SPANISH SALE AGREEMENT

Exhibit 10.4

SPANISH SALE AGREEMENT

In Madrid, on 8 ^th  September 2009.

Before me, Mr./Ms. Andres de la Fuente O’Connor, Public Notary of the Association of Notaries of Madrid, resident in Madrid,

APPEARS:

Mr. Ignacio Barrera], of legal age, of Spanish nationality, married, with professional address at Barcelona (España), calle Folgarolas nº 8-10, holder of National Identity Card 39308437-B in force; and

MR. Francisco G. Prol, of legal age, of Spanish nationality, single, with professional address in Madrid, at Calle Ebro, nº 3, holder of National Identity Card/Passport number 01487632-S, in force.

ACTING:

Mr. Ignacio Barrera, for and on behalf of:

- A company of Spanish nationality named JohnsonDiversey España S.L, with registered address at Madrid, Calle Orense, nº 4 (hereinafter, the “Spanish Originator” ). The Said company is registered in the Companies Registry of Madrid, in Volume 6658, Sheet 90, Page number M-108378.This company’s Tax Identification Number is B28247849.

- A limited liability company organized under the laws of Ireland, with its principal office in Dublin (Ireland) at 7 exchange place, 1 ^st  floor, IFSC, Dublin 1.(hereinafter, “JDER Limited” ), pursuant to a power of attorney duly notarised and apostilled, granted before the Notary Public of Dublin, Mr. David Walley, dated 29 July 2009.

MR. Francisco G. Prol, for and on behalf of NORDDEUTSCHE LANDESBANK GIROZENTRALE, a limited liability company organized under the laws of the State of New York, with its New York office in New York, at 1114 Avenue of the Americas, Floor 37 (hereinafter, the “Agent” ), pursuant to a power of attorney duly notarised and apostilled, granted before the Notary Public of New York (United Sates), Ms. Bianca Kunth, , dated 26 August 2009.

The Spanish Originator, JDER Limited and NORDDEUTSCHE LANDESBANK GIROZENTRALE shall hereinafter be referred to jointly as the “Parties” .

These persons have, in my judgment, the necessary legal capacity for this act and to this end.

WHEREAS

 

I.-

The Spanish Originator has originated and is the owner of certain Receivables and, within the frame of a credit securitization transaction (“ Securitization Operation ”), desires to offer to sell, transfer and assign to JDER Limited all of the Spanish Originator’s right, title and ownership in and to a pool of Receivables originated by it pursuant to its commercial activities, and to the extent that such Receivables are “Eligible Receivables,” as set forth herein, JDER Limited is willing to purchase such Eligible Receivables.

 

II.-

The Parties have agreed to set forth, among other things, in this Spanish Sale Agreement (the “ Spanish Sale Agreement ”), the terms and conditions under which the Spanish Originator shall sell, transfer and assign its right, title and ownership in, to and under such Eligible Receivables to JDER Limited, which, notwithstanding the necessity to formalise any subsequent Assignment Deeds (as defined herein), is meant to be the master sale and transfer agreement between the Spanish Originator, as seller and JDER Limited, as purchaser.

 

III.-

Within the frame of the said Securitization Operation, upon previous acquisition from the Spanish Originator and pursuant to an agreement named “Receivables Purchase Agreement” (hereinafter, the “ Receivables Purchase Agreemen t”), JDER Limited will then transfer to Hannover Funding Company LLC (the “Purchaser”), the Eligible Receivables purchased and acquired from the Spanish Originator under this Spanish Sale Agreement. The Spanish Originator, as Originator of the credits sold, and NordDeutsche Landesbank Girozentrale, as Agent, amongst others, appeared before the Notary Public of Madrid, Mr. Andrés de la Fuente O’Connor and such Receivables Purchase Agreement has been simultaneously, in the same act, formalised in a public deed granted before such notary, in the date hereof.

The Parties to this Spanish Sale Agreement declare they know and agree to the terms of the Receivables Purchase Agreement as they are a party to it.

 

IV-

A “Servicing Agreement” has also been executed by JDER Limited and the Spanish Originator (acting as a Servicer) whereby JDER Limited appoints the Spanish Originator and other Originators as Servicers, that is, to allow them to collect and manage collections of said Receivables under the Receivables Purchase Agreement. Such agreement has been also

formalized in a public deed granted in the date hereof, simultaneously, in the same act, before the Notary Public of Madrid, Mr. Andrés de la Fuente O’Connor.

The parties to this Spanish Sale Agreement declare they know and agree with the contents of the Servicing Agreement as they are a party to it.

 

V-

The Spanish Originator and JDER Limited intend that the execution by the Spanish Originator, as seller and by JDER Limited as purchaser of this Spanish Sale Agreement and each Assignment Deed (as defined herein) shall constitute a true sale from the Spanish Originator to JDER Limited of the Eligible Receivables listed on the list of Purchased Receivables attached to each Assignment Deed, providing JDER Limited with the full ownership of each such Eligible Receivables. The Spanish Originator and JDER Limited do not intend any of the transactions contemplated by this Spanish Sale Agreement to be characterised for any purpose as loans from JDER Limited to the Spanish Originator.

 

VI.-

This being set forth, and in order to set out the terms on which the Spanish Originator may sell and JDER Limited may purchase, the Eligible Receivables, the Parties, have agreed to execute this SALE AND TRANSFER DEED (hereinafter called the “Spanish Sale Agreement”), which, notwithstanding the necessity to formalise any subsequent Assignment Deeds (as defined in Clause 1.5 below), is meant to be the master sale and transfer agreement between the Spanish Originator, as seller and JDER Limited, as purchaser, according to the following,

CLAUSES

FIRST.- SALE AND TRANSFER OF RECEIVABLES.

