2.14 Indemnity for reserves and expenses
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Indemnified Party (except any such reserve requirement reflected in the Adjusted Eurocurrency Rate); or
(ii) impose on any Indemnified Party (or on the U.S. market for certificates of deposit or the London interbank market) any other condition or expense affecting or with respect to this Agreement, any Program Support Agreement or any other Transaction Document or Eurocurrency Tranches made or maintained by such Indemnified Party (except those for which payment has been made pursuant to Section 2.15 (Indemnity for Taxes)) or the maintenance or financing of the Investments hereunder, directly or indirectly, or under any Program Support Agreement;
and the result of any of the foregoing shall be to increase the cost to such Indemnified Party of making or maintaining any Tranche (or of maintaining its obligation to fund any such Tranche or its obligations under any Program Support Agreement) by an amount that such Indemnified Party deems to be material or to reduce the amount of any sum received or receivable by such Indemnified Party hereunder (whether of principal, yield or otherwise), then on the tenth (10th) day immediately following notification thereof pursuant to Section 2.14(d) the Seller will pay to such Indemnified Party such additional amount or amounts as will compensate such Indemnified Party for such additional costs incurred or reduction suffered. Notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines, requirements, regulations and legislation and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by the United States, the European Union or foreign regulatory authorities, in each case pursuant to Basel III and (ii) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines and directives promulgated thereunder, are deemed to have been introduced or adopted after the Amendment and Restatement Effective Date, regardless of the date enacted or adopted.
(b) If any Indemnified Party determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Indemnified Party’s capital or on the capital of such Indemnified Party’s holding company, if any, as a consequence of this Agreement, any Program Support Agreement or the Investments made or acquired by such Indemnified Party, to a level below that which such Indemnified Party or holding company could have achieved but for such Change in Law (taking into consideration such Indemnified Party’s policies and the policies of such Indemnified Party’s holding company with respect to capital adequacy) by an amount that such Indemnified Party deems to be material, then on the tenth (10th) day immediately following notification thereof pursuant to Section 2.14(d) the Seller will pay to such Indemnified Party such additional amount or amounts as will compensate such Indemnified Party or such Indemnified Party’s holding company for any such reduction suffered; provided, that the Seller
shall not be required to compensate an Indemnified Party pursuant to this paragraph for any amounts incurred more than six months prior to the date that such Indemnified Party notifies the Seller and the Master Servicer of such Indemnified Party’s intention to claim compensation therefor; and provided, further, that, if the circumstances giving rise to such claim have a retroactive effect, then such six-month period shall be extended to include the period of such retroactive effect.
(c) A certificate of an Indemnified Party setting forth the amount or amounts necessary to compensate such Indemnified Party or its holding company, as applicable, as specified in clause (a) or (b) of this Section 2.14 shall be delivered to the Seller and the Master Servicer and shall be conclusive absent manifest error.
(d) Promptly after any Indemnified Party has determined that it will make a request for compensation pursuant to this Section 2.14, such Indemnified Party shall notify the Seller and the Master Servicer of such determination. Except as otherwise provided in clause (b) of this Section 2.14, failure or delay on the part of any Indemnified Party to demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Indemnified Party’s right to demand such compensation.
(e) Notwithstanding anything in this Section 2.14 to the contrary, the Seller shall not be required to pay to any Indemnified Party any amount pursuant to this Section 2.14 to the extent (i) such amount has been fully and finally paid in cash to such Indemnified Party pursuant to any other provision of this Agreement or any other Transaction Document or (ii) such amounts constitute Excluded Taxes.
2.15 Indemnity for Taxes
(a) Any and all payments by or on account of any obligation of the Seller hereunder shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that if the Seller shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.15) the recipient of such payment receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Seller shall make such deductions, and (iii) the Seller shall pay the full amount deducted to the relevant Official Body in accordance with applicable Law.
(b) In addition, the Seller shall pay any Other Taxes to the relevant Official Body in accordance with applicable Law.
(c) The Seller shall indemnify each Indemnified Party within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by such Indemnified Party on or with respect to the sale,
assignment and transfer of the Portfolio Receivables under this Agreement, any Investment and any payment by or on account of any obligation of the Seller hereunder or where payment of any Indemnified Taxes or Other Taxes is otherwise made by an Indemnified Party pursuant to or in connection with this Agreement (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.15) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Official Body (other than those resulting from the Indemnified Party’s gross negligence, fraud or wilful misconduct). A certificate (along with a copy of the applicable documents from the relevant Official Body) as to the amount of such payment or liability delivered to the Seller by an Indemnified Party, or by the Administrative Agent on its own behalf, on behalf of another Agent or on behalf of a Purchaser, shall be conclusive absent manifest error. In connection with any request for compensation pursuant to this Section 2.15(c), the relevant Indemnified Party shall deliver to the Master Servicer a receipt (or other evidence reasonably satisfactory to the Master Servicer) of such payment or liability with respect to which such request relates.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Seller to an Official Body, the Seller shall deliver to the related Purchaser Agent the original or a certified copy of a receipt issued by such Official Body evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to such Purchaser Agent. Simultaneously with the delivery to a Purchaser Agent of any receipt, return or other evidence pursuant to this Section 2.15(d), the Seller shall deliver a copy of the same to the Master Servicer.
(e) (i) Upon the reasonable request of the Seller, any Foreign Purchaser that is entitled to an exemption from or reduction of withholding Tax under the law of the jurisdiction in which the Seller is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Seller (with a copy to the Administrative Agent), such properly completed and executed documentation prescribed by applicable Law (and, so far is practicable, within the time or times required by applicable Law) as will permit such payments to be made without withholding or at a reduced rate; provided, that such Foreign Purchaser is legally able to complete, execute and deliver such documentation and such documentation has not already been provided by the Foreign Purchaser pursuant to Section 2.15(e)(ii) hereof.
(ii) Each Purchaser shall deliver to the Seller (with a copy to the Administrative Agent) either (A) in the case of a Purchaser that is not a “U.S. Person” as defined in section 7701(a)(30) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), a properly completed and executed Internal Revenue Service (“IRS”) Form W-8BEN or W-8ECI, as appropriate, claiming to the effect a zero
percent rate of U.S. federal income tax withholding on interest income, or (B) in the case of a Purchaser that is a “U.S. Person” as defined in Code section 7701(a)(30), a properly completed and executed IRS Form W-9 certifying that it is not subject to backup withholding.
Such IRS forms shall be delivered by each applicable Purchaser on or prior to the date on which such Purchaser becomes a Purchaser under this Agreement. In addition, each Purchaser shall deliver such applicable IRS forms no later than the end of the third calendar year following the year in which the most recently submitted IRS forms were delivered and upon the obsolescence or invalidity of any previously delivered IRS form resulting from a related change in factual circumstances of Purchaser; provided, however, that notwithstanding any other provision in this Section 2.15(e), a Purchaser shall not be required to deliver any such subsequent IRS form pursuant to this paragraph that such Purchaser is not legally able to complete, execute and deliver.
(f) If an Indemnified Party determines, in its sole good faith discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Seller or with respect to which the Seller has paid additional amounts pursuant to this Section 2.15, it shall pay over such refund to the Seller (but only to the extent of indemnity payments made, or additional amounts paid, by the Seller under this Section 2.15 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of such Indemnified Party and without interest (other than any interest paid by the relevant Official Body with respect to such refund net of any applicable Taxes payable in respect of such interest); provided that the Seller, upon the request of such Indemnified Party, agrees to repay the amount paid over to the Seller (plus any penalties, interest or other charges imposed by the relevant Official Body) to such Indemnified Party in the event such Indemnified Party is required to repay such refund to such Official Body. This Section 2.15 shall not be construed to require any Indemnified Party to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Seller or any other Person.
(g) Notwithstanding anything in this Section 2.15 to the contrary, the Seller shall not be required to pay to any Indemnified Party any amount pursuant to this Section 2.15 to the extent (i) such amount has been fully and finally paid in cash to such Indemnified Party pursuant to any other provision of this Agreement or any other Transaction Document or (ii) such amounts constitute Excluded Taxes.
(h) Each Purchaser shall, at such times as the Administrative Agent may request, take reasonable steps to obtain and deliver to the Administrative Agent a valid certificate issued by the appropriate taxation authority in that Purchaser’s jurisdiction of incorporation certifying that Purchaser is resident for taxation purposes in that jurisdiction (including certification of residence, where applicable, for the purposes of a double taxation treaty).
(i) Each of the Seller, the Administrative Agent and each Purchaser shall provide a certified copy of a certificate of tax residence to the Master Servicer from their respective jurisdictions at closing and on an annual basis thereafter.
2.16 Conversion of currencies
(a) If, on any day a payment is due and payable hereunder or under any other Transaction Document, it is necessary for funds in one currency to be converted into another currency in order to make any payment required to be made pursuant to Sections 2.6 (Collections prior to Facility Termination Date) or 2.7 (Collections after Facility Termination Date), as applicable, the Seller shall (and shall cause the Master Servicer to) solicit offer quotations from at least two foreign exchange dealers reasonably acceptable to the Administrative Agent for effecting such exchange and shall select the quotation which provides for the best exchange rate. The Seller shall (and shall cause the Master Servicer to) effect such exchange (or, if applicable, shall instruct the Administrative Agent to effect such exchange) as soon thereafter as is reasonably practicable but in no event later than two Business Days thereafter.
(b) On each Exchange Rate Determination Date, the Seller shall (and shall cause the Master Servicer to) determine the Spot Rate for each Local Currency (based on the relevant exchange rate appearing on any Reuters World Currency Page or applicable Bloomberg BGN FX Page for such currency as set forth in the definition of Spot Rate) and give notice thereof to the Administrative Agent. In the event the Spot Rate for such Local Currency cannot be determined by the Master Servicer because the relevant exchange rate does not appear on any Reuters World Currency Page or applicable Bloomberg BGN FX Page for such currency as set forth in the definition of Spot Rate, then the Spot Rate shall be determined by the Administrative Agent and notified to the Seller and the Master Servicer in accordance with such definition.
(c) Whenever any computation or calculation hereunder requires the aggregation of amounts denominated in more than one currency, all amounts that are denominated in a Local Currency shall be converted to Dollars using the Spot Rate determined for the Exchange Rate Determination Date immediately preceding the date of such calculation.
2.17 [Reserved]
2.18 Mitigation obligations
If an event occurs as a result of which any Indemnified Party requests compensation under Section 2.11 (Breakage costs) or Section 2.14 (Indemnity for reserves and expenses), or if any cancellation occurs under Section 2.12 (Illegality) or if the Seller is required to pay any additional amount to any Indemnified Party or any Official Body for the account of any Indemnified Party pursuant to Section 2.15 (Indemnity for Taxes), then such Indemnified Party shall notify the Seller of such event and, subject to the prior written consent of the Performance Undertaking Provider (such
consent not to be unreasonably withheld), use reasonable efforts to mitigate or avoid the effects of such event, if, in the reasonable judgment of such Indemnified Party, such efforts (a) would eliminate or reduce the amounts payable pursuant to such Sections in the future and (b) would not subject such Indemnified Party or any of its Affiliates to any unreimbursed cost or expense (taking into account any reimbursement made by any Transaction Party pursuant to a Transaction Document) and would not (in the reasonable opinion of such Indemnified Party) otherwise be disadvantageous to such Indemnified Party or any of its Affiliates. For the avoidance of doubt, the Seller hereby agrees to pay all reasonable costs and expenses incurred by any Indemnified Party in connection with any action taken by such Indemnified Party pursuant to, or in connection with, this Section 2.18.
2.19 Proceeds of Subordinated Loans
(a) On the Initial Purchase Date, the Seller shall request a Subordinated Loan in an amount equal to the excess of (i) the aggregate Unpaid Balance of the Receivables to be purchased by the Seller pursuant to the Originator Sale Agreements and the Intermediate Transfer Agreements, over (ii) the aggregate cash payment made by the Purchasers to the Seller on the Initial Purchase Date in respect of such Receivables. On any date of purchase of Receivables by the Seller, if the Seller does not have sufficient available funds to pay the full Purchase Price thereof and the Deferred RPA Purchase Price amounts with respect to the related Originator would exceed an amount equal to 10% of the Unpaid Balance of Portfolio Receivables that qualify as Eligible Receivables set forth in the most recently delivered Portfolio Report with respect to such Originator, the Seller shall request a Subordinated Loan in the amount of any shortfall if the Seller does not otherwise have sufficient funds available for such purpose; provided, that so long as the Applicable S&P Rating is not below “BBB-” (or withdrawn or suspended) and the Applicable Moody’s Rating is not below “Baa3” (or withdrawn or suspended), then the determination as to whether the Deferred RPA Purchase Price amounts with respect to each Originator would exceed such 10% threshold may be made on a weekly basis (rather than daily in any other circumstance) on the fourth Business Day (or, if such calendar week has less than 4 Business Days, on the last Business Day) of such calendar week and any such determination shall remain in effect until the immediately succeeding date of determination.
(b) If (i) on any day, the Seller has insufficient funds to pay the full Purchase Price of Receivables to be purchased on such day pursuant to, and in accordance with the terms and conditions of, the Originator Sale Agreements and the Intermediate Transfer Agreements or (ii) on any Settlement Date, the Seller has insufficient funds to pay amounts payable on such Settlement Date pursuant to Section 2.6(f)(i) through (iii) or 2.7(b)(i) through (iii) (solely for the first Settlement Date on which amounts are distributed pursuant to Section 2.7 and not to exceed the amount applied to the Purchase Price of Receivables during the related Calculation Period), as applicable, the Seller shall request a Subordinated Loan on such day in amount equal to such insufficiency.
2.20 Extension of Scheduled Commitment Facility Termination Date
(a) In connection with each anniversary of the Amendment and Restatement Effective Date (the “Applicable Anniversary Date”), the Seller (or the Master Servicer on its behalf) may advise the Administrative Agent and each Purchaser Agent in writing of its desire to extend the Scheduled Commitment Facility Termination Date to a date falling twelve (12), twenty-four (24) or thirty-six (36) calendar months after such Applicable Anniversary Date, provided (i) such request is made not more than ninety (90) days prior to, and not less than sixty (60) days prior to, the Applicable Anniversary Date and (ii) the Scheduled Commitment Facility Termination Date may not extend beyond the Final Termination Date without the consent of each Purchaser Agent. Each Purchaser Agent shall promptly notify each Purchaser in its related Purchaser Group of any such request and each such Purchaser shall notify its related Purchaser Agent, the Administrative Agent, the Master Servicer and the Seller of its decision to accept or decline the request for such extension no later than thirty (30) days prior to the then Applicable Anniversary Date (it being understood that each Purchaser may accept or decline such request in its sole discretion and on such terms as it may elect, and the failure to so notify its Purchaser Agent, the Administrative Agent, the Master Servicer and the Seller shall be deemed an election not to extend by such Purchaser). In the event that all Committed Purchasers agree to extend the then current Scheduled Commitment Facility Termination Date, the Seller, the Administrative Agent, the Purchasers and the applicable Purchaser Agents shall enter into such documents as such Purchasers may deem necessary or appropriate to reflect such extension, and any costs and expenses incurred in connection with such documents shall be paid as agreed in writing among such Purchasers, the Purchaser Agents and the Administrative Agent (including attorneys’ fees), the Seller and the Master Servicer.
