servicer.
(e) With respect to a Servicer Event of Default, the provisions of Clause
20 shall apply and the Management Company may at once or at any time
subsequently terminate the appointment of the relevant Servicer and
substitute the Back-Up Servicer to the relevant Servicer.
Page 91
(f) With respect to an Administrative Agent Event of Default or
Administrative Agent Early Amortisation Event, the Administrative
Agent Termination Date shall occur. As a consequence of such
Administrative Agent Termination Date, the Seller Termination Date
and the Servicer Termination Date in relation to the Sellers and
Servicers having appointed the relevant Administrative Agent shall
occur on the same day and, as a result, the said Sellers and
Servicers shall exit from the Securitisation Programme and shall
cease permanently to have the status of Sellers and Servicers with
effect from the said Seller Termination Date and Servicer Termination
Date, except that the representations, warranties and undertakings of
the said Sellers and Servicers (and those of the relevant
Administrative Agent) shall survive for so long as there continues to
exist any obligations of any Seller or Servicer (or of the relevant
Administrative Agent).
(g) With respect to an Administrative Agent Event of Default or
Administrative Agent Early Amortisation Event, no Seller having
appointed the relevant Administrative Agent shall be entitled to make
any more Individual Transfer Offers and the Management Company shall
not be entitled to accept any existing or new Individual Transfer
Offers from such Sellers or Consolidated Transfer Offers from the
relevant Administrative Agent, irrespective of whether or not a
Seller Potential Event of Default, a Seller Event of Default or a
Seller Early Amortisation Event has occurred.
(h) With respect to an Administrative Agent Event of Default, the
provisions of Clause 20 shall apply and the Management Company may at
once or at any time substitute the Back-Up Servicer to the Servicers
having appointed the relevant Administrative Agent (but not any other
Servicer).
(i) With respect to an Administrative Agent Event of Default, the
provisions of Clause 8 shall apply and the Management Company and/or
the Back-Up Servicer may serve on any Debtor of the Sellers having
appointed the relevant Administrative Agent (but not on any Debtor of
the other Sellers) a written Notice of Transfer in accordance with
the said Clause 8.
(j) With respect to a Parent Company Event of Default or Parent Company
Early Amortisation Event, the Parent Company Termination Date shall
occur. As a consequence of such Parent Company Termination Date, the
Administrative Agent Termination Date, the Seller Termination Date
and the Servicer Termination Date in relation to all Administrative
Agents, all Sellers and all Servicers respectively shall occur on the
same day and, as a result, the said Sellers and the said Servicers
shall exit from the Securitisation Programme and they cease
permanently to have the status of Sellers and Servicers with effect
from the said Seller Termination Date and Servicer Termination Date,
except that the representations, warranties and undertakings of the
said Sellers and the said Servicers (and those of the Administrative
Agents) shall survive for so long as there continues to exist any
obligations of any Seller or any Servicer (or of the Administrative
Agents).
Page 92
(k) With respect to a Parent Company Event of Default or Parent Company
Early Amortisation Event, no Seller shall be entitled to make any
more Individual Transfer Offers and the Management Company shall not
be entitled to accept any existing or new Individual Transfer Offers
from all Sellers or Consolidated Transfer Offers from the
Administrative Agents, irrespective of whether or not a Seller
Potential Event of Default, a Seller Event of Default, a Seller Early
Amortisation Event, an Administrative Agent Potential Event of
Default, an Administrative Agent Event of Default or an
Administrative Agent Early Amortisation Event has occurred.
(l) With respect to a Parent Company Event of Default, the provisions of
Clause 20 shall apply and the Management Company may at once or at
any time substitute the Back-Up Servicer to all Servicers.
(m) With respect to a Parent Company Event of Default, the Management
Company (or the Back-Up Servicer) shall be entitled to notify any
Debtors of all Sellers, in accordance with Clause 8.
Part C
Receivables Event of Default
The event mentioned in Sub-clause (1) in Part C of this Schedule 13 of Appendix
1 shall constitute a Receivables Event of Default.
1. Receivables trigger event: a Receivables Event occurs.
Part D
Consequences of a Receivables Event of Default
The occurrence of a Receivables Event of Default referred to in Part C of this
Schedule 13 of Appendix 1 shall have the following consequences:
(a) The Parent Company Termination Date shall occur and the
Administrative Agent Termination Date, the Seller Termination Date
and the Servicer Termination Date in relation to all Administrative
Agents, all Sellers and all Servicers respectively shall occur on the
same day and, as a result, the said Sellers and the said Servicers
shall exit from the Securitisation Programme and they cease
permanently to have the status of Sellers and Servicers with effect
from the said Seller Termination Date and Servicer Termination Date,
except that the representations, warranties and undertakings of the
said Sellers and the said Servicers (and those of the Administrative
Agents) shall survive for so long as there continues to exist any
obligations of any Seller or any Servicer (or of the Administrative
Agents).
(b) No Seller shall be entitled to make any more Individual Transfer
Offers and the Management Company shall not be entitled to accept any
existing or new Individual Transfer Offers from all Sellers or
Consolidated Transfer Offers from the Administrative Agents,
irrespective of whether or not a Seller Potential Event of Default, a
Seller Event of Default, a Seller Early Amortisation Event, an
Administrative Agent Potential Event of Default, an
Page 93
Administrative Agent Event of Default or an Administrative Agent
Early Amortisation Event has occurred.
(c) The provisions of Clause 20 shall apply and the Management Company
may at once or at any time substitute the Back-Up Servicer to all
Servicers.
(d) The Management Company (or the Back-Up Servicer) shall be entitled to
notify any Debtors of all Sellers, in accordance with Clause 8.
Page 94
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 14
FORM OF INDIVIDUAL REPORT
The Individual and Consolidated Reports will provide aggregated information of
the portfolio taking into account various events that do not appear in the
Computer Files. Report files will be Excel files with the following constraints:
o Only one worksheet per file;
o Reporting data, ageing balances and concentration information shall
be in 3 different files; and
o All columns must be identical in a worksheet, i.e. column of data /
column of labels.
1. File name
Each originator should provide 3 different files:
o aggregate (REP);
o ageing balances (AGB); and
o concentration (CCN).
Each file should be named on the following format: [Originator]_[File
Type]_[Date]_[Time].xls,
>> Originator being Originator BNP Paribas (BNPP) id,
>> File type being "REP", "AGB" or "CCN",
>> Date being the Information Date in the format "YYYYMMDD", and
>> Time being the timestamp of the file in the format "HHMMSSS".
For example, a new originator called "SMITH France" identified at BNPP as
0123456789 may send on the information date 10 of July 2004 the following files:
(0123456789_REP_20040710_1123568.xls)
(0123456789_AGB_20040710_1123568.xls)
(0123456789_CCN_20040710_1123568.xls)
2. File format
All spreadsheets will have the same layout structure (either vertical or
horizontal):
Page 95
- - Column 1: Data Id (Letters are fixed and common to ALL
transactions),
- - Column 2: Data label,
- - Column 3: Formula or input mode,
- - Column 4 to n: Corresponding value(s).
Should the information be provided both at an originator and at Debtors Group
levels, they will appear on several columns in the same worksheet. For the
originator level, the cells Debtor group Id will be empty.
Format:
- ------- ------------------------------- ------------- ---------------------
1 Originator Id Input 0123456789
- ------- ------------------------------- ------------- ---------------------
3. File type
3.1 Aggregate File
The aggregate files provides reporting data related to each Cut-Off Period such
as consolidated amount of Invoices, dilutions, and repurchased Receivables.
Page 96
-------------------------------------------------------------------------------------------------------------------
I REPORTING IDENTIFICATION
-------------------------------------------------------------------------------------------------------------------
A Originator BNPP Id input
-------------------------------------------------------------------------------------------------------------------
A' Originator Name input
-------------------------------------------------------------------------------------------------------------------
B Debtor Group Id input
-------------------------------------------------------------------------------------------------------------------
B' Debtor Group Name input
-------------------------------------------------------------------------------------------------------------------
C Cut-Off Period Reference input
-------------------------------------------------------------------------------------------------------------------
D Cut Off Date input
-------------------------------------------------------------------------------------------------------------------
E Number of new receivables input
-------------------------------------------------------------------------------------------------------------------
F Currency (Iso Code) input
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
II OUTSTANDING RECEIVABLES STOCK
-------------------------------------------------------------------------------------------------------------------
G OUSTANDING RECEIVABLES ON N - 1 =M [N-1]
-------------------------------------------------------------------------------------------------------------------
H [-] Receivables stock events =H.1 + H.2 - H.3 + H.4
-------------------------------------------------------------------------------------------------------------------
H.1 Allocated cash collections input
-------------------------------------------------------------------------------------------------------------------
H.2 New dilutions flow =R - T + V
-------------------------------------------------------------------------------------------------------------------
H.3 New receivables with returned payment (flow) input
-------------------------------------------------------------------------------------------------------------------
H.4 Unapplied Cash allocated during the period input
-------------------------------------------------------------------------------------------------------------------
I [=] OUSTANDING RECEIVABLES BEFORE TRANSFER =G-H
-------------------------------------------------------------------------------------------------------------------
J [+] New receivables input
-------------------------------------------------------------------------------------------------------------------
K [=] OUSTANDING RECEIVABLES AFTER TRANSFER =I+J
-------------------------------------------------------------------------------------------------------------------
L [-] Total Repurchased or Affected Receivables: input
-------------------------------------------------------------------------------------------------------------------
M [=] OUSTANDING RECEIVABLES AFTER TRANSFER AND REPURCHASE =K-L
-------------------------------------------------------------------------------------------------------------------
N Outstanding receivables non eligible for financing =N.1 + N.2 + N.3+ N.4
-------------------------------------------------------------------------------------------------------------------
N.1 Outstanding receivables overdue > 90 days =W4 + W5 + W6
-------------------------------------------------------------------------------------------------------------------
N.2 Outstanding receivables with returned payments overdue <= 90 days input
-------------------------------------------------------------------------------------------------------------------
N.3 Outstanding receivables from insolvent debtor overdue <= 90 days input
-------------------------------------------------------------------------------------------------------------------
N.4 Outstanding receivables which maturity date> 120 days input
-------------------------------------------------------------------------------------------------------------------
O Outstanding receivables eligible for financing =M - N
-------------------------------------------------------------------------------------------------------------------
P New defaulted receivables =P.1 + P.2 + P.3
-------------------------------------------------------------------------------------------------------------------
P.1 Outstanding receivables overdue [91-120] =W4 + W5
-------------------------------------------------------------------------------------------------------------------
P.2 Flow of receivables with returned payment, overdue <= 90 days input
-------------------------------------------------------------------------------------------------------------------
P.3 Flow of receivables from insolvent debtor overdue <= 90 days input
-------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
III OUTSTANDING DILUTIONS STOCK
- --------------------------------------------------------------------------------------------------------------------
Q OUTSTANDING DILUTIONS ON N - 1 =U [N-1]
- --------------------------------------------------------------------------------------------------------------------
R [+] New dilutions =R.1 + R.2 + R.3 + R.4 + R.5
- --------------------------------------------------------------------------------------------------------------------
R.1 Credit Notes input
- --------------------------------------------------------------------------------------------------------------------
R.2 Returnable Packaging input
- --------------------------------------------------------------------------------------------------------------------
R.3 Cancel and replace on the same day input
- --------------------------------------------------------------------------------------------------------------------
R.4 Rebates input
- --------------------------------------------------------------------------------------------------------------------
R.5 Returns input
- --------------------------------------------------------------------------------------------------------------------
S [=] OUTSTANDING DILUTIONS AFTER TRANSFER =Q + R
- --------------------------------------------------------------------------------------------------------------------
T [+] Dilutions stock events =T.1 + T.2 + T.3
-------------------------------------------------------------------------------------------------------------------
T.1 Allocated anticipated dilutions input
-------------------------------------------------------------------------------------------------------------------
T.2 Allocated dilutions with non transferred receivables input
-------------------------------------------------------------------------------------------------------------------
T.3 Dilutions directly paid by Crown group input
- --------------------------------------------------------------------------------------------------------------------
U [=] DILUTIONS AFTER TRANSFER AND EVENTS =S - T
- --------------------------------------------------------------------------------------------------------------------
V Dilutions allocated with drafts input
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
IV ADDITIONAL INFORMATION
- --------------------------------------------------------------------------------------------------------------------
1 Undue Amounts (to be detailed separately for CAS) input
- --------------------------------------------------------------------------------------------------------------------
2 New unapplied cash input
- --------------------------------------------------------------------------------------------------------------------
3 Total Payable Balance input
- --------------------------------------------------------------------------------------------------------------------
4 Payable Total Overdue input
- --------------------------------------------------------------------------------------------------------------------
5 Payable Overdue 1-30 Days input
- --------------------------------------------------------------------------------------------------------------------
6 Payable Overdue 31-60 Days input
- --------------------------------------------------------------------------------------------------------------------
Page 97
>> Explanation regarding data in the various fields:
A: the Originator BNPP id.
A': Originator Name: should always remain the same.
B: Debtor Group Id: this is the Debtor Group id that will be found in field 3 of
the Debtor's File. It is not used in this transaction.
B': Debtor Group Id.: should always remain the same. It is not used in this
transaction.
C: Cut-Off Period reference: this is an incremental number starting at 0 for the
original transfer and that will be incremented at each Cut-Off Date.
D: Cut-Off Date: see legal documentation.
E: Number of new Receivables: this field will give the number of records in the
Transfer File: it will also be the number figuring on the Transfer Document. It
does not include any Receivable with a returned payment.
F: Currency: Euro for France and Sterling for United-Kingdom.
H.1: Allocated cash collections: Collections allocated to Transferred
Receivables since the previous Cut-Off Date (excluded) and the Cut-Off date
figuring on field D.
H.2: Consumed dilutions flow: all dilutions that have been cleared out with an
invoice. The dilutions should be cleared only once the invoice is completely
cleared with both a payment allocated to it and the dilution.
H.3: Newly returned Receivables: Receivables for which payment had been
registered on the previous Report (in the previous reporting the Receivable was
not outstanding anymore, but its payment was rejected during the Cut-Off
Period).