 

1.1	Capitalized terms not defined herein shall have the meanings assigned to such terms in the Receivables Purchase Agreement.

 

1.2

On the terms and subject to the conditions set forth herein, in particular the payment of the Purchase Price payable pursuant to Clause 2, on the relevant Payment Date (as defined in Clause 2.1 below), the Spanish Originator hereby sells and transfers to JDER Limited, without recourse, and JDER Limited purchases from the Spanish Originator, and accepts the transfer of, on any Payment Date occurring prior to the Facility Termination Date (as defined in the Receivables Purchase Agreement), all of the Spanish Originator’s present and future credit rights deriving from (hereinafter the “ Credit Rights ”):

(i) each Eligible Receivable of the Spanish Originator that existed and was owing to the Spanish Originator at the closing of the Spanish Originator’s business on the date of the initial Payment under the Receivables Purchase Agreement;

(ii) each Eligible Receivable thereafter generated by the Spanish Originator from and including the date of the initial Payment under the Receivables Purchase Agreement until the Facility Termination Date; and

(iii) all Collections and proceeds with respect to any of the foregoing and all amounts on deposit in the Spanish Originator Collection Accounts (detailed in Annex IV) representing proceeds of such Eligible Receivables, and all certificates and instruments, if any, from time to time, evidencing such amounts on deposit in the Spanish Originator Collection Accounts.

The items described in clause (iii) may be referred to collectively as the “ Related Rights ”, and the Related Rights together with the items described in clauses (i) and (ii) may be referred to collectively as the “ Receivables Property .” For the purposes hereof, “ Offered Receivables ” means, on any date, all Eligible Receivables which have come into existence on or before the relevant date and which have not previously been sold to JDER Limited in accordance with this Spanish Sale Agreement.

For the avoidance of doubt, Excluded Receivables shall not be offered for sale to JDER Limited, nor shall Excluded Receivables be capable of being purchased by JDER Limited hereunder.

 

1.3

The Spanish Originator (or its duly authorised designee) will, by no later than 5:00 p.m. (Madrid time) on each Business Day prior to the Facility Termination date on which Eligible Receivables are available for sale to JDER Limited (each such day, an “ Offer Date ”) pursuant to a daily report, or by such later time as may be agreed between the Spanish Originator, JDER Limited and the Agent, deliver to JDER Limited and the Agent (by facsimile or electronic mail, with a copy to each of the Agent and the Servicer) a list of Eligible Receivables to be sold signed (in photostatic form) by the Spanish Originator (or its duly authorised designee) which shall list Eligible Receivables existing at close of business on the prior Business Day and fulfilling all other requirements detailed in Annex III (each such list, a “ Global Letter of Offer ”). Delivery of a Global Letter of Offer by the Spanish Originator in the manner described in this Clause 1.3 shall constitute due execution of such Global Letter of Offer for the purposes of this Spanish Sale Agreement.

The delivery of a Global Letter of Offer will constitute an irrevocable offer to sell, transfer and assign (and by way of assignment), without recourse (except to the extent expressly provided herein) to JDER Limited for the Purchase Price set forth pursuant to Clause 2 on the terms and subject to the conditions set forth in this Spanish Sale Agreement, all of the Spanish Originator’s right, title and ownership in, to and under the Eligible Receivables included in such Global Letter of Offer.

Prior to the existence of a Termination Event, the Agent will have the option in two occasions, to require from JDER Limited the delivery of the original, signed hard copies of each Global Letter of Offer signed since the last Assignment Deed granted before a Spanish notary. Such delivery by JDER Limited to the Agent shall occur within two Calendar Days upon requirement from the Agent.

 

1.4

To this effect, the Spanish Originator hereby unconditionally appoints each of the Offer Signatories with effect on and from the Closing Date as its lawful attorney with full power and authority in its name and for and on its behalf to, jointly and severally, execute the Global Letter of Offer and do such lawful acts and things (including, without limitation, execute any document) as the Spanish Originator shall from time to time think necessary, appropriate or desirable in all respects to effect the sale of Eligible Receivables under the terms of this Spanish Sale Agreement.

The Spanish Originator intends that the Global Letter of Offer and any other documents to be executed by the Offer Signatories under the authority granted in this clause 1.4 shall bind the Spanish Originator and have the same effect as if they had been validly executed by the Spanish Originator in accordance with the rules relating to the valid execution which apply to the Spanish Originator under the laws of Spain.

The power of attorney granted in this clause 1.4 shall endure for the term of this Spanish Sale Agreement.

For the avoidance of doubt, the power of attorney granted in this clause 1.4 is given in addition to (and not in substitution for) any prior or future authority granted by the Spanish Originator to any of its directors or officers to execute the Global Letter of Offer or to undertake any of the other actions contemplated by this clause 1.4.

For the purpose of this Clause 1.4:

a) “Global Letter of Offer” means the letter of offer in the form annexed at Annex VI.

b) “Offer Signatories” means any of the following individuals or any other signatory consented to by the Agent from time to time, consent not to be unreasonably withheld:

- Mark Layton, of full age, of British nationality, with business address in The Netherlands, at Maarssenbroeksedijk 2, 3542 DN Utrecht.

- Paul Feider of full age, of USA nationality, with business address in The USA at 8310 16 ^th Street, Sturtevant, WI 53177.

- Jennifer Tomaloff of full age, of USA nationality, with business address in The USA at 8310 16 ^th Street, Sturtevant, WI 53177.

