Exhibit 10.3
FRENCH RECEIVABLES SALE
AGREEMENT
(or “French Sale
Agreement”)
Dated: September 8,
2009
Among
JDER Limited,
as Assignee
And
JohnsonDiversey France
S.A.S.
as the French Originator
TABLE OF CONTENTS
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1.
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DEFINITIONS
- INTERPRETATION
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3
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2.
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PURPOSE OF
THE AGREEMENT
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4
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3.
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TERM OF
AGREEMENT
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5
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4.
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SALE OF
ELIGIBLE RECEIVABLES
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5
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5.
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CONDITIONS
OF PURCHASE
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13
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6.
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REPRESENTATIONS AND WARRANTIES,
COVENANTS
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13
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7.
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NOTICE OF
TRANSFER TO OBLIGORS
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22
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8.
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SERVICING
AGREEMENT
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23
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9.
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ADDITIONAL
RIGHTS AND OBLIGATIONS IN RESPECT OF RECEIVABLES
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23
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10.
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INDEMNIFICATION
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24
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11.
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NOTICES
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26
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12.
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ANNUALIZED
PERCENTAGE RATE – « TAUX EFFECTIF GLOBAL
»
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26
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13.
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ASSIGNMENT
OF CONTRACT – POWER OF ATTORNEY
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28
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14.
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LIMITED
RECOURSE
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29
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15.
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NON-PETITION
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29
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16.
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MISCELLANEOUS
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29
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17.
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APPLICABLE
LAW – JURISDICTION
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30
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SIGNATURE PAGE
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31
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SCHEDULE 1 RECEIVABLES
PURCHASE AGREEMENT
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32
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SCHEDULE 2
ELIGIBLE RECEIVABLES
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33
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SCHEDULE 3 FORM OF
GLOBAL LETTER OF OFFER
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35
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SCHEDULE 4 FORM OF
« SUBROGATION » RECEIPT – « QUITTANCE
SUBROGATIVE »
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38
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SCHEDULE 5 FORM OF
NOTICE OF TRANSFER
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40
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THIS AGREEMENT (THE “AGREEMENT”) IS
MADE ON SEPTEMBER 8, 2009:
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(1)
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JohnsonDiversey
France S.A.S., a société par actions
simplifiée , with registered office at 9/11 avenue
du Val de Fontenay in Fontenay-sous-Bois (94120), recorded in the
Register of Commerce and Companies of Créteil under
No. 412 668 543, represented by a representative duly
authorized for the purposes hereof, hereinafter referred to as
“ JohnsonDiversey France ” or the “
French Originator ”,
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And
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(2)
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JDER Limited, a
Irish private limited liability company as assignee (the “
Assignee ”).
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PREAMBLE
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A.
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JohnsonDiversey
France desires to offer to transfer to JDER Limited its 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, and JDER Limited is
willing to purchase such Eligible Receivables.
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B.
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The parties
have agreed to set forth, amongst other things, in this Agreement
the terms and conditions under which JohnsonDiversey France shall
transfer such Eligible Receivables to JDER Limited.
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C.
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JohnsonDiversey
France shall transfer to JDER Limited the ownership of the Eligible
Receivables originated by it pursuant to its commercial activity,
in accordance with Articles 1250-1° et seq. of the
French Civil Code on contractual “subrogation”, and the
parties have agreed to enter into this Agreement for that
purpose.
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D.
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Pursuant to the
Receivables Purchase Agreement, dated as of the date hereof, JDER
Limited will sell, transfer and assign an undivided variable
percentage interest (under New York law) in the Eligible
Receivables to Hannover Funding Company LLC, as
Purchaser.
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AGREEMENTS
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1.
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DEFINITIONS
- INTERPRETATION
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Capitalised terms not otherwise
defined herein shall have the meaning set out in the Receivables
Purchase Agreement, as amended, amended and restated, modified or
supplemented from time to time.
“ French Collection
Account ” means the Collection Account established by the
Assignee with Citibank International plc, Paris Branch, and listed
as such on Schedule II to the Receivables Purchase
Agreement.
“ French Collection
Bank ” means Citibank International plc, Paris Branch or
Société Générale, as
applicable.