For these Receivables, it should be included in the stock file again, however it
should not figure in the flow file (as it is not offered for transfer on the
corresponding date). The amount due should be equal to the amount of the
returned payment (therefore net of the dilutions already affected to it).
H.4: Unapplied cash allocated during the period: Cash that was unapplied during
the previous period and that has been allocated to Receivables during such
period.
J: New Receivables: Total Nominal Amount of the new Receivables be sold on the
Transfer Date. These are the Receivables issued during the Cut-Off Period on
securitised Debtors.
L: Total repurchased Receivables: in case any Receivables were to be repurchased
or in case of Affected Receivables, the total of the Amount Due for these
Receivables should be input here.
Page 98
N: Outstanding Receivables non eligible for financing: this field sums up all
`Defaulted Receivables' that will not be financed by the FCC.
N.1: Outstanding Receivables overdue > 90 days: it corresponds to the `technical
defaults' linked to the securitisation.
N.2: Outstanding returned Receivables overdue < 90 days: in addition to the
`technical defaults' returned Receivables will not be financed (we only look for
less than 90 days past due as the other ones are already taken into account in
field N.1).
N.3: Outstanding Receivables from Insolvent Debtors overdue >= 90 days: as for
the returned payments all insolvent Receivables not taken into account in the
`technical defaults' will not be financed.
N.4: Outstanding Receivables which maturity date > 120 days: as far as the
Receivables are concerned, they are not eligible for financing if their maturity
date is in more than 120 days except for Bonduelle where we do accept any terms
of payment as long as Vcom payments by CL are maintained: those Receivables are
purchased but not financed.
O: Outstanding Receivables eligible for financing: this will be the basis of the
financed amount; to that amount Over-collateralisation will be subtracted to get
the exact financed amount.
P: New Defaulted Receivables: this amount is used to calculate the loss reserve
in order to update the Over-collateralisation Amount with the evolution of the
transferred portfolio.
P.1: Outstanding Receivables overdue [91-120] days: it corresponds to the new
`technical defaults' over a one month period corresponding to the delay between
two adjustments on the FCC Units (when the total financing can be adjusted).
P.2: Flow of returned Receivables overdue <= 90 days: it corresponds to new
Defaulted Receivables not taken into account in field P.1 (see N.2).
P.3: Flow of Receivables from Insolvent Debtors overdue <= 90 days: if during
the period when a Debtor becomes Insolvent, some of its Receivables are not yet
`technically defaulted', they should be taken into account though this field as
new Defaulted Receivables. Once the Debtor has been flagged as Insolvent, then
this field does not take into account any of its Receivables anymore.
R, R.1, R.2, R.3 and R.4: New dilutions: All dilutions that are in the New
Dilutions file: it corresponds to any dilutions issued during the Cut-Off Period
and not allocated to a receivable during the same period. It will be used to
calculate the dilution reserve.
T: Dilutions Stock events: this field aims at checking all dilutions that reduce
the stock of dilutions.
T.1: Allocated Anticipated Dilutions: it covers all dilutions that were declared
in the previous reporting because issued during a previous Cut-Off Period and
allocated
Page 99
with Receivables for which payment from the Debtor has occurred during the
present Cut-Off Period.
T.2: Allocated dilutions with non Transferred Receivables: should not be used in
this transaction, except if a Debtor was to become Insolvent and Receivables
were still issued afterwards. In that case the FCC would hold the Receivables
issued before the insolvency and the Originators those issued after the
insolvency. In that case we would want to see all dilutions for that Debtor,
even those issued after insolvency but some of them could be allocated with non
Transferred Receivables.
T.3: Dilutions directly paid by Crown Group: in case Crown directly pays the
credit note to the Debtor (for rebates for examples) without any compensation,
then the said dilution should appear in the stock file and the reporting until
Crown's account is debited.
U: Dilutions after transfer and events: outstanding dilutions at the beginning
of the following Cut-Off Period.
V: Dilutions allocated with drafts: Dilutions allocated during the period, with
Transferred Receivables for which payment from the Debtor has occurred during
this Cut-Off Period through a draft (amount included in T.1).
1: Undue Amounts: any amount credited to the Collection Account and that would
not relate to Transferred Receivables (e.g. during the first months of the
transaction, some collections on export Debtors). In that case the FCC would
reimburse these amounts to Crown when it will provide the proof these
Collections are undue.
A separate list providing for each amount: the relevant Debtor, the Invoices
covered, and an explanation will have to be provided.
2: New Unapplied cash: any cash collected for transferred debtors not yet
allocated to receivables.
3, 4, 5, 6: data on the payables, to be used to calculate the Suppliers Trigger.
>> Cross checking with Computer Files
Some fields link the Aggregate File and the Computer Files for each Originator
(only in the originator currency).
In the following table amounts on a same line should be equal ((SIGMA): sum).
Page 100
..................................................... ........................................................
Aggregate File Computer Files
..................................................... ........................................................
Outstanding Receivables after transfer and (SIGMA) (Due Amount (field 11) of all R type records
repurchase (field [M]) in the S file
..................................................... ........................................................
(SIGMA) Due Amount (field 11) of all D type records in
Dilutions after transfer and events (field [U]) the S file
..................................................... ........................................................
(SIGMA) Due Amount (field 11) of all R type records in
New Receivables (field [J]) the F file
..................................................... ........................................................
Due Amount (field 11) of all D type records in the A
New Dilutions (field [R]) file
..................................................... ........................................................
3.2 Ageing Balance File
This file will provide ageing balances of originators and some Debtor Groups
(the biggest ones). The list of Debtors for which ageing balances should be
provided has yet to be finalised.
These ageing balances should be gross of dilutions and all buckets are to be
calculated compared to the Cut-Off Date.
There will be one file per Originator with the ageing balances of the originator
only, and one file per country, where column 4 will sum all ageing balances of
the originators located in this country, the following columns will sum up all
receivables for a given group of Debtors issued by all the Originators located
in this country.
The format should be the following:
Page 101
---------------------------------------------------------------------------------------------------------------------
V IDENTIFYING BALANCES Originator Debtors
---------------------------------------------------------------------------------------------------------------------
A Originator BNPP Id input
---------------------------------------------------------------------------------------------------------------------
A' Originator Name input
---------------------------------------------------------------------------------------------------------------------
B Debtor Group Id input
---------------------------------------------------------------------------------------------------------------------
B' Debtor Group Name input
---------------------------------------------------------------------------------------------------------------------
C Cut Off Period Reference input
---------------------------------------------------------------------------------------------------------------------
D Cut Off Date input
---------------------------------------------------------------------------------------------------------------------
E Currency (ISO Code) input
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
VI OUTSTANDING OF INVOICES
---------------------------------------------------------------------------------------------------------------------
W Past due invoices - Total =W.1+W.2+... +W.6
---------------------------------------------------------------------------------------------------------------------
W.1 Past due [0-30 days] saisie
---------------------------------------------------------------------------------------------------------------------
W.2 Past due [31-60 days] saisie
---------------------------------------------------------------------------------------------------------------------
W.3 Past due [61-90 days] saisie
---------------------------------------------------------------------------------------------------------------------
W.4 Past due [91-100 days] saisie
---------------------------------------------------------------------------------------------------------------------
W.5 Past due [101-120 days] saisie
---------------------------------------------------------------------------------------------------------------------
W.6 Past due> 120 days saisie
---------------------------------------------------------------------------------------------------------------------
X Due invoices - Total =X.1+X.2+X.3+X.4
---------------------------------------------------------------------------------------------------------------------
X.1 Due [0-30 days] saisie
---------------------------------------------------------------------------------------------------------------------
X.2 Due [31-60 days] saisie
---------------------------------------------------------------------------------------------------------------------
X.3 Due [61-90 days] saisie
---------------------------------------------------------------------------------------------------------------------
X.4 Due [91-120 days] saisie
---------------------------------------------------------------------------------------------------------------------
X.5 Due> 120 days saisie
---------------------------------------------------------------------------------------------------------------------
For the sake of the Consolidated Report, Suppliers Ageing Balance should be
provided.
Page 102
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 15
FORM OF CONSOLIDATED REPORT
The Consolidated Report provides aggregate information for all Sellers related
to a given Administrative Agent in the form of the Individual Report.
Page 103
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 16
FORM OF RESIGNATION LETTER
[resigning Seller's letterhead]
FRANCE TITRISATION
(as Management Company)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
[CROWN EMBALLAGE FRANCE SAS - CROWN PACKAGING UK PLC]
(as Administrative Agent)
[o]
[o]
[o]
[o]
Attention: [o]
Facsimile: [o]
copy to:
BNP PARIBAS
(as Custodian)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
In [to be completed], on [to be completed]
Dear Sirs,
Re: FCC CROWN RECEIVABLES EUROPE -- Resignation Letter
We refer to the Master Receivables Transfer and Servicing Agreement (hereinafter
the Agreement) dated 21 June 2005 entered into between, inter alia, the
Management Company, the Custodian, [to be completed] as Seller and [Crown
Emballage France SAS - Crown Packaging UK PLC] as Administrative Agent.
Page 104
Unless otherwise defined herein, capitalised terms in this letter shall have the
meanings ascribed to them in the Agreement.
Pursuant to Clause 24.1 (Resignation of a Seller) of the Agreement, we request
that [resigning Seller] be released from its obligations as a Seller under the
Securitisation Programme.
We request you to transfer back to us one or more Transferred Receivables in
accordance with Clause 7 of the Agreement. To this end, [Crown Emballage France
SAS - Crown Packaging UK PLC], as Administrative Agent, will deliver you an
Individual Retransfer Request.
We confirm that no Seller Potential Event of Default, Seller Event of Default or
Seller Early Amortisation Event is continuing or would result from the
acceptance of this request.
This Resignation Letter is governed by French law.
Yours faithfully,
- -------------------------------------------------
[resigning Seller]
Title:
Name:
Page 105
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 17
FORM OF REQUEST TO ADD AN ADDITIONAL SELLER
[relevant Administrative Agent's letterhead]
FRANCE TITRISATION
(as Management Company)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
copy to:
BNP PARIBAS
(as Custodian)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
In [to be completed], on [to be completed]
Dear Sirs,
Re: FCC CROWN RECEIVABLES EUROPE -- Request to add an additional Seller in the
Securitisation Programme
We refer to the Master Receivables Transfer and Servicing Agreement (hereinafter
the Agreement) dated 21 June 2005 entered into between, inter alia, the
Management Company, the Custodian, the Sellers and [Crown Emballage France SAS
- - Crown Packaging UK PLC] as Administrative Agent.
Unless otherwise defined herein, capitalised terms in this letter shall have the
meanings ascribed to them in the Master Receivables Transfer Agreement.
Pursuant to Clause 24.3 (Additional Sellers) of the Agreement, we request the
addition of [new Seller] to the Securitisation Programme, as Seller and
Servicer. [new Seller] is a company duly incorporated under the laws of [name of
relevant jurisdiction].
Page 106
The administrative details of [new Seller] are as follows:
- ------------------------------------ ---------------------------------- ---------------------------------
Name of [new Seller/Servicer] Registered office Registration number
- ------------------------------------ ---------------------------------- ---------------------------------
[o] [o] [o]
- ------------------------------------ ---------------------------------- ---------------------------------
We wish the above-mentioned proposed additional Seller to enter the
Securitisation Programme with full effect on the following Transfer Date: [?].
We acknowledge and agree to the fact that the addition to the Securitisation
Programme of the proposed entity is subject to the conditions precedent referred
to in Clause 24.3 of the Agreement.
Yours faithfully,
____________________________________
- -------------------------------------------------
[o],
as Administrative Agent (acting in the name and
on behalf of each [French - English] Seller
pursuant to Clause [21 - 22] of the Agreement)
Title:
Name:
Page 107
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 18
FORM OF ACCESSION LETTER
[additional Seller's letterhead]
FRANCE TITRISATION
(as Management Company)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
[CROWN EMBALLAGE FRANCE SAS - CROWN PACKAGING UK PLC]
(as Administrative Agent)
[o]
[o]
[o]
[o]
Attention: [o]
Facsimile: [o]
copy to:
BNP PARIBAS
(as Custodian)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
In [to be completed], on [to be completed]
Dear Sirs,
Re: FCC CROWN RECEIVABLES EUROPE -- Accession Letter
We refer to:
(a) the Master Receivables Transfer and Servicing Agreement (hereinafter
the Agreement) dated 21 June 2005 entered into between, inter alia,
the Management Company, the Custodian, the Sellers, the Servicers and
[Crown
Page 108
Emballage France SAS - Crown Packaging UK PLC] as Administrative
Agent; and
(b) the request for additional Seller in the Securitisation Programme
issued by [Crown Emballage France SAS - Crown Packaging UK PLC] as
Administrative Agent on [date].
Unless otherwise defined herein, capitalised terms in this letter shall have the
meanings ascribed to them in the Agreement.
Pursuant to Clause 24.3 (Additional Sellers) of the Agreement, we, [name of the
Seller], after having made all independent inquiries we deemed appropriate,
hereby expressly accept, without any formalities and automatically by signing
this Accession Letter:
(i) to be bound by all the terms, conditions and obligations of the
Sellers Transaction Documents and all arrangements referred to in
each of them and, in particular, all the declarations, warranties and
undertakings, as if they were made or given by us; and
(ii) to benefit from all rights provided for by the Sellers Transaction
Documents and all arrangements referred to in each of them,
in all cases in the capacity of Seller and Servicer, as if we were party to each
of the Sellers Transaction Documents and as from the [effective date].
This Accession Letter is governed by French law.
Yours faithfully,
- -------------------------------------------------
[additional Seller]
Title:
Name:
Page 109
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 19
FORM OF CONSOLIDATED TRANSFER OFFER
[Administrative Agent's letterhead]
FRANCE TITRISATION
(as Management Company)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
copy (without the files) to:
BNP PARIBAS
(as Custodian)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
In [to be completed], on [to be completed]
Dear Sirs,
Re: FCC CROWN RECEIVABLES EUROPE -- Consolidated Transfer Offer No. [o]
We refer to Clause 3.1 of the Master Receivables Transfer and Servicing
Agreement (hereinafter the Agreement) dated 21 June 2005 entered into between,
inter alia, the Management Company, the Custodian, the Sellers and [Crown
Emballage France SAS - Crown Packaging UK PLC] as Administrative Agent.