- Kathleen Powers of full age, of USA nationality, with business address in The USA at 8310 16 ^th Street, Sturtevant, WI 53177.

- David Schultz of full age, of USA nationality, with business address in The USA at 8310 16 ^th Street, Sturtevant, WI 53177.

 

1.5

The delivery of each Global Letter of Offer to JDER Limited and the subsequent payment, in the terms set forth under Clause 2.1. below, of the Purchase Price agreed will complete the sale and transfer to JDER Limited of the Credit Rights deriving from the relevant receivables included in such Global Letter of Offer (once sold, the “ Purchased Receivables ”), which will be considered as thereby sold and transferred by the Spanish Originator to JDER Limited.

1.6

Without prejudice to the effectiveness of the sale and transfer of the Credit Rights deriving from the Purchased Receivables between the Spanish Originator, and JDER Limited, and for the purposes of Article 1,526 of the Spanish Civil Code, the Spanish Originator and JDER Limited hereby agree to execute periodical Assignment Deeds (each an “ Assignment Deed ”) substantially in the form attached to this Spanish Sale Agreement as Annex I (English version- Spanish version), being considered this Spanish Sale Agreement as the first Assignment Deed for the referred purposes in respect to the Receivables included in Annex VII (which includes an identification of the Receivables transferred to JDER Limited on this date and the Purchased Price paid on the date hereof).

To this effect, the Spanish Originator hereby declares that on the date hereof it has transferred right, title and ownership of the Purchased Receivables to JDER Limited, who has acquired them, in accordance with the provisions of Articles 347 and 348 of the Spanish Commercial Code and corresponding under the Spanish Civil Code, being, therefore, the Spanish Originator responsible for the existence and legitimacy of the credit, but not for the Obligor’s solvency, under the terms and conditions of the Spanish Sale Agreement, and regarding the Purchased Receivables represented by draft instruments (título-valor o documento cambiario) or in any document or instrument that has the purpose of transferring funds (instrumentos con función de giro), in accordance with the provisions of Article 24 of the Spanish Ley Cambiaria y del Cheque.

The Spanish Originator expressly acknowledges that all the rights, title, ownership and other rights of the Spanish Originator relating to the Purchased Receivables specified above, have been transferred to JDER Limited and acquired by it on the date hereof. JDER Limited thus, has acquired full legal, right, title and ownership in all rights, title, ownership (“propiedad plena”) and other rights of the Spanish Originator relating to the Purchased Receivables specified above.

 

1.7

The Assignment Deeds foreseen in Clause 1.6 above shall be granted, only in its Spanish version, before a Spanish Notary Public (Notario) designated by JDER Limited and the Spanish Originator on or about the 10 th and 25 th Calendar Day of January, February, March, April, June, October and November and on or about the 25 th Calendar Day of July, August, September and December. The execution of each Assignment Deed will be notified to the Agent by JDER Limited in the way foreseen in Receivables Purchase Agreement.

Each Assignment Deed shall attach a Receivables list including a full list of all Purchased Receivables which Credit Rights have been acquired by JDER Limited from the last Assignment Deed granted up to the Payment Date on which the Assignment Deed is granted. The above-mentioned Receivables list will include, separately, those Receivables evidenced by cheques, Notes, Bill of Exchange or any other similar document (hereinafter, “ Spanish Draft Instruments ”).

For the avoidance of doubt, it is hereby agreed that in the case Purchased Receivables are evidenced by Spanish Draft Instruments, the Spanish Originator will immediately (or, within a maximum three days delay) deliver to JDER Limited the direct possession of such Spanish Draft Instruments, duly endorsed according to Spanish law in favour of JDER Limited or any other Person indicated by it immediately upon receiving such request from JDER Limited.

 

1.8

All costs and expenses arising out of the preparation, drawing up, execution and notarisation of any present or future Assignment Deed or, including, without limitation the fees of any Spanish Notary Public ( Notario ), including possible notifications to be made by the latter, shall be borne by the Spanish Originator.

The Receivables lists to be attached to each Assignment Deed will include, at least, the following information regarding each Purchased Receivable transferred by the Spanish Originator:

 

(i)

Subject to Clause 5.2 below, the name of the obligor under the Purchased Receivable (“hereinafter, the “ Obligor ”);

 

(ii)

the address of the Obligor;

 

(iii)

the Outstanding Balance of the Purchased Receivables (including VAT);

 

(iv)

the original due date of the Purchased Receivables;

 

(v)

the invoice number;

 

(vi)

the issue date of the invoice; and

 

(vii)

the number of the Obligor’s account in the books of the Spanish Originator.

SECOND.- PAYMENT OF PURCHASE PRICE

 

2.1.

On each Business Day on which the Credit Rights deriving from the Purchased Receivables are sold and transferred to JDER Limited under Clause 1 above (the “ Payment Date ”), JDER Limited shall pay to the Spanish Originator the Purchase Price for the Purchased Receivables of the Spanish Originator existing on such Payment Date and generated by the Spanish Originator since the immediately preceding Payment Date. Such Purchase Price may be satisfied either fully in available cash funds or partially in cash (in an amount at least equivalent to 75% of the face value of such Eligible Receivables determined in accordance with GAAP (Plan General Contable)) with the balance being left outstanding and represented by a promissory note in the form of Annex V hereto, in favour of the Spanish Originator with an initial principal balance equal to the remaining Purchase Price (such promissory note, as it may be amended, supplemented, amended and restated or otherwise modified from time to time, together with all promissory notes issued from time to time in substitution therefore or renewal thereof in accordance with the Transaction Documents, being herein called the “ Spanish Company Note ”).