(b) No Committed Purchaser shall be obligated to agree to extend the Scheduled Commitment Facility Termination Date. If any Committed Purchaser does not agree to extend, the Seller may (i) require such Committed Purchaser and its related Conduit Purchaser to assign its interest hereunder to an Eligible Assignee identified by the Seller (or the Master Servicer on its behalf) or (ii) if no Facility Event or Portfolio Event has occurred and is continuing, apply Collections to repay in full (to the extent not assigned in clause (i)) the Investment, Yield and other amounts owing to such Committed Purchaser and related Conduit Purchaser on a non-pro rata basis and terminate in full any unassigned commitment of such Committed Purchaser.
2.21 Accordion Increase
(a) Notwithstanding anything to the contrary contained in this Agreement, the Seller (or the Master Servicer on its behalf) may request from time to time an increase in the Aggregate Commitment (each, an “Accordion Increase”) in an aggregate amount which when aggregated with the amount of all other Accordion Increases does not exceed $200,000,000 (the “Additional Commitments”).
(b) Subject to and in accordance with Section 2.21(a), the Seller (or the Master Servicer on its behalf) may invite (i) any one or more Committed Purchasers to provide Additional Commitments in such amount as may be agreed by the Seller and such Committed Purchaser (each such Committed Purchaser that is invited and wishes to provide Additional Commitments, an “Accordion Committed Purchaser,”) and/or (ii) in consultation with the Administrative Agent, any one or more banks or other entities that have a short-term debt rating of at least A-1 by S&P and P-1 by Moody’s (unless agreed by the Administrative Agent that such minimum rating is not applicable) (each, a “New Accordion Committed Purchaser”) to provide Additional Commitments in such amounts as may be agreed by the Seller and such New Accordion Committed Purchaser.
(c) For the avoidance of doubt, no Committed Purchaser shall (unless otherwise agreed by that Committed Purchaser) be obliged to provide any Additional Commitment.
(d) The Seller shall, promptly following agreement with the Accordion Committed Purchasers and New Accordion Committed Purchasers and in any event not later than forty-five (45) Business Days (or such other period as the Administrative Agent after consultation with the Accordion Committed Purchasers and New Accordion Committed Purchasers, as applicable, and the Seller (or the Master Servicer on its behalf) may agree) prior to the proposed date of the Accordion Increase, deliver to the Administrative Agent a notice (an “Accordion Request”) signed by a Responsible Officer of the Seller (or the Master Servicer on its behalf) which shall specify: (i) the aggregate amount of the proposed Additional Commitments, (ii) the proposed date of the Accordion Increase which shall be a Settlement Date (the “Accordion Increase Date”), (iii) the identity of, and the amount of the proposed Additional Commitment of, each Accordion Committed Purchaser and each New Accordion Committed Purchaser that wishes to provide an Additional Commitment and (iv) any fees relating to the Accordion Increase. Following the receipt by the Administrative Agent of the Accordion Request, the Administrative Agent shall promptly forward a copy to each Purchaser Agent for informational purposes.
(e) An Accordion Increase will only become effective if, on the date of the Accordion Request and the proposed Accordion Increase Date, the Facility Termination Date has not occurred and no event exists or would result from the proposed Accordion Increase that constitutes a Facility Event or Portfolio Event.
(f) Subject to the conditions in this Section 2.21 (Accordion Increase), an Accordion Increase will become effective in accordance with paragraph (g) below when the Administrative Agent executes an otherwise duly completed Accordion Increase Certificate delivered to it by the Seller (or the Master Servicer on its behalf) and the Additional Commitment Purchasers, if applicable, and any New Accordion Committed Purchaser and the Conduit Purchasers and Purchaser Agent in its new Purchaser Group shall have
executed a Joinder Agreement in accordance with Section 11.3(i) (New Purchaser Groups). The Administrative Agent shall as soon as reasonably practicable after receipt by it of a duly completed Accordion Increase Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute the Accordion Increase Certificate. The Administrative Agent shall only be obliged to execute an Accordion Increase Certificate delivered to it by the Seller (or the Master Servicer on its behalf) and the Additional Commitment Purchasers once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to each New Accordion Committed Purchaser.
(g) On the Accordion Increase Date, the amount of the Additional Commitment of each Additional Commitment Purchaser will be as set out in the relevant column opposite its name in the Accordion Increase Certificate. Notwithstanding any provision to the contrary in this Agreement, on and after any Accordion Increase Date, any Incremental Investment made by the Conduit Purchasers and the Committed Purchasers, and any Invested Amount repaid to the Conduit Purchasers and the Committed Purchasers, shall be made or repaid on a non-pro rata basis until each Purchaser Group’s Invested Amount (after giving effect to such Incremental Investment) is the same percentage of such Purchaser Group’s Commitment as every other Purchaser Group.
(h) The Seller shall promptly on demand pay the Administrative Agent and the Purchaser Agents the amount of all costs and expenses (including legal fees) reasonably incurred by them in connection with any increase in Commitments under this Section 2.21.
(i) Any amounts payable to the Purchasers by any Transaction Party on or before the Accordion Increase Date (including, without limitation, all interest, fees and commission payable up to (but excluding) the Accordion Increase Date) in respect of any period ending on or prior to the Accordion Increase Date shall be for the amount of the Purchasers party to this Agreement prior to the Accordion Increase Date and no Additional Commitment Purchaser shall have any interest in, or any rights in respect of, any such amount (save in respect of their Commitments up to (but excluding) the Accordion Increase Date).
(j) Each New Accordion Committed Purchaser, by executing the relevant Accordion Increase Certificate confirms, for the avoidance of doubt, that the Administrative Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Purchasers in accordance with this Agreement on or prior to the date on which the Accordion Increase Certificate becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Purchasers.
3. CONDITIONS OF PURCHASES
3.1 Conditions precedent to initial Incremental Investment
The effectiveness of the Commitments and the initial Incremental Investment under this Agreement is each subject to the conditions precedent that:
(a) to the extent required by the program documents governing any Conduit Purchaser’s Commercial Paper Program or Commercial Paper Program of any conduit refinancing directly or indirectly a Committed Purchaser, each Rating Agency shall have confirmed that the execution and delivery of this Agreement by such Conduit Purchaser will not result in the reduction or withdrawal of the then-current ratings of such Conduit Purchaser’s Commercial Paper below A-1 by S&P and P-1 by Moody’s;
(b) the results of a review and audit of the collection, operating and reporting systems, Credit and Collection Policies and historical receivables information which accounts for 70% of the Originators’ portfolio are reasonably satisfactory to the Administrative Agent and the Purchaser Agents and a satisfactory written agreed upon procedures report as to such matters is delivered by a Person satisfactory to the Administrative Agent and the Purchaser Agents on or before the Closing Date;
(c) consummation of the transactions contemplated herein shall have occurred or shall occur simultaneously with the initial purchase by the Seller Parties under the applicable Originator Sale Agreements; and
(d) the Administrative Agent and each Purchaser Agent shall have received on or before the date of such Incremental Investment all of the instruments, documents, agreements, certificates and opinions specified on Schedule 4 (Condition Precedent Documents), each (unless otherwise indicated) dated on or about the Closing Date, in form and substance reasonably satisfactory to the Administrative Agent and each Purchaser Agent.
3.2 Conditions precedent to all Incremental Investments, Reinvestments and Releases
Each Incremental Investment (including the initial Incremental Investment), each Reinvestment and each Release hereunder shall be subject to the further conditions precedent that on the date of such Incremental Investment, Reinvestment or Release the following statements shall be true (and acceptance of the proceeds of any such Incremental Investment, Reinvestment or Release shall be deemed a representation and warranty by the Seller that such statements are then true by reference to the facts and circumstances existing on the date of such Incremental Investment, Reinvestment or Release):
(i) In the case of an Incremental Investment, the making of such Incremental Investment does not violate any provisions of Section 2.1 (The Purchases);
(ii) In the case of an Incremental Investment, Reinvestment or Release, the Seller has delivered an Investment Request, appropriately completed, within the time period required by Section 2.2 (Purchase procedures);
(iii) In the case of any Investment, Reinvestment or Release, (i) the Master Servicer has delivered the Monthly Report for the most recent Calculation Period in accordance with the Servicing Agreement and (ii) to the extent Weekly Reports are then required to be delivered pursuant to Section 2.3 (Reporting requirements) of the Servicing Agreement, the Master Servicer shall have delivered a Weekly Report pursuant to and in accordance with such Section on the date of such Investment, Reinvestment or Release;
(iv) The Facility Termination Date has not occurred and, in the case of Incremental Investments, no event exists, or would result from such Incremental Investment, that constitutes a Facility Event or Portfolio Event;
(v) All Fees required to be paid on or prior to the date of such Incremental Investment, Reinvestment or Release in accordance with the Fee Letters and all fees and expenses described in Section 11.4 (Costs and expenses) to the extent then due and payable shall have been paid in full in accordance with the terms thereof;
(vi) No portion of the proceeds of such Incremental Investment, Reinvestment or Release will be used by the Seller to pay the purchase price for any Receivable that was originated by an Originator with respect to which a Seller Termination Event has occurred and is continuing;
(vii) After giving effect to such Incremental Investment, Reinvestment or Release and the use of the proceeds thereof in accordance with Section 2.3 (Use of proceeds) the Aggregate Invested Amount does not exceed the lesser of (I) the Facility Limit and (II) the Funding Base; and
(viii) Any Subordinated Loan requested on the date of such Incremental Investment, Reinvestment or Release shall have been (or shall simultaneously with such Incremental Investment, Reinvestment or Release be) made by a Subordinated Lender.
4. REPRESENTATIONS AND WARRANTIES
4.1 Representations and warranties of the Seller
The Seller hereby represents and warrants to the Agents and the Purchasers that, on the Closing Date and as of the date of each Investment, each Reinvestment and each Release hereunder and as of each Reporting Date:
(a) It (i) is a private limited liability company duly organized and validly existing under the laws of its jurisdiction of organization, (ii) is duly qualified to do
business in every other jurisdiction where the nature of its business requires it to be so qualified, unless the failure to so qualify would not have a Material Adverse Effect, and (iii) has all corporate or other organizational power and authority required to perform its obligations under the Transaction Documents to which it is a party and to carry on its business in each jurisdiction in which its business is now conducted unless the failure to have such power and authority would not have a Material Adverse Effect.
(b) The execution, delivery and performance by it of this Agreement and any other Transaction Document to which it is a party, including the Seller’s use of the proceeds of Investments (i) are within its corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) are in its interest and it will receive a corporate benefit as a result of the transactions contemplated hereby and thereby and the value of the consideration obtained by it under the transactions contemplated hereby and thereby constitutes fair market value, (iv) do not contravene or constitute a default under (A) its Organizational Documents, (B) any applicable Law, (C) any contractual restriction binding on or affecting it or its property or (D) any order, writ, judgment, award, injunction or decree binding on or affecting it or its property except in each case where any such contravention or default would not have a Material Adverse Effect and (v) do not result in or require the creation or imposition of any Adverse Claim (other than Permitted Adverse Claims) upon or with respect to any of its properties. Each Transaction Document to which the Seller is a party has been duly executed and delivered by the Seller.
(c) No authorization, approval, license, consent, qualification or other action by, and no notice to or filing or registration with, any Official Body or official thereof or any third party is required for the due execution, delivery and performance by it of this Agreement or any other Transaction Documents to which it is a party or any other document to be delivered by it hereunder or thereunder, except for the actions taken or referred to in Schedule 4 (Conditions precedent documents) all of which have been duly made or taken, as the case may be, and are in full force and effect and except 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 a Material Adverse Effect.
(d) Each of this Agreement and the other Transaction Documents to which it is a party constitutes the legal, valid and binding obligation of the Seller enforceable against it in accordance with its terms, subject to any limitation on the enforceability thereof against the Seller arising from the application of any applicable Insolvency Law or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(e) There are no actions, suits, investigations by an Official Body, litigation or proceedings at law or in equity or by or before any Official Body or in arbitration now pending against or affecting the Seller or its Subsidiaries or any of its businesses, properties or revenues (i) which involve or question the validity of this Agreement or any other Transaction Document to which it is a party or any of the transactions contemplated hereby or thereby (excluding any
litigation or proceeding against any Obligor) or (ii) which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. The Seller is not in default or violation of any order, judgment or decree of any Official Body or arbitrator which could reasonably be expected to have a Material Adverse Effect.
(f) No event has occurred and is continuing, or would result from any Investment or application of the proceeds therefrom, which constitutes a Facility Event or Portfolio Event which has not been (i) notified to the relevant parties pursuant to, and in accordance with, the Transaction Documents or (ii) remedied or waived, in each case, in accordance with the Transaction Documents.
(g) No proceeds of any Investment will be used to purchase or carry, or to extend credit to others for the purpose of purchasing or carrying, “margin stock” within the meaning of Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time.
(h) Each Receivable treated as or represented to be a Portfolio Receivable is owned by the Seller, free and clear of any Adverse Claim (other than Permitted Adverse Claims). The Administrative Agent, for the benefit of the Secured Parties, has a valid and perfected first priority charge, security interest or pledge, ranking ahead of any other charge, security interest or pledge and the interest of any other creditor of any Transaction Party (other than Permitted Adverse Claims) in the Seller Operating Accounts and all other Collateral, in each case, free and clear of any Adverse Claim (other than Permitted Adverse Claims). No effective financing statement or other instrument similar in effect is filed in any recording office listing any Transaction Party as debtor, covering any Receivable, Related Security or other Collateral, or any interest therein or proceeds thereof, other than in respect of a Permitted Adverse Claim.
(i) (i) Each Portfolio Report and Outstanding Receivables Report is complete and accurate in all material respects as of its date, (ii) all other information, data, exhibits, documents, books, records and reports (“Information”) furnished by or on behalf of the Seller in connection with this Agreement, any other Transaction Document or any transaction contemplated hereby or thereby is complete and accurate in all material respects as of its date and no such Information contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not materially misleading; provided, that, with respect to projected financial information provided by or on behalf of the Seller, the Seller represents only that such information was prepared in good faith by management of the Seller on the basis of assumptions believed by such management to be reasonable as of the time made, and (iii) all financial statements which have been furnished by or on behalf of the Seller (A) have been prepared in accordance with GAAP consistently applied (except as approved by the external auditors and as disclosed therein, if any) and (B) fairly present, in all material aspects, the financial condition of the Seller and, if applicable, its consolidated
Subsidiaries as of the dates set forth therein and the results of any operations of the Seller for the periods ended on such dates.