Unless otherwise defined herein, capitalised terms in this letter shall have the
meanings ascribed to them in the Agreement.
We, acting in the name and on behalf of the [French - English] Sellers,
hereby offer to transfer to you in compliance with the provisions of Clause 3.1
of the Agreement with respect to each [French - English] Seller, the Eligible
Receivables (including any Ancillary Rights) with the following financial
characteristics:
Page 110
Characteristics of the Eligible Receivables (consolidated data):
Aggregate of the Net Invoice Amounts: [o]
Number: [o]
Representations, warranties and undertakings:
This Consolidated Transfer Offer constitutes a representation and warranty by us
that, on the date of this Consolidated Transfer Offer (and on the corresponding
Transfer Date):
(a) each representation and warranty referred to in Schedule 10 of
Appendix 1 and Schedule 5 of Appendix [2 - 3] of the Agreement is
true, complete, correct and accurate; and
(c) each undertaking referred to in Schedule 10 of Appendix 1 and
Schedule 5 of Appendix [2 - 3] of the Agreement has been fully
complied with.
Payment instructions:
Transfer Date: [o]
The payment of the Purchase Price corresponding to the Eligible Receivables
shall be made in accordance with Clause 5.2 of the Agreement by crediting the
relevant Administrative Agent Account.
Pursuant to Clause 5.3 of the Agreement, the Administrative Agent shall receive
such payment in the name and on behalf of each [French - English] Seller and
that payment made on the credit of the Administrative Agent Account shall result
in the full and definitive discharge of the FCC's payment obligations.
We attach a copy of each Individual Transfer Offer.
Page 111
Yours faithfully,
- -------------------------------------------------
[o],
as Administrative Agent (acting in the name and
on behalf of each [French - English] Seller
pursuant to Clause [21 - 22] of the Agreement)
Title:
Name:
Page 112
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 20
FORM OF ACCEPTANCE
[Management Company's letterhead]
[CROWN EMBALLAGE FRANCE SAS - CROWN PACKAGING UK PLC]
(as Administrative Agent)
[o]
[o]
[o]
[o]
Attention: [o]
Facsimile: [o]
copy to:
BNP PARIBAS
(as Custodian)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
In [to be completed], on [to be completed]
Dear Sirs,
Re: FCC CROWN RECEIVABLES EUROPE -- Acceptance No. [o]
We refer to Clause 3.3 of the Master Receivables Transfer and Servicing
Agreement (hereinafter the Agreement) dated 21 June 2005 entered into between,
inter alia, the Management Company, the Custodian, the Sellers, the Servicers
and the Administrative Agents.
Unless otherwise defined herein, capitalised terms in this letter shall have the
meanings ascribed to them in the Agreement.
We hereby confirm to you, in your capacity as Administrative Agent, our
acceptance of [your Consolidated Transfer Offer no. [to be completed] dated [to
be completed] - [the Individual Transfer Offers no. [to be completed] dated
[to be completed]
Page 113
issued by [names of the Sellers concerned to be completed]], relating to the
Eligible Receivables identified therein and in the Computer Files that we
received on even date.
Yours faithfully,
- -------------------------------------------------
France Titrisation,
as Management Company of the FCC CROWN
RECEIVABLES EUROPE
Title:
Name:
Page 114
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 21
FORM OF NOTICE OF REFUSAL
[Management Company's letterhead]
[CROWN EMBALLAGE FRANCE SAS - CROWN PACKAGING UK PLC]
(as Administrative Agent)
[o]
[o]
[o]
[o]
Attention: [o]
Facsimile: [o]
copy to:
BNP PARIBAS
(as Custodian)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
In [to be completed], on [to be completed]
Dear Sirs,
Re: FCC CROWN RECEIVABLES EUROPE -- Notice of Refusal No. [o]
We refer to Clause 3.3 of the Master Receivables Transfer and Servicing
Agreement (hereinafter the Agreement) dated 21 June 2005 entered into between,
inter alia, the Management Company, the Custodian, the Sellers, the Servicers
and the Administrative Agents.
Unless otherwise defined herein, capitalised terms in this letter shall have the
meanings ascribed to them in the Agreement.
We hereby inform you that the conditions precedent no. [o], [o], [o] and [o]
specified in Schedule 6 of Appendix 1 of the Agreement are not satisfied on the
date of the [Consolidated Transfer Offer] - [Individual Transfer Offers].
Page 115
As a consequence, we hereby inform you, in your capacity as Administrative
Agent, that in accordance with Schedule 6 of Appendix 1 of the Agreement, we
will not accept [[any of the corresponding Individual Transfer Offers and the
relating Consolidated Transfer Offer] - [the Individual Transfer Offers no.
[to be completed] dated [to be completed] issued by [names of the Sellers
concerned to be completed]].
Yours faithfully,
- -------------------------------------------------
France Titrisation,
as Management Company of the FCC CROWN
RECEIVABLES EUROPE
Title:
Name:
Page 116
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 22
FORM OF AUDITOR'S CERTIFICATE IN RESPECT OF THE PARENT COMPANY
[sur papier a en-tete des commissaires aux comptes de Crown European Holdings]
FRANCE TITRISATION
(en qualite de societe de gestion du FCC CROWN RECEIVABLES EUROPE)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
ATTESTATION DU COMMISSAIRE AUX COMPTES
--------------------------------------
Monsieur,
La presente attestation a ete etablie, a votre demande, dans le contexte du
programme de titrisation des creances commerciales qui resultent de l'activite
de prestation de services et de fourniture de biens dans le domaine de
l'emballage alimentaire des filiales europeennes de Crown European Holdings
(ci-apres l'( Operation )) et plus precisement du contrat de cession de
creance (Master Receivables Transfer and Servicing Agreement) conclu le 21 juin
2005 (ci-apres le ( Contrat )) entre lesdites filiales europeennes de Crown
European Holdings (ci-apres denommee la (Societe)), France Titrisation en
qualite de Societe de Gestion et BNP Paribas en qualite de Depositaire (ci-apres
le ( FCC )).
En tant que commissaire aux comptes de la Societe, nous vous confirmons les
elements suivants :
1. Dans le cadre des derniers comptes de la Societe sur lesquels nous
avons exprime une opinion (les comptes [annuels] au 31/12/XX) nous
avons eu a apprecier le bien fonde de l'utilisation pour la
preparation des comptes par la direction de la convention de base de
continuite de l'exploitation conformement a la norme 2-435 de la
Compagnie Nationale des Commissaires aux Comptes.
Page 117
2. Nous avons obtenu, conformement a la loi francaise, la situation de
l'actif realisable et du passif exigible de la Societe au 31 mai 2005
et avons mene des entretiens aupres de certains responsables de la
Societe concernant le processus et les principes adoptes pour etablir
la situation de l'actif realisable et du passif exigible conformement
a la norme 5-101 de la CNC.
3. Pour les besoins de la presente, nous avons realise les diligences
suivantes (a remplir/adapter selon les cas) :
(a) Nous avons eu des entretiens avec la direction de la
Societe;
(b) Nous avons revu les proces-verbaux des conseils
d'administration de la Societe jusqu'au [date de
l'attestation];
(c) Nous avons obtenu une lettre d'affirmation du President du
Conseil d'Administration de la Societe ;
(Entre la date de notre dernier rapport et la date de l'attestation:)
(d) Nous avons obtenu les comptes intermediaires de la Societe
au 31 mai 2005 etablis par la Direction de la Societe et
revu leur coherence vis-a-vis de notre connaissance de la
Societe au moyen de discussion avec la direction de la
Societe. Ces comptes/comptes consolides n'ont donc fait
l'objet ni d'un audit ni d'un examen limite ;
(e) En ce qui concerne la periode du 31 mai 2005 au [JJ/MM/AA :
date de l'attestation], il ne nous a pas ete demande par la
direction d'effectuer un audit ou une revue des etats
financiers a la date du [JJ/MM/AA] ou pour une periode
posterieure.
Par consequent, nous n'avons :
- realise aucun audit des etats financiers de la Societe (ou
de ses comptes consolides) pour toute periode posterieure
au 31/12/XX (sur lesquels nous avions emis un rapport le
[JJ/MM/AA]) ; et
- realise aucun examen limite des etats financiers consolides
de la Societe pour toute periode posterieure au 30/06/XX+1
(sur lesquels nous avions emis un rapport le [JJ/MM/AA]).
(f) [Autre a preciser].
4. Il est bien entendu que nous n'emettons pas d'avis sur des questions
d'interpretation legale ou du caractere suffisant, pour les besoins
du FCC represente par France Titrisation agissant en qualite de
Societe de Gestion et par BNP Paribas agissant en qualite de
Depositaire, des diligences decrites au paragraphe precedent.
5. A la date de la presente et compte tenu des diligences precitees,
nous n'avons pas connaissance de faits de nature a nous interroger
sur la continuite de
Page 118
l'exploitation et donc a declencher la procedure d'alerte prevue par
l'article L. 234-1/L. 234-2 du Code de commerce (ancien article 230-1
de la loi du 24 juillet 1966).
6. La presente attestation ne couvre pas les faits et circonstances
susceptibles de survenir posterieurement au [date de l'attestation].
7. Les diligences citees aux paragraphes 2 et 3 ci-dessus ne constituent
pas un audit realise conformement aux normes d'audit generalement
admises en France. Si nous avions realise des diligences
supplementaires, nous aurions pu avoir connaissance d'autres
questions et nous vous en aurions fait part. Cependant, de telles
diligences pourraient ne pas necessairement reveler tous les aspects
significatifs.
8. Nous avons etabli la presente attestation a l'attention du President
de la Societe dans le seul contexte du contrat decrit precedemment et
pour la seule information du Conseil d'Administration de la Societe.
Elle ne peut etre communiquee a un tiers sans notre accord prealable
etant precise que, conformement aux dispositions du ss. 33 de la
Norme n(degree) 4-105 de la CNCC, elle peut etre communiquee par vous
au FCC represente par France Titrisation agissant en qualite de
Societe de Gestion et par BNP Paribas agissant en qualite de
Depositaire dans le cadre de leur enquete sur les affaires de la
Societe pour information. Elle ne peut etre utilisee, diffusee ou
citee en reference au sein ou a l'exterieur des entites precitees
pour aucun autre objectif, il peut seulement y etre fait reference
dans les contrats conclus dans le cadre de l'Operation ou dans un
document s'y rapportant directement.
9. Les diligences evoquees ci-dessus s'inscrivent dans le contexte de la
mission de commissariat aux comptes. De plus, elles ne sont pas
destinees a remplacer les enquetes et diligences que le FCC
represente par France Titrisation agissant en qualite de Societe de
Gestion et par BNP Paribas agissant en qualite de Depositaire
pourrait par ailleurs mettre en oeuvre dans le cadre du Contrat. En
tant que Commissaire aux Comptes de la Societe, nous sommes
responsables a l'egard de la Societe et de ses actionnaires et nous
n'acceptons pas d'extension de notre responsabilite au-dela de ce qui
est prevu par la loi francaise.
10. PricewaterhouseCoopers Audit decline toute responsabilite vis-a-vis
de tout tiers y compris le FCC represente par France Titrisation
agissant en qualite de Societe de Gestion et par BNP Paribas agissant
en qualite de Depositaire (et tout autre cessionnaire et ( sous )
partie liee par ce Contrat) en relation avec le Contrat (y compris,
sans limitation, pour actes de negligence et pour non-respect de nos
obligations) et ne pourra etre tenu responsable vis-a-vis de tiers de
leurs pertes, dommages ou depenses de quelque nature que ce soit.
11. En aucun cas PricewaterhouseCoopers Audit ne pourra etre tenu
responsable des consequences dommageables resultant d'un comportement
dolosif ou d'une fraude commise par les administrateurs, employes ou
agents de la Societe.
Page 119
12. Cette attestation est regie par la loi francaise. Les tribunaux
francais auront la juridiction exclusive concernant toute plainte,
conflit ou differend vis-a-vis de notre lettre de mission ou toute
lettre de confort s'y rapportant, y compris cette attestation, et
toute question se rapportant a l'ensemble de ces documents. Chaque
partie renonce irrevocablement a ses droits de s'opposer a une action
portee aupres de ces tribunaux, de pretendre que l'action a ete
intentee aupres d'un tribunal incompetent, ou que ces cours n'ont pas
juridiction.
Paris, le [date du jour]
Le Commissaire aux Comptes
PricewaterhouseCoopers Audit
Nom de l'Associe
Page 120
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 23
FINANCING ELIGIBILITY CRITERIA
1. The Receivable is payable within a maximum period of 120 days from
the relevant Calculation Date.
2. For the Bonduelle Group of Debtors, the Receivable is payable
according to the contractual terms of payment as long as all
Receivables that are payable within a period of more than 120 days
from their Issue Date, are paid by Vcom on a monthly basis within 60
days from their issuance.
Page 121
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 24
FORM OF SOLVENCY CERTIFICATE IN RESPECT OF THE SELLERS
[on letterhead of the Sellers]
FRANCE TITRISATION
(as Management Company of the FCC CROWN RECEIVABLES EUROPE)
Immeuble Tolbiac
75450 Paris Cedex 09
France
Attention: Monsieur Michel Duhourcau, Secretaire General
ACI: CTA01A1
Paris, [Date]
Re: FCC CROWN RECEIVABLES EUROPE -- Solvency Certificate
This solvency certificate is delivered in relation to the agreement entitled
"Master Receivables Transfer and Servicing Agreement" entered into on 21 June
2005 (the Agreement) and the securitisation transaction of the Crown Group
deriving therefrom (the Transaction).
Capitalised terms in this certificate shall, save otherwise defined in this
certificate, have the meaning given to them in the Agreement.