For the avoidance of doubt the Spanish Company Note will, for the purposes of this Clause 2.1, be deemed to be cash to the extend that JDER Limited repays amounts outstanding under the Spanish Company Note from Available Collections (to the extend it is permitted to do so) pursuant to the terms of the Receivables Purchase Agreement.

For the avoidance of doubt, the Parties agree that any default of payment under the Spanish Company Note will not be considered as an event of default under this Spanish Sale Agreement but on the contrary any consequence will be regulated within the Spanish Company Note.

The Spanish Originator is hereby authorized by JDER Limited to make on the Spanish Company Note, on each Payment Date, an appropriate notation evidencing the date and amount of each advance thereunder, as well as the date of each payment with respect thereto, provided that the failure to make any such notation shall not affect any obligation of JDER Limited. On each Payment Date subsequent to the date hereof, on the terms and subject to the conditions set forth in this Spanish Sale Agreement, JDER Limited shall pay to the Spanish Originator the Purchase Price for the Purchased Receivables of the Spanish Originator existing on such Payment Date and generated by the Spanish Originator since the immediately preceding Payment Date:

1.- first, in immediately available funds to the extent JDER Limited has such funds available therefore and such payment is not prohibited under the Receivables Purchase Agreement; and

2.- second, to the extent any portion of the Purchase Price remains unpaid, the principal amount outstanding under the Spanish Company Note shall be automatically increased by an amount equal to such remaining Purchase Price.

The Parties agree that the Purchase Price to be paid by JDER Limited to the Spanish Originator shall be determined in accordance with the following formula:

PP      =         OB x (1-DF),

 

(a)

where:

 

The Spanish Originator and JDER Limited hereby agree that the Purchase Price payable by JDER Limited pursuant to, and in accordance with, this Clause 2 shall be inclusive of all value added taxes (IVA) and comparable or similar Taxes and that (A) JDER Limited shall have no responsibility to pay any additional amount in respect of any such Taxes, and (B) in the event that any such Taxes are payable with respect to the payment or receipt of any such Purchase Price, the Spanish Originator shall promptly pay such Taxes in full or, to the extent such Taxes have already been paid by any other Person legally obligated to pay such Taxes, the Spanish Originator shall promptly reimburse such Person in full, whether out of such Purchase Price received by it or otherwise.

All amounts expressed to be payable under the Spanish Sale Agreement by the Spanish Originator to JDER Limited which (in whole or in part) constitute the consideration for a supply for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply, and accordingly, if VAT is chargeable on any supply made by JDER Limited to the Spanish Originator under this Spanish Sale Agreement, the Spanish Originator shall pay to JDER Limited (in addition to such amounts) an amount equal to the amount of the VAT against an appropriate VAT invoice provided by JDER Limited to the Spanish Originator.

 

2.3.

The Spanish Originator undertakes to endorse to JDER Limited in blank each bill of exchange, promissory note and similar Spanish Draft Instrument ( título-valor o documento cambiario ) or instrument that has the purpose of transferring funds ( instrumento con función de giro ) it receives in relation to any Related Security and to deliver each Spanish Draft Instrument to JDER Limited in accordance with this Spanish Sale Agreement (specially under paragraph 3 of Clause 1.7 above).

 

2.4

If, on the day of purchase of any Purchased Receivable from the Spanish Originator, any of the representations or warranties set forth in Clause 4 are not true with respect to such Purchased Receivable or as a result of any action or inaction of the Spanish Originator, on any subsequent day, any of such representations or warranties is no longer true with respect to such Purchased Receivable, then the Spanish Originator shall, as soon as reasonably practicable but within no

later than two (2) Spanish Originator Business Day, shall deposit immediately available funds in the Collection Account detailed in Annex IV (hereinafter called the “ Collection Account ”), in an amount equal to the Outstanding Balance of such Purchased Receivable, for application to the same extent as if collections of such Purchased Receivable in such amount had actually been received on such date.

If, on any day, the Outstanding Balance of any Purchased Receivable purchased or contributed hereunder is reduced or adjusted as a result of any defective, damaged, rejected, returned goods or services, or any discount, rebate, credit, counterclaim, billing error or other adjustment made by the Spanish Originator, JDER Limited (other than as a result of repayment or as a result of the inability of the Obligor to make payment (i.e., a credit loss)) or any setoff or dispute between the Spanish Originator and any Obligor, then the Purchase Price with respect to such Purchased Receivable shall be reduced by the amount of such net reduction and shall be accounted to the Spanish Originator

Any reduction in the Purchase Price of any Purchased Receivable pursuant to the above shall be applied as a credit for the account of JDER Limited against the Purchase Price of Purchased Receivables subsequently purchased by JDER Limited from the Spanish Originator; provided, however if there have been no purchases of Purchased Receivables from the Spanish Originator (or insufficiently large purchases of Purchased Receivables) to create a Purchase Price sufficient to so apply such credit against, the amount of such credit:

 

i)

to the extent of any outstanding principal balance under the Company Note payable to the Spanish Originator, shall be deemed to be a payment under, and shall be deducted from the principal amount outstanding under, the Company Note payable to the Spanish Originator; or

 

ii)

after making any deduction pursuant to clause (i) above, shall be paid in cash to JDER Limited by the Spanish Originator in the manner and for application as described in the following provision;

provided, further, that at any time (a) when a Termination Event or Unmatured Termination Event exists or (b) on or after the date on which the Receivables Purchase Agreement has terminated, the amount of any such credit shall be paid by the Spanish Originator to JDER Limited to the same extent as if Collections of the applicable Purchased Receivable in such amount had actually been received on such date.

THIRD. - REPURCHASES.

 

3.1.

