EXECUTION COPY
RECEIVABLES
PURCHASE AGREEMENT
dated 13 March 2006
between
MERITOR HVS AB
as Seller
and
Nordic Finance
Limited
as
Purchaser
and
CITICORP TRUSTEE COMPANY LIMITED
as Programme Trustee
Table of Contents
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1.
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DEFINITIONS AND
CONSTRUCTION………………………………………………………………......
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1
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2.
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PURCHASE AND
SALE……………………………………………………………………………………
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2
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3.
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CONDITIONS PRECEDENT TO INITIAL
PURCHASE………………………………………………….
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4
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4.
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PAYMENTS, ETC
…………………………………………………………………………………………..
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4
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5.
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PERMITTED OBLIGOR SET-OFF
.……………………………………………………………..................
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5
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6.
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REPRESENTATIONS, WARRANTIES AND
UNDERTAKINGS………………………………………
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5
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7.
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REMEDIES FOR UNTRUE REPRESENTATION,
ETC…………………………………………………
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9
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8.
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FURTHER
ASSURANCE……………………………………………………………………………………
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10
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9.
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NOTICES……………………………………………………………………………………………………..
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11
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10.
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ASSIGNMENT AND
SUPPLEMENTS…………………………………………………………………….
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12
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11.
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AMENDMENTS AND
MODIFICATIONS……………………………………………………………….
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12
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12.
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RIGHTS CUMULATIVE,
WAIVERS……………………………………………………………………….
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13
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13.
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APPORTIONMENT………………………………………………………………………………………….
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13
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14.
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PARTIAL
INVALIDITY…………………………………………………………………………………….
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13
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15.
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CONFIDENTIALITY…………………………………………………………………………………………
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14
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16.
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NO OBLIGATIONS OR
LIABILITIES……………………………………………………………………..
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15
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17.
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CHANGE OF PROGRAMME
TRUSTEE…………………………………………………………………..
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16
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18.
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NO LIABILITY AND NO
PETITION……………………………………………………………………….
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16
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19.
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LIMITED
RECOURSE………………………………………………………………………………………..
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17
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20.
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GOVERNING LAW AND
JURISDICTION………………………………………………………………
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17
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21.
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TERMINATION………………………………………………………………………………………………
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17
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SCHEDULE 1 Eligibility Criteria
SCHEDULE 2 Conclusion of purchase – offer and acceptance and
perfection
SCHEDULE 3 Representations, warranties and undertakings
SCHEDULE 4 Standard terms of trade
SCHEDULE 5 Form of purchase price calculation
SCHEDULE 6 Form of solvency certificate
This receivables purchase agreement (the “ Agreemen
t”) is made on 13 March 2006 between:
(1) MERITOR HVS AB,
a company incorporated under the laws of Sweden (reg. no.
556550-0237) having its registered office at Ishockeygatan 3, 711
34 Lindesberg, Sweden (the “Seller” );
(2) Nordic Finance Limited , a
company incorporated under the laws of Jersey (registration no.
85494) having its registered office at SG Hambros House, 18
Esplanade, St. Helier, Jersey, Channel Islands JE4 8RT (the
“Purchaser” ); and
(3) CITICORP
TRUSTEE COMPANY LIMITED, acting through its office at 14th Floor,
Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB (the
“Programme Trustee” which expression shall
include such person and all other persons for the time being acting
as the security trustee or trustees pursuant to the Master Security
Trust Deed as supplemented by the Supplemental Security Trust
Deed).
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1.
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DEFINITIONS AND
CONSTRUCTION
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Terms used herein shall bear the meanings given to them in the
Master Definitions Schedule dated on or about the date hereof
signed for purposes of identification by, among others, the parties
hereto.
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1.2.1
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References in this
Agreement to any person shall include references to his successors,
transferees and assignees and any person deriving title under or
through him.
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1.2.2
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References in this
Agreement to any statutory provision shall be deemed also to refer
to any statutory modification or re-enactment thereof or any
statutory instrument, order or regulation made thereunder or under
any such re-enactment.
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1.2.3
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References in this
Agreement to any agreement or other document shall be deemed also
to refer to such agreement or document as amended, varied,
supplemented, replaced or novated from time to time.
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2.1
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Purchase of
Receivables
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The Purchaser agrees to purchase Receivables from the Seller on a
continuous basis from the date hereof until the Termination Date
upon and subject to the terms and conditions of this Agreement.