A- With respect to the French Sellers
- -------------------------------------
I, the undersigned, acting as Directeur General Delegue of the Parent Company
and Directeur General of each of the French Sellers, having, inter alia:
(i) examined the French Sellers' books, records and accounts
(including management accounts);
(ii) considered the provisions of the FCC Transaction Documents
to which the French Sellers are a party; and
(iii) made all due enquiries and considered all matters which we
consider relevant to the French Sellers' business and
financial position,
Page 122
hereby certify and without personal liability make the following confirmations
with respect to the French Sellers:
(a) as at the date hereof, the French Sellers are not insolvent or unable
to pay their debts as they fall due and will not become unable to do
so (en etat de cessation des paiements) by the mere fact of entering
into the FCC Transaction Documents or performing any of their
obligations under the FCC Transaction Documents to which they are a
party;
(b) the French Sellers are not the subject of (i) any arrangement with
their creditors or amicable settlement as regulated by Title I of
Book VI of the French Code de Commerce (formerly law n(degree) 84-148
of 1st March 1984, as amended), (ii) insolvency proceedings as
regulated by Title II of Book VI of the French Code de Commerce
(formerly law n(degree) 85-98 of 25 January 1985, as amended) nor
(iii) analogous proceedings under French law or under the laws of any
relevant jurisdiction;
(c) no receiver, administrative receiver, mandataire ad hoc or similar
officer has been appointed to manage all or part of the French
Sellers' assets;
(d) no step or decision has been taken for the partial or total winding
up of the French Sellers, their dissolution or liquidation or for the
partial or total sale of their business;
(e) having made all appropriate investigations, no event has occurred or
may occur which (i) might lead to any of the situations mentioned in
paragraphs (a), (b), (c) or (d) above or (ii) would justify the
initiation of an alert proceeding (procedure d'alerte); and
(f) none of the FCC Transaction Documents to which the French Sellers are
a party nor the performance of any of their obligations under the FCC
Transaction Documents to which the French Sellers are a party will be
an "unusual transaction" at an undervalue (contrat commutatif
desequilibre) within the meaning of article L. 621-107 2(degree)of
the French Code de commerce.
B- With respect to the English Sellers
- --------------------------------------
I, the undersigned, acting as the Chief Financial Officer of each of the English
Sellers, having, inter alia:
(i) duly considered the provisions of Sections 123 and 238 to
245 and Section 423 of the Insolvency Act 1986 (the Act);
(ii) examined the English Sellers' books, records and accounts
(including management accounts);
(iii) considered the provisions of the FCC Transaction Documents
to which the English Sellers are a party; and
Page 123
(iv) made all due enquiries and considered all matters which we
considered relevant to the English Sellers' business and
financial position,
have determined and hereby certify without personal liability on behalf of the
English Sellers, that:
1. the English Sellers are not unable to pay their debts within the
meaning of Section 123 of the Act (but, for this purpose, without
reference to the words "it is proved to the satisfaction of the court
that" in section 123(1)(e) and s123(2)) and to the best of my
knowledge and belief would not become unable to do so in consequence
of entering into the FCC Transaction Documents or performing any of
their obligations under the FCC Transaction Documents to which they
are a party;
2. no corporate action has been taken or is pending, no other procedures
or steps have been taken in relation to, and no legal proceedings
have been commenced or are threatened or are pending with a view to:
(a) the suspension of payments, a moratorium of any
indebtedness, winding up, liquidation, dissolution,
administration (whether out of court or otherwise) or
reorganisation (by way of voluntary arrangement, scheme of
arrangement or otherwise) of the English Sellers;
(b) the entry into any composition, assignment or arrangement
with any creditor of the English Sellers;
(c) the appointment of a liquidator, trustee in bankruptcy,
judicial custodian, compulsory manager, receiver,
administrative receiver, administrator, nominee or similar
officer (in each case, whether out of court or otherwise)
in respect of the English Sellers or any of their property,
undertaking or assets;
(d) a meeting of the English Sellers, their directors or their
members being convened for the purpose of considering any
resolution for, or to petition for, or to apply for, or to
file documents with a court for, their winding-up,
administration (whether out of court or any registrar or
otherwise) or dissolution or any such resolution is passed;
(e) any person presenting a petition or an application for the
English Sellers' winding-up, administration (whether out of
court or otherwise) or dissolution;
(f) the English Sellers' directors or other officers requesting
the appointment of or giving notice of their intention to
appoint or take any step with a view to appointing a
liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver,
administrator (whether out of court or otherwise) or
similar officer; or
Page 124
(g) any analogous or equivalent procedure or step being taken
in any jurisdiction.
3. the transactions as envisaged by the FCC Transaction Documents and
the execution of the FCC Transaction Documents to which the English
Sellers are expressed to be a party (including all obligations to be
assumed by the English Sellers in connection therewith), are being
carried out by the English Sellers in good faith and for the purposes
of carrying on their business, and in the opinion of the English
Sellers' board of directors, there are reasonable grounds for
believing that the sale of such receivables and the execution of such
FCC Transaction Documents will benefit the English Sellers;
4. the value of the assets of the English Sellers are now, and will
remain immediately after the completion of the FCC Transaction
Documents to which they are a party, greater than their liabilities,
taking into account their prospective and contingent liabilities for
the purposes of Section 123 of the Act (and for all other purposes)
and there is no reason for believing that this state of affairs will
not continue; and
5. no execution, distress or diligence is being levied against the whole
or any part of the English Sellers' property, undertaking or assets
nor are any analogous proceedings being commenced against the English
Sellers under the laws of any jurisdiction.
We give this solvency certificate on behalf of the English Sellers.
Executed in [o], on [o], in [o] originals.
- -------------------------------------------------
Name:
Title: Chief Financial Officer, Directeur
General Delegue and Directeur General
Page 125
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 25
FORM OF INDIVIDUAL RETRANSFER REQUEST
[relevant Administrative Agent's letterhead]
FRANCE TITRISATION
(as Management Company)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
copy to:
BNP PARIBAS
(as Custodian)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
In [to be completed], on [to be completed]
Dear Sirs,
Re: FCC CROWN RECEIVABLES EUROPE -- Individual Retransfer Request No. [o]
We refer to the Master Receivables Transfer and Servicing Agreement (hereinafter
the Agreement) dated 21 June 2005 entered into between, inter alia, the
Management Company, the Custodian, [to be completed] as Seller and [Crown
Emballage France SAS - Crown Packaging UK PLC] as Administrative Agent.
Unless otherwise defined herein, capitalised terms in this letter shall have the
meanings ascribed to them in the Agreement.
We request you to transfer back to [name of the Seller], in accordance with
Clause 7 of the Agreement, the Defaulted Receivables with the following
financial characteristics:
Retransfer price: [o]
Page 126
Number: [o]
Retransfer date: [o]
We understand and acknowledge that you shall be free to accept or reject, in
whole or in part, this Individual Retransfer Request.
The Defaulted Receivables are designated and identified in the attached Computer
File.
Yours faithfully,
- -------------------------------------------------
[o],
as Administrative Agent (acting in the name and
on behalf of each [French - English] Seller
pursuant to Clause [21 - 22] of the Agreement)
Title:
Name:
Page 127
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 26
FORM OF COMPUTER FILE
Computer Files must be text files. They will provide a detailed picture of the
portfolio to the FCC.
The Transfer File corresponds to the "F" file as described thereafter
1 - FILE TYPE
On every Information Date, each originator sends the following information
gathered under several files.
- ------------------------------------------------------------------------------- --------- -----------------
File contents File Mandatory/Optional
type
- ------------------------------------------------------------------------------- --------- -----------------
Stock of outstanding Transferred Receivables and dilutions S Mandatory
- ------------------------------------------------------------------------------- --------- -----------------
In-flow of new Transferred Receivables F Mandatory
- ------------------------------------------------------------------------------- --------- -----------------
In-flow of New Dilutions A Mandatory
--------- -----------------
Out-flow of Receivables (repurchased or Affected Receivables) R Mandatory
- ------------------------------------------------------------------------------- --------- -----------------
List of Debtors and related details D Mandatory
- ------------------------------------------------------------------------------- --------- -----------------
Out-flow of cash settlements or receivables set-off by dilutions P Optional
- ------------------------------------------------------------------------------- --------- -----------------
Insurance details B Optional
- ------------------------------------------------------------------------------- --------- -----------------
Insurance policy I Mandatory
- ------------------------------------------------------------------------------- --------- -----------------
In the "S" files, each Transferred Receivable, still outstanding (even those
with returned payments) and not affected (cancellation of the transfer once it
is recognised that the Receivable was not eligible on the Transfer Date) should
correspond to one record.
As far as dilutions are concerned, if a single Receivable is transferred and
outstanding, then all dilutions on this very debtor should appear in the "S"
file. It should be outstanding until it clears out a Receivable but only at the
same time a payment clears out the balance or when a cancellation occurs.
The "F" files corresponds to a legal requirement to attach a detailed
description of the Receivables sold to the Transfer Document for it to be
effective.
The "D" file will be checked and used by the Back Up Servicer should a
notification be served.
Page 128
Drafts are also included in these files as when a draft is received, the
Receivables that it will pay are cleared out and disappear from the stock files,
however cash might be received several days after.
As far as cheques are concerned the cash is received the same day as the
Receivable is cleared out.
When a Debtor pays only part of its invoice, a new charge back is issued for the
difference. It will be cleared out either with a credit note or by a payment
from the Debtor if these amounts appear not to be justified.
2 - FILE NAME
Each file should be named according to the following format: [Originator]_[File
Type]_[Date]_[Time].txt
- - Originator being the Originator BNPP id as set out in the following table:
----------------------------------------------------- -------------------
Crown Emballage France S.A.S. 1000000004
----------------------------------------------------- -------------------
Crown Bevcan France S.A.S. 1000000005
----------------------------------------------------- -------------------
Crown Packaging UK Plc 1000000006
----------------------------------------------------- -------------------
Crown Aerosols UK Ltd 1000000007
----------------------------------------------------- -------------------
Crown Speciality Packaging Plc 1000000008
----------------------------------------------------- -------------------
Crown France 1000000009
----------------------------------------------------- -------------------
Crown UK 1000000010
----------------------------------------------------- -------------------
- - File Type being defined above,
- - Date being the Information Date in the format "YYYYMMDD",
- - Time being the timestamp of the file in the format "HHMMSSS".
For example, a new originator called "SMITH France" identified at BNPP' as
0123456789 will send on the Information Date 10 of July 2004 the following
files:
(0123456789_S_20040710_1123568.txt)
(0123456789_F_20040710_1123568.txt)
(0123456789_R_20040710_1123568.txt)
(0123456789_T_20040710_1123568.txt)
(0123456789_D_20040710_1123568.txt)
3 - FILE FORMAT
Data formatting
- ---------------
Within a file:
- - All similar records should have exactly the same format and the same length;
- - Header and Footer should have the same length as standard record (hence the
filler);
- - Data to have a fixed length;
- - No separators;
- - Text to be aligned left and completed with blanks ("EXAMPLE ");
Page 129
- - Amount to be aligned right on 20 digits;
- - Amount to be stated in cents for Euro and in pennies for Sterling in order
to avoid confusion;
- - Currency is the ISO code (EUR, GBP);
- - Date to be given as "YYYYMMDD";
- - Time being the timestamp of the file in the format "HHMMSSS".
Header/Footer
- -------------
>> Header
- ----------------------------------------------------------------------------------------------------------------
Sequence Data Format Length
- ----------------------------------------------------------------------------------------------------------------
1 Header identification = "H" Char 1
- ----------------------------------------------------------------------------------------------------------------
2 Originator ID within BNP Paribas referential Varchar 10
- ----------------------------------------------------------------------------------------------------------------
3 File creation date (date + time) Date &Time 15
- ----------------------------------------------------------------------------------------------------------------
4 Cut-Off Date Date 8
- ----------------------------------------------------------------------------------------------------------------
5 Transfer Date Date 8
- ----------------------------------------------------------------------------------------------------------------
Filler (size according to standard record length
in the file)
- ----------------------------------------------------------------------------------------------------------------
>> Footer
- ----------------------------------------------------------------------------------------------------------------
Sequence Data Format Length
- ----------------------------------------------------------------------------------------------------------------
1 Footer identification = "T" Char 1
- ----------------------------------------------------------------------------------------------------------------
2 Originator ID within BNP Paribas referential Varchar 10
- ----------------------------------------------------------------------------------------------------------------
3 Number of details records Int 8
- ----------------------------------------------------------------------------------------------------------------
4 Due Amount Total (for stock & flow files) Decimal 20
- ----------------------------------------------------------------------------------------------------------------
Filler (size according to according to standard
record length in the file)
- ----------------------------------------------------------------------------------------------------------------
3 - FILE CONTENTS
Some of the data value are pre-defined and must be chosen among the following
values. In this document when a specific information should be chosen within the
lists of this paragraph, it is underlined.