“ French Collection Bank Agreement
” means (i) with respect to the French Collection
Account, the French Collection Account Agreement accepted by
Citibank International plc, Paris Branch and (ii) with respect
to the French Originator Account, the Collection Bank Agreement to
which Société Générale is a
party.
“ French Originator
Account ” means the French Originator Account established
by the French Originator with Société
Générale and listed as such on Schedule II to the
Receivables Purchase Agreement.
“ Offer
Signatories” means each of Lori Marin, Kathleen Powers,
Mark Layton, Paul Feider, Jennifer Tomaloff and David Schultz, or
any other signatory consented to by the Agent from time to time
(such consent not to be unreasonably withheld).
“ Sale Termination
Event ” means the failure of the French Originator (or
its duly authorised designee) to perform any of its
responsibilities described in Clauses 4.2(a) and (b).
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2.
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PURPOSE OF
THE AGREEMENT
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2.1
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The purpose of
this Agreement is to set forth:
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(i)
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The terms and
conditions on which French Originator shall irrevocably assign the
Eligible Receivables (as defined in Schedule 2) to the
Assignee;
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(ii)
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The terms and
conditions defining the Eligible Receivables;
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(iii)
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The
representations, warranties and covenants of the French Originator
in relation, in particular but not limited to, to the Eligible
Receivables; and
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(iv)
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Generally, the
obligations subscribed by the French Originator in relation to the
Eligible Receivables.
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2.2
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General
Principles Governing the Assignment of Eligible
Receivables
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(a)
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The French
Originator shall sell, through contractual «
subrogation » governed by Articles 1250-1° et
seq . of the French Civil Code, the Eligible Receivables to the
Assignee under the conditions and pursuant to the terms stated in
this Agreement, and particularly in Article 4 below. The parties
hereby confirm that the sale of receivables contemplated in this
Agreement is not a security arrangement nor a secured
loan;
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(b)
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the Assignee
shall be automatically subrogated upon payment made in accordance
with Article 4.3 in all of the rights, liens, securities and
ancillary rights of any nature of the French Originator attached to
the entirety of the Eligible Receivables held on the Obligors;
and
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(c)
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the French
Originator shall remit to the Assignee a « Subrogation
» Receipt in the form of Schedule 4 hereto, making the
transfer of rights by virtue of the contractual «
subrogation » binding and enforceable against all
parties pursuant to Article 4.2 below.
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This Agreement shall enter into
force when the Receivables Purchase Agreement enters into force and
shall terminate automatically upon the termination of the
Receivables Purchase Agreement on the Facility Termination
Date.
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4.
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SALE OF
ELIGIBLE RECEIVABLES
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4.1
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Sale of
Eligible Receivables
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On or after the Closing Date, on
each day on which the French Originator (or its duly authorized
designee) provides a Report to the Agent, the Assignee shall
acquire such new Eligible Receivables by way of contractual
« subrogation » governed by Articles
1250-1° et seq. of the French Civil Code in
consideration for the payment made to the French Originator in
accordance with the provisions of this Agreement.
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4.2
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Periodicity of
Assignment of Eligible Receivables
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a)
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The French
Originator (or its duly authorized designee) will, by no later than
5:00 p.m. (Paris time) on each Business Day prior to the Facility
Termination Date on which Eligible Receivables are available for
sale to the Assignee (such day, an “ Offer Date
”) pursuant to a Daily Report, or by such later time as may
be agreed between the French Originator, the Assignee and the
Agent, deliver to the Assignee, by facsimile or electronic mail,
with a copy to each of the Agent and the Servicer a Global Letter
of Offer substantially in the form of Schedule 3 to this Agreement
(the “ Global Letter of Offer ”) signed (in
original or photostatic form) by the French Originator or its duly
authorized designee and listing all Eligible Receivables which have
come into existence on or before the relevant Offer Date and which
have not yet been sold to the Assignee in accordance with the terms
of this Agreement (each an “ Offered Receivable
”) as at close of business on the Business Day immediately
prior to the relevant Offer Date. Delivery of a Global Letter of
Offer by the French Originator in the manner described in this
Clause 4.2 (a) shall constitute due execution of such Global
Letter of Offer for the purposes of this Agreement.