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2.2
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Conclusion of
purchase - offer and acceptance
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Sale and purchase of Receivables will
in each case be concluded as more particularly set out in Part 1 of
Schedule 2.
The Purchase Price shall be paid and calculated as more
particularly set out in Part 2 of Schedule 2.
Any VAT refund collected from the VAT authorities by the Seller
following credit losses on a Purchased Receivable shall be for the
benefit of the Purchaser and be paid by the Seller to the
Purchaser. The Seller undertakes to take any action permissible,
and required by the Purchaser, to assist in collecting any such VAT
refund for the benefit of the Purchaser, including but not limited
to acquiring the Purchased Receivable at a price equal to any VAT
refund available for collection and any amounts recoverable from
the Permitted Obligor (if any) and to pay such purchase price upon
and to the extent of receipt of the VAT refund and any amounts
recovered from the Permitted Obligor.
Each sale and purchase pursuant to Clause 2.2 above shall be
perfected through the actions more particularly described in Part 3
of Schedule 2.
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2.6
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Identification of
Purchased Receivables
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2.6.1
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On each Calculation
Date, the Seller shall deliver to the Accounts Administrator or any
Information Agent from time to time appointed by the Accounts
Administrator, on behalf of the Purchaser, with a copy to the
Servicer, a Weekly Data Report electronically or as agreed from
time to time between the Accounts Administrator and the Seller not
later than 10.00 a.m. ( Copenhagen time ). The Seller shall
identify in the Weekly Data Report each of the Receivables
purchased pursuant to Clause 2.2 during the preceding Purchase
Period and shall contain a confirmation from the Seller to the
effect that the relevant Permitted Obligors have received
notification of the assignment in accordance with Clause 2.5 of the
transfer of the Receivables identified in the Weekly Data Report.
The Weekly Data Report shall be in such format as agreed from time
to time between the Accounts Administrator on behalf of the
Purchaser and the Seller.
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2.6.2
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Notwithstanding Clause
2.6.1 , the Purchaser or Accounts Administrator or any Information
Agent from time to time appointed by the Accounts Administrator, on
behalf of the Purchaser, may at any time demand that the Seller
delivers documentation identifying each of the Receivables
purchased pursuant to Clause 2.2 since the preceding Calculation
Date, such documentation to be delivered as promptly as reasonably
possible upon request.
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2.7
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Delivery of Credit
Notes
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On each Calculation Date the Seller shall deliver to the Purchaser
a copy of all Credit Notes created in accordance with the Operating
Procedures since the last Calculation Date that pertain to any
Permitted Obligor in respect of whom the Purchaser has Receivables
outstanding.
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2.8
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Seller’s
receipt of payment in respect of Purchased Receivables
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In the event that, notwithstanding the notification referred to in
Clause 2.5 , the Seller receives from the Permitted Obligors any
payment in respect of Purchased Receivables, the Seller shall pay
to the Purchaser promptly following such a receipt, all such
Collections received by it in respect of the Purchased Receivables
for any Purchase Period to the account of the Purchaser as notified
by the Accounts Administrator pursuant to Clause 4.2 .
The Purchaser undertakes to pay any amount owed to the Seller with
respect to the First Purchase Instalment and the Second Purchase
Instalment to bank account number as set out below with Nordea Bank
AB (publ) or as otherwise agreed from time to time between the
Accounts Administrator, on behalf of the Purchaser, and the
Seller.
Bank:
Nordea Bank AB (publ)
Box 126
711
23 Lindesberg
Account
No: 4085 13 00835
Swift address: NDEASESS
IBAN
* 1
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2.10
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Receivables for
Collection
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The Purchaser undertakes to collect Receivables not purchased
pursuant to Clause 2.2 as more particularly set out in Part 4 of
Schedule 2.
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3.
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CONDITIONS PRECEDENT
TO INITIAL PURCHASE
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Completion of the transfer and acquisition of the Receivables
intended to be sold on the first Purchase Date is subject to the
following conditions precedent:
(a) each of
the Transaction Documents has been validly executed by all parties
thereto;
(b) the
Purchaser and the Programme Trustee have received a solvency
certificate from the Seller substantially in the form of Schedule
6; and
(c) the Purchaser
and the Programme Trustee have received in form and substance
satisfactory to each of them the English Legal Opinion, the Jersey
Legal Opinion, the Belgian Legal Opinion and the Swedish Legal
Opinion.