(j) It has (i) timely filed or caused to be filed all material Tax returns required to be filed and (ii) paid or made adequate provision for the payment of all material Taxes, assessments and other governmental charges due and payable by it, except any such Taxes, assessments or other governmental charges that are being contested in good faith by appropriate proceedings and for which the Seller has set aside in its books and records reserves in accordance with GAAP as reasonably determined by the Seller.
(k) The Seller has its registered office, its center of main interests and its principal place of business in the Netherlands. The Seller has no other place of business in any other jurisdiction.
(l) (i) The names and addresses of all the Seller Operating Account Banks together with the account numbers of the Seller Operating Accounts at such Seller Operating Account Banks are as specified in Schedule 5 (Facility Accounts and Account Banks), as such Schedule 5 (Facility Accounts and Account Banks) may be updated from time to time pursuant to Section 5.1(g) (Change in payment instructions to Obligors). (ii) Only Collections and other amounts payable in respect of Portfolio Receivables are deposited into the Seller Operating Accounts.
(m) Since its formation, the Seller has not used any company name, tradename or doing-business-as name other than the name in which it has executed this Agreement.
(n) The Seller was formed on March 9, 2011 under the Laws of the Netherlands and the Seller did not engage in any business activities prior to such date. The Seller has no Subsidiaries.
(o) The Seller is not (i) a "covered fund" under the Volcker Rule or (ii) an "investment company," or a company "controlled" by an "investment company," within the meaning of the Investment Company Act of 1940. In determining that the Seller is not an investment company, the Seller is relying on the exemption from the definition of "investment company" set forth in Section 3(c)(5) of the Investment Company Act of 1940.
(p) The Seller is Solvent.
(q) With respect to each Receivable treated as or represented to be a Portfolio Receivable, the applicable Seller Party purchased such Receivable from the applicable Originator in accordance with the terms of the applicable Originator Sale Agreement in exchange for payment (made by the applicable Seller Party to such Originator in accordance with the provisions of the applicable Originator Sale Agreement) of cash, in an amount which constituted fair market value. Each such purchase referred to above shall not have been made for or on account of an antecedent debt owed by the applicable Originator to the applicable Seller Party, or by any Intermediate Transfer to the Seller, as the
case may be, and no such sale, acquisition or other transaction is or may be voidable or subject to avoidance under any section of any applicable Insolvency Law or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(r) The Seller has no operations or employees in the U.S.
(s) Each of the representation and warranties of the Seller contained in the Transaction Documents (other than this Agreement), is complete and correct in all material respects and the Seller hereby makes each such representation and warranty to, and for the benefit of, the Administrative Agent and the Secured Parties as if the same were set forth in full herein.
(t) There have been no material changes to the Credit and Collection Policies since the Closing Date which have not been (i) notified to the Agents pursuant to, and in accordance with, the Transaction Documents or (ii) permitted in accordance with the Transaction Documents.
(u) It is not required to account to any Official Body for any value added or other substantially similar Tax in respect of the assignment by it of any Receivable or any Related Security related thereto and no withholding or other Tax is deductible or payable on any payment made by an Obligor with respect to any Receivable or any Related Security related thereto.
(v) The Seller is, to the extent applicable, in compliance with Sanctions.
(w) The Seller is not, and no director or senior officer of the Seller is, any of the following:
(i) a Restricted Person;
(ii) a Person owned 50% or more or controlled by, or acting on behalf of, any Restricted Person; or
(iii) a Person that commits, threatens or conspires to commit or support “terrorism” as defined in the Executive Order.
4.2 Representations of the Performance Undertaking Provider
The Performance Undertaking Provider hereby represents and warrants to the Agents and the Purchasers that, on the date of the Closing Date and as of the date of each Investment, each Reinvestment and each Release hereunder and as of each Reporting Date:
(a) To the best of the knowledge of the Responsible Officers of the Performance Undertaking Provider, the Performance Undertaking Provider and its Subsidiaries are, to the extent applicable, in compliance in all material respects with Sanctions.
(b) To the best of the knowledge of the Responsible Officers of the Performance Undertaking Provider, the Performance Undertaking Provider is not, and no Subsidiary and no director or senior officer of the Performance Undertaking Provider or any Subsidiary, is any of the following:
(i) a Restricted Party;
(ii) a Person owned 50% or more or controlled by, or acting on behalf of, any Restricted Party; or
(iii) a Person that commits, threatens or conspires to commit or support “terrorism” as defined in the Executive Order.
(c) The Performance Undertaking Provider has implemented and maintains in effect policies and procedures designed to promote compliance by the Performance Undertaking Provider, its Subsidiaries and their respective directors, officers and employees with applicable Anti-Corruption Laws and Sanctions.
4.3 Representations and warranties of the Master Servicer
The Master Servicer hereby represents and warrants to the Agents and the Purchasers that, on the date of the Closing Date and as of the date of each Investment, each Reinvestment and each Release hereunder and as of each Reporting Date:
(a) The Master Servicer is, to the extent applicable, in compliance with Sanctions.
(b) The Master Servicer is not, and no director or senior officer of the Master Servicer is, any of the following:
(i) a Restricted Person;
(ii) a Person owned 50% or more or controlled by, or acting on behalf of, any Restricted Person; or
(iii) a Person that commits, threatens or conspires to commit or support “terrorism” as defined in the Executive Order.
4.4 Representations and warranties of the Seller and the Retention Holder
Each of the Seller and the Retention Holder hereby represents and warrants to the Agents and the Purchasers that as of each Reporting Date:
(a) In the case of the Retention Holder, it, itself or through the Originators, directly or indirectly, was involved in the original agreements which created the obligations of the Obligors giving rise to the Portfolio Receivables, by virtue of, inter alia, its supervision of the Originators and its approval of the Credit and Collection Policies, such that it is an "originator" of each of the Portfolio Receivables for the purposes of the Securitisation Regulation;
(b) In the case of the Retention Holder, it was not established for, and does not operate for, the sole purpose of securitising exposures and (i) it has a business strategy and the capacity to meet payment obligations consistent with a broader business enterprise and involving material support from capital, assets, fees or other income available to it, relying neither on the exposures being securitized by it, nor on the Retained Interest, as well as any corresponding income from such exposures and interests and (ii) its responsible decision makers have the required experience to enable it to pursue the established business strategy, as well as an adequate corporate governance arrangement;
(c) It has not selected Receivables to be transferred to the Seller with the aim of rendering losses on those Receivables, measured over the life of the Transaction described in the Transaction Documents, higher than the losses over the same period on comparable Receivables held on its balance sheet, in accordance with Article 6(2) of the Securitisation Regulation;
(d) Each Portfolio Receivable in respect of which any amount is outstanding as at the Amendment and Restatement Effective Date was an Eligible Receivable (for the avoidance of doubt as defined in this Agreement as amended and restated on the Amendment and Restatement Effective Date as of the relevant Purchase Date);
(e) The Seller’s rights and obligations under the Transaction Documents to sell Receivables and/or repurchase Portfolio Receivables do not constitute active portfolio management for purposes of Article 24(7) of the Securitisation Regulation;
(f) Each of the Portfolio Receivables is:
(i) not a securitisation position, as defined in Article 2(19) of the Securitisation Regulation;
(ii) at the time at which it is or was (as applicable) sold to the Seller under the applicable Originator Sale Agreement:
(A) not an exposure in default within the meaning of Article 178(1) of Regulation (EU) No 575/2013;
(B) not an exposure to a credit-impaired debtor or guarantor, who, to the best of the applicable Originator's knowledge, has been (I) declared insolvent or had a court grant his creditors a final non-appealable right of enforcement or material damages as a result of a missed payment within three years prior to the date of origination or has undergone a debt restructuring process with regard to its non-performing exposures within three years prior to the date of transfer or assignment of the applicable Portfolio Receivable to the Seller; (II) was, at the time of origination, where applicable, on a public credit registry of persons with adverse credit history or, where there is no such public credit registry, another credit registry that is available to
the applicable Originator; or (III) has a credit assessment or a credit score indicating that the risk of contractually agreed payments not being made is significantly higher than for comparable Receivables held by the applicable Originator which are not securitised; or
(C) a trade receivable with full recourse to the relevant Obligor; and
(D) not a transferable security, as defined in point (44) of Article 4(1) of Directive 2014/65/EU;
(g) For the purposes of Article 24(11) of the Securitisation Regulation, payments under the Transaction Documents do not depend predominantly on the sale of assets securing the Purchased Receivables;
(h) For the purposes of Article 24(12) of the Securitisation Regulation, the Seller has not entered into any derivative contracts, other than the Hedge Agreements;
(i) It and the Master Servicer have remedies and actions relating to delinquency and default of Obligors, debt restructuring, debt forgiveness, forbearance, payment holidays, losses, charge offs, recoveries and other asset performance remedies;
(j) It has made available, in accordance with Article 24(14) of the Securitisation Regulation, data on static and dynamic historical default and loss performance, such as delinquency and default data, for substantially similar Receivables to those being securitised under the Transaction Documents, and the sources of those data and the basis for claiming similarity, to the Administrative Agent, the Purchaser Agents, the Committed Purchasers and the Conduit Purchasers;
(k) The Portfolio Receivables are homogeneous for purposes of Article 24(15) of the Securitisation Regulation, on the basis that they: (i) are trade receivables; (ii) have been underwritten by the applicable Originator in accordance with similar underwriting standards applying similar approaches with respect to the assessment of a potential Obligor's credit risk and on terms no less stringent than those that such Originator used on similar exposures not securitised under this Transaction; and (iii) are serviced by the Master Servicer in accordance with the Credit and Collection Policies and the Servicing Agreement in accordance with the same servicing procedures with respect to monitoring, collections and administration of cash receivables generated from the Portfolio Receivables;
(l) For the purposes of Article 24(17)(c) of the Securitisation Regulation, no provision of the Transaction Documents requires automatic liquidation of the Portfolio Receivables upon a Facility Termination Event;
(m) Each Originator has expertise in originating Receivables of a similar nature to the Portfolio Receivables;
(n) At the time of purchase under the terms of the Transaction Documents, the Portfolio Receivables meet or met (as applicable), to the best knowledge of the Originators and the Retention Holder, the requirements of Article 243(1)(a) of the CRR; and
(o) It has at all times complied with its obligations under Section 5.5 (Securitisation Regulation).
5. COVENANTS
5.1 Covenants of the Seller
Until the Final Payout Date:
(a) Compliance with laws, etc.
The Seller will comply in all material respects with all applicable Laws and preserve and maintain its corporate existence, rights, franchises, qualifications, and privileges, except to the extent that the failure so to comply with such Laws or the failure so to preserve and maintain such existence, rights, franchises, qualifications and privileges would not have a Material Adverse Effect.
(b) Offices, records and books of account
The Seller will keep its records concerning the Receivables at (i) the address of the Seller specified in Section 11.2 (Notices, etc.) as of the date of this Agreement or (ii) upon fifteen (15) days prior written notice to the Administrative Agent and the Purchaser Agents, at any other locations in jurisdictions where all actions reasonably requested by the Administrative Agent or any Purchaser Agent to protect and perfect its security interest in the Collateral have been taken and completed. The Seller also will maintain and implement, or cause the Master Servicer to maintain and implement, administrative and operating procedures (including an ability to recreate records evidencing Receivables and related Contracts in the event of the loss or destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all Receivables (including records adequate to permit the daily identification of each Receivable and all Collections of and adjustments to each existing Receivable).
(c) Notice of Seller’s interest
In the event that the Seller shall sell, hold in trust or otherwise transfer any interest in any Receivable, any Related Security or any other Collateral (other than as contemplated by the Transaction Documents), the Seller shall inform the counterparty that it has entered into a securitization program arranged by Rabobank under which it has securitized certain of its Receivables.
(d) Sales, Liens, etc.
The Seller will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim (except for Permitted Adverse Claims) upon or with respect to, the Portfolio Receivables, any Seller Operating Account, any other Collateral or any other asset of the Seller, or assign any right to receive income in respect thereof and the Seller shall not issue any Equity Interest to any other Person other than the Equity Holder or permit any such Equity Interests to be subject to any Adverse Claim, except as otherwise expressly provided for in the Transaction Documents. Nothing in this Section 5.1(d) shall prevent the Seller from making Restricted Payments otherwise permitted under Section 5.1(n).
(e) Extension or amendment of Portfolio Receivables and Contracts
Except as provided in Section 2.2(c) (Duties of the Master Servicer) of the Servicing Agreement, the Seller will not (i) extend, amend or otherwise modify the terms of any Portfolio Receivable or any Related Security, or (ii) amend, modify or waive any term or condition of any Contract related thereto except (i) in accordance with the applicable Credit and Collection Policies, (ii) as required by Law or (iii) otherwise in a manner that would not have a Material Adverse Effect or materially adversely affect the interests or remedies of the Secured Parties.
(f) Change in Business
The Seller will not make any change to the character of its business.
(g) Change in payment instructions to Obligors
The Seller will not add or terminate any Seller Operating Account from those listed in Schedule 5 (Facility Accounts and Facility Account Banks), or make any change in any instruction to Obligors regarding payments to be made in respect of the Receivables which would adversely affect the likelihood that Obligors will make payments directly to the relevant Collection Account or payments to be made to any Seller Operating Account unless the Administrative Agent and each Purchaser Agent shall have received at least fifteen (15) days prior written notice of such addition, termination or change (including an updated Schedule 5 (Facility Accounts and Facility Account Banks)) and a fully executed Security Document with respect to each new Seller Operating Account has been delivered to the Administrative Agent. Each Seller Operating Account shall be maintained at all times in the name of the Seller and at a bank or other financial institution with at least two of the three following ratings: at least A-1 by S&P, P1 by Moody’s and F1 by Fitch.
(h) Deposits to Seller Operating Accounts
If the Seller shall receive any Collections directly, the Seller shall (or will cause the Master Servicer to) promptly (and in any event within two (2)
Business Days) cause such Collections to be deposited into a Seller Operating Account or Collection Account. The Seller will not permit and will (and will cause the Servicer Parties to) prevent funds which do not constitute Collections of Receivables or the proceeds of Incremental Investments or Subordinated Loans under the Subordinated Loan Agreement from being deposited into any Seller Operating Account.
(i) Further Assurances; Change in Name or Jurisdiction of Organisation, etc.