Subject to the restrictions described in Section 3.2 below, the Spanish Originator shall, prior to the occurrence of a Termination Event (as defined in the Receivables Purchase Agreement detailed in Whereas III), have the right, but not the obligation, to request JDER Limited to sell it one or more Purchased Receivables purchased by JDER Limited to the Spanish Originator and that have become Defaulted by delivering by no later than 5:00 p.m (Madrid Time) on any Offer Date, a written request (a “ Repurchase Request ”), provided that, solely with respect to Receivables which have become Defaulted Receivables, such right shall be exercised by the Spanish Originator only for Defaulted Receivables in respect of which VAT bad debt relief is, in an objective view of the Spanish Originator, likely to be available to it and the parties agree and acknowledge that such circumstances are likely to arise only on an exceptional basis.

 

3.2.	The repurchase procedure will be the following:

Except to the extent expressly set forth herein, the Spanish Originator shall not have any right or obligation under this Spanish Sale Agreement, by implication or otherwise, to repurchase from JDER Limited any acquired Purchased Receivables after it is transferred to JDER Limited hereunder.

Following receipt by JDER Limited of such Repurchase Request from the Spanish Originator, the latter shall pay on the next Settlement Date to the relevant Collection Account an amount equal to the Purchase Price paid in respect of each Receivable described in such Repurchase Request, less any Collections (which shall be retained by JDER Limited) previously received with respect to each such Receivable (the “ Repurchase Amount ”) and JDER Limited shall take or perform such necessary steps, procedures and formalities, and deliver any necessary documents so as to validly effect the repurchase of each such Receivable. Any such action shall be at the expense of JDER Limited and any transfer of the relevant Purchased Receivables shall be without representation by or recourse to JDER Limited. Transfer to the Spanish Originator of title and ownership in and to those Purchased Receivables shall occur immediately upon payment of the Repurchase Amount on such Settlement Date.

If the Spanish Originator has repurchased a Defaulted Receivable pursuant to the provisions of this Clause 3.2 and, subsequently, the Spanish Originator receives the whole or any part of such Defaulted Receivable, the Spanish Originator shall retain for its account the amount of such recovery.

Notwithstanding any provision to the contrary in this Spanish Sale Agreement, if the Repurchase Amount corresponding to the Purchased Receivables relating to any Repurchase Request is not paid in full by the Spanish Originator on the applicable Settlement Date, no repurchase of said Purchased Receivables shall take place on such Settlement Date. In such circumstances, the Spanish Originator SL shall indemnify JDER Limited for costs the latter incurred directly or indirectly as a result of such failure.

FOUR. - REPRESENTATIONS AND WARRANTIES.

A. REPRESENTATIONS AND WARRANTIES, COVENANTS

The Spanish Originator hereby represents and warrants on the date of this Spanish Sale Agreement to JDER Limited and the Agent:

 

4.1	It is duly incorporated and validly existing under the laws of Spain and is duly qualified to do business, and is qualified in every jurisdiction where the nature of its business requires it to be so qualified unless any failure to be so qualified would not have a Material Adverse Effect.

 

4.2

The execution, delivery and performance of this Spanish Sale Agreement and the other Transaction Documents to which it is a party in its capacity as Originator (i) are within its corporate powers, (ii) have been duly authorized by all necessary corporate action on its part, (iii) do not contravene or result in a default under or conflict with (1) its organizational documents, (2) any law, rule or regulation applicable to it, (3) any contractual restriction binding on or affecting it or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting it or its property, unless in each case such continuation, default or conflict could not reasonably be expected to have a Material Adverse Effect, and (iv) with respect to it, do not result in or require the creation of any Adverse Claim (other than Permitted Adverse Claims) upon or with respect to any of its properties and (v) are in its commercial interest. This Spanish Sale Agreement and the other Transaction Documents to which it is a party in its capacity as Originator have been duly executed and delivered by it.

4.3.

It has not failed to obtain any licenses, permits, approvals, consents, franchises or other governmental agency or body authorizations having jurisdiction over it necessary to the ownership of its properties or to the conduct of its business, which violation or failure to obtain would be reasonably likely to have a Material Adverse Effect.

 

4.4.

No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance by it of this Spanish Sale Agreement or the other Transaction Documents to which it is a party in its capacity as Originator, except (i) for actions taken or referred to in Exhibit II of the Receivables Purchase Agreement, all of which have been (on or before the Closing Date) duly made or taken and are in full force and effect and (ii) where the failure to have obtained any such authorization or approval or taken any such action or made any such filing or notice would not have nor would be reasonably likely to have a Material Adverse Effect.

 

4.5.	Both before and after giving effect to any sale and purchase hereunder, it shall be able to pay its debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become due.

 

4.6.

This Spanish Sale Agreement, the Assignment Deeds foreseen in Clause 1.7 above and the Transaction Documents to which it is a party in its capacity as Originator constitute the legal, valid and binding obligations of the Spanish Originator enforceable against it in accordance with their terms subject to Legal Reservations.

 

4.7.

There is no pending action, suit or proceeding and, to its knowledge, no threatened action, suit or proceeding, affecting it or any of its properties before any Governmental Authority or arbitrator which could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

 

4.8.	It has complied in all material respects with its Credit and Collection Policy with regard to each Pool Receivable.

 

4.9.	It is not in violation of any law, rule or regulation or of any order of any court, arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.

4.10.

Each Purchased Receivable originated by it included in the calculation of the Net Eligible Euro Pool Balance is an Eligible Receivable as of the date of such calculation.

 

4.11.