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4.1
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All amounts to be paid
to the Purchaser or the Seller under this Agreement shall be paid
on the day when due in immediately available/same day funds to the
relevant account and at the times specified below.
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4.2
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Any amounts payable
under this Agreement shall be remitted to the accounts notified in
writing to the Seller by the Accounts Administrator no later than
the time indicated in such notice in relation to each account.
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4.3
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All payments made by the Seller under this Agreement shall be made
without set-off, counterclaim or withholding. If the Seller is
compelled by law or otherwise to make any deduction, the Seller
shall pay any additional amount as will result in the net amount
received by the Purchaser being equal to the full amount which
would have been received had there been no deduction or
withholding.
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5.
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PERMITTED OBLIGOR
SET-OFF
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5.1
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If, in respect of any
amount due in respect of a Purchased Receivable, a Permitted
Obligor claims any right of set-off, compensation, retention or
counterclaim in respect of such Purchased Receivable with the
result that payment in respect of such Purchased Receivable or any
part thereof is not received by the Purchaser on the due date for
payment, the Seller agrees that it will, immediately upon becoming
aware of the fact, notify the Accounts Administrator. Any such
amount representing set-off, compensation, retention or
counterclaim shall be deducted from the First Purchase Instalments
paid on the next Settlement Date. In the event there are no First
Purchase Instalments due on such Settlement Date, or the amount of
such First Purchase Instalments is less than the amount
representing set-off, compensation, retention or counterclaim, the
Seller shall pay to the Purchaser an amount equal to the payment in
respect of such Purchased Receivable or the relevant part thereof
which is not received by the Purchaser. In the event the
Transaction is terminated after the exercise of such right of
set-off, compensation, retention or counterclaim and there is no
Settlement Date on which an amount under this Clause 5.1 can be
payable by the Seller, the Seller shall pay such amount to the
Purchaser on or before the date the Transaction is terminated or
promptly thereafter.
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5.2
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For the avoidance of
doubt no deduction from the First Purchase Instalment or other
payment to the Seller shall be made pursuant to Clause 5.1 to the
extent that deduction or payment in respect of the same amounts
arising from the same matter or circumstance has previously been
made under any other provision of this Agreement.
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6.
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REPRESENTATIONS,
WARRANTIES AND UNDERTAKINGS
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6.1
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Warranties relating
to the Seller
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As at each Purchase Date, the Seller shall make the representations
and warranties to the Purchaser and the Programme Trustee in the
terms set out in Part 1 of Schedule 3 in relation to the Seller and
with reference to the facts and circumstances subsisting on such
Purchase Date.
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6.2
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Warranties relating
to Purchased Receivables
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As at each Purchase Date, the Seller shall make the representations
and warranties severally to the Purchaser and the Programme Trustee
in the terms set out in Part 2 of Schedule 3 with respect to the
Receivables to be sold by it and purchased by the Purchaser on such
Purchase Date with reference to the facts and circumstances
subsisting on such Purchase Date.
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6.3
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Obligation to notify
in case of incorrect representations, etc.
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The Seller shall forthwith notify the Purchaser if any of the
representations and warranties referred to in this Clause 6 were
incorrect when made promptly upon becoming aware thereof.
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6.4
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Covenants and
undertakings
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The Seller covenants and undertakes with and to the Purchaser and
the Programme Trustee as follows:
(a)
Indemnity against claims: neither the Purchaser nor the
Programme Trustee shall have any obligation or liability with
respect to any Purchased Receivables or Receivables for Collection
(if any) nor will the Purchaser or the Programme Trustee be
required to perform any of the obligations of the Seller (or any of
its agents) under any such contracts save, in each case, as
specifically provided in this Agreement. The Seller will on demand
indemnify and keep indemnified the Purchaser and the Programme
Trustee against any cost, claim, loss (for the avoidance of doubt
not including credit losses in respect of Defaulted Receivables),
expense, liability or damages (including legal costs and
out-of-pocket expenses) (save to the extent that such cost, claim,
loss, expense, liability or damage shall not have arisen as a
consequence of any breach of this Agreement by, or as a result of
the wilful misconduct or negligence of the Purchaser and/or as a
result of any wilful default or negligence of the Prog