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b)
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Following the
Closing Date, and as a consequence of any payment it receives
pursuant to this Agreement in relation to such Eligible
Receivables, the French Originator or its duly authorized designee
will on each following Business Day, and, at least, twice a week
(if twice a week, on the following Tuesday and on the following
Thursday), deliver/send an original, manually-signed, hard copy of
a « Subrogation » Receipt in the
form attached as Schedule 4 hereto, via courier or other express
mail, to the Assignee.
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All costs resulting from the
preparation, execution and delivery of the «
Subrogation » Receipts shall be borne exclusively by
the French Originator.
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c)
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The Global
Letter of Offer will contain all of the French Originator’s
present and future right, title and interest in, to and
under:
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(i)
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each Eligible
Receivable of the French Originator that existed and was owing to
it at the closing of the French Originator’s business on the
date of the initial Payment under the Receivables Purchase
Agreement;
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(ii)
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each Eligible
Receivable thereafter generated by the French Originator from and
including the date of the initial Payment under the Receivables
Purchase Agreement until the Facility Termination Date;
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(iii)
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all rights to
(but not the obligations of) the French Originator under all
Related Security in respect of each Eligible Receivable generated
by the French Originator;
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(iv)
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all Collections
and proceeds with respect to any of the foregoing and all amounts
on deposit in the French Collection Account representing proceeds
of such Eligible Receivables and proceeds of the Related Security
with respect thereto, and all certificates and instruments, if any,
from time to time evidencing such amounts on deposit in the French
Collection Account.
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The items described in clauses
(iii) through (iv) 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 the
Assignee in accordance with this Article 4.2 of this
Agreement.
For the avoidance of doubt, Excluded
Receivables shall not be offered for sale to the Assignee, nor
shall Excluded Receivables be capable of being purchased by the
Assignee hereunder.
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d)
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Subject to
Article 5 hereof, the Assignee hereby accepts to purchase all the
Offered Receivables and related Receivables Property pursuant to
each Global Letter of Offer; upon such acceptance and payment in
full of the Purchase Price by the Assignee, all of the French
Originator’s Offered Receivables and the related Receivables
Property shall transfer to the Assignee in accordance with the
terms and conditions hereof, provided that at such time the
Facility Termination Date has not occurred.
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Acceptance will
constitute:
(A) acceptance of the offer;
and
(B) assignment to the Assignee of
all of the French Originator’s right, title and ownership in
and to those Offered Receivables and the related Receivables
Property.
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e)
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For the
avoidance of doubt, the French Originator and the Assignee hereby
confirm their intention that any purchase and assignment under or
pursuant to this Agreement shall constitute a true sale (“
vente parfaite ”) of the relevant Eligible Receivables
and Receivables Property assigned hereunder and not a security
arrangement for any obligations of the French Originator. Such sale
of the Eligible Receivables shall be absolute and irrevocable and
shall confer on the Assignee the full benefits of ownership of the
Eligible Receivables.
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The French Originator will not be
liable for the credit risk relating to any Eligible Receivable and
the parties agree that the credit risk relating to all Receivables
shall pass from the French Originator to the Assignee at the same
time as title shall pass in accordance with this
Agreement.
Each sale of Offered Receivables and
the related Receivables Property hereunder is made without recourse
to the French Originator; provided, however, that:
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(i)
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the French
Originator shall be liable to the Assignee for all representations,
warranties, covenants, deemed collection obligations, and
indemnities which it makes pursuant to the express terms of this
Agreement; and
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(ii)
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such sale does
not constitute, and is not intended to result in, an assumption by
the Assignee (or any assignee thereof) of, and the Assignee and
such assignees shall not have, any obligation or liability of the
French Originator or any other Person to any Obligor or other
customer or client of the French Originator or otherwise arising in
connection with the Eligible Receivables or Receivables Property or
any other obligations of the French Originator (including any
obligation to perform any obligations of any Originator under any
Eligible Receivables and related Contracts or other Receivables
Property).
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Notwithstanding any other provision
in this Article 4.2, the French Originator will not be obligated to
make any offer to the Assignee or any other Person of or in respect
of any receivable if at such time the Facility Termination Date has
occurred.