(i) The Seller agrees from time to time, at its expense, promptly to execute and deliver all further instruments and documents, and to take all further actions, that the Administrative Agent may reasonably request, to (A) perfect, protect or more fully evidence the Administrative Agent’s security interest in the Seller Operating Accounts and the other Collateral, (B) enable the Conduit Purchasers, the Committed Purchasers, the Purchaser Agents or the Administrative Agent to exercise and enforce their respective rights and remedies under this Agreement or (C) ensure that the transactions contemplated hereunder and under the other applicable Transaction Documents are treated as true sales. Without limiting the foregoing, the Seller will at its expense, within ten (10) Business Days request of the Administrative Agent, duly execute, file, or serve in or on the appropriate filing office, Official Body or other Person in each jurisdiction necessary all registrations, notices, financing or continuation statements, or amendments thereto, and such other instruments and other documents, that may be necessary or reasonably desirable, or that the Administrative Agent may reasonably request, to perfect, protect or evidence the Administrative Agent’s security interest in the Seller Operating Accounts and the other Collateral. The Seller authorizes the Administrative Agent to file financing or continuation statements or similar instruments, and amendments thereto and assignments thereof, relating to the Seller Operating Accounts and the other Collateral for the purpose of evidencing or protecting its security interest in connection therewith without the signature of the Seller. A photocopy or other reproduction of this Agreement shall be sufficient as a financing statement where permitted by Law.
(ii) The Seller will at all times be incorporated under the laws of Netherlands and will not take any action to change its jurisdiction of organisation.
(iii) The Seller will not change its name, identity, corporate structure, location, registered office, its centre of main interests, its principal place of management or tax identification number or make any other change which could render any financing statement or similar instrument filed in connection with any Transaction Document seriously misleading or otherwise ineffective under applicable Law, unless the Administrative Agent shall have received at least fifteen (15) days advance written notice of such change prior to the
effectiveness thereof and all action by the Seller necessary or appropriate to perfect or maintain the perfection of the Administrative Agent’s security interest in the Seller Operating Accounts and the other Collateral (including the filing of all financing statements or similar instruments and the taking of such other action as the Administrative Agent may request in connection with such change) shall have been duly taken.
(j) Separateness
The Seller shall:
(i) maintain corporate records and books of account separate from those of any other Transaction Party;
(ii) ensure that the resolutions, agreements and other instruments underlying the transactions described in the Transaction Documents shall be continuously maintained as official records;
(iii) maintain an arm’s-length relationship with each other Transaction Party and not hold itself out as being liable for any Indebtedness of any other Transaction Party;
(iv) keep its assets and its liabilities wholly separate from those of each other Transaction Party;
(v) not mislead third parties by conducting or appearing to conduct business on behalf of any other Transaction Party or expressly or impliedly representing or suggesting that the Seller is liable or responsible for any Indebtedness of any other Transaction Party or that the assets of the Seller are available to pay the creditors of any other Transaction Party;
(vi) not hold any other Transaction Party out to third parties as other than an entity with assets and liabilities distinct from the Seller;
(vii) not hold itself out to be responsible for any decisions or actions relating to any other Transaction Party;
(viii) take such other actions as are necessary on its part to ensure that all corporate procedures required by its Organizational Documents are duly and validly taken;
(ix) keep correct and complete records and books of account and corporate minutes;
(x) not act in any manner that could foreseeably mislead others with respect to the separate identity of each other Transaction Party;
(xi) at all times limit its transactions with each other Transaction Party only to those expressly permitted hereunder or under any other Transaction Document; and
(xii) take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken by it in order to (I) ensure that the assumptions and factual recitations set forth in any true sale opinion or non-consolidating opinion issued in connection with the Transaction Documents remain true and correct in all material respects with respect to it and the other Transaction Party and (II) comply in all material respects with those procedures described in such provisions which are applicable to it.
(k) Transaction Documents
Except as permitted under Section 11.14 (Limitation on the addition and termination of Originators) or as otherwise expressly permitted by the Transaction Documents, the Seller will not terminate, amend, waive or modify, or consent to any termination, amendment, waiver or modification of, any provision of any Transaction Document or grant any other consent or other indulgence under any Transaction Document, in each case, without the prior written consent of the Administrative Agent and the Required Committed Purchasers (such consent not to be unreasonably withheld); provided that the consent of each Committed Purchaser shall be required for any such amendment, waiver, modification, consent or other indulgence that would have a Fundamental Change. The Seller will perform in all material respects all of its obligations under the Transaction Documents and will enforce its rights under the Transaction Documents in accordance with their respective terms. The Seller will take all actions to perfect and enforce its rights and interests (and the rights and interests of the Administrative Agent and the Secured Parties as assignees of Seller) under the Transaction Documents as the Administrative Agent or the Required Committed Purchasers may from time to time reasonably request, including making claims to which it may be entitled under any indemnity, reimbursement or similar provision contained in any Transaction Document.
(l) Nature of Business; No Subsidiaries; Change in Credit and Collection Policies
The Seller will not engage in any business other than the ownership, collection and financing of Receivables, Related Security and Collections originated by the Originators pursuant to and in accordance with terms of the Transaction Documents. The Seller will not create or form any Subsidiary. The Seller will not amend, modify, change or repeal any of its Organizational Documents without the prior written consent of each Agent. The Seller will not make any material change in the Credit and Collection Policies except (i) as required by Law and, if such changes are material, notified to each Purchaser Agent or (ii) with the prior written consent of each Purchaser Agent (such consent not to be unreasonably withheld). The Seller will not have any employees.
(m) Mergers, etc.
Except to the extent expressly permitted by the Transaction Documents, the Seller will not liquidate or dissolve or merge with or into or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions), all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets or capital stock or other ownership interest of, or enter into any joint venture or partnership agreement with, any Person.
(n) Distributions, etc.
The Seller will not (i) except as otherwise required by applicable Law, declare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any of its Equity Interests in the Seller, or return any capital to its members or other Equity Holders as such, or purchase, retire, defease, redeem or otherwise acquire for value or make any payment in respect of any membership interests or other equity of the Seller or any warrants, rights or options to acquire any membership interests or other equity of the Seller, now or hereafter outstanding, (ii) prepay, purchase or redeem any Indebtedness (other than expressly in accordance with the Transaction Documents), (iii) lend or advance any funds or (iv) repay any loans or advances to, for or from any of its Affiliates (the amounts described in Sections 5.1(n)(i) to (iv) being referred to as “Restricted Payments”); provided that the Seller may (x) purchase Receivables and any Related Security and Collections related thereto, and (y) pay amounts owing in respect of the Subordinated Loans, in each case, pursuant to and in accordance with the terms and conditions of the Transaction Documents, including Section 2.6 (Collections prior to Facility Termination Date), Section 2.7 (Collections after Facility Termination Date) and Section 3 (Conditions of Purchases).
(o) Indebtedness
The Seller will not create, incur, guarantee, assume or suffer to exist any Indebtedness or other liabilities, whether direct or contingent, funded or unfunded, other than (i) as a result of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, (ii) the incurrence of obligations under this Agreement, (iii) the incurrence of other obligations pursuant to, and, as expressly set forth in, the Transaction Documents or (iv) the incurrence of operating expenses in the ordinary course of business in an amount not to exceed EUR 100,000 at any time outstanding.
(p) Taxes
The Seller will file all material tax returns and reports required by Law to be filed by it and will within the time period required by applicable Law or regulation pay all material Taxes and governmental charges at any time due and payable by it (including, without limitation, all Taxes payable by the
Seller in connection with the Portfolio Receivables and Related Security), except to the extent such Taxes or governmental charges are being contested in good faith by appropriate proceedings and the Seller has set aside in its books adequate reserves in accordance with GAAP as reasonably determined by the Seller.
(q) Enforcement
The Seller on its behalf, and on behalf of the Secured Parties, shall (or shall cause the Master Servicer Parties to) promptly require compliance with all covenants and obligations in its favor of the Intermediate Transferors contained in the Intermediate Transfer Agreements and all covenants and obligations in its favor of the Originators under the Originator Sale Agreements. The Seller shall also deliver consents, approvals, acknowledgements, directions, notices, waivers and take such further actions thereunder as may be directed by the Administrative Agent. The Seller (or the Seller Agent or Master Servicer on its behalf) shall track all funds paid to each Originator as Advanced Purchase Prices and shall at no time permit the transfer of Advanced Purchase Price payments (which have not been applied to the Purchase Price of Receivables that qualify as Eligible Receivables) to exceed 10% of the Unpaid Balance of Portfolio Receivables that qualify as Eligible Receivables set forth in the most recently delivered Portfolio Report with respect to the applicable Originator; provided, that so long as the Applicable S&P Rating is not below “BBB-” (or withdrawn or suspended) and the Applicable Moody’s Rating is not below “Baa3” (or withdrawn or suspended), then the determination as to whether the Advanced Purchase Price amounts with respect to each Originator would exceed such 10% threshold may be made on a weekly basis on the fourth Business Day (or, if such calendar week has less than 4 Business Days, on the last Business Day) of such calendar week and any such determination shall remain in effect until the immediately succeeding date of determination. In addition, the Seller (or the Seller Agent or Master Servicer on its behalf) shall track all Deferred RPA Purchase Price amounts payable to Originators and shall at no time permit the Deferred RPA Purchase Price amounts to exceed 10% of the Unpaid Balance of Portfolio Receivables that qualify as Eligible Receivables set forth in the most recently delivered Portfolio Report with respect to the applicable Originator; provided, that so long as the Applicable S&P Rating is not below “BBB-” (or withdrawn or suspended) and the Applicable Moody’s Rating is not below “Baa3” (or withdrawn or suspended), then the determination as to whether the Deferred RPA Purchase Price amounts with respect to each Originator would exceed such 10% threshold may be made on a weekly basis (rather than daily in any other circumstance) on the fourth Business Day (or, if such calendar week has less than 4 Business Days, on the last Business Day) of such calendar week and any such determination shall remain in effect until the immediately succeeding date of determination.
(r) Seller Operating Accounts
The Seller will cause all Seller Operating Accounts to be subject at all times to a Security Document and all Collection Accounts to be subject at all times to an Account Security Agreement.
(s) Change in accountants or accounting policies
The Seller shall promptly notify the Administrative Agent of (i) any change in its auditors or (ii) any material change in its accounting policies to the extent such change in accounting policies could reasonably be expected to have a Material Adverse Effect.
(t) Power of Attorney
The Seller will not revoke or attempt to revoke any power of attorney granted by it in connection with the transactions contemplated by the Transaction Documents (unless such revocation results from mandatory application of applicable Law).
(u) Negotiable Instruments
Unless delivered to the Administrative Agent, the Seller shall not take any action to cause any Portfolio Receivable not evidenced by a negotiable instrument upon origination to become evidenced by a negotiable instrument, except in connection with the enforcement or collection of a Defaulted Receivable.
(v) Delivery of Audited Financial Statements
The Seller shall deliver to the Administrative Agent, within 120 days after the close of each of its fiscal years starting from its fiscal year ending December 31, 2011, a copy of its audited financial statements prepared by its accountants in accordance with GAAP and that are provided to the Performance Undertaking Provider in connection with the preparation of the Performance Undertaking Provider’s consolidated annual audited financial statements.
(w) Licenses, etc.
The Seller shall maintain in full force and effect all licenses, approvals, authorizations, consents, registrations and notifications which are at any time required in connection with the performance of its duties and obligations hereunder and under the other Transaction Documents, except to the extent the failure to do so would not have a Material Adverse Effect.
(x) Credit and Collection Policies
The Seller shall comply in all material respects with the applicable Credit and Collection Policies.
(y) Sanctions
(i) Promptly upon a Responsible Officer of the Seller becoming aware that the Seller has received formal notice that it has become subject to any action or investigation under any Sanctions, the Seller shall, to the extent permitted by law, supply to the Administrative Agent details of any such action or investigation.
(ii) The Seller will not knowingly permit or authorize any other Person to, directly or indirectly, use, lend, make payments of, contribute or otherwise make available, all or any part of the proceeds of the transactions contemplated by this Agreement to fund any trade, business or other activities: (i) involving or for the benefit of any Restricted Person except as otherwise permitted or authorized by Sanctions or Sanctions Authorities, including, without limitation, as authorized by OFAC general or specific license or (ii) in any other manner that would result in any of the Seller, the Administrative Agent, any Purchaser Agent, any Committed Purchaser or any Conduit Purchaser being in breach of any Sanctions or becoming a Restricted Person.
(z) Transparency Requirements
The Seller agrees that it will provide such information in relation to the Seller as may reasonably be requested from time to time by the Administrative Agent, any Purchaser Agent, any Committed Purchaser and any Conduit Purchaser in order to enable each Committed Purchaser (in its capacities as a Committed Purchaser and/or as a Liquidity Bank) and Conduit Purchaser, as applicable, to comply with their respective obligations under Article 5 and/or Article 7 of the Securitisation Regulation, or by the Master Servicer in order to enable the Master Servicer, in its capacity as an “originator” as defined in Article 2(3) of the Securitisation Regulation, to comply with its obligations under Section 6.4(c) (Transparency). The Seller will not be in breach of the requirements in this Section 5.1(z) if, due to events, actions or circumstances beyond its control, it is not able to comply with the undertakings contained herein.
5.2 Inspections; annual agreed upon procedures audit
Until the Final Payout Date:
(a) The Seller will, at the expense of the Seller (subject to the proviso to this Section 5.2(a)), from time to time during regular business hours as requested by the Administrative Agent and/or any Purchaser Agent upon five (5) Business Days prior notice, permit the Administrative Agent, any Purchaser Agent, or their respective agents or representatives (including independent accountants, which may not be the Seller’s or the Master Servicer’s independent accountants) (i) to conduct audits of the Receivables, the Related Security, the other Collateral and the related books and records, including the
Contracts, and collections systems of the Seller; (ii) to examine and make copies of and abstracts from all documents, purchase orders, invoices, agreements, books, records and other information (including computer programs, tapes, discs, punch cards, data processing software, storage media and related property and rights) relating to Receivables, the Related Security and the other Collateral, including, the related Contracts to the extent necessary to preserve the Secured Parties’ rights, and verify the Transaction Parties’ compliance with their obligations, under the Transaction Documents and (iii) to visit the offices and properties of the Seller for the purpose of examining such materials described in Sections 5.2(a)(i) and (ii), and to discuss matters relating to Receivables, the Related Security and the other Collateral or the Seller’s performance under the Transaction Documents or under the Contracts with any of the officers or employees of the Seller having knowledge of such matters; provided that, unless a Facility Event or Portfolio Event has occurred, only one such examination and visit in any calendar year shall be at the expense of the Seller.