Page 130
>> File type
---------
---------------------------------------------------------------------------------- ---------
Stock of outstanding transferred receivables, drafts and dilutions S
---------------------------------------------------------------------------------- ---------
In-flow of new transferred receivables F
---------------------------------------------------------------------------------- ---------
In-flow of new dilutions, drafts A
---------------------------------------------------------------------------------- ---------
Out-flow of receivables (repurchased or affected receivables) R
---------------------------------------------------------------------------------- ---------
List of Debtors and related details D
---------------------------------------------------------------------------------- ---------
Out-flow of cash settlements or receivables set-off by dilutions P
---------------------------------------------------------------------------------- ---------
Insurance details B
---------------------------------------------------------------------------------- ---------
Insurance policy I
---------------------------------------------------------------------------------- ---------
>> Record type
-----------
--------------------------------------------------------------------------------- --------
Receivables (invoices) R
--------------------------------------------------------------------------------- --------
Dilutions U
--------------------------------------------------------------------------------- --------
Drafts D
--------------------------------------------------------------------------------- --------
Charges back C
--------------------------------------------------------------------------------- --------
>> Anticipated Dilution type
-------------------------
-------------------------------------------------------------------------------------------
Credit Notes CN
-------------------------------------------------------------------------------------------
Returnable Packaging RP
-------------------------------------------------------------------------------------------
Cancellation corrected the same day CA
-------------------------------------------------------------------------------------------
Rebates RB
-------------------------------------------------------------------------------------------
Returns RE
-------------------------------------------------------------------------------------------
>> Eligibility status code
-----------------------
--------------------------------------------------------------------------------- --------
Eligible Receivable ELI
--------------------------------------------------------------------------------- --------
Insolvent Debtor INS
--------------------------------------------------------------------------------- --------
Disputed Receivable DIS
--------------------------------------------------------------------------------- --------
Returned Receivable DPO
--------------------------------------------------------------------------------- --------
>> Payment mode
------------
--------------------------------------------------------------------------------- -------------
Cash CSH
--------------------------------------------------------------------------------- -------------
Direct debit DDT
--------------------------------------------------------------------------------- -------------
Electronic transfer ETF
--------------------------------------------------------------------------------- -------------
Magnetic tapes or computerised bill of exchange (LCR) CBE
--------------------------------------------------------------------------------- -------------
Paper based bill of exchange PBE
--------------------------------------------------------------------------------- -------------
Cheque CHQ
--------------------------------------------------------------------------------- -------------
Other settlement OTH
--------------------------------------------------------------------------------- -------------
>> Debtor nature
-------------
--------------------------------------------------------------------------------- --------
Private PRI
--------------------------------------------------------------------------------- --------
>> Payment nature
--------------
Page 131
--------------------------------------------------------------------------------- --------
Credit Note A
--------------------------------------------------------------------------------- --------
Payment P
--------------------------------------------------------------------------------- --------
Various Operation O
--------------------------------------------------------------------------------- --------
>> Stock and flow files
--------------------
The files "S", "F", "A" and "R" should have the same format.
All records will be formatted as follows :
- -------------------------------------------------------------------------------------------------------------
Sequence Data Format Length Mandatory/Optional/Conditional
- -------------------------------------------------------------------------------------------------------------
1 File Type Char 1 Mandatory
- -------------------------------------------------------------------------------------------------------------
2 Originator ID within BNP Paribas referential Varchar 10 Mandatory
- -------------------------------------------------------------------------------------------------------------
3 Debtor Group ID in originator's system Varchar 25 Mandatory
- -------------------------------------------------------------------------------------------------------------
4 Debtor external ID (European VAT) Varchar 35 Mandatory
- -------------------------------------------------------------------------------------------------------------
5 Debtor internal ID (in originator's referential) Varchar 25 Mandatory
- -------------------------------------------------------------------------------------------------------------
6 Record ID Varchar 15 Mandatory
- -------------------------------------------------------------------------------------------------------------
7 Record type Char 1 Mandatory
- -------------------------------------------------------------------------------------------------------------
8 Issue date Date 8 Mandatory
- -------------------------------------------------------------------------------------------------------------
9 Maturity date Date 8 Mandatory
- -------------------------------------------------------------------------------------------------------------
10 Nominal Amount Decimal 20 Mandatory
- -------------------------------------------------------------------------------------------------------------
11 Due amount Decimal 20 Mandatory
- -------------------------------------------------------------------------------------------------------------
12 Issue Currency (Iso Code) Char 3 Mandatory
- -------------------------------------------------------------------------------------------------------------
13 Service Invoicing Start Date Date 8 Blank
- -------------------------------------------------------------------------------------------------------------
14 Service Invoicing End Date Date 8 Blank
- -------------------------------------------------------------------------------------------------------------
15 Nominal Amount in the originator reporting Decimal 20 Conditional
currency
- -------------------------------------------------------------------------------------------------------------
16 Due amount in originator reporting currency Decimal 20 Conditional
- -------------------------------------------------------------------------------------------------------------
17 Originator reporting currency (Iso Code) Char 3 Conditional
- -------------------------------------------------------------------------------------------------------------
18 Receivable Contract Id Varchar 25 Optional
- -------------------------------------------------------------------------------------------------------------
19 Financing eligibility status at transfer Varchar 3 `ELI'
- -------------------------------------------------------------------------------------------------------------
20 Current financing eligibility status Varchar 3 Optional
- -------------------------------------------------------------------------------------------------------------
21 Payment mode Char 3 Mandatory
- -------------------------------------------------------------------------------------------------------------
22 Dilution type (*) Varchar 2 Conditional
- -------------------------------------------------------------------------------------------------------------
(*) Filled if the record type = Dilution.
The first 21 fields have to be populated (even with agreed values for `blank'
fields).
Here filed 13 and 14 will be constituted of 8 blanks.
Field 10 and 11 have to always be positive numbers (even for dilutions).
Field 15 and 16 are to be left blank.
Field 17 will be set at EUR for French originators and GBP for English ones.
Page 132
If Crown is able to provide an internal reference for the contracts with the
Debtors, it should appear here.
Field 19 will always be set at ELI: only Eligible Receivables are transferred.
Field 20 will be updated only when a specific event has occurred, otherwise it
will be set at ELI.
Field 21 refers for Receivables to the usual mode of payment used by a given
debtor.
>> Payments files (dilution or payment)
------------------------------------
- ------------------------------------------------------------------------------------------------------------
Ordre Donnee Format Longueur Obligatoire/
Facultatif
- ------------------------------------------------------------------------------------------------------------
1 File Type (P) Char 1 Mandadory
- ------------------------------------------------------------------------------------------------------------
2 Originator ID within BNP Paribas referential Varchar 10 Mandadory
- ------------------------------------------------------------------------------------------------------------
3 Debtor Group ID in originator's system Varchar 25 Mandadory
- ------------------------------------------------------------------------------------------------------------
4 Debtor external ID (European VAT/SIREN) Varchar 35 Mandadory
- ------------------------------------------------------------------------------------------------------------
5 Debtor internal ID (in originator's referential) Varchar 25 Mandadory
- ------------------------------------------------------------------------------------------------------------
6 Payment Nature Varchar 1 Mandadory
- ------------------------------------------------------------------------------------------------------------
7 Payment code Char 15 Mandadory
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
9 Payment date Date 8 Mandadory
- ------------------------------------------------------------------------------------------------------------
10 Payment currency (ISO code) Char 3 Mandadory
- ------------------------------------------------------------------------------------------------------------
11 Payment amount in currency Decimal 20 Mandadory
- ------------------------------------------------------------------------------------------------------------
12 Payment mode (*) Varchar 3 Conditional
- ------------------------------------------------------------------------------------------------------------
(*) To fill in when Payment Nature = P
>> Debtors
-------
Debtors file must be provided, if updated, for each Cut-Off Period.
All originators of a transaction must have the same Debtor Group Id to allow
concentration calculations across originators or a cross-reference table should
be managed.
>> File format
-----------
Page 133
- ---------------------------------------------------------------------------------------------------------------
Sequence Data Format Length Mandatory/Optional
- ---------------------------------------------------------------------------------------------------------------
1 File Type = "D" Char 1 Mandatory
- ---------------------------------------------------------------------------------------------------------------
2 Originator ID within BNP Paribas referential Int 10 Mandatory
- ---------------------------------------------------------------------------------------------------------------
3 Debtor's Group ID Varchar 25 Mandatory
- ---------------------------------------------------------------------------------------------------------------
4 Debtor's external ID (VAT) Varchar 35 Mandatory
- ---------------------------------------------------------------------------------------------------------------
5 Debtor's ID in originator's referential Varchar 25 Mandatory
- ---------------------------------------------------------------------------------------------------------------
6 Debtor's name Char 32 Mandatory
- ---------------------------------------------------------------------------------------------------------------
7 Debtor's main contact name regarding recovery. Char 32 Mandatory
- ---------------------------------------------------------------------------------------------------------------
8 Debtor's address (Street name, street number,...) Varchar 32 Mandatory
- ---------------------------------------------------------------------------------------------------------------
9 Supplementary Debtor's address Varchar 32 Mandatory
- ---------------------------------------------------------------------------------------------------------------
10 Debtor's department Varchar 32 Optional
- ---------------------------------------------------------------------------------------------------------------
11 Postcode Varchar 8 Mandatory
- ---------------------------------------------------------------------------------------------------------------
12 City Char 32 Mandatory
- ---------------------------------------------------------------------------------------------------------------
13 Country code (Iso Code) Char 2 Mandatory
- ---------------------------------------------------------------------------------------------------------------
14 Contact telephone Varchar 20 Optional
- ---------------------------------------------------------------------------------------------------------------
15 Contact fax Varchar 20 Optional
- ---------------------------------------------------------------------------------------------------------------
16 Contact Email Varchar 50 Optional
- ---------------------------------------------------------------------------------------------------------------
17 Debtor nature Char 3 Mandatory
- ---------------------------------------------------------------------------------------------------------------
18 Original internal risk rating of a debtor Varchar 4 Blank
- ---------------------------------------------------------------------------------------------------------------
19 Current internal risk rating of a debtor Varchar 4 Blank
- ---------------------------------------------------------------------------------------------------------------
20 Entity Nature Char 3 Blank
- ---------------------------------------------------------------------------------------------------------------
First 20 fields have to be populated (or left blank for fields 18-19 and 20).
Page 134
APPENDIX 1
COMMON SCHEDULES
SCHEDULE 27
FORM OF SOLVENCY CERTIFICATE IN RESPECT OF THE SELLERS AT CLOSING DATE
[on letterhead of the Sellers]
FRANCE TITRISATION
(as Management Company of the FCC CROWN RECEIVABLES EUROPE)
Immeuble Tolbiac
75450 Paris Cedex 09
France
Attention: Monsieur Michel Duhourcau, Secretaire General
ACI: CTA01A1
Paris, [Date]
Re: FCC CROWN RECEIVABLES EUROPE -- Solvency Certificate
This closing certificate is delivered as of the date hereof in relation to the
"Master Receivables Transfer and Servicing Agreement" (the Agreement) entered
into on the date hereof and the securitisation transaction of the Crown Group
deriving therefrom (the Transaction).
Capitalised terms in this certificate shall, save otherwise defined in this
certificate, have the meaning given to them in the Agreement.
A- With respect to the French Sellers
- -------------------------------------
I, the undersigned, acting as Directeur General Delegue of the Parent Company
and Directeur General of each of the French Sellers, having, inter alia:
(i) examined the French Sellers' books, records and accounts
(including management accounts);
(ii) considered the provisions of the FCC Transaction Documents
to which the French Sellers are a party; and
(iii) made all due enquiries and considered all matters which we
consider relevant to the French Sellers' business and
financial position,
Page 135
hereby certify and without personal liability make the following confirmations
with respect to the French Sellers:
(a) as at the date hereof, the French Sellers are not insolvent or unable
to pay their debts as they fall due and will not become unable to do
so (en etat de cessation des paiements) by the mere fact of entering
into the FCC Transaction Documents or performing any of their
obligations under the FCC Transaction Documents to which they are a
party;
(b) the French Sellers are not the subject of (i) any arrangement with
their creditors or amicable settlement as regulated by Title I of
Book VI of the French Code de Commerce (formerly law n(degree) 84-148
of 1st March 1984, as amended), (ii) insolvency proceedings as
regulated by Title II of Book VI of the French Code de Commerce
(formerly law n(degree) 85-98 of 25 January 1985, as amended) nor
(iii) analogous proceedings under French law or under the laws of any
relevant jurisdiction;
(c) no receiver, administrative receiver, mandataire ad hoc or similar
officer has been appointed to manage all or part of the French
Sellers' assets;
(d) no step or decision has been taken for the partial or total winding
up of the French Sellers, their dissolution or liquidation or for the
partial or total sale of their business;
(e) having made all appropriate investigations, no event has occurred or
may occur which (i) might lead to any of the situations mentioned in
paragraphs (a), (b), (c) or (d) above or (ii) would justify the
initiation of an alert proceeding (procedure d'alerte); and
(f) none of the FCC Transaction Documents to which the French Sellers are
a party nor the performance of any of their obligations under the FCC
Transaction Documents to which the French Sellers are a party will be
an "unusual transaction" at an undervalue (contrat commutatif
desequilibre) within the meaning of article L. 621-107 2(degree)of
the French Code de commerce.
B- With respect to the English Sellers
- --------------------------------------
I, the undersigned, acting as the Chief Financial Officer of each of the English
Sellers, having, inter alia:
(i) duly considered the provisions of Sections 123 and 238 to
245 and Section 423 of the Insolvency Act 1986 (the Act);
(ii) examined the English Sellers' books, records and accounts
(including management accounts);
(iii) considered the provisions of the FCC Transaction Documents
to which the English Sellers are a party; and
Page 136
(iv) made all due enquiries and considered all matters which we
considered relevant to the English Sellers' business and
financial position,
have determined and hereby certify without personal liability on behalf of the
English Sellers, that:
1. the English Sellers are not unable to pay their debts within the
meaning of Section 123 of the Act (but, for this purpose, without
reference to the words "it is proved to the satisfaction of the court
that" in section 123(1)(e) and s123(2)) and to the best of my
knowledge and belief would not become unable to do so in consequence
of entering into the FCC Transaction Documents or performing any of
their obligations under the FCC Transaction Documents to which they
are a party;
2. no corporate action has been taken or is pending, no other procedures
or steps have been taken in relation to, and no legal proceedings
have been commenced or are threatened or are pending with a view to:
(a) the suspension of payments, a moratorium of any
indebtedness, winding up, liquidation, dissolution,
administration (whether out of court or otherwise) or
reorganisation (by way of voluntary arrangement, scheme of
arrangement or otherwise) of the English Sellers;
(b) the entry into any composition, assignment or arrangement
with any creditor of the English Sellers;
(c) the appointment of a liquidator, trustee in bankruptcy,
judicial custodian, compulsory manager, receiver,
administrative receiver, administrator, nominee or similar
officer (in each case, whether out of court or otherwise)
in respect of the English Sellers or any of their property,
undertaking or assets;
(d) a meeting of the English Sellers, their directors or their
members being convened for the purpose of considering any
resolution for, or to petition for, or to apply for, or to
file documents with a court for, their winding-up,
administration (whether out of court or any registrar or
otherwise) or dissolution or any such resolution is passed;
(e) any person presenting a petition or an application for the
English Sellers' winding-up, administration (whether out of
court or otherwise) or dissolution;
(f) the English Sellers' directors or other officers requesting
the appointment of or giving notice of their intention to
appoint or take any step with a view to appointing a
liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver,
Page 137
administrator (whether out of court or otherwise) or
similar officer; or
(g) any analogous or equivalent procedure or step being taken
in any jurisdiction.