In connection with the purchase by
the Assignee of Eligible Receivables hereunder, the French
Originator hereby agrees to the extent permissible under Data
Protection Law (as defined herein) and the other Transaction
Documents and subject to any obligation of the Originator to retain
such records as may be required by it to comply with its statutory
obligations, to sell and, upon request by the Assignee, to
transfer, assign and otherwise convey at its own expense to the
Assignee, or as it may direct, all of its right and title to and
interest in all purchase orders, delivery records and invoices
(including any interim invoices represented by a final invoice)
relating to the Offered Receivables and Receivables Property with
respect thereto, the applicable Contracts and the related Obligors
whether now existing or hereafter arising (collectively, and
including all materials necessary or desirable to the Assignee to
collect such Eligible Receivables and any Related Rights with
respect thereto, the “Acquired Receivables Records”),
without the need for any further documentation in connection
therewith, provided that should Data Protection Law or such
other legal or contractual restrictions as listed above prohibit
transmission of relevant data to the Assignee, the Originator will
use all reasonable efforts to cause such transmission to occur in
compliance with applicable law. The Assignee agrees that the French
Originator may retain possession of the Acquired Receivables
Records until the Assignee requests delivery thereof which request
shall not be made prior to the occurrence of a Termination Event
that is continuing. During the occurrence of any Termination Event
contemplated by subsections (a), (b), (c), (m) and (q) of
Exhibit V to the Receivables Purchase Agreement that is continuing,
the French Originator shall, at its own expense assemble all of the
records necessary or desirable to collect the Eligible Receivables
sold hereunder and the Related Security, and transfer or license to
any new Servicer the use of all software necessary or desirable to
collect such Eligible Receivables and the Related Security, and
make the same available to the Assignee or its designee at a place
selected by the Assignee (provided that should the consent of any
licensor of such software be required for the grant of the license
herein to be effective the French Originator will use all
reasonable efforts to obtain the consent of such third party
licensor). During the occurrence of any Termination Event, the
Originator shall, at its own expense, segregate all cash, cheques
and other instruments received by it from time to time constituting
Collections with respect to such Eligible Receivables in a manner
reasonably acceptable to the Assignee and, promptly upon receipt,
remit all such cash, cheques and instruments, duly endorsed or with
duly executed instruments of transfer, to the Assignee or
its
designee. Until any Termination
Event has occurred that is continuing, the French Originator shall
hold such Acquired Receivables Records on behalf of the Assignee,
which Acquired Receivables Records shall be marked to indicate that
they are the property of the Assignee and shall not be destroyed or
disposed of. The Agent shall be entitled to inspect and copy such
Acquired Receivables Records in accordance with Article 6.4(j). The
French Originator shall be entitled to continue to use and make
copies of all Acquired Receivables Records (and shall be entitled
to retain all such copies, including after the Facility Termination
Date), and, if the Assignee requires possession of any Acquired
Receivables Records, the Assignee shall give the French Originator
reasonable opportunity to make copies of such documents.
In connection therewith, the French
Originator hereby grants to the Assignee (or its permitted
designees, including the Servicer) an irrevocable, non-exclusive
license (subject to the restrictions contained in any license with
respect thereto) to use, without royalty or payment of any kind,
all computer software and programs used by the French Originator to
account for the Eligible Receivables, to the extent necessary or
desirable to permit the Assignee to exercise its ownership and
other interests acquired under or pursuant to this Agreement, and
to administer or service the Eligible Receivables, whether such
software and programs are owned by the French Originator or are
owned by others and used by the French Originator under license
agreements with respect thereto, provided that if the terms of any
software license in favour of the Originator requires the consent
of the licensor for the grant of the license described herein to be
effective the Originator agrees that it will use all reasonable
efforts to procure such consent. The license granted hereby shall
be irrevocable, and shall not terminate until the Final Payout
Date, and may only be utilized by the Assignee upon the occurrence
of any Termination Event contemplated by subsections (a), (b), (c),
(m) and (q) of Exhibit V to the Receivables Purchase
Agreement that is continuing.
The French Originator shall
reasonably cooperate with and assist any Successor Servicer in the
performance of its responsibilities as Servicer under the Servicing
Agreement and under the other Transaction Documents, including (to
the extent permitted by applicable law) providing access to, and
transferring, to such Successor Servicer all Acquired Receivables
Records and allowing (to the extent permitted by applicable law)
the Successor Servicer to use all licenses, hardware or software
necessary or reasonably desirable to collect, service, obtain or
store information regarding the Receivables.