(b) On or before the 30th day before each anniversary of the Amendment and Restatement Effective Date, or at any time upon the occurrence and during the continuance of a Facility Event or Portfolio Event, upon the request of the Administrative Agent and/or any Purchaser Agent, the Seller shall, and shall cause each Servicer Party to, cause a firm of nationally recognized independent accountants or collateral auditors, in either case acceptable to the Administrative Agent (who may also render other services to the Seller, the Servicer Parties or their Affiliates) to furnish a report (addressed to the Administrative Agent and each Purchaser Agent) to the Administrative Agent and each Purchaser Agent (each such report, an “Accountants’ Letter”) in a form acceptable to the Administrative Agent and each Purchaser Agent, to the effect that they have performed certain procedures as reasonably requested by the Administrative Agent and the Purchaser Agents (which, unless otherwise agreed by the Administrative Agent and the Purchaser Agents, shall include the procedures identified on Schedule 6 (Agreed upon Procedures)) and examined certain documents and records relating to the Receivables and the servicing thereof and have compared the information contained in certain of the Portfolio Reports and Outstanding Receivables Reports delivered pursuant to the Transaction Documents for the preceding twelve (12) calendar month period with such documents and records and that, on the basis of such procedures, have noted no material instances where the amounts set forth in such Portfolio Reports and Outstanding Receivables Reports are not in agreement with the Master Servicer documents and records, except for such exceptions as shall be set forth in such report; provided, that (i) each such annual review shall examine the historical receivables information which accounts for at least 25% of the Outstanding Balance of Portfolio Receivables as of the date of determination used for the Accountants’ Letter and (ii) with respect to each review conducted in connection with the second anniversary of the Amendment and Restatement Effective Date and the anniversary falling every two calendar years thereafter, such review shall examine historical receivables information which accounts for at least 25% of the Outstanding
Balance of Portfolio Receivables originated by the U.S. Originators as of the date of determination used for the Accountants’ Letter. The cost of any Accountants’ Letter shall be paid by the Master Servicer out of its own funds. For the avoidance of doubt, the Seller (or the Master Servicer) shall only be responsible for the costs of one such annual review and any such review per Servicer Party requested by the Administrative Agent and/or the Purchaser Agents upon the occurrence and during the continuance of a Facility Event or Portfolio Event.
5.3 Covenants of the Performance Undertaking Provider
(a) Sanctions Actions or Investigations
Promptly upon a Responsible Officer of the Performance Undertaking Provider becoming aware that the Performance Undertaking Provider or any of its Subsidiaries has received formal notice that it has become the subject of any material action or investigation under any Sanctions, the Performance Undertaking Provider shall, to the extent permitted by law, supply to the Administrative Agent details of any such material action or investigation.
(b) Anti-Corruption and Sanctions Compliance Policies and Procedures
The Performance Undertaking Provider will maintain in effect policies and procedures designed to promote compliance by the Performance Undertaking Provider, its Subsidiaries and their respective directors, officers and employees with applicable Anti-Corruption Laws and Sanctions.
(c) Anti-Money Laundering
The Performance Undertaking Provider will not knowingly conduct its operations in violation of any applicable financial recordkeeping and reporting requirements of the U.S. Bank Secrecy Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any applicable authority (collectively, the “Money Laundering Laws”), and no action or inquiry by or before any authority involving the Performance Undertaking Provider with respect to Money Laundering Laws is pending or, to the best of the knowledge of the Responsible Officers of the Performance Undertaking Provider, is threatened.
(d) Sanctions
The Performance Undertaking Provider will not knowingly use, or permit any of its Subsidiaries to use, any funds derived from any activity that would violate Sanctions to pay any of the obligations under the Transaction Documents.
5.4 Covenants of the Master Servicer
(a) Sanctions
(i) Promptly upon a Responsible Officer of the Master Servicer becoming aware that the Master Servicer has received formal notice that it has become subject to any action or investigation under any Sanctions, the Master Servicer shall, to the extent permitted by law, supply to the Administrative Agent details of any such action or investigation.
(ii) The Master Servicer will not knowingly permit or authorize any other Person to, directly or indirectly, use, lend, make payments of, contribute or otherwise make available, all or any part of the proceeds of the transactions contemplated by this Agreement to fund any trade, business or other activities: (i) involving or for the benefit of any Restricted Person except as otherwise permitted or authorized by Sanctions or Sanctions Authorities, including, without limitation, as authorized by OFAC general or specific license or (ii) in any other manner that would result in any of, the Master Servicer, the Administrative Agent, any Purchaser Agent, any Committed Purchaser or any Conduit Purchaser being in breach of any Sanctions or becoming a Restricted Person.
5.5 Securitisation Regulation
(a) The Retention Holder, in its capacity as an “originator” for the purposes of the Risk Retention Requirements will, in furtherance of complying with the Risk Retention Requirements, advance the Subordinated Loans to the Seller pursuant to the Subordinated Loan Agreement.
(b) The Retention Holder hereby undertakes, for so long as the securitisation comprised in the Transaction Documents is ongoing, to:
(i) hold and retain a material net economic interest in the securitisation comprised in the Transaction Documents in an amount equal to at least five percent (5.00%) in the form of the retention of the first loss tranche in accordance with option (d) of Article 6(3) of the Securitisation Regulation (the “Retained Interest”) and the related provisions of the Securitisation Regulation Rules (together, the “Risk Retention Requirements”) by its provision of the Subordinated Loan to the Seller;
(ii) not change the manner or form in which it retains such net economic interest, except to the extent permitted under the text of the Securitisation Regulation Rules;
(iii) not transfer, sell or hedge or otherwise enter into any credit risk mitigation, short position or any other credit risk hedge with respect to such net economic interest, except to the extent permitted under the Securitisation Regulation Rules;
(iv) at all times confirm, promptly upon the written request of the Seller, the continued compliance with clauses (i), (ii) and (iii) above; and
(v) promptly notify the Seller and the Administrative Agent if for any reason it (A) ceases to hold the retention in accordance with the requirements of this Agreement or (B) fails to comply with the covenants set out in this Agreement in respect of the retention.
(c) The Master Servicer, on behalf of the Retention Holder, shall certify in each Monthly Report delivered with respect to the last month of each calendar quarter the Retention Holder’s ongoing compliance with the undertakings contained herein.
(d) It is agreed that any covenant in the Transaction Documents requiring retention of risk in accordance with Article 405 of Regulation (EU) No 575/2013 and/or Article 122a of Directive 2006/48/EC as amended by Directive 2009/111/EC (but not, for the avoidance of doubt, successors thereto), shall no longer apply.
(e) The Seller, each of the Originators and the Retention Holder hereby undertakes, until the Final Payout Date:
(i) that it shall notify each the Administrative Agent, any Purchaser Agent, any Committed Purchaser or any Conduit Purchaser, European Securities and Markets Authority (or any successor or replacement thereof) and the applicable competent authorities immediately if at any time the Transaction does not comply with the requirements of Article 24 of the Securitisation Regulation;
(ii) for the purposes of Article 24(12) of the Securitisation Regulation, that it shall not enter into any derivative contracts, other than the Hedge Agreements;
(iii) that it shall notify the Administrative Agent, any Purchaser Agent, any Committed Purchaser or any Conduit Purchaser of any amendment to the priority of payments set out in the Transaction Documents which may materially adversely affect the payment of amounts owed to such persons, without undue delay in accordance with Article 24(13) of the Securitisation Regulation;
(iv) to provide notice promptly to the Administrative Agent, any Purchaser Agent, any Committed Purchaser and any Conduit Purchaser in the event it fails to comply with any of its obligations under this Section 5.5; and
(v) in the case of the Seller and the Originators, to provide the Master Servicer with any information which it requires in order to enable it to fulfil its obligations under Section 6.4(b) (Transparency).
6. ADMINISTRATION AND COLLECTION OF RECEIVABLES
6.1 Designation of Master Servicer
The servicing, administration and collection of the Portfolio Receivables shall be conducted by the Master Servicer so designated under the Servicing Agreement from time to time. If the Applicable S&P Rating is below “BBB-” (or withdrawn or suspended) and the Applicable Moody’s Rating is below “Baa3” (or withdrawn or suspended), then the Administrative Agent (at the direction of any Purchaser) may appoint a back-up servicer reasonably acceptable to the Administrative Agent hereunder and under the other Transaction Documents at the reasonable expense of the Master Servicer. Such back-up servicer must agree to commence servicing within five Business Days of receipt of notice to succeed the Master Servicer. The Master Servicer shall cooperate with such appointment and take all actions reasonably requested by the Administrative Agent or any Purchaser Agent in connection therewith. The back-up servicer shall be appointed within 3 calendar months of such downgrade (but, for the avoidance of doubt, any failure to appoint a back-up servicer within such timeframe shall not constitute a Facility Termination Event).
6.2 Certain Rights of the Administrative Agent
(a) The Administrative Agent may (and if so directed by the Majority Committed Purchasers, shall), at any time following the occurrence and during the continuation of a Facility Event or Portfolio Event, have each Seller Operating Account transferred into the name of the Administrative Agent for the benefit of the Secured Parties and/or assume exclusive control of the Seller Operating Accounts and Collection Accounts and, in each case, take such actions to effect such transfer or assumption as it may determine to be necessary or appropriate (including delivering the notices attached to the applicable Security Documents).
(b) At any time following the occurrence and during the continuation of a Facility Termination Event:
(i) At the Administrative Agent’s request (acting at the request of the Majority Committed Purchasers) and at the Seller’s expense, the Seller shall, or shall cause each Servicer Party to (and if any Servicer Party shall fail to do so within two (2) Local Business Days, the Administrative Agent may) (i) notify each Obligor of Portfolio Receivables of the transfer, sale, trust, assignation and assignment of the Portfolio Receivables and the Related Security with respect thereto pursuant to the Transaction Documents and of the applicable Purchaser’s ownership of the Portfolio Receivables and the Related Security with respect thereto, (ii) direct such Obligors that payments under any Portfolio Receivable or any Related Security with respect thereto be made directly to the Administrative Agent or its designee and (iii) 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 (x) to convey or
perfect the relevant Purchaser’s title in the Portfolio Receivables and Related Security, or (y) to be taken so that the obligations or other indebtedness of such Obligors in respect of any Portfolio Receivables and any Related Security with respect thereto may no longer be legally satisfied by payment to the applicable Originator or any of its Affiliates.
(ii) At the Administrative Agent’s request (acting at the request of the Majority Committed Purchasers) and at the Seller’s expense, the Seller shall, or shall cause each Servicer Party to, (A) assemble all of the Contracts, documents, instruments and other records (including computer tapes and disks) that evidence or relate to the applicable Portfolio Receivables, or that are otherwise necessary or desirable to collect the applicable Portfolio Receivables, and shall make the same available to the Administrative Agent at a place selected by the Administrative Agent or its designee and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Portfolio Receivables in a manner acceptable to the Administrative Agent and, promptly upon receipt, remit all such cash, checks and instruments, duly endorsed or with duly executed instruments of transfer, to the Administrative Agent or its designee.
(c) The Seller authorizes the Administrative Agent, following the occurrence and during the continuation of a Facility Termination Event, to take any and all steps in the Seller’s name and on behalf of the Seller that are necessary or desirable, in the determination of the Administrative Agent, to collect amounts due under the Portfolio Receivables, including (i) endorsing the Seller’s or any other Transaction Party’s name on checks and other instruments representing Collections, and (ii) enforcing the Receivables and the Related Security and the Security Agreements and other Transaction Documents, 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 with therewith and to file any claims or take any action or institute any proceedings that the Administrative Agent (or such 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 Seller or any other Transaction Party in respect of, the Receivables and the Related Security and the other Transaction Documents.
6.3 Performance of obligations
(a) If the Master Servicer or the Seller fails to perform any of its obligations under this Agreement or any other Transaction Document and a Servicer Default or Facility Termination Event has occurred and is continuing with respect to the Master Servicer or the Seller, as applicable, the Administrative Agent may (but shall not be required to) itself perform, or cause performance of, such obligation; and the Administrative Agent’s costs and expenses reasonably incurred in connection therewith shall be payable by the Master Servicer or the Seller, as applicable.
(b) The Seller shall, and shall cause the Master Servicer to, perform their respective obligations, and exercise their respective rights, under the Contracts and the Transaction Documents to the same extent as if the Portfolio Receivables had not been sold and transferred pursuant hereto. The exercise by the Administrative Agent on behalf of the Secured Parties of their rights under this Agreement shall not release the Master Servicer or the Seller from any of their duties or obligations with respect to any Contracts or Transaction Documents. None of the Administrative Agent, the Purchasers or the Purchaser Agents shall have any obligation or liability with respect to any Transaction Documents or Contracts, nor shall any of them be obligated to perform the obligations of any Transaction Party under any Transaction Document or Contract.
(c) The Administrative Agent’s rights and powers under this Section 6 and under the Servicing Agreement shall not subject the Administrative Agent to any liability if any action taken by it proves to be inadequate or invalid nor shall such powers confer any obligation whatsoever upon the Administrative Agent.
6.4 Transparency
(a) For the purposes of Article 7(2) of the Securitisation Regulation, each of the Originators, the Master Servicer, the Seller, each Committed Purchaser and each Conduit Purchaser designates the Master Servicer, in its capacity as an “originator” as defined in Article 2(3) of the Securitisation Regulation, to fulfil the information requirements of Article 7(1) of the Securitisation Regulation and the Master Servicer, in such capacity, hereby accepts such designation.
(b) The Master Servicer, in its capacity as an “originator” as defined in Article 2(3) of the Securitisation Regulation, agrees that, until the Final Payout Date, it will provide promptly upon request, all information as the Administrative Agent, any Purchaser Agent, any Committed Purchaser and/or any Conduit Purchaser may reasonably request and will take such further action and enter into such other agreements not otherwise provided for hereunder as may be reasonably required by the Administrative Agent, any Purchaser Agent, any Committed Purchaser and/or any Conduit Purchaser in order to enable compliance by the Administrative Agent, any Purchaser Agent, any Committed Purchaser (in its capacities as a Committed Purchaser and/or as a Liquidity Bank) and/or any Conduit Purchaser with Article 5 and/or Article 7 of the Securitisation Regulation, in relation to the Transaction.
(c) The Master Servicer, in its capacity as an “originator” as defined in Article 2(3) of the Securitisation Regulation, agrees that, until the Final Payout Date, it will make available to each Committed Purchaser and each Conduit Purchaser, each relevant competent authority and, upon request therefor, potential Committed Purchasers and Conduit Purchasers, all documents, reports and information necessary to fulfil the requirements of Article 7 of the Securitisation Regulation including the requirements of Article 7(1)(a), (b), (c), (d), (e) and (g) of the Securitisation Regulation.