It is the legal owner of the Eligible Receivables it is purporting to transfer pursuant to this Spanish Sale Agreement, free and clear of any Adverse Claim (other than Permitted Adverse Claims); upon each purchase hereunder, JDER Limited shall acquire a valid and enforceable perfected full ownership interest (“Propiedad plena”) on the Credit Rights deriving from such Eligible Receivables, free and clear of any Adverse Claim (other than Permitted Adverse Claims). No effective financing statement or other instrument similar in effect covering any Eligible Receivable or any Contract or other Related Security or Collections with respect thereto or the Spanish Collection Account is on file in any recording office, except those filed in favor of JDER Limited pursuant to this Spanish Sale Agreement or the Purchaser pursuant to the Receivables Purchase Agreement and the other Transaction Documents.

 

4.12.

The names and address of the Spanish Collection Account Banks, together with the account number of the Spanish Collection Account and the Spanish Originator Accounts at the relevant Spanish Collection Account Banks, are specified in Annex IV to this Spanish Sale Agreement. All Obligors have been directed to make all payments with respect to each Contract to the Spanish Originators Account. On each Business Day commencing with the Closing Date, all amounts on deposit in each Originator Account shall be remitted by the Spanish Originator to the Collection Account identified on Annex IV, provided the Originator Account balance exceeds 15,000 Euros.

 

4.13.

Its complete corporate name is set forth in the preamble to this Spanish Sale Agreement, and it does not use any other corporate trade name, doing business name or fictitious name, except for any names (i) set forth in Schedule III of the Receivables Purchase Agreement and (ii) first used after the date of the Receivables Purchase Agreement and set forth in a notice delivered to the Agent pursuant to the Receivables Purchase Agreement.

 

4.14.

All written information furnished by it to JDER Limited and the Agent, in connection with this Spanish Sale Agreement and any of the other Transaction Documents to which it is a party in its capacity as Originator shall be true and accurate in every material respect.

4.15.

It acknowledges that the Purchaser and the Agent are entering into the Transaction Documents to which they are parties in reliance upon JDER Limited’s identity as a legal entity separate from the Spanish Originator.

 

4.16.

It has filed or caused to be filed all material returns, statements, forms and reports for taxes, domestic or foreign, required to be filed by it and has paid or made adequate provisions for the payment of all taxes payable by it which have become due or any assessments made against it or any of its Property and all other taxes, fees or other charges imposed on it or any of its Property by any Governmental Authority other than: (i) those the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with Spanish accountancy legislation (“Plan General Contable”) have been provided on the books of the Spanish Originator; and (ii) in the case of taxes other than income or similar taxes (“designated taxes”), except to the extent that, if the failure to do so or to pay such designated taxes would not reasonably be expected to result in a Material Adverse Effect.

 

4.17.

The transactions contemplated by this Spanish Sale Agreement and the other Transaction Documents to which it is a party in its capacity as Spanish Originator are in its best interest and comply with its corporate purpose.

 

4.18.

No portion of the Purchase Price of any Eligible Receivables sold by it pursuant to this Spanish Sale Agreement, and no other funds, if any, received by it from JDER Limited, the Purchaser or the Agent pursuant to any of the Transaction Documents, will be used for any purpose other than general corporate purposes.

 

4.19.

It has received fair market value in respect of the Purchased Receivables sold to JDER Limited under Spanish law in consideration for the sale by it of its Eligible Receivables, and all other rights and remedies transferred pursuant to this Spanish Sale Agreement. No such sale has been made for or on account of an antecedent debt owed by it to JDER Limited and no such sale is or may be voidable under any Spanish law, rule or regulation related to bankruptcy (“concurso”), insolvency, reorganization, winding up or composition or adjustment of debts. The sale of Eligible Purchased Receivables by it to the JDER Limited as Assignee pursuant to this Spanish Sale Agreement has been and will be made in good faith and without intent to hinder, delay or defraud its creditors.

4.20.

All information, exhibits, financial statements, documents, books, records or reports furnished or to be furnished at any time by it to JDER Limited or the Agent in connection with this Spanish Sale Agreement is or will be accurate in all material respects as of its date or as of the date so furnished, and no such item contains or will contain any untrue statement of a material fact.

 

4.21.

It has complied with all of the terms, covenants and agreements contained in this Spanish Sale Agreement.

 

4.22.

It is not in default under any of its contractual obligations, nor has a termination event, event of default or any similar such event occurred with respect to any material agreement to which it is a party.

 

4.23.

It has not taken any corporate action, nor (to its knowledge, due enquiries having been made) have any steps been taken or legal proceedings been started or threatened against it for its winding-up, bankruptcy (concurso), liquidation, examinership, dissolution, reorganization or annulment as a legal entity or for the appointment of a receiver, administrator, administrative receiver, trustee, liquidator, sequestator or similar officer of the relevant company or of any or all of its assets or revenues.

 

4.24.

Either (a) no data protection law is applicable to any of the Eligible Receivables originated by it, or (b) it is in compliance with all data protection laws applicable to the Eligible Receivables originated by it, except to the extent the failure to so comply would not have nor be reasonably likely to have a Material Adverse Effect and it is entitled to disclose to JDER Limited all of the information set forth in each Assignment Deed and each Monthly Report.

 

4.25.

By accepting the Purchase Price related to each purchase of Purchased Receivables generated, it shall be deemed to have certified that the representations and warranties in this section are true and correct on and as of such day, with the same effect as though made on and as of such day. These representations and warranties are deemed repeated on each Offer Date by reference to the facts and circumstances then existing.