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4.3
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Payment of
Purchase Price
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4.3.1
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Payment of
Purchase Price
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On the terms and subject to the
conditions set forth in this Agreement, the Assignee agrees to pay
to the French Originator the Purchase Price for each purchase to be
made hereunder as soon as reasonably practicable upon receipt the
relevant Global Letter of Offer, by delivery of immediately
available funds subject however to any set off authorized under
Article 16.6 of this Agreement.
The Purchase Price payable in
respect of such Receivables shall be 100% of the face amount of the
relevant Receivables determined in accordance with GAAP.
Subrogation Fee = For any Eligible
Receivables, the difference between (a) the outstanding
balance of such Eligible Receivable at the time of sale and
(b) the product of the outstanding balance of such Eligible
Receivable at the time of sale and (1- Discount Factor, as defined
below).
A percentage (the “Discount
Factor”) means a percentage calculated to provide the
Assignee with a reasonable return on its investment in the Eligible
Receivables sold hereunder after taking account of (i) the
time value of money based upon the anticipated dates of collection
of such Eligible Receivables and the cost to the Assignee of
financing its investment in such Eligible Receivables during such
period and (ii) the risk of non-payment by the Obligors. The
French Originator and the Assignee may agree from time to time to
change the Discount Factor based on changes in one or more of the
items affecting the calculation thereof, provided that any
change to the Discount Factor shall take effect as of the
commencement of a Calculation Period, shall apply only
prospectively and shall not affect the Purchase Price payment in
respect of any sale of Eligible Receivables by the French
Originator to the Assignee which occurred during any Calculation
Period ending prior to the Calculation Period during which the
French Originator and the Assignee agree to make such
change.
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4.5
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Effects of
« Subrogation » Payments
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Each payment made to the French
Originator will immediately and automatically transfer to the
Assignee, up to the amount of the relevant «
subrogation » payment thus made, of:
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(i)
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the Receivables
Property; and
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(ii)
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any other
statutory or contractual rights securing each Eligible Receivable,
and all rights, recourses, actions, securities, liens, and
ancillary items of any nature that are attached thereto, subject to
any formalities that may be necessary for the transfer of such
rights to be enforceable against third parties.
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All amounts expressed to be payable
under this Agreement by any party which (in whole or in part)
constitute the consideration for a supply for VAT purposes shall be
deemed to be inclusive of any VAT which is chargeable on such
supply and, accordingly, if VAT is chargeable on any supply made by
one party to another under this Agreement, the recipient of the
supply shall pay to the supplier (in addition to such amounts) an
amount equal to the amount of the VAT which is payable in respect
of that supply against an appropriate VAT invoice provided by the
supplier to the recipient of the supply.
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4.7
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Settlement as
to Specific Receivables and Dilution
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(a)
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If, on the day of purchase of any
Eligible Receivable from the French Originator hereunder, any of
the representations or warranties set forth in Article 6.1 below
are not true with respect to such Eligible Receivable or as a
result of any action or inaction of the French Originator, on any
subsequent day, any of such representations or warranties set forth
in Article 6.1 below is no longer true with respect to such
Eligible Receivable, then the French Originator or its duly
authorized designee, shall, as soon as reasonably practicable but
within no later than two
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Originator (2) Business Days,
deposit immediately available funds in the French Collection
Account, in an amount equal to the Outstanding Balance of such
Eligible Receivable, for application by the Servicer or the
relevant Sub-Servicer to the same extent as if Collections of such
Eligible Receivable in such amount had actually been received on
such date;
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(b)
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If, on any day,
the Outstanding Balance of any Eligible 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 French Originator or the Assignee, the
Servicer or the relevant Sub-Servicer (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 the insolvency of the Obligor)) or
any setoff or dispute between the French Originator, the Servicer
or the relevant Sub-Servicer and an Obligor, then the Purchase
Price with respect to such Eligible Receivable shall be reduced by
the amount of such net reduction and shall be accounted for by the
French Originator as provided in clause (c) below.