7. TERMINATION EVENTS
7.1 Facility Termination Events
If any of the following events (each a “Facility Termination Event”) shall occur and be continuing:
(a) any Facility Party shall fail to make any payment or deposit required to be made by it hereunder or under any other Transaction Document to which it is a party when due hereunder or thereunder and such failure remains unremedied for two (2) Business Days from the earlier to occur of (i) the date upon which a Responsible Offer of such Facility Party obtains knowledge of such failure or (ii) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to such Facility Party by the Administrative Agent or any Purchaser Agent;
(b) any representation, warranty, certification or statement made by any Facility Party in this Agreement or any other Transaction Document to which such Facility Party is a party shall prove to have been incorrect in any material respect when made or deemed made (other than any breach of a representation, warranty, certification or statement solely relating to a Portfolio Receivable for which the entire Deemed Collection amount required to be paid under the applicable Specified Deemed Collection Section has been paid) and such Facility Party shall have failed to remedy such circumstances in a manner such that such representation, warranty, certification or statement is true and correct in all material respects within thirty (30) days after a Responsible Officer of such Facility Party obtained knowledge or received notice thereof;
(c) other than as addressed in Section 7.1(a), any Facility Party shall fail to perform or observe any term, covenant or agreement contained in this Agreement or any other Transaction Document to which such Facility Party is a party in any material respect and such Facility Party shall have failed to remedy such failure within thirty (30) days after a Responsible Officer of such Facility Party obtained knowledge or received notice thereof;
(d) Bunge Limited, any Investor Certificateholder or any Designated Master Trust Obligor shall (i) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation) on the scheduled or original due date with respect thereto; (ii) default in making any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (iii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with giving of notice if required, such Indebtedness to become due prior
to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable; provided that (A) a default, event or condition described in clause (i), (ii) or (iii) above shall not at any time constitute a Facility Termination Event unless, at such time, one or more defaults, events or conditions of the type described in clauses (i) through (iii) above shall have occurred and be continuing with respect to Indebtedness the outstanding principal amount of which together exceeds in the aggregate $100,000,000 or the Dollar Equivalent thereof in any other currency; and (B) clause (iii) shall be deemed inapplicable if the occurrence of such event or condition referred to above gives rise to an obligation to make mandatory prepayment without further demand of any Person on terms agreed prior to the occurrence of such event or condition;
(e) an Event of Bankruptcy shall occur with respect to any Transaction Party;
(f) the Administrative Agent, on behalf of the Secured Parties, shall, for any reason, fail or cease to have a valid and perfected first priority charge, security interest or pledge in the Collateral prior to all other interests;
(g) a Servicer Default shall occur and be continuing;
(h) any Change of Control shall occur;
(i) the Aggregate Invested Amount exceeds the Funding Base as determined by reference to the most recent Portfolio Report delivered under the Servicing Agreement and such circumstance remains unremedied for two (2) Business Days;
(j) the failure by any Transaction Party to pay one or more final judgments requiring that Transaction Party to pay a sum or sums of money aggregating in excess of $100,000,000 or the Dollar Equivalent thereof in any other currency, which judgments are not discharged or effectively vacated, discharged, bonded, waived or stayed (including by appeal within thirty (30) days from entry thereof) for a period of thirty (30) consecutive days (unless fully covered by insurance as to which the relevant insurance company has acknowledged coverage), or any action shall be legally taken by a judgment creditor to levy upon assets or properties of any such Transaction Party to enforce any such judgment;
(k) the failure by the Seller to pay one or more final judgments requiring the Seller to pay a sum or sums of money aggregating in excess of $50,000 or the Dollar Equivalent thereof in any other currency which judgments are not discharged or effectively waived or stayed (including by appeal provided that the Seller is not required to make any payment or payments in respect of such judgment pending appeal) for a period of thirty (30) consecutive days, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of the Seller to enforce any such judgment;
(l) except in the case of a termination expressly permitted under Section 11.14 (Limitation on the addition and termination of Originators), any Transaction
Document or any material provision thereof shall cease, for any reason, to be in full force and effect, or any Transaction Party shall so assert in writing or any Transaction Party shall otherwise seek to terminate or disaffirm its material obligations under any such Transaction Document;
(m) the Subordinated Lender fails for any reason (including as the result of the failure to meet any condition precedent) to make a Subordinated Loan under the Subordinated Loan Agreement following delivery by the Seller of a Subordinated Loan Investment Request and such failure remains unremedied for two (2) Business Days; or
(n) an “Event of Default” occurs under and as defined in the Subordinated Loan Agreement and the Subordinated Lender’s commitment to make further Subordinated Loans thereunder shall be cancelled;
then, and in any such event, the Administrative Agent shall, at the direction of the Majority Committed Purchasers, declare the Facility Termination Date to have occurred upon notice to the Seller (in which case the Facility Termination Date shall be deemed to have occurred); provided that automatically upon the occurrence of any event (without any requirement for the giving of notice) described in Section 7.1(e), the Facility Termination Date shall occur. Upon any such declaration or upon such automatic termination, the Purchasers, the Purchaser Agents and the Administrative Agent shall have, in addition to the rights and remedies which they may have under this Agreement, all other rights and remedies provided after default under applicable Law, which rights and remedies shall be cumulative. Each Committed Purchaser agrees to provide written notice to the Administrative Agent within three (3) Business Days of receipt of notice of the occurrence of a Facility Termination Event or Portfolio Event of both (1) whether it desires to declare the Facility Termination Date and (2) whether it desires to waive such Facility Termination Event or Portfolio Event; provided, that any failure to respond shall be deemed to be (x) a decision not to declare the Facility Termination Date (although any such decision not to declare may be switched to a decision to declare the Facility Termination Date at any time thereafter in such Committed Purchaser’s discretion) and (y) a decision not to waive such Facility Termination Event or Portfolio Event.
7.2 Termination of Facility
If the Facility Termination Date occurs following the occurrence of any Facility Termination Event, Reinvestments shall immediately terminate without demand, protest or further notice of any kind, all of which are hereby expressly waived by each Seller Party. The aforementioned rights and remedies shall be without limitation, and shall be in addition to all other rights and remedies of the Agents and the Purchasers otherwise available under any other provision of this Agreement, by operation of law, at equity or otherwise, all of which are hereby expressly preserved, including all rights and remedies provided under the UCC, all of which rights shall be cumulative.
8. THE ADMINISTRATIVE AGENT
8.1 Authorization and Action
(a) The Administrative Agent shall:
(i) hold, administer and realize any Collateral that is transferred or assigned by way of security (Sicherungseigentum/Sicherungsabtretung) or otherwise granted to it creating or evidencing a non-accessory security right (nicht akzessorische Sicherheit) in its own name as trustee (Treuhänder) for the benefit of the Secured Parties;
(ii) hold, administer, and realize any Collateral that is pledged (Verpfändung) or otherwise transferred to the Administrative Agent creating or evidencing an accessory security right (akzessorische Sicherheit) for the benefit of the Secured Parties;
(iii) the Administrative Agent shall promptly forward to any Purchaser Agent the original or a copy of any document or report which is delivered to the Administrative Agent by any Transaction Party in connection with any Transaction Document (including, (i) in the case of any document or report specifically required to be delivered to the Administrative Agent by 12:00 noon (London time) on any Business Day, by the end of such Business Day of receipt and (ii) in the case of each other document or report, by 12:00 noon (London time) on the following Business Day); and
(iv) upon receipt of the specified direction of all Purchasers, the Majority Committed Purchasers or the Required Committed Purchasers, as applicable, take any action which the Transaction Documents specify must be taken by the Administrative Agent upon receipt of such direction. It is understood and agreed that any Purchaser or Purchaser Agent shall have the ability to request a vote on any matter requiring Purchaser or Purchaser Agent consent hereunder at any time, in which event the Administrative Agent shall promptly solicit such vote.
(b) Each Secured Party hereby ratifies and approves all acts and declarations done by the Administrative Agent on such Secured Parties' behalf before the execution of this Agreement.
(c) Each of the parties to this Agreement agrees that, in relation to any jurisdiction the courts of which would not recognize or give effect to the trust expressed to be created by this Agreement, the relationship of the Secured Parties to the Administrative Agent shall be construed as one of principal and agent but, to the extent permissible under the laws of such jurisdiction, all the other provisions of this Agreement shall have full force and effect between the parties to this Agreement.
(d) Each of the Secured Parties hereby authorizes and grants power of attorney (Vollmacht) to the Administrative Agent to:
(i) accept as its representative (Stellvertreter) any pledge or other creation of any accessory Collateral granted to it in relation to the German Security Documents and to execute and amend for and on its behalf all German Security Documents to which it is a party, and any other agreements related to the Collateral;
(ii) execute on behalf of itself and the Secured Parties where relevant and without the need for any further referral to, or authority from, the Secured Parties or any other person all necessary releases of any Collateral created under any of the German Security Documents;
(iii) realize the Collateral in accordance with the German Security Documents;
(iv) make and receive all declarations and statements which are necessary or desirable in connection with the Collateral or any of the German Security Documents; and
(v) undertake all other necessary actions and measures.
(e) The Administrative Agent is exempt from the restrictions of section 181 of the German Civil Code (Bürgerliches Gesetzbuch) or similar restrictions under any applicable law.
(f) The Administrative Agent has the power to grant sub-power of attorney (including the release from the restrictions of section 181 of the German Civil Code). A Secured Party which, due to its statutes, is not able to grant an exemption from the restrictions of section 181 of the German Civil Code will notify the Administrative Agent accordingly. Upon demand of the Administrative Agent, such Secured Party will grant a certain power of attorney to the Administrative Agent in order to enable the Administrative Agent to act on the Secured Party's behalf in accordance with the Transaction Documents in a way the Administrative Agent deems appropriate to maintain the Secured Party's rights.
(g) Each Purchaser and Purchaser Agent hereby irrevocably appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are delegated to the Administrative Agent by the terms hereof and the other Transaction Documents, together with such powers as are reasonably incidental thereto. Without limiting the foregoing, the Administrative Agent is empowered and authorized, on behalf of the Secured Parties, to hold and administer the Collateral as trustee for the benefit of the Secured Parties under the Security Documents.
(h) Without limiting the foregoing, the Administrative Agent and the Seller hereby undertake to enter into an acknowledgment deed, substantially in the form attached hereto as Exhibit D, bearing certain date at law (data certa) with the Italian Originator and the Italian Collection Account Banks, in order to acknowledge that pursuant to Section 2.1 of this Agreement any right, title and
interest arising from the Italian Account Security (including those transferred by the Italian Intermediate Transferor to the Seller under the Italian Intermediate Transfer Agreement) has been transferred by the Seller to the Administrative Agent (on behalf of the Purchasers), including the right to exercise all the Seller’s rights and powers under the Italian Account Security Agreement.
(i) The Administrative Agent shall not have any duties other than those expressly set forth in the Transaction Documents, and no implied obligations or liabilities shall be read into any Transaction Document, or otherwise exist, against the Administrative Agent. The Administrative Agent does not assume, nor shall it be deemed to have assumed, any duty of care or obligation to, or relationship of trust or agency with, any Transaction Party, the Conduit Purchasers, the Committed Purchasers, the Purchaser Agents or any other Secured Party, except as expressly set out in the Transaction Documents. Notwithstanding any provision of this Agreement or any other Transaction Document, in no event shall the Administrative Agent ever be required to take any action which exposes the Administrative Agent to personal liability or which is contrary to any provision of any Transaction Document or applicable Law. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
8.2 Liability of Agent
Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them as Administrative Agent under or in connection with the Transaction Documents (including the Administrative Agent’s servicing, administering or collecting Receivables as Servicer pursuant to Section 6 (Administration and Collection of Receivables)), in the absence of its or their own gross negligence or wilful misconduct. Without limiting the generality of the foregoing, the Administrative Agent:
(a) may consult with legal counsel (including counsel for the Seller or any Transaction Party), independent accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts;
(b) makes no warranty or representation to any Purchaser Agent, Conduit Purchaser, Committed Purchaser or other Secured Party (whether written or oral) and shall not be responsible to any Purchaser Agent, Conduit Purchaser, Committed Purchaser or other Secured Party for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement or any other Transaction Document;
(c) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any other Transaction Document on the part of any Transaction Party or to inspect the property (including the books and records) of any Transaction Party or to verify the accuracy of any Portfolio Report, Outstanding Receivables Report or any other information received under the Transaction Document;
(d) shall not be responsible to any Purchaser Agent, Conduit Purchaser, Committed Purchaser or other Secured Party for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Transaction Document; and
(e) shall incur no liability under or in respect of this Agreement or any other Transaction Document by acting upon any notice (including notice by telephone), consent, certificate or other instrument or writing (which may be by facsimile) believed by it in good faith to be genuine and signed or sent by the proper party or parties.
8.3 Rabobank and Affiliates
The obligation of Rabobank to fund its pro rata share of Incremental Investments under this Agreement may be satisfied by Rabobank or any of its Affiliates. With respect to any Incremental Investment or interest therein owned by it, Rabobank shall have the same rights and powers under this Agreement as any Committed Purchaser and may exercise the same as though it were not the Administrative Agent. Rabobank and any of its Affiliates may generally engage in any kind of business with the Transaction Parties or any Obligor, any of their respective Affiliates and any Person who may do business with or own securities of the Transaction Parties or any Obligor or any of their respective Affiliates, all as if Rabobank were not the Administrative Agent and without any duty to account therefor to the Purchaser Agents, the Conduit Purchasers, the Committed Purchasers or other Secured Parties.
8.4 Indemnification of Administrative Agent
Whether or not the transactions contemplated hereby are consummated, each Committed Purchaser severally agrees to indemnify the Administrative Agent (to the extent not reimbursed by the Transaction Parties), ratably based on the Commitment of such Committed Purchaser (or, if the Commitments have terminated, ratably according to the respective Commitment of such Committed Purchaser immediately prior to such termination), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of this Agreement or any other Transaction Document or any action taken or omitted by the Administrative Agent under this Agreement or any other Transaction Document, provided that no Committed Purchaser shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s gross negligence, fraud or willful
misconduct; provided, that no action taken in accordance with the direction of the Required Committed Purchasers shall be deemed to constitute gross negligence, fraud or willful misconduct for purposes of this Section 8.4. Without limitation of the foregoing, to the extent not previously reimbursed by a Transaction Party or the priority of payments hereunder, each Committed Purchaser shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including attorney’s fees pre-approved by the Purchasers (which approval shall not be unreasonably withheld)) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Transaction Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Seller. The undertaking in this Section 8.4 shall survive payment on the Final Payout Date and the resignation or replacement of the Administrative Agent.
8.5 Delegation of Duties
The Administrative Agent may execute any of its duties through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
8.6 Action or inaction by Administrative Agent
The Administrative Agent shall in all cases be fully justified in failing or refusing to take action under any Transaction Document unless it shall first receive such advice or concurrence of the Purchaser Agents, the Required Committed Purchasers or the Majority Committed Purchasers, as the case may be, and assurance of its indemnification by the Committed Purchasers, as it deems appropriate. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Transaction Document in accordance with a request or at the direction of the Required Committed Purchasers, and such request or direction and any action taken or failure to act pursuant thereto shall be binding upon all Conduit Purchasers, Committed Purchasers and Purchaser Agents. Unless any action to be taken by the Administrative Agent under a Transaction Document (a) specifically requires the advice or concurrence of the Purchaser Agents or (b) specifically provides that it be taken by the Administrative Agent alone or without any advice or concurrence of the Purchaser Agents, then the Administrative Agent may (and shall, to the extent required hereunder) take action based upon the advice or concurrence of the Required Committed Purchasers.