3. none of the transactions or arrangements contemplated by the FCC
Transaction Documents to which they are a party will be a transaction
at an undervalue within the meaning of Section 238 of the Act since
the value in money or money's worth of the consideration to be
provided by the English Sellers pursuant to their entry into or the
performance of the FCC Transaction Documents to which they are a
party will not be significantly less than the value in money or
money's worth of the consideration to be received by the English
Sellers;
4. the transactions as envisaged by the FCC Transaction Documents and
the execution of the FCC Transaction Documents to which the English
Sellers are expressed to be a party (including all obligations to be
assumed by the English Sellers in connection therewith), are being
carried out by the English Sellers in good faith and for the purposes
of carrying on their business, and in the opinion of the English
Sellers' board of directors, there are reasonable grounds for
believing that the sale of such receivables and the execution of such
FCC Transaction Documents will benefit the English Sellers;
5. in entering into the transactions as envisaged by the FCC Transaction
Documents, the English Sellers are not influenced by a desire to give
a preference to any person as contemplated by Section 239 of the Act
nor is it the English Sellers' intention or the purpose of the
English Sellers' actions to put any of its property, undertaking or
assets beyond the reach of any person who is making, or may at some
time make, a claim against them or of otherwise prejudicing the
interests of such a person in relation to the claim which he is
making or may make;
6. the value of the assets of the English Sellers are now, and will
remain immediately after the completion of the FCC Transaction
Documents to which they are a party, greater than their liabilities,
taking into account their prospective and contingent liabilities for
the purposes of Section 123 of the Act (and for all other purposes)
and there is no reason for believing that this state of affairs will
not continue; and
7. no execution, distress or diligence is being levied against the whole
or any part of the English Sellers' property, undertaking or assets
nor are any analogous proceedings being commenced against the English
Sellers under the laws of any jurisdiction.
Page 138
- -------------------------------------------------
Name: Howard Lomax
Title: Chief Financial Officer, Directeur
General Delegue and Directeur General
Page 139
APPENDIX 2
SCHEDULES SPECIFIC TO FRANCE
SCHEDULE 1
ELIGIBILITY CRITERIA SPECIFIC TO FRANCE
Each Receivable offered for sale and transferred to the FCC by the Sellers
incorporated in France on a given Transfer Date, shall, on the corresponding
Information Date and such Transfer Date, satisfy the Eligibility Criteria,
namely all the criteria listed in Schedule 2 of Appendix 1 and all the criteria
listed below:
1. The Receivable is payable in Euro in Metropolitan France (France
Metropolitaine).
2. The Receivable is not subject to sub-contracting pursuant to Law n(degree)
75-1334 of 31 December 1975.
3. The Receivable is fully and directly payable to the Seller, in its own name
and for its own account.
Page 140
APPENDIX 2
SCHEDULES SPECIFIC TO FRANCE
SCHEDULE 2
CONDITIONS PRECEDENT SPECIFIC TO FRANCE
In addition to Schedule 6 of Appendix 1, the Sellers incorporated in France
shall further comply with the following specific condition precedent:
1. On the Closing Date, the Management Company shall have received, in a form
and substance satisfactory to the Management Company, a Solvency
Certificate issued by the Directeur General Delegue of the Parent Company
and the Directeur General of each of the French Sellers in the form set out
in Schedule 27 of Appendix 1.
2. On or prior to each Principal Transfer Date, the Management Company shall
have received, in a form and substance satisfactory to the Management
Company, a Solvency Certificate issued by the Directeur General Delegue of
the Parent Company and the Directeur General of each of the French Sellers
in the form set out in Schedule 24 of Appendix 1.
Page 141
APPENDIX 2
SCHEDULES SPECIFIC TO FRANCE
SCHEDULE 3
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS SPECIFIC TO THE FRENCH SELLERS
In addition to Schedule 8 of Appendix 1, the Sellers incorporated in France
shall further undertake to the Management Company and the Custodian that, on an
half-yearly basis, but in any event within 90 days after 31 December and 30 June
of each year, the Management Company shall have received, in a form and
substance satisfactory to the Management Company, an Auditor's Certificate in
respect of the French Sellers in the form set out in Schedule 6 of this Appendix
2.
Page 142
APPENDIX 2
SCHEDULES SPECIFIC TO FRANCE
SCHEDULE 4
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS SPECIFIC TO THE FRENCH SERVICERS
In addition to Schedule 9 of Appendix 1, the Servicers incorporated in France
shall further undertake to the Management Company and the Custodian that, for
all payments related to the Bonduelle Group of Debtors, as soon as on a given
month they are not paid through VCom within 60 days from their issuance, the
relevant French Servicer undertakes to inform the Management Company with a copy
to the Custodian and to amend the relevant Due Dates in its IT Systems.
Page 143
APPENDIX 2
SCHEDULES SPECIFIC TO FRANCE
SCHEDULE 5
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS SPECIFIC TO THE
FRENCH ADMINISTRATIVE AGENT
none
Page 144
APPENDIX 2
SCHEDULES SPECIFIC TO FRANCE
SCHEDULE 6
FORM OF AUDITOR'S CERTIFICATE
[sur papier a en-tete des commissaires aux comptes des Cedants Francais]
FRANCE TITRISATION
(en qualite de societe de gestion du FCC CROWN RECEIVABLES EUROPE)
[o]
[o]
France
Attention: [o]
Facsimile: [o]
ATTESTATION DU COMMISSAIRE AUX COMPTES
--------------------------------------
Monsieur,
La presente attestation a ete etablie, a votre demande, dans le contexte du
programme de titrisation des creances commerciales qui resultent de l'activite
de prestation de services et de fourniture de biens dans le domaine de
l'emballage alimentaire des filiales europeennes de Crown European Holdings
(ci-apres l'Operation) et plus precisement du contrat de cession des creances
(Master Receivables Transfer and Servicing Agreement) conclu le 21 juin 2005
(ci-apres le ( Contrat )) notamment entre [Crown Emballage France SAS -
Crown Bevcan SAS] (ci-apres la ( Societe )), France Titrisation en qualite de
Societe de Gestion et BNP Paribas en qualite de Depositaire (ci-apres le ( FCC
)).
En tant que commissaire aux comptes de la Societe, nous vous confirmons les
elements suivants :
1. Dans le cadre des derniers comptes de la Societe sur lesquels nous avons
exprime une opinion (les comptes [annuels] au 31/12/XX) nous avons eu a
apprecier le bien fonde de l'utilisation pour la preparation des comptes
par la direction de la convention de base de continuite de l'exploitation
conformement a la norme 2-435 de la Compagnie Nationale des Commissaires
aux Comptes.
Page 145
2. Nous avons obtenu, conformement a la loi francaise, la situation de l'actif
realisable et du passif exigible de la Societe au [30/06/XX] -
[31/12/XX] et avons mene des entretiens aupres de certains responsables de
la Societe concernant le processus et les principes adoptes pour etablir la
situation de l'actif realisable et du passif exigible conformement a la
norme 5-101 de la CNC.
3. Pour les besoins de la presente, nous avons realise les diligences
suivantes (a remplir/adapter selon les cas) :
(a) Nous avons eu des entretiens avec la direction de la Societe;
(b) Nous avons revu les proces-verbaux des conseils
d'administration de la Societe jusqu'au [date de
l'attestation];
(c) Nous avons obtenu une lettre d'affirmation du President du
Conseil d'Administration de la Societe ;
(Entre la date de notre dernier rapport et la date de l'attestation :)
---------------------------------------------------------------------
(d) Nous avons obtenu les comptes intermediaires de la Societe au
[30/06/XX] - [31/12/XX] etablis par la Direction de la
Societe et revu leur coherence vis-a-vis de notre connaissance
de la Societe au moyen de discussion avec la direction de la
Societe. Ces comptes/comptes consolides n'ont donc fait
l'objet ni d'un audit ni d'un examen limite ;
(e) En ce qui concerne la periode du [30/06/XX] - [31/12/XX] au
[JJ/MM/AA : date de l'attestation], il ne nous a pas ete
demande par la direction d'effectuer un audit ou une revue des
etats financiers a la date du [JJ/MM/AA] ou pour une periode
posterieure.
Par consequent, nous n'avons :
- realise aucun audit des etats financiers de la Societe (ou de
ses comptes consolides) pour toute periode posterieure au
31/12/XX (sur lesquels nous avions emis un rapport le
[JJ/MM/AA]) ; et
- realise aucun examen limite des etats financiers consolides de
la Societe pour toute periode posterieure au 30/06/XX+1 (sur
lesquels nous avions emis un rapport le [JJ/MM/AA]).
(f) [Autre a preciser].
4. Il est bien entendu que nous n'emettons pas d'avis sur des questions
d'interpretation legale ou du caractere suffisant, pour les besoins du FCC
represente par France Titrisation agissant en qualite de Societe de Gestion
et par BNP Paribas agissant en qualite de Depositaire, des diligences
decrites au paragraphe precedent.
Page 146
5. A la date de la presente et compte tenu des diligences precitees, nous
n'avons pas connaissance de faits de nature a nous interroger sur la
continuite de l'exploitation et donc a declencher la procedure d'alerte
prevue par l'article L. 234-1/L. 234-2 du Code de commerce (ancien article
230-1 de la loi du 24 juillet 1966).
6. La presente attestation ne couvre pas les faits et circonstances
susceptibles de survenir posterieurement au [date de l'attestation].
7. Les diligences citees aux paragraphes 2 et 3 ci-dessus ne constituent pas
un audit realise conformement aux normes d'audit generalement admises en
France. Si nous avions realise des diligences supplementaires, nous aurions
pu avoir connaissance d'autres questions et nous vous en aurions fait part.
Cependant, de telles diligences pourraient ne pas necessairement reveler
tous les aspects significatifs.
8. Nous avons etabli la presente attestation a l'attention du President de la
Societe dans le seul contexte du contrat decrit precedemment et pour la
seule information du Conseil d'Administration de la Societe. Elle ne peut
etre communiquee a un tiers sans notre accord prealable etant precise que,
conformement aux dispositions du ss. 33 de la Norme n(degree) 4-105 de la
CNCC, elle peut etre communiquee par vous au FCC represente par France
Titrisation agissant en qualite de Societe de Gestion et par BNP Paribas
agissant en qualite de Depositaire dans le cadre de leur enquete sur les
affaires de la Societe pour information. Elle ne peut etre utilisee,
diffusee ou citee en reference au sein ou a l'exterieur des entites
precitees pour aucun autre objectif, il peut seulement y etre fait
reference dans les contrats conclus dans le cadre de l'Operation ou dans un
document s'y rapportant directement.
9. Les diligences evoquees ci-dessus s'inscrivent dans le contexte de la
mission de commissariat aux comptes. De plus, elles ne sont pas destinees a
remplacer les enquetes et diligences que le FCC represente par France
Titrisation agissant en qualite de Societe de Gestion et par BNP Paribas
agissant en qualite de Depositaire pourrait par ailleurs mettre en oeuvre
dans le cadre du Contrat. En tant que Commissaire aux Comptes de la
Societe, nous sommes responsables a l'egard de la Societe et de ses
actionnaires et nous n'acceptons pas d'extension de notre responsabilite au
dela de ce qui est prevu par la loi francaise.
10. PricewaterhouseCoopers Audit decline toute responsabilite vis-a-vis de tout
tiers y compris le FCC represente par France Titrisation agissant en
qualite de Societe de Gestion et par BNP Paribas agissant en qualite de
Depositaire (et tout autre cessionnaire et ( sous ) partie liee par ce
Contrat) en relation avec le Contrat (y compris, sans limitation, pour
actes de negligence et pour non-respect de nos obligations) et ne pourra
etre tenu responsable vis-a-vis de tiers de leurs pertes, dommages ou
depenses de quelque nature que ce soit.
11. En aucun cas PricewaterhouseCoopers Audit ne pourra etre tenu responsable
des consequences dommageables resultant d'un comportement dolosif ou
Page 147
d'une fraude commise par les administrateurs, employes ou agents de la
Societe.
12. Cette attestation est regie par la loi francaise. Les tribunaux francais
auront la juridiction exclusive concernant toute plainte, conflit ou
differend vis-a-vis de notre lettre de mission ou toute lettre de confort
s'y rapportant, y compris cette attestation, et toute question se
rapportant a l'ensemble de ces documents. Chaque partie renonce
irrevocablement a ses droits de s'opposer a une action portee aupres de ces
tribunaux, de pretendre que l'action a ete intentee aupres d'un tribunal
incompetent, ou que ces cours n'ont pas juridiction.
Paris, le [date du jour]
Le Commissaire aux Comptes
PricewaterhouseCoopers Audit
Nom de l'Associe
Page 148
APPENDIX 2
SCHEDULES SPECIFIC TO FRANCE
SCHEDULE 7
FORM OF NOTICE OF TRANSFER
[sur papier a en-tete de [la Societe de Gestion - du
Gestionnaire de Substitution]]
Paris, le [.date.]
[.denomination du Debiteur
Cede.]
[.adresse.]
[.adresse.]
Lettre recommandee avec accuse de reception
- -------------------------------------------
Objet : notification d'instructions de paiement.
Madame, Monsieur,
Nous vous informons que, en vertu d'une convention-cadre de cession et de
gestion de creances en date du 21 juin 2005, la societe [odenomination du
Cedanto] (societe [o] au capital de [o] ayant son siege social au [o],
immatriculee au registre du commerce et des societes de [.] sous le numero [o])
(le Cedant), a cede au fonds commun de creances [o] (dont le Reglement a ete
signe en date du 21 juin 2005, represente par la societe de gestion France
Titrisation, une societe anonyme immatriculee au Registre du Commerce et des
Societes de Paris sous le numero 353 053 531, dont le siege social est situe 41,
Avenue de l'Opera, 75002 a Paris) (le Cessionnaire), conformement aux
dispositions des articles L. 214-43 et suivants du Code monetaire et financier,
les creances designees ci-dessous dont vous etes redevable envers le Cedant (les
Creances Cedees). [En outre, en vertu d'une convention de substitution de
recouvrement de creances en date du 21 juin 2005, le recouvrement des Creances
Cedees a ete confie a GE Factofrance en application de l'article L. 214-46 du
Code monetaire et financier.]