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(c)
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Any reduction
in the Purchase Price of any Eligible Receivable pursuant to clause
(b) above shall be applied as a credit for the account of the
Assignee against the Purchase Price of Eligible Receivables
subsequently purchased by the Assignee from the French Originator
hereunder; provided, however if there have been no purchases of
Eligible Receivables from the French Originator (or insufficiently
large purchases of Eligible Receivables) to create a Purchase Price
sufficient to so apply such credit against, the amount of such
credit:
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(i)
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to the extent
of any outstanding principal balance under the Company Note payable
to the French 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 French Originator; or
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(ii)
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after making
any deduction pursuant to clause (i) above, shall be paid in
immediately available funds to the Assignee by the French
Originator in the manner and for application as described in the
following provision;
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provided, further, that at any time
(y) when a Termination Event or Unmatured Termination Event
exists or (z) on or after the date on which the Receivables
Purchase Agreement has terminated, the amount of any such credit
shall be paid by the French Originator or its duly authorized
designee to the Assignee by deposit in immediately available funds
into the French Collection Account for application by the Servicer
to the same extent as if Collections of the applicable Eligible
Receivable in such amount had actually been received on such
date.
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(a)
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Except to the
extent expressly set forth herein, the French Originator shall not
have any right or obligation under this Agreement, by implication
or otherwise, to repurchase from the Assignee any acquired Eligible
Receivables or any Receivables Property with respect thereto or to
rescind or otherwise retroactively affect any purchase of any
acquired Eligible Receivable or any Receivables Property with
respect thereto after any such Eligible Receivable is transferred
to the Assignee hereunder.
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(b)
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The French
Originator shall, prior to the occurrence of a Termination Event,
have the right, but not the obligation, to request the Assignee to
sell it one or more Receivables purchased by the Assignee
(i) are not in fact Eligible Receivables or (ii) that
have become Defaulted Receivables by delivering by no later than
11:30 a.m. (Paris Time) on any Offer Date, a written request (a
“Repurchase Request”). Provided that, solely with
respect to Receivables which have become Defaulted Receivables,
such repurchase right shall be exercised by the French Originator
only for Defaulted Receivables in respect of which VAT bad debt
relief is, in the reasonable view of the French Originator, likely
to be available to it.
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(c)
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Following
receipt by the Assignee of such Repurchase Request from the French
Originator, the French Originator or its duly authorized designee
shall pay on the next Settlement Date to the French Collection
Account an amount equal to the Purchase Price paid in respect of
each Receivable (together with any Related Security) described in
such Repurchase Request, less any Collections (which shall be
retained by the Assignee) previously received with respect to each
such Receivable (the “ Repurchase Amount ”) and
the Assignee 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 (together
with any Related Security), it being understood that the Repurchase
shall be affected by way of subrogation , and that the
Assignee shall deliver, upon reception of the payment, a
Subrogation Receipt to the French Originator in relation to such
repurchased Receivables. Any such action shall be at the expense of
the French Originator and any transfer of the relevant repurchased
Receivables and Related Security shall be without representation by
or recourse to the Assignee. Transfer to the French Originator of
repurchased by way of subrogation Receivables and Related Security
shall occur immediately upon payment of the Repurchase Amount on
such Settlement Date and remittance of the relevant Subrogation
Receipt.
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(d)
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If the French
Originator has repurchased a Defaulted Receivable pursuant to the
provisions of this Article 4.8 and, subsequently, receives the
whole or any part of such Defaulted Receivable, the French
Originator shall retain for its account the amount of such
recovery.
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(e)
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Notwithstanding
any provision to the contrary in this Agreement, if the Repurchase
Amount corresponding to the Receivables relating to any Repurchase
Request is not paid in full by the French Originator on the
applicable Settlement Date, as determined in accordance with this
Article 4.8, no repurchase of said Receivables shall take place on
such Settlement Date and any transfer document relating thereto
shall be deemed automatically null and void. In such circumstances,
the French Originator shall indemnify the Assignee for costs of the
Assignee incurred directly or indirectly as a result of such
failure .
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(f)
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If any
repurchased Receivable or Receivables Property related thereto is
not transferred for any reason as provided under this Article 4.8
the Servicer, acting on behalf of the Assignee (acting on the
instructions of the Agent), shall be obligated to take all actions
necessary for the effective transfer of such repurchased Receivable
or Related Property (and shall in particular be obliged to endorse
any cheques relating to such repurchased Receivable or Related
Property), as the case may be, without undue delay and at the
expense of the French Originator, and take all further action as
may be necessary or that the French Originator may reasonably
request in order to perfect, protect or more fully evidence the
repurchases hereunder.