8.7 Notice of Facility Events; Action by Administrative Agent
The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Facility Event or Portfolio Event or any other default or termination event under the Transaction Documents, as the case may be, unless the Administrative
Agent has received notice from any Purchaser Agent, any Purchaser or any Transaction Party stating that a Facility Event or Portfolio Event has occurred hereunder or thereunder and describing such termination event or default. If the Administrative Agent receives such a notice, it shall promptly give notice thereof to the Purchaser Agents whereupon the Purchaser Agents shall promptly give notice thereof to their respective Conduit Purchaser(s) and Committed Purchasers. The Administrative Agent shall take such action concerning a Facility Event or Portfolio Event or any other matter hereunder as may be directed by the Required Committed Purchasers (subject to the other provisions of this Section 8), but until the Administrative Agent receives such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, as the Administrative Agent deems advisable and in the best interests of the Purchasers (unless specifically required by the terms of the applicable Transaction Document to await instruction from all Purchasers, the Majority Committed Purchasers or the Required Committed Purchasers, as applicable).
8.8 Non-Reliance on Administrative Agent and Other Parties
Each Purchaser Agent and each Purchaser expressly acknowledges that neither the Administrative Agent nor any of its directors, officers, agents or employees has made any representations or warranties to it and that no act by the Administrative Agent hereafter taken, including any review of the affairs of the Transaction Parties, shall be deemed to constitute any representation or warranty by the Administrative Agent. Each Purchaser represents and warrants to the Administrative Agent that, independently and without reliance upon the Administrative Agent, any Purchaser Agent or any other Purchaser and based on such documents and information as it has deemed appropriate, it has made and will continue to make its own appraisal of and investigation into the business, operations, property, prospects, financial and other conditions and creditworthiness of each Transaction Party and the Receivables and its own decision to enter into this Agreement and to take, or omit, action under any Transaction Document. Except for items expressly required to be delivered under any Transaction Document by the Administrative Agent to any Purchaser Agent or any Purchaser, the Administrative Agent shall not have any duty or responsibility to provide any Purchaser Agent or Purchaser with any information concerning the Transaction Parties or any of their Affiliates that comes into the possession of the Administrative Agent or any of its directors, officers, agents, employees, attorneys-in-fact or Affiliates.
8.9 Successor Administrative Agent
The Administrative Agent may, upon at least thirty days notice to the Seller, the Master Servicer and the Purchaser Agents, resign as Administrative Agent. In addition, if either (i) the Administrative Agent has defaulted in the performance of its obligations under the Transaction Documents or (ii) the Administrative Agent is no longer Solvent, the Administrative Agent may be removed by the Purchaser Agents representing the Majority Committed Purchasers upon 30 days prior notice in the case of clause (i) above or immediately in the case of clause (ii) above. Except as provided below, such resignation or removal shall not become effective until a successor Administrative Agent is appointed by the Purchaser Agents (with the consent of the
Master Servicer, such consent not to be unreasonably withheld or delayed) and has accepted such appointment. If no successor Administrative Agent shall have been appointed within 90 days after the departing Administrative Agent’s giving of notice of resignation, the departing Administrative Agent may appoint a successor Administrative Agent, which successor Administrative Agent shall have short-term debt ratings of at least A-1 from S&P and P-1 from Moody’s and shall be either a commercial bank having a combined capital and surplus of at least $250,000,000 or a Subsidiary of such an institution and shall be acceptable to the Master Servicer (such acceptance not to be unreasonably withheld or delayed). If no successor Administrative Agent shall have been appointed within 120 days after the departing Administrative Agent’s giving of notice of resignation, the departing Administrative Agent may petition a court of competent jurisdiction to appoint a successor Administrative Agent, which successor Administrative Agent shall have short-term debt ratings of at least A-1 from S&P and P-1 from Moody’s, and shall be either a commercial bank having a combined capital and surplus of at least $250,000,000 or a Subsidiary of such an institution. Upon such acceptance of its appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall succeed to and become vested with all the rights and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from any further duties and obligations under the Transaction Documents. After any retiring Administrative Agent’s resignation hereunder, the provisions of Section 2.6 (Indemnities) of the Servicing Agreement and Section 10 (Indemnities by the Seller) and this Section 8 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent.
8.10 Consent to agreed upon procedures
Each of the Purchasers and the Purchaser Agents, by becoming a party to this Agreement, authorizes the Administrative Agent (a) to execute on its behalf a letter agreement with respect to the limited engagement of, and consenting to the agreed upon procedures to be performed by, a firm of nationally recognized independent accountants or collateral auditors, in either case acceptable to the Administrative Agent in connection with the transactions contemplated by the Transaction Documents so long as such procedures are consistent with Section 5.2 (Inspections; annual agreed upon procedures audit); and (b) to approve additional agreed upon procedures.
9. THE PURCHASER AGENTS
9.1 Authorization and action
Each Conduit Purchaser and each Committed Purchaser which belongs to the same Purchaser Group hereby appoints and authorizes the Purchaser Agent for such Purchaser Group to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are delegated to the Purchaser Agent by the terms hereof and the other Transaction Documents, together with such powers as are reasonably incidental thereto. No Purchaser Agent shall have any duties other than those expressly set forth in the Transaction Documents, and no implied obligations or liabilities shall be read into any Transaction Document, or
otherwise exist, against any Purchaser Agent. No Purchaser Agent assumes, nor shall it be deemed to have assumed, any obligation to, or relationship of trust or agency with any Transaction Party, Conduit Purchaser or Committed Purchaser except as otherwise expressly agreed by such Purchaser Agent. Notwithstanding any provision of this Agreement or any other Transaction Document, in no event shall any Purchaser Agent ever be required to take any action which exposes such Purchaser Agent to personal liability or which is contrary to any provision of any Transaction Document or applicable Law.
9.2 Purchaser Agent’s reliance, etc.
No Purchaser Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them as a Purchaser Agent under or in connection with this Agreement or the other Transaction Documents in the absence of its or their own gross negligence or willful misconduct. Without limiting the generality of the foregoing, a Purchaser Agent: (a) may consult with legal counsel (including counsel for the Administrative Agent, the Seller, any Transaction Party), independent accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (b) makes no warranty or representation to any Conduit Purchaser or Committed Purchaser (whether written or oral) and shall not be responsible to any Conduit Purchaser or Committed Purchaser for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement or any other Transaction Document; (c) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any other Transaction Document on the part of any Transaction Party or any other Person or to inspect the property (including the books and records) of any Transaction Party or to verify the accuracy of any Portfolio Report, Outstanding Receivables Report or any other information received under the Transaction Document; (d) shall not be responsible to any Conduit Purchaser or any Committed Purchaser for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Transaction Documents or any other instrument or document furnished pursuant hereto; and (e) shall incur no liability under or in respect of this Agreement or any other Transaction Document by acting upon any notice (including notice by telephone), consent, certificate or other instrument or writing (which may be by facsimile) believed by it to be genuine and signed or sent by the proper party or parties.
9.3 Purchaser Agent and Affiliates
With respect to any Investment or interests therein owned by it, each Purchaser Agent shall have the same rights and powers under this Agreement as any Committed Purchaser and may exercise the same as though it were not a Purchaser Agent. The Purchaser Agent and any of its Affiliates may generally engage in any kind of business with any Transaction Party or any Obligor, any of their respective Affiliates and any Person who may do business with or own securities of any Transaction Party or any Obligor or any of their respective Affiliates, all as if such Purchaser Agent
were not a Purchaser Agent and without any duty to account therefore to any Conduit Purchasers or Committed Purchasers.
9.4 Indemnification of Purchaser Agents
Each Committed Purchaser in any Purchaser Group severally agrees to indemnify the Purchaser Agent for such Purchaser Group (to the extent not reimbursed by the Transaction Parties), ratably according to its Pro Rata Share, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against such Purchaser Agent in any way relating to or arising out of this Agreement or any other Transaction Document or any action taken or omitted by such Purchaser Agent under this Agreement or any other Transaction Document; provided that no Committed Purchaser shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Purchaser Agent’s gross negligence or willful misconduct.
9.5 Delegation of Duties
Each Purchaser Agent may execute any of its duties through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. No Purchaser Agent shall be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
9.6 Action or inaction by Purchaser Agent
Each Purchaser Agent shall in all cases be fully justified in failing or refusing to take action under any Transaction Document unless it shall first receive such advice or concurrence of the Conduit Purchasers and Committed Purchasers in its Purchaser Group and assurance of its indemnification by the Committed Purchasers in its Purchaser Group, as it deems appropriate. Each Purchaser Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Transaction Document in accordance with a request or at the direction of the Committed Purchasers in its Purchaser Group representing a majority of the Commitments in such Purchaser Group, and such request or direction and any action taken or failure to act pursuant thereto shall be binding upon all Conduit Purchasers and Committed Purchasers in its Purchaser Group.
9.7 Notice of Events of Termination
No Purchaser Agent shall be deemed to have knowledge or notice of the occurrence of any Facility Event or Portfolio Event or and other default or termination event under the Transaction Documents unless such Purchaser Agent has received notice from the Administrative Agent, any Conduit Purchaser or Committed Purchaser, any Servicer Party or the Seller stating that a Facility Event or Portfolio Event or default or termination event under the Transaction Documents, as the case may be, has occurred hereunder or thereunder and describing such termination event or default. If a Purchaser Agent receives such a notice, it shall promptly give notice thereof to the Conduit Purchasers and Committed Purchasers in its Purchaser Group and to the
Administrative Agent (but only if such notice received by such Purchaser Agent was not sent by the Administrative Agent). A Purchaser Agent may take such action concerning a Facility Event or Portfolio Event as may be directed by Committed Purchasers in its Purchaser Group representing a majority of the Commitments in such Purchaser Group (subject to the other provisions of this Section 9), but until such Purchaser Agent receives such directions, such Purchaser Agent may (but shall not be obligated to) take such action, or refrain from taking such action, as such Purchaser Agent deems advisable and in the best interests of the Conduit Purchasers and Committed Purchasers in its Purchaser Group.
9.8 Non-reliance on Purchaser Agent and other Parties
Except to the extent otherwise agreed to in writing between a Conduit Purchaser and its Purchaser Agent, each Conduit Purchaser and Committed Purchaser expressly acknowledges that neither the Purchaser Agent for its Purchaser Group nor any of such Purchaser Agent’s directors, officers, agents or employees has made any representations or warranties to it and that no act by such Purchaser Agent hereafter taken, including any review of the affairs of the Transaction Parties, shall be deemed to constitute any representation or warranty by such Purchaser Agent. Each Conduit Purchaser and Committed Purchaser represents and warrants to the Purchaser Agent for its Purchaser Group that, independently and without reliance upon such Purchaser Agent, any other Purchaser Agent, the Administrative Agent or any other Conduit Purchaser or Committed Purchaser and based on such documents and information as it has deemed appropriate, it has made and will continue to make its own appraisal of and investigation into the business, operations, property, prospects, financial and other conditions and creditworthiness of the Transaction Parties and the Receivables and its own decision to enter into this Agreement and to take, or omit, action under any Transaction Document. Except for items expressly required to be delivered under any Transaction Document by a Purchaser Agent to any Conduit Purchaser or Committed Purchaser in its Purchaser Group, no Purchaser Agent shall not have any duty or responsibility to provide any Conduit Purchaser or Committed Purchaser in its Purchaser Group with any information concerning the Transaction Parties or any of their Affiliates that comes into the possession of such Purchaser Agent or any of its directors, officers, agents, employees, attorneys-in-fact or Affiliates.
9.9 Successor Purchaser Agent
Any Purchaser Agent may, upon at least 30 days notice to the Administrative Agent, the Seller, the Master Servicer and the Conduit Purchasers and Committed Purchasers in its Purchaser Group, resign as the Purchaser Agent for its Purchaser Group. Except as provided below, such resignation shall not become effective until a successor Purchaser Agent has been, with the consent of the Master Servicer (such consent not to be unreasonably withheld), appointed in the manner prescribed by the relevant Program Support Agreements or, in the absence of any provisions in such Program Support Agreements providing for the appointment of a successor Purchaser Agent, until a successor Purchaser Agent is appointed by the Conduit Purchaser(s) in such Purchaser Group (with the consent of the Committed Purchasers representing a majority of the Commitments in such Purchaser Group) and has accepted such appointment. If no successor Purchaser Agent shall have been so appointed within 30
days after the departing Purchaser Agent’s giving of notice of resignation, then the departing Purchaser Agent may appoint a successor Purchaser Agent for such Purchaser Group, which successor Purchaser Agent shall have short-term debt ratings of at least A-1 from S&P and P-1 from Moody’s and shall be either a commercial bank having a combined capital and surplus of at least $250,000,000 or an Affiliate of such an institution. Upon such acceptance of its appointment as Purchaser Agent for such Purchaser Group hereunder by a successor Purchaser Agent, such successor Purchaser Agent shall succeed to and become vested with all the rights and duties of the retiring Purchaser Agent, and the retiring Purchaser Agent shall be discharged from any further duties and obligations under the Transaction Documents. After any retiring Purchaser Agent’s resignation hereunder, the provisions of Section 2.6 (Indemnities) of the Servicing Agreement and Section 10 (Indemnities by the Seller) and this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was a Purchaser Agent.
9.10 Reliance on Purchaser Agent
Unless otherwise advised in writing by a Purchaser Agent or by any Conduit Purchaser or Committed Purchaser in such Purchaser Agent’s Purchaser Group, each party to this Agreement may assume that (a) such Purchaser Agent is acting for the benefit and on behalf of each of the Conduit Purchasers and Committed Purchasers in its Purchaser Group, as well as for the benefit of each assignee or other transferee from any such Person and (b) each action taken by such Purchaser Agent has been duly authorized and approved by all necessary action on the part of the Conduit Purchasers and Committed Purchasers in its Purchaser Group.