B. Further representations and warranties of the Spanish Originator

The Spanish Originator, in connection with any Eligible Receivables purchased (or purported to be purchased) by JDER Limited hereunder represents and warrants to JDER Limited on the Payment Date relating thereto as follows:

 

i)

Purchased Receivables. Each of the Eligible Receivables purchased or purported to be purchased by JDER Limited under this Spanish Sale Agreement is an Eligible Receivable which is validly existing and validly evidenced for the full nominal amount thereof (except in the circumstances described in the following paragraph, in which case the document evidencing the Eligible Receivable could include a different amount).

If the Obligor of an Eligible Receivable had exercised vis-à-vis the Spanish Originator the right of set off recognised under Articles 1.195, 1.196 and 1.198 of the Spanish Civil Code, the document evidencing such Eligible Receivable could have been issued for a lesser amount than the full nominal amount thereof. If such Eligible Receivable could have been issued for a lesser amount than the full nominal amount thereof, the Spanish Originator shall be deemed to have received a Collection of the relevant Eligible Receivable for its full nominal amount.

 

ii)	Global Letter of Offer and Offered Receivables List. All information contained in each Global Letter of Offer is complete true and accurate on the date on which it is delivered.

 

iii)

Transfer of Receivables. Each sale and transfer of any Eligible Receivables under this Spanish Sale Agreement shall be effective as against the Spanish Originator to transfer to JDER Limited all of the Spanish Originator’s present and future right and title to and ownership in such Eligible Receivables, free and clear of any Adverse Claim (other than Permitted Adverse Claims) and no further action need to be taken in order to transfer to JDER Limited such right, title and ownership, save that, (a) until notice of such sale of Eligible Receivables has been given to such Obligor, such sale shall not be effective as against such Obligor and, in particular, such Obligor is entitled to discharge its payment obligation with respect to such Eligible Receivable by payment to the Spanish Originator and (b) notwithstanding such notice to the Obligor, such sale shall not be effective as against such Obligor if the Obligor, upon receipt of such notice, rejected the same, in which circumstance the Obligor is entitled to claim for the set-off of prior debts (provided such debts may be set-off under Spanish law) but not for setting-off debts arising afterwards, all of that in accordance with second paragraph of article 1,198 of the Spanish Civil Code.

iv)	Arm’s Length. Each sale and purchase of Eligible Receivables hereunder or as contemplated by this Spanish Sale Agreement has been made on arm’s length terms.

 

v)	Termination Events. No Termination Event (as defined in the Receivables Purchase Agreement) has occurred that is continuing.

 

vi)	Spanish Pledges. The Spanish Originator shall grant pledges in favor of JDER Limited over the balance of each Spanish Collection Account.

 

vii)

The Spanish Originator is a company which is resident for purposes of Tax in a EU Member State (by virtue of the laws of the EU Member State) and does not receive payments hereunder in connection with tha part of its trade o business which is carried on in Ireland by it through a branch or agency; and in this context “EU Member Sates” means a Member State in the European Union Communities (other than in Ireland).

 

viii)

The Spanish Originator will promptly notify JDER Limited if it has ceased to be resident in an EU Member State of if it commences to receive payments hereunder in connection with a trade or business which is carries on by it in Ireland through a branch or agency.

FIFTH. - COVENANTS.

Until the Final Payout Date:

1. Compliance with Laws : The Spanish Originator shall comply in all material respects with all applicable laws, rules, regulations and orders, and preserve and maintain its company or corporate existence, rights, franchises, qualifications, and privileges except to the extent that the failure so to comply with such laws, rules and regulations or the failure so to preserve and maintain such existence, rights, franchises, qualifications, and privileges would not adversely affect the collectibility of the Eligible Receivables or the enforceability of any related contract or materially adversely affect the ability of the Spanish Originator to perform its obligations under any related Contract or under the Receivables Purchase Agreement or any other Transaction Document.

2. Data Protection . Notwithstanding anything herein to the contrary, the Spanish Originator shall ensure that no personal or other information in, or otherwise relating to, any Contract, Obligor, Purchased Receivable, any Collection related thereto, or any other Receivables property or any Purchased Receivables record or any other right or remedy transferred pursuant to this Spanish Sale

Agreement (“Relevant Personal Data”) is transmitted or delivered to, or otherwise received by, JDER Limited, or the Agent if such transmission, delivery or receipt would result in the violation by such Person of the EU Data Protection Directive (95/46/EC), Spanish Act 15/1999 dated 13/12/1999 or any other legislation or regulation relating to data protection or privacy (together the “Data Protection Law”); provided that, upon the request of the Agent at any time after a Termination Event that has occurred and is continuing, the Spanish Originator shall, at its own expense, co-operate, assist and otherwise take all necessary actions as may be required to ensure that all relevant personal data is transferred to the Agent (or such other Person as the Agent may direct) in accordance with all applicable law, including entering into any further deeds or documents which may be required to comply with any such legislation or regulations relating to data protection.

3. Offices, Records and Books of Account : The Spanish Originator shall maintain its registered office in Spain and (ii) shall provide JDER Limited, with copy to Agent, with at least sixty (60) days’ written notice prior to making any change in (A) its name or making any other change in its identity or company structure (including a merger) or (B) its jurisdiction of incorporation or formation; each notice to JDER Limited and the Agent pursuant to this sentence shall set forth the applicable change and the effective date thereof. The Spanish Originator (or its duly authorised designee) will, in accordance with applicable law, maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing Pool Receivables and related Contracts in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records, computer tapes and disks and other information reasonably necessary or advisable for the collection of all Pool Receivables in the ordinary course of business (including, without limitation, records adequate to permit the daily identification of each Pool Receivable and all Collections of and adjustments to each Pool Receivable). Without limiting the foregoing, the Spanish Originator shall (i) maintain adequate computer and other systems in order to service the Pool Receivables; and (ii) from time to time on reasonable request of the Agent (but, so long as no Termination Event or Unmatured Termination Event has occurred and is continuing, not more than once during any calendar year relating to the business of the Spanish Originator and once during any calendar year relating to the business of the Spanish Originator), permit certified public accountants or other auditors acceptable to JDER Limited and the Agent to conduct, at JDER Limited’s expense, a review of the Spanish Originator’s books and records with respect to such Pool Receivables.