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Without limiting the generality of the
foregoing, the Servicer or the Assignee (or any of their duly
authorized designees), shall upon the request of the applicable
Originator execute such further agreements, instruments, powers of
attorney, and make such filings, deliver such notices and take such
other actions, as may be necessary or appropriate, to give full
effect to the transactions contemplated hereby. Until any such full
transfer and re-assignment of the repurchased Receivables and
Related Property is fully effected and legally valid and binding,
the Assignee shall hold such repurchased Receivables and Related
Property on trust for the benefit of the French Originator
.
The French Originator and the
Assignee hereby agree that, unless otherwise required by applicable
law or unless an Obligor designates that a payment be applied to a
specific Eligible Receivable, all Collections from an Obligor shall
be applied to the oldest Receivables of such Obligor.
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4.10
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Certain Rights
of the Purchaser
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(a) At any time following the
occurrence and during the continuation of a Termination
Event:
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(i)
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at the
Assignee’s or the Agent’s request the French Originator
shall, at its own expense (and, if the French Originator shall fail
to do so within three (3) Originator Business Days, the
Assignee or the Agent may, at the French Originator’s
expense), if the French Originator has not already done
so:
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(A)
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notify each
Obligor of Eligible Receivables sold by it hereunder of the
transfer of the Eligible Receivables and the Related Rights with
respect thereto pursuant to this Agreement and the Transaction
Documents and of the Assignee’s ownership of such Eligible
Receivables and the Related Rights with respect thereto;
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(B)
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direct such
Obligors that payments under any such Eligible Receivable or any
Related Rights with respect thereto be made directly to the
Assignee or its designee; and
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(C)
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execute any
power of attorney or other similar instrument and/or take any other
action necessary or desirable to give effect to such notice and
directions, including any action required to be taken so that the
obligations or other indebtedness of such Obligors in respect of
any such Eligible Receivable and any Related Rights with respect
thereto in each case, sold by it hereunder may no longer be legally
satisfied by payment to the French Originator or any of its
Affiliates (or than the Assignee).
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(ii)
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if such
Termination Event relates to the French Originator, the French
Originator hereby authorizes the Assignee and the Agent to endorse
in the French Originator’s name and in favour of the Assignee
cheques and other instruments representing Collections relating
thereto
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(b) Following the occurrence and
during the continuation of any Termination Event contemplated by
subsections (a), (b), (c), (m) and (q) of Exhibit V to
the Receivables Purchase Agreement, the Originator hereby
authorizes the Assignee and the Agent to take, to the extent
permitted under applicable law, any and all steps in its name and
on its behalf that are necessary or desirable, in the determination
of the Assignee or the Agent, to collect amounts due under the
acquired Eligible Receivables and any Related Rights with respect
thereto, in each case, sold by the French Originator hereunder,
including, without limitation, enforcing the relevant
Eligible Receivables and any Related Rights with
respect thereto, including to ask, demand, collect, sue for,
recover, compromise, receive and give acquittance and receipts for
moneys due and to become due under or in connection therewith and
to file any claims or take any action or institute any proceedings
that the Assignee or the Agent (or any designee) may deem to be
necessary or desirable for the collection thereof or to enforce
compliance with the terms and conditions of, or to perform any
obligations or enforce any rights of the French Originator in
respect of, the relevant Eligible Receivables and any Related
Rights with respect thereto and the other Transaction
Documents.
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5.
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CONDITIONS
OF ASSIGNMENT
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The obligation of the Assignee to
acquire the Eligible Receivables and Related Rights from the French
Originator on any Offer Date (including on the Closing Date) shall
be subject to the conditions precedent that:
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(i)
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in connection
with such sale and purchase, the French Originator or its duly
authorized designee has delivered a Global Letter of Offer and the
« Subrogation » Receipt as described
in article 4.2 above, in connection with such sale;
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(ii)
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on such date no
voluntary or involuntary bankruptcy, insolvency, reorganization or
other similar case or proceeding is pending against the French
Originator or the Assignee under any applicable insolvency
law;
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(iii)
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the Facility
Termination Date has not occurred;
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(iv)
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no Termination
Event has occurred with respect to the French
Originator;
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(v)
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the most recent
Quarterly Solvency Certificate signed by two (2) directors has
been delivered by the French Originator;
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(vi)
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the conditions
precedent contained in Exhibit II to the Receivables Purchase
Agreement have been satisfied.