Page 149
Designation des Creances Cedees :
- ----------------------------------------------------------------------------------------------------------------
Liste des Creances Cedees
- ----------------------------------------------------------------------------------------------------------------
Date n(degree) de Echeance Mode de Effet recu Montant Montant Jours de
facture reglement effet recu retard
- ----------------------------------------------------------------------------------------------------------------
jour mois
- ----------------------------------------------------------------------------------------------------------------
En consequence, nous vous demandons de n'effectuer aucun paiement au titre des
Creances Cedees autrement qu'entre nos mains a compter de la reception par vous
de la presente notification conformement aux indications mentionnees ci-dessous.
Tout reglement au titre des Creances Cedees par virement devra etre effectue sur
le compte bancaire du Cessionnaire dont les coordonnees sont precisees
ci-dessous :
Compte bancaire du Cessionnaire :
o Banque : [.]
o N(degree) de compte : [.]
o Code banque : [.]
o Code guichet : [.]
o Cle RIB : [.]
Tout reglement au titre des Creances Cedees par cheque devra etre libelle a
l'ordre du Cessionnaire et les cheques devront etre adresses a [nom du
gestionnaire des Creances Cedees - GE Factofrance].
Les billets a ordre, lettres de change et traites relatifs aux Creances Cedees
devront etre souscrits ou emis a l'ordre du Cessionnaire.
Nous attirons votre attention sur le fait que seuls seront liberatoires les
paiements effectues conformement aux indications ci-dessus. Vous vous exposeriez
a payer deux fois la meme somme si votre paiement n'est pas effectue strictement
comme indique ci-dessus. [Vous devrez, a compter de la reception de la presente
notification, considerer GE Factofrance, dont les coordonnees figurent
ci-dessous, comme votre
Page 150
seul interlocuteur habilite a traiter avec vous toute question relative au
paiement des Creances Cedees.
GE FACTOFRANCE
Tour Facto
18, rue Hoche
92988 Paris La Defense Cedex
France
Telecopie : 01 46 35 69 00
Telephone : 01 46 35 70 98 / 01 46 35 68 33
E-mail : [.]
Attention : [.]
Nous vous prions egalement d'informer sans delai directement GE Factofrance de
toute exception au paiement des Creances Cedees que vous pourriez opposer.]
Nous vous prions d'agreer, Madame, Monsieur, l'expression de nos salutations
distinguees.
[France Titrisation - GE Factofrance],
...........................................
Nom : [.]
Fonction : [.]
Page 151
APPENDIX 3
SCHEDULES SPECIFIC TO THE UNITED-KINGDOM
SCHEDULE 1
ELIGIBILITY CRITERIA SPECIFIC TO THE UNITED-KINGDOM
Each Receivable offered for sale and transfer to the FCC by the Sellers
incorporated in England and Wales, together with the related Contract, shall, on
the corresponding Information Date and Transfer Date, satisfy the Eligibility
Criteria, namely all the criteria listed in Schedule 2 of Appendix 1 and all the
criteria listed below:
1. The Receivable is payable in Sterling in the United Kingdom.
2. The Receivable is payable to the relevant Seller and collected by the
English Administrative Agent, on behalf of such Seller.
Page 152
APPENDIX 3
SCHEDULES SPECIFIC TO THE UNITED-KINGDOM
SCHEDULE 2
CONDITIONS PRECEDENT SPECIFIC TO THE UNITED-KINGDOM
In addition to Schedule 6 of Appendix 1, the Sellers incorporated in England and
Wales shall further comply with the specific conditions precedent listed below:
1. It shall have granted to the FCC a power of attorney in the form set
out in the Annex to this Schedule 2 of Appendix 3, on or before the
Closing Date.
2. On the Closing Date, the Management Company shall have received, in a
form and substance satisfactory to the Management Company, a Solvency
Certificate issued by the Chief Financial Officer of the Parent
Company in respect of each of the English Sellers in the form set out
in Schedule 27 of Appendix 1.
3. On or prior to each Principal Transfer Date, the Management Company
shall have received, in a form and substance satisfactory to the
Management Company, a Solvency Certificate issued by the Chief
Financial Officer of the Parent Company in respect of the English
Sellers in the form set out in Schedule 24 of Appendix 1.
Page 153
Annex
-----
Form of Power of Attorney
[Letterhead of English Seller]
THIS POWER OF ATTORNEY is made as a deed on [date] by [insert name of English
Seller] (registered number [o]) whose registered office is at [insert address]
(the Principal) in favour of the FCC represented by the Management Company (the
Attorney) whose registered office is at [o], France.
RECITALS
(A) The Principal may from time to time, pursuant to a master receivables
transfer and servicing agreement between, among others, the Principal
and the Attorney, dated 21 June 2005 (the Master Receivables Transfer
and Servicing Agreement) make offers for the sale and transfer of
certain Eligible Receivables entered into in the ordinary course of
the Principal's business.
(B) Should an offer for the sale and transfer of the Receivables be
accepted, the Principal shall transfer to the Attorney the benefit of
certain Eligible Receivables and the ancillary rights relating
thereto (the Ancillary Rights) derived from and including the benefit
of the Contractual Documents in respect of such Eligible Receivables.
(C) The Principal has agreed to appoint the Attorney its attorney in the
manner hereinafter appearing irrevocably and by way of security for
the performance of such undertakings.
(D) Capitalised terms not otherwise defined herein shall have the
meanings ascribed to them in the Master Receivables Transfer and
Servicing Agreement.
NOW THIS DEED WITNESSES AS FOLLOWS:
APPOINTMENT
THAT the Principal HEREBY APPOINTS the Attorney to be its true and lawful
attorney for it and in its name and on the Principal's behalf to do and/or
perform any of the following acts, deeds and things or any of them as may be
within the power of the Principal, subject always to the provisions of the
Master Receivables Transfer and Servicing Agreement:
1. to demand, sue for and receive all moneys due or payable under or in
respect of the Transferred Receivables or in respect of the Ancillary
Rights;
2. upon payment of such moneys as are referred to in clause 1 above or
of any part thereof to give good receipts and discharges for the same
and to execute such receipts, releases, re-assignments,
retrocessions, documents, instruments
Page 154
and deeds as may be requisite or advisable to give effect to the
terms of the FCC Transaction Documents to which the Principal is a
party;
3. from time to time to substitute and appoint severally one or more
persons as attorney or attorneys (the Substitute Attorneys) for all
or any of the purposes aforesaid;
4. to do every other act or thing and to execute all such deeds,
documents and certificates which the Attorney may deem to be
necessary, proper or expedient for all or any of the foregoing
purposes; and
5. to perfect, protect or more fully evidence the title of the FCC in
and to any or all of the Transferred Receivables, the Ancillary
Rights and the related Contractual Documents and to exercise any
rights, powers, remedies and discretions relating to any of the
foregoing as envisaged in the above-mentioned Master Receivables
Transfer and Servicing Agreement (including, but not limited to,
notifying the related Debtors pursuant to clause 8 of the Master
Receivables Transfer and Servicing Agreement);
AND the Principal hereby agrees at all times hereafter to ratify and confirm any
act, matter or deed whatsoever the Attorney or any Substitute Attorney shall
lawfully do or cause to be done pursuant to these presents to the extent that
such act or acts and execution are within the power of the Principal and within
the contemplation of this Power of Attorney;
AND the Principal hereby agrees to indemnify the Attorney or any Substitute
Attorney against any loss, claim, liability or expense imposed upon the said
Attorney or any Substitute Attorney as a result of any action taken by the said
Attorney or any Substitute Attorney pursuant to these presents save where such
loss, claim, liability or expense arises as a result (in whole or in part) of
the bad faith, negligence or wilful default of the said Attorney or Substitute
Attorney;
AND the Principal hereby declares that, these presents having been given for
security purposes and to secure continuing obligations of the Principal, the
powers hereby created shall be irrevocable and shall not be affected by the
bankruptcy, liquidation, receivership, the making of an administration order or
appointment of an administrative receiver or any other equivalent event of or
affecting the Principal;
DECLARATION
AND the Principal hereby declares that any person dealing with the Attorney or
any Substitute Attorney shall not be concerned to see or enquire as to the
propriety or expediency of any act, deed, matter or thing which the Attorney or
Substitute Attorney may do or perform under the Principal's name.
DISCLOSURE
AND the Attorney or any Substitute Attorney shall have full power to disclose
this Power of Attorney to whomsoever and in such manner as the Attorney or any
Page 155
Substitute Attorney shall, in their absolute discretion consider necessary or
desirable including without limitation the exhibition of this Power of Attorney
for inspection.
AND the laws of England shall apply to this Power of Attorney and the
interpretation thereof and to all acts of the Attorney and/or Substitute
Attorney carried out or purported to be carried out under or pursuant hereto.
THIS Power of Attorney shall terminate on [.]
IN WITNESS whereof the Principal has caused this Power of Attorney to be
executed and delivered as a deed this day and year first before written.
EXECUTED as a DEED )
[insert company name of English Seller] )
acting by two Directors )
or a Director and the Secretary: )
Director:
Director/Secretary:
Page 156
APPENDIX 3
SCHEDULES SPECIFIC TO THE UNITED-KINGDOM
SCHEDULE 3
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS SPECIFIC TO THE ENGLISH SELLERS
none
Page 157
APPENDIX 3
SCHEDULES SPECIFIC TO THE UNITED-KINGDOM
SCHEDULE 4
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS SPECIFIC TO THE ENGLISH
SERVICERS
In addition to Schedule 9 of Appendix 1, the Servicers incorporated in England
shall further undertake to the Management Company and the Custodian that, save
the Declaration of Trust, there is no Encumbrance over or in relation to the
Collection Account (or the proceeds of or any interest in such accounts) and it
is not a party to nor are any of such assets bound by any order, agreement or
instrument under which it is or in certain events may be required to create,
assume or permit to arise any Encumbrance over or in relation to such assets.
Page 158
APPENDIX 3
SCHEDULES SPECIFIC TO THE UNITED-KINGDOM
SCHEDULE 5
REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS SPECIFIC TO THE ENGLISH
ADMINISTRATIVE AGENT
none
Page 159
APPENDIX 3
SCHEDULES SPECIFIC TO THE UNITED-KINGDOM
SCHEDULE 6
FORM OF AUDITOR'S CERTIFICATE
none
Page 160
APPENDIX 3
SCHEDULES SPECIFIC TO THE UNITED-KINGDOM
SCHEDULE 7
FORM OF NOTICE OF TRANSFER
[[Management Company's - GE Factofrance] letterhead]
Paris, [.date.]
[.name of Debtor.]
[.address.]
[.address.]
Registered mail with acknowledgement of receipt
- -----------------------------------------------
Re: notification of payment instructions.
- --
Dear Sirs,
We hereby give you notice that pursuant to a master receivables transfer and
servicing agreement dated 21 June 2005, [relevant Seller] (a company
incorporated under the laws of [o], with its registered office at [o],
registered with the trade and company register of [o] under number [o]) (the
Seller), assigned to the FCC CROWN RECEIVABLES EUROPE (the Reglement (FCC
Regulations) of which has been executed on 21 June 2005, represented by the
management company France Titrisation, a societe anonyme registered with the
trade and companies register of Paris under number 353 053 531, whose registered
office is at 41, Avenue de l'Opera, 75002 Paris) (the Purchaser), in accordance
with articles L. 214-43 et seq. of the French Code monetaire et financier, each
of the receivables listed below due from you to the Seller (the Receivables).
[In addition, pursuant to a back-up servicing agreement dated 21 June 2005, GE
Factofrance has been appointed as back-up servicer of the Receivables in
accordance with article L. 214-46 of the French Code monetaire et financier.]
Page 161
Designation and identification of the Receivables:
- ------------------------------------------------------------------------------------------------------------------
List of Receivables
- ------------------------------------------------------------------------------------------------------------------
Date Invoice no. Due date Method of Trade bill Amount Amounts of Days of delay
Payment received trade bill
received
- ------------------------------------------------------------------------------------------------------------------
day month
- ------------------------------------------------------------------------------------------------------------------
As a consequence and with effect from the date of this notice, we inform you
that you must make all your payments in respect of the Receivables according to
the instructions below.
Payments by bank transfer shall be made to the account below:
Bank account of the Purchaser:
o Bank no.: [.]
o Account no.: [.]
o Bank code: [.]
o Guichet code: [.]
o RIB key: [.]
Payments by cheques shall be made to the order of the Purchaser and the cheques
shall be sent to [name of the relevant Servicer - GE Factofrance].
Promissory notes and bills of exchange shall be issued to the order of the
Purchaser.
We draw your attention on the fact that you will only be discharged of your
payment obligations by following the instructions above. You could be exposed to
pay twice the same amount if your payment is not made strictly in accordance
with the instructions above, even though you pay directly the Seller. [Any
request for information or any claim must imperatively be sent to GE Factofrance
whose details are shown above.
Page 162
GE FACTOFRANCE
Tour Facto
18, rue Hoche
92988 Paris La Defense Cedex
France
Facsimile: 01 46 35 69 00
Telephone: 01 46 35 70 98 / 01 46 35 68 33
E-mail: [.]
Attention: [.]
We also request that you inform forthwith GE Factofrance of any right of defence
you may be in a position to exercise against the Purchaser arising under the
Receivables.]
Yours faithfully,
[France Titrisation - GE Factofrance],
...........................................
Name: [.]
Title: [.]