4. Reporting Requirements . From the date hereof until the Final Payout Date under the Receivables Purchase Agreement, the Spanish Originator will, unless JDER Limited and the Agent shall otherwise consent in writing, furnish to the Spanish Originator and the Agent:

i) Termination Events . As soon as possible after any officer of the Spanish Originator has knowledge of, the occurrence of, and in any event within three (3) business days after a Responsible Officer of the Spanish Originator has knowledge of the occurrence of any Termination Event or any Unmatured Termination Event, the statement of the chief financial officer or chief accounting officer of the Spanish Originator describing such Termination Event or Unmatured Termination Event and the action that the Spanish Originator proposes to take with respect thereto, in each case in reasonable detail;

ii) Proceedings . As soon as possible and in any event within three (3) business days after any officer of the Spanish Originator otherwise has knowledge thereof, written notice of (i) action, suit, proceeding or investigation of the type described in Clause 4 above not previously disclosed to JDER Limited and the Agent, and (ii) all material adverse developments that have occurred with respect to any previously disclosed actions, suits, proceedings and investigations; and

iii) Other . Promptly, from time to time, such other information, documents, records or reports respecting the Pool Receivables or the Related Rights or the conditions or operations, financial or otherwise, of the Spanish Originator as JDER Limited or the Agent may from time to time reasonably request in order to protect the interests of the Agent and the Purchaser under or as contemplated by the Receivables Purchase Agreement.

5. Performance and Compliance with Contracts . The Spanish Originator, shall, at its expense, timely and fully perform and comply with all material provisions, covenants and other promises required to be observed by it under the contracts related to the Pool Receivables and under the Transaction Documents, and timely and fully comply in all material respects with the Credit and Collection Policy with regard to each Pool Receivable and its related Contract.

6. The Spanish Originator shall, at its expense, take or procure, as applicable, all action necessary or desirable (including, for the avoidance of doubt, completion of all filings and notifications contemplated by the Transaction Documents) to establish and maintain

the Credit Rights of JDER Limited in the Pool Receivables and the Related Security and Collections and other proceeds with respect thereto, in each case free and clear of any Adverse Claim (other than Permitted Adverse Claims).

7. Sales, Liens, Etc . Except for retransfers of Purchased Receivables to the Spanish Originator in accordance with Clause 3 of this Spanish Sale Agreement, the Spanish Originator shall not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim (other than Permitted Adverse Claims) upon or with respect to, any or all of its right, title or ownership in, to or under, any item described in Section 1.2(c) of the Receivables Purchase Agreement or assign any right to receive income in respect of any items contemplated by this paragraph 7. The Spanish Originator will defend the right, title and interest of JDER Limited, Agent and the Purchaser in, to and under any of the foregoing property, against all claims of third parties claiming through and under it or JDER Limited.

8. Modification, Extension or Amendment of Receivables . Except as provided in the Receivables Purchase Agreement, the other Transaction Documents to which it is a party, the Credit and Collection Policy (or as required by any applicable law or regulation) the Spanish Originator shall not extend the maturity or adjust the Outstanding Balance or otherwise modify the terms of any Pool Receivable in any material respect, or amend, modify or waive in any material respect any term or condition of any related Contract. No modification or extension of a Purchased Receivable shall alter the status of such Pool Receivable as a Defaulted Receivable or a Delinquent Receivable or limit the rights of JDER Limited and the Agent under this Spanish Sale Agreement. If a Termination Event has occurred and is continuing, the Spanish Originator shall not make such modifications and adjustments without the prior consent of JDER Limited; to the extent that the Spanish Originator’s contracts with any third party, with respect to the collection of Delinquent Receivables or Defaulted Receivables, such third party shall also be bound by the terms set forth above.

9. Change in Business . The Spanish Originator shall not make any material change in the character of its business or make any change in the Credit and Collection Policy or its constitutional documents that would adversely affect the collectibility of the Receivables Pool or the enforceability of any related contract or materially adversely affect the ability of the Spanish Originator to perform its obligations under any related Contract, under this Spanish Sale Agreement or under the Receivables Purchase Agreement. The Spanish Originator shall not make any material change to its Credit and Collection Policy without the prior written consent of JDER Limited and the Agent.

10. Audits . The Spanish Originator shall, at its own expense, at any time and from time to time (but, so long as no Termination Event has occurred and is continuing, not more than once during any calendar year), during regular business hours, upon reasonable advance notice as requested by JDER Limited and the Agent, permit JDER Limited and the Agent, or their agents or representatives, (i) to examine and make copies of and abstracts from all books, records and documents (including, without limitation, but provided it is permitted by applicable law and subject to the restrictions contained in any licence with respect thereto, computer tapes and disks) in the possession or under the control of the Spanish Originator relating to Pool Receivables and the Related Security, including, without limitation, the related Contracts and (ii) to visit the offices and properties of the Spanish Originator for the purpose of examining such materials described in clause (i) above, and to discuss matters relating to Pool Receivables and the Related Security or the Spanish Originator’s performance hereunder or under the Contracts with any of the officers, employees, agents or contractors of the Spanish Originato