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6.
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REPRESENTATIONS AND WARRANTIES,
COVENANTS
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6.1
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The French
Originator hereby represents and warrants on the date of this
Agreement to the Assignee and the Agent, as follows:
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a)
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The French
Originator is duly incorporated and organized, validly existing and
in active status under the applicable laws of its organizational
jurisdiction and is duly qualified to do business, and is in good
standing 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.
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b)
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The execution, delivery and
performance by the French Originator of this Agreement and 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 the
French Originator or its property or (4) any order, writ,
judgment, award, injunction or decree binding on or affecting the
French Originator 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
the French
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Originator, does not result in or
requires the creation of any Adverse Claim (other than Permitted
Adverse Claims and the retention by it of legal title to the
Eligible Receivables) upon or with respect to any of its properties
and (v) are in its commercial interest. This Agreement and the
other Transaction Documents to which the French Originator is a
party in its capacity as Originator have been duly executed and
delivered by the French Originator.
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c)
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The French
Originator has not failed to obtain any licenses, permits,
approvals, consents, franchises or other governmental agency or
body authorizations having jurisdiction over the French Originator
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.
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d)
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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 the French
Originator of this 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.
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e)
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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.
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f)
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This Agreement
and each of the Transaction Documents to which it is a party in its
capacity as Originator constitutes a legal, valid and binding
obligation of the French Originator enforceable against it in
accordance with its terms subject to Legal Reservations.
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g)
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There is no
pending action, suit or proceeding and, to the French
Originator’s 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.
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h)
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The French
Originator has complied in all material respects with its Credit
and Collection Policy with regard to each Pool
Receivable.
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i)
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The French
Originator 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.
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j)
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Each Receivable
originated by the French Originator included in the calculation of
the Net Eligible Euro Pool Balance is an Eligible Receivable as of
the date of such calculation.
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k)
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The French Originator is the
owner of the Receivables it is purporting to transfer pursuant to
this Agreement and each Global Letter of Offer, free and clear of
any Adverse Claim (other than Permitted Adverse Claims and the
retention by it of legal title to the Eligible Receivables); upon
each assignment hereunder, the Assignee shall acquire a valid and
enforceable title to each such Eligible Receivable. No effective
financing statement or other instrument
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similar in effect covering any
Eligible Receivable or any Contract or other Related Security or
Collections with respect thereto or the French Collection Account
or the French Originator Account is on file in any recording
office, except those filed in favour of the Assignee pursuant to
this Agreement or the Purchaser pursuant to the Receivables
Purchase Agreement and the other Transaction Documents (and those
relating to security interests that will be terminated or released
on or prior to the Closing Date, other than Permitted Adverse
Claims and any security interests relating to legal title retained
by it in respect of the Eligible Receivables).
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l)
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The names and
addresses of the French Collection Banks, together with the account
numbers of the French Originator Account and the French Collection
Account at the applicable French Collection Bank are specified in
Schedule II to the Receivables Purchase Agreement (except as
otherwise consented by the Agent in accordance with clause
(i) of Exhibit IV to the Receivables Purchase Agreement) and
each of the French Originator Account and the French Collection
Account is subject to a French Collection Bank Agreement. The
French Originator’s Obligors have been directed to make all
payments with respect to each Contract to the French Collection
Account.
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m)
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Its complete
corporate name is set forth in the preamble to this Agreement, and
the French Originator does not use any other corporate name, trade
name, “doing business as” name or fictitious name, and
except for names (i) set forth in Schedule III of the
Receivables Purchase Agreement and/or (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.
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n)
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All written
information furnished by the French Originator to the Assignee and
the Agent, in connection with this Agreement and any of the other
Transaction Documents shall be true and accurate in every material
respect.
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o)
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The French
Originator acknowledges that the Purchaser and the Agent are
entering into the Transaction Documents to which they are parties
in reliance upon the Assignee
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