Page 163
CONTENTS
CLAUSE PAGE
SECTION I: DEFINITIONS AND INTERPRETATION............................................................3
1 DEFINITIONS AND INTERPRETATION..............................................................3
1.1 INCORPORATION OF DEFINITIONS................................................................3
1.2 PRINCIPLES OF CONSTRUCTION..................................................................3
1.3 COMMON TERMS................................................................................3
SECTION II: ASSIGNMENT OF RECEIVABLES................................................................4
2 COMMITMENT TO SELL THE RECEIVABLES TO THE FCC...............................................4
2.1 COMMITMENT TO SELL..........................................................................4
2.2 ACCEPTANCE..................................................................................4
2.3 SELECTION OF THE RECEIVABLES................................................................4
2.4 FINANCING ELIGIBILITY CRITERIA..............................................................4
3 OFFER AND ACCEPTANCE........................................................................5
3.1 INDIVIDUAL TRANSFER OFFER...................................................................5
3.2 CONSISTENCY TESTS...........................................................................5
3.4 NO EFFECTIVE TRANSFER.......................................................................6
3.5 NO INDEPENDENT INVESTIGATION................................................................6
4 ASSIGNMENT OF RECEIVABLES...................................................................7
4.1 PROCEDURE...................................................................................7
4.2 TRANSFER DOCUMENT...........................................................................7
4.3 EFFECT......................................................................................7
4.4 ADDITIONAL FORMALITIES......................................................................8
4.5 NO FORMALITIES IN RELATION TO ANCILLARY RIGHTS..............................................8
4.6 FAILURE TO PERFORM..........................................................................8
5 PURCHASE PRICE..............................................................................8
5.1 DETERMINATION OF THE PURCHASE PRICE.........................................................8
5.2 PAYMENT OF THE PURCHASE PRICE...............................................................9
5.2.1 Computation of the Initial Purchase Price and the Deferred Purchase Price..........9
Page 164
5.2.2 Payment of the Initial Purchase Price..............................................9
5.2.3 Payment of the Deferred Purchase Price.............................................9
5.3 DISCHARGE...................................................................................9
6 FAILURE TO CONFORM TO THE ELIGIBILITY CRITERIA.............................................10
6.1 REMEDIES...................................................................................10
6.2 PROCEDURE..................................................................................10
6.3 CONSEQUENCES...............................................................................11
7 OPTION TO REPURCHASE.......................................................................11
8 PERFECTION OF TRANSFER AGAINST DEBTORS.....................................................12
9 LIQUIDATION OF THE FCC.....................................................................12
SECTION III: SERVICING AND COLLECTION OF RECEIVABLES................................................14
10 APPOINTMENT OF THE SERVICERS...............................................................14
10.1 APPOINTMENT AND RESPONSIBILITIES...........................................................14
10.2 ACCEPTANCE OF APPOINTMENT..................................................................14
10.3 AUTHORITY OF THE SERVICERS.................................................................15
11 SUB-CONTRACTS..............................................................................15
12 COLLECTION ACCOUNTS........................................................................16
12.1 BANK ACCOUNTS..............................................................................16
12.2 COLLECTION ACCOUNT SECURITY AGREEMENT......................................................17
12.3 CHANGES TO COLLECTION ACCOUNTS.............................................................17
12.4 COLLECTION ACCOUNT BANK RATING.............................................................17
12.5 ADDITIONAL COLLECTION ACCOUNTS.............................................................18
12.6 OPERATION OF ACCOUNTS......................................................................18
12.7 COLLECTION RECORDS.........................................................................18
13 COLLECTIONS OF RECEIVABLES.................................................................18
13.1 COLLECTIONS................................................................................18
13.2 RECONCILIATION OF THE COLLECTIONS..........................................................19
13.3 INSTRUCTIONS TO THE COLLECTION ACCOUNT BANKS...............................................19
13.4 DILUTIONS..................................................................................19
13.5 APPORTIONMENT OF COLLECTIONS...............................................................20
14 CONTRACTUAL DOCUMENTS AND FILES............................................................20
15 MANAGEMENT OF THE DEBTOR ACCOUNTS..........................................................21
16 REPORTS....................................................................................22
Page 165
16.1 INDIVIDUAL REPORT..........................................................................22
16.2 CONSOLIDATED REPORT........................................................................22
16.3 ADDITIONAL INFORMATION.....................................................................22
17 ENFORCEMENT................................................................................22
18 RECORDS....................................................................................23
18.1 MAINTENANCE OF RECORDS.....................................................................23
18.2 ACCESS TO RECORDS..........................................................................23
18.3 AUDIT OF THE COMPUTER FILES, THE INDIVIDUAL REPORTS AND THE CONSOLIDATED REPORTS...........24
18.4 ADJUSTMENTS..................................................................................
19 SERVICING FEE..............................................................................24
20 TERMINATION OF APPOINTMENT.................................................................25
20.1 SERVICER TERMINATION DATE..................................................................25
20.2 ADMINISTRATIVE AGENT TERMINATION DATE......................................................25
20.3 SUBSTITUTION...............................................................................25
20.5 DUTIES OF THE BACK-UP SERVICER.............................................................27
20.6 FEES UPON TERMINATION........................................................................
SECTION IV: RELATIONSHIP BETWEEN THE PARTIES AND CHANGES TO PARTIES.................................28
21 APPOINTMENT OF THE FRENCH ADMINISTRATIVE AGENT.............................................28
21.1 APPOINTMENT AND AUTHORITY OF THE FRENCH ADMINISTRATIVE AGENT...............................28
21.2 ACCEPTANCE OF APPOINTMENT..................................................................29
21.4 DURATION OF THE APPOINTMENT................................................................29
21.5 FEES.......................................................................................29
22 APPOINTMENT OF THE ENGLISH ADMINISTRATIVE AGENT............................................29
22.1 APPOINTMENT AND AUTHORITY OF THE ENGLISH ADMINISTRATIVE AGENT..............................29
22.2 ACCEPTANCE OF APPOINTMENT..................................................................30
22.3 LIABILITIES................................................................................30
22.4 DURATION OF THE APPOINTMENT................................................................31
22.5 FEES.......................................................................................31
Page 166
23 RIGHT OF RECOURSE..........................................................................31
23.1 NO LIABILITY AGAINST THE FCC...............................................................31
23.2 OBLIGATIONS SEVERAL........................................................................31
23.3 OBLIGATIONS IN RESPECT OF THE TRANSFERRED RECEIVABLES......................................31
24 CHANGES TO THE SELLERS.....................................................................32
24.1 RESIGNATION OF A SELLER....................................................................32
24.2 MANDATORY CANCELLATION.....................................................................32
24.3 ADDITIONAL SELLERS.........................................................................33
SECTION V: REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS.............................................34
25 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF THE SELLERS................................34
26 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF THE SERVICERS..............................34
27 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF EACH ADMINISTRATIVE AGENT..................34
28 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF THE MANAGEMENT COMPANY AND THE CUSTODIAN...35
SECTION VI: MISCELLANEOUS...........................................................................36
29 PARTIAL INVALIDITY.........................................................................36
30 TRANSFER OF RIGHTS.........................................................................36
31 AMENDMENTS.................................................................................37
32 INCREASE OF THE FCC MAXIMUM AMOUNT.........................................................37
33 GOVERNING LAW AND SETTLEMENT OF DISPUTES...................................................37
33.1 GOVERNING LAW..............................................................................37
33.2 SETTLEMENT OF DISPUTES.....................................................................37
APPENDIX 1 COMMON SCHEDULES.........................................................................40
Page 167
SCHEDULE 1 LIST OF SELLERS AND SERVICERS............................................................40
Part A List of French Sellers and French Servicers.........................................40
Part B List of English Sellers and English Servicers.......................................41
SCHEDULE 2 ELIGIBILITY CRITERIA COMMON TO ALL RECEIVABLES...........................................42
Part A The Receivable and the underlying provisions........................................42
Part B Ownership of the Receivable - No third party rights.................................42
Part C Compliance with any applicable law - Validity of the obligations....................43
Part D Contractual Documents...............................................................43
Part E Servicing of the Receivable - Identification of the Receivable......................44
Part F Financial and tax characteristics of the Receivable.................................44
Part G Debtor of the Receivable............................................................44
SCHEDULE 3 LIST OF COLLECTION ACCOUNTS..............................................................46
SCHEDULE 5 FORM OF TRANSFER DOCUMENT................................................................50
SCHEDULE 6 CONDITIONS PRECEDENT.....................................................................54
Part A Conditions precedent prior to or on the Closing Date or the first Transfer Date.....54
Part B Conditions precedent prior to each Transfer Date or each Principal Transfer Date....55
Part C Other conditions precedent required to be delivered.................................56
Part D Conditions precedent required to be delivered by a new Seller.......................56
Part E Benefit of the conditions precedent.................................................57
Part F Conditions precedent not satisfied..................................................57
SCHEDULE 7 FORM OF CUSTODY PROCEDURES REPORT........................................................58
SCHEDULE 8 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS COMMON TO ALL SELLERS.......................61
Part A Representations and warranties of the Sellers.......................................61
Part B Undertakings of the Sellers.........................................................64
SCHEDULE 9 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS COMMON TO ALL SERVICERS.....................70
Part A Representations and warranties of the Servicers.....................................70
Part B Undertakings of the Servicers.......................................................73
SCHEDULE 10 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS COMMON TO THE ADMINISTRATIVE AGENTS........79
Part A Representations and warranties of the Administrative Agents.........................79
Part B Undertakings of the Administrative Agents...........................................81
SCHEDULE 11 REPRESENTATIONS AND WARRANTIES OF THE MANAGEMENT COMPANY AND THE CUSTODIAN..............84
Part A Representations and warranties of the Management Company............................84
Part B Representations and warranties of the Custodian.....................................84
SCHEDULE 12 POTENTIAL EVENTS OF DEFAULT COMMON TO ALL SELLERS, SERVICERS, ADMINISTRATIVE AGENTS AND
PARENT COMPANY.............................................................................86
Part A Seller, Servicer, Administrative Agent and Parent Company Potential Events of Default86
Part B Consequences of a Seller, Servicer, Administrative Agent and Parent Company
Potential Event of Default........................................................87
SCHEDULE 13 EVENTS OF DEFAULT AND EARLY AMORTISATION EVENTS COMMON TO ALL SELLERS, SERVICERS,
ADMINISTRATIVE AGENTS AND PARENT COMPANY...................................................89
Page 168
Part A Seller, Servicer, Administrative Agent and Parent Company Events of Default and
Early Amortisation Events.........................................................89
Part B Consequences of a Seller, Servicer, Administrative Agent or Parent Company Event of
Default or Early Amortisation Event...............................................91
Part C Receivables Event of Default........................................................93
Part D Consequences of a Receivables Event of Default......................................93
1. File name.........................................................................95
2. File format.......................................................................95
3. File type.........................................................................96
SCHEDULE 15 FORM OF CONSOLIDATED REPORT............................................................103
SCHEDULE 16 FORM OF RESIGNATION LETTER.............................................................104
SCHEDULE 17 FORM OF REQUEST TO ADD AN ADDITIONAL SELLER............................................106
SCHEDULE 18 FORM OF ACCESSION LETTER...............................................................108
SCHEDULE 19 FORM OF CONSOLIDATED TRANSFER OFFER....................................................110
SCHEDULE 20 FORM OF ACCEPTANCE.....................................................................113
SCHEDULE 21 FORM OF NOTICE OF REFUSAL..............................................................115
SCHEDULE 22 FORM OF AUDITOR'S CERTIFICATE IN RESPECT OF THE PARENT COMPANY.........................117
SCHEDULE 23 FINANCING ELIGIBILITY CRITERIA.........................................................121
SCHEDULE 24 FORM OF SOLVENCY CERTIFICATE IN RESPECT OF THE SELLERS.................................122
SCHEDULE 25 FORM OF INDIVIDUAL RETRANSFER REQUEST..................................................126
SCHEDULE 26 FORM OF COMPUTER FILE..................................................................128
SCHEDULE 27 FORM OF SOLVENCY CERTIFICATE IN RESPECT OF THE SELLERS AT CLOSING DATE.................135
APPENDIX 2 SCHEDULES SPECIFIC TO FRANCE............................................................140
SCHEDULE 1 ELIGIBILITY CRITERIA SPECIFIC TO FRANCE.................................................140
SCHEDULE 2 CONDITIONS PRECEDENT SPECIFIC TO FRANCE.................................................141
SCHEDULE 3 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS SPECIFIC TO THE FRENCH SELLERS.............142
SCHEDULE 4 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS SPECIFIC TO THE FRENCH SERVICERS...........143
SCHEDULE 5 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS SPECIFIC TO THE FRENCH ADMINISTRATIVE AGENT144
SCHEDULE 6 FORM OF AUDITOR'S CERTIFICATE...........................................................145
SCHEDULE 7 FORM OF NOTICE OF TRANSFER..............................................................149
APPENDIX 3 SCHEDULES SPECIFIC TO THE UNITED-KINGDOM................................................152
SCHEDULE 1 ELIGIBILITY CRITERIA SPECIFIC TO THE UNITED-KINGDOM.....................................152
SCHEDULE 2 CONDITIONS PRECEDENT SPECIFIC TO THE UNITED-KINGDOM.....................................153
SCHEDULE 3 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS SPECIFIC TO THE ENGLISH SELLERS............157
Page 169
SCHEDULE 4 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS SPECIFIC TO THE ENGLISH SERVICERS..........158
SCHEDULE 5 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS SPECIFIC TO THE ENGLISH ADMINISTRATIVE AGENT159
SCHEDULE 6 FORM OF AUDITOR'S CERTIFICATE...........................................................160
SCHEDULE 7 FORM OF NOTICE OF TRANSFER..............................................................161
Page 170
21 June 2005
FRANCE TITRISATION
(as Management Company)
BNP PARIBAS
(as Custodian)
The ENTITIES listed in Schedule 1 of Appendix 1
(as Sellers or Servicers)
CROWN EMBALLAGE FRANCE SAS
(as French Administrative Agent)
CROWN PACKAGING UK PLC
(as English Administrative Agent)
================================================================================
FCC CROWN RECEIVABLES EUROPE
MASTER RECEIVABLES TRANSFER AND SERVICING AGREEMENT
================================================================================