10. INDEMNITIES BY THE SELLER
Without limiting any other rights that the Administrative Agent, the Purchaser Agent, the Conduit Purchasers (including any related financing conduit if any such Conduit Purchaser funds itself through another issuing entity), the Committed Purchasers, the Program Support Providers, any Program Manager or any of their respective officers, directors, agents, employees, controlling Persons or Affiliates of any of the foregoing (each, an “Indemnified Party”) may have hereunder, under any other Transaction Document or under applicable Law, the Seller hereby agrees to indemnify and hold harmless each Indemnified Party from and against any and all damages, losses, claims, liabilities, deficiencies, costs, disbursements and expenses, including interest, penalties, amounts paid in settlement and reasonable internal and external attorneys’ fees and expenses (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any Indemnified Party (including in connection with or relating to):
(i) any investigation, litigation or lawsuit (actual or threatened) or order, consent decree, judgment, claim or other action of whatever sort (including the preparation of any defense with respect thereto), in each case, in any way arising out of, resulting from or related to this Agreement or any other Transaction Document, the funding or maintenance or financing, either directly or indirectly, by any Indemnified Party of the Investments made hereunder or the use of the proceeds thereof or in respect of any
Collateral or any Facility Account or the enforcement, servicing, administration or collection thereof, or any other transaction contemplated hereby or thereby;
(ii) the occurrence of any Facility Event, Portfolio Event, Seller Event or Servicer Default;
(iii) the failure to vest in the Seller ownership of the Portfolio Receivables, the Related Security with respect thereto and other Collateral free of any Adverse Claims;
(iv) the failure to vest in the Administrative Agent a first priority perfected security interest prior to all other interests in all of the Portfolio Receivables, the Related Security with respect thereto, the Facility Accounts and other Collateral, free and clear of any Adverse Claim;
(v) any dispute, claim, setoff or defense (other than discharge in bankruptcy) of an Obligor to the payment of any Receivable (including a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise, goods or services related to such Receivable or the furnishing or failure to furnish such merchandise, goods or services or relating to collection activities with respect to such Receivable or from any breach or alleged breach of any provision of the Receivables or any Contracts related thereto restricting assignment of any Receivables; or
(vi) the commingling by any Transaction Party of Collections of Portfolio Receivables at any time with any other funds, the payment of any Collections into an account other than a Facility Account, or any failure of a bank or other financial institution at which a Facility Account is maintained to remit any amounts held in the Facility Accounts or any related lock-boxes pursuant to applicable instructions whether by reason of the exercise of setoff rights or otherwise;
excluding, however (a) Indemnified Amounts to the extent that such Indemnified Amounts resulted from the negligence, fraud or wilful misconduct on the part of such Indemnified Party, (b) recourse (except as otherwise specifically provided in this Agreement or any other Transaction Document) for Uncollectible Portfolio Receivables and Related Security with respect thereto, (c) any Excluded Taxes, and (d) any Indemnified Amount to the extent the same has been fully and finally paid in cash to such Indemnified Party pursuant to any other provision of this Agreement or any other Transaction Document.
11. MISCELLANEOUS
11.1 Amendments, etc.
No failure on the part of the Purchaser Agents, the Conduit Purchasers, the Committed Purchasers or the Administrative Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. No amendment or waiver of any provision of this Agreement or consent to any departure by any Transaction Party therefrom
shall be effective unless in writing signed by the Administrative Agent, with the prior written consent of each Purchaser Agent (and, in the case of any amendment, also signed by the Seller, the Master Servicer and the Performance Undertaking Provider), and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that, notwithstanding the foregoing, the Majority Committed Purchasers may waive any Portfolio Event or Facility Termination Event; and provided, further, that (i) no amendment, waiver or consent shall increase the Commitment of any Committed Purchaser unless in writing and signed by such Committed Purchaser and the relevant Purchaser Agent and (ii) no amendment, waiver or consent shall alter the duties of any Purchaser Agent in any material respect without the consent of such Purchaser Agent. Following the occurrence of a Portfolio Event or Facility Termination Event and either (i) any waiver of such Portfolio Event or Facility Termination Event (as described above or in Section 7.1) or (ii) the failure of the Committed Purchasers to declare the Facility Termination Date where one or more Committed Purchasers have voted in favour of such declaration, any Committed Purchaser (and its related Conduit Purchaser) which voted against such waiver or in favour of the declaration of the Facility Termination Date may notify the Seller, the Master Servicer and the Administrative Agent in writing that it did not consent to such waiver and has opted for an early exit from this Facility. If the Administrative Agent is one of the Committed Purchasers exiting the Facility, (i) one of the waiving Committed Purchasers (or its related Purchaser Agent) shall be immediately appointed as the successor Administrative Agent by the waiving Committed Purchasers (without the consent of the Seller or the Master Servicer or the necessity of satisfying any of the other requirements of Section 8.9) and (ii) all necessary steps shall be taken to transition all rights, obligations, security interests, charges, etc. to the successor Administrative Agent as a condition to such exit by the predecessor Administrative Agent. Following delivery of such notice, and for so long as the Facility Termination Date has not occurred, the Seller may draw on the non-exiting Purchasers to the extent of any unused Commitments and availability hereunder (and subject to the conditions set forth in Section 3.2) to repay the Invested Amounts of each exiting Purchaser and/or shall allocate all Collections received (after paying amounts required under Sections 2.6(e)(i)-(v)) on a nonpro rata basis to the repayment of such Committed Purchaser (and its related Conduit Purchaser), in each case, until the Invested Amount of each exiting Purchaser has been reduced to zero (instead of reinvesting such amounts) (it being understood that if there are several exiting Purchasers, the allocation of Collections shall be paid on a pro rata basis across all exiting Purchasers). In addition, the Commitment of any exiting Committed Purchaser shall be reduced to zero and no further Investments shall be made by such Committed Purchaser (or its related Conduit Purchaser). For purposes of any voting by the Purchasers during the exiting process of a Committed Purchaser, such Committed Purchaser (and its related Conduit Purchaser) shall be permitted to vote based on their then-current Invested Amount.
11.2 Notices, etc.
All communications and notices provided for hereunder shall be provided in the manner described in Schedule 2 (Address and Notice Information).
11.3 Assignability
(a) General
This Agreement and each Purchaser’s rights and obligations hereunder shall be assignable by such Purchaser and its successors and permitted assigns to any Eligible Assignee subject to Sections 11.3(b) and (c). Each assignor of an Investment or any interest therein shall notify the Administrative Agent and the Seller of any such assignment. Each assignor of an Investment or any interest therein may, in connection with the assignment or participation, disclose to the assignee or participant any information relating to the Transaction Parties, including the Collateral, furnished to such assignor by or on behalf of any Transaction Party or by the Administrative Agent; provided that, prior to any such disclosure, the assignee or participant agrees to preserve the confidentiality of any confidential information relating to the Transaction Parties received by it from any of the foregoing entities in a manner consistent with Section 11.6(b) (Confidentiality).
Notwithstanding the foregoing, the provisions and procedures set forth in this Section 11.3 (Assignability) shall not apply to any assignment made by a Committed Purchaser for the sole purpose of refinancing such Committed Purchaser’s Invested Amount using, in this respect, any entity within its group or managed by its Purchaser Agent. In such a case, a Committed Purchaser may assign any of its rights with respect to such Invested Amount to such entities without any restriction.
(b) Assignments by Conduit Purchasers
Each Conduit Purchaser may pledge or otherwise grant security interests in all or any portion of the Investments to a security trustee in connection with its commercial paper program without prior notice to or consent from any other party or any other condition or restriction of any kind. Each Conduit Purchaser may assign or otherwise transfer all or any portion of the Investments to any Conduit Assignee or Program Support Provider with respect to such Conduit Purchaser without prior notice to or consent from any other party or any other condition or restriction of any kind. Without limiting the generality of the foregoing, each Conduit Purchaser may, from time to time assign all or any portion of its interest in the Investments and its rights and obligations under this Agreement and any other Transaction Documents to which it is a party to an Eligible Assignee. Upon such assignment by a Conduit Purchaser to a Conduit Assignee, (i) unless a new Purchaser Group is being established pursuant to Section 11.3(i), the Purchaser Agent for such Conduit Purchaser will act as the Purchaser Agent for such Conduit Assignee hereunder, (ii) such Conduit Assignee (and any related commercial paper issuer, if such Conduit Assignee does not itself issue commercial paper) and its liquidity support provider(s) and credit support provider(s) and other related parties (including all of its Program Support Providers) shall have the benefit of all the rights and protections provided to such Conduit Purchaser and its related Committed Purchasers herein and in the other Transaction
Documents (including any limitation on recourse against such Conduit Assignee), (iii) such Conduit Assignee shall assume all of such Conduit Purchaser’s obligations hereunder or under any other Transaction Document (whenever created, whether before or after such assignment) with respect to the assigned portion of the Investments held by such Conduit Purchaser and such Conduit Purchaser shall be released from all such obligations, (iv) all distributions to such Conduit Purchaser hereunder with respect to the assigned portion of the Investments shall be made to such Conduit Assignee, (v) the definition of the term “CP Rate” shall be determined on the basis of the interest rate or discount applicable to Commercial Paper issued by such Conduit Assignee (and any related commercial paper issuer, if such Conduit Assignee does not itself issue commercial paper) rather than such assigning Conduit Purchaser, (vi) the defined terms and other terms and provisions of this Agreement and the other Transaction Documents shall be interpreted in accordance with the foregoing and (vii) if requested by the Administrative Agent or the Purchaser Agent with respect to such Conduit Assignee, the parties will execute and deliver such further agreements and documents (including amendments to this Agreement) and take such other actions as the Administrative Agent or such Purchaser Agent may reasonably request to evidence and give effect to the foregoing.
(c) Assignment by Committed Purchasers
Each Committed Purchaser may assign to any Eligible Assignee all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and any Investments or interests therein owned by it); provided that:
(i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement;
(ii) the amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than the lesser of (A) $100,000,000 (in U.S. Dollars or the Dollar Equivalent) and (B) all of the assigning Committed Purchaser’s Commitment; and
(iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its recording in the Register (as defined below), an Assignment and Acceptance, together with a processing and recordation fee of $5,000 (which fee shall not be payable with respect to any assignment by a Committed Purchaser of a type described in the last sentence of Section 11.3(a)). The Seller shall have no responsibility for such fee.
Upon such execution, delivery, acceptance and recording from and after the effective date specified in such Assignment and Acceptance, (x) the assignee thereunder shall be a party to this Agreement and, to the extent that rights and obligations under this Agreement have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Committed Purchaser thereunder and (y) the assigning Committed Purchaser shall, to the extent that rights and obligations have been assigned by it pursuant to such Assignment and Acceptance, relinquish such rights and be released from such obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Committed Purchaser’s rights and obligations under this Agreement, such Committed Purchaser shall cease to be a party hereto). In addition, any Committed Purchaser or any of its Affiliates may assign any of its rights (including rights to payment of any Invested Amount and Yield) under this Agreement to any U.S. Federal Reserve Bank or European Central Bank without notice to or consent of any Transaction Party, any other Committed Purchaser or Conduit Purchaser, any Purchaser Agent or the Administrative Agent.
(d) Register
At all times during which any Investment is outstanding, the Administrative Agent shall maintain at its address referred to in Section 11.2 (Notices, etc.) (or such other address of the Administrative Agent notified by the Administrative Agent to the other parties hereto) a register as provided herein (the “Register”). All Investments and any interest therein, and any Assignments and Acceptances of any Investments and any interest therein delivered to and accepted by the Administrative Agent, shall be registered in the Register, and the Register shall serve as a record of ownership that identifies the owner of each Investment and any interest therein. Notwithstanding any other provision of this Agreement, no transfer of any Investment or any interest therein shall be effective unless and until such transfer has been recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Seller, the Master Servicer, the Administrative Agent, the Purchaser Agents, the Conduit Purchasers and the Committed Purchasers may treat each Person whose name is recorded in the Register as a Committed Purchaser or Conduit Purchaser, as the case may be, under this Agreement for all purposes of this Agreement. This Section 11.3(d) shall be construed so that each Investment and any interest therein is maintained at all times in “registered form” within the meaning of clauses 163(f), 871(h) and 881(c) of the IRC, and solely for the purposes of this Section 11.3, the Administrative Agent will act as an agent of the Seller. The Register shall be available for inspection by the Seller, the Master Servicer, any Purchaser Agent, any Conduit Purchaser or any Committed Purchaser at any reasonable time and from time to time upon reasonable prior notice.
(e) Procedure
Upon its receipt of an Assignment and Acceptance executed by an assigning Committed Purchaser and an Eligible Assignee, the Administrative Agent shall, if such Assignment and Acceptance has been duly completed, (i) accept such Assignment and Acceptance, (ii) record the information contained therein
in the Register and (iii) give prompt notice thereof to the Seller and the Master Servicer.
(f) Participations
Each Purchaser may sell participations to one or more banks or other entities that are Eligible Assignees on the date of such sale (each a “Participant”) in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its interests in the Investments owned by it and, in the case of a Committed Purchaser, its Commitment); provided that:
(i) such Purchaser’s obligations under this Agreement shall remain unchanged;
(ii) such Purchaser shall remain solely responsible to the other parties to this Agreement for the performance of such obligations; and
(iii) the Administrative Agent, the Purchaser Agents, the other Purchasers, the Seller and the Master Servicer shall have the right to continue to deal solely and directly with such Purchaser in connection with such Purchaser’s rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Purchaser sells such a participation shall provide that the Participant shall not have any right to direct the enforcement of this Agreement or other Transaction Documents or to approve any amendment, modification or waiver of any provision of this Agreement or the other Transaction Documents; provided that such agreement or instrument may provide that such Committed Purchaser will not, without the consent of the Participant, agree to any amendment, modification or waiver of a type that would require the consent of each Purchaser affected thereby pursuant to Section 11.1 (Amendments, etc.).
(g) Seller and Servicer Assignment
Neither the Seller nor the Master Servicer may assign any of its rights or obligations hereunder or any interest herein without the prior written consent of each Purchaser Agent.
(h) Cooperation
The Seller and the Master Servicer agree to assist each Committed Purchaser, upon its reasonable request, in syndicating their respective Commitments hereunder, including making management and representatives of the Master Servicer and the Seller reasonably available to participate in informational meetings with potential assignees.
(i) New Purchaser Groups
In connection with any assignment by a Conduit Purchaser of all or any portion of its Invested Amount to a Conduit Assignee, such Conduit Assignee
may elect to establish a new Purchaser Group hereunder by the execution and delivery of a Joinder Agreement by such Conduit Assignee, the Committed Purchasers which are to be in its Purchaser Group and the Person which is to be the Purchaser Agent for such Purchaser Group, in each case without the consent of any other party. In connection with a New Accordion Committed Purchaser providing an Additional Commitment pursuant to an Accordion Increase, such New Accordion Committed Purchaser shall establish a new Purchaser Group hereunder by the execution and delivery of a Joinder Agreement by such New Accordion Committed Purchaser, the Person which is to be the Conduit Purchaser for such Purchaser Group and the Person which is to be the Purchaser Agent for such Purchaser Group. Upon the effective date of such Joinder Agreement, (i) the Person specified therein as a “Purchaser Agent” shall become a party hereto and a party to the Purchaser Agent Fee Letter as the Purchaser Agent, entitled to the rights and subject to the obligations of the Purchaser Agent hereunder and (ii) Schedule 1 (Purchaser Groups) shall be deemed to have been amended as appropriate to incorporate the information set forth in such Joinder Agreement.
11.4 Costs and Expenses
In addition to the rights of indemnification granted under Section 10 (Indemnities by the Seller) and the other obligations herein, the Seller agrees to pay on written demand all reasonable costs and expenses incurred by any Indemnified Party in connection with the preparation, execution, delivery and administration of this Agreement, any Program Support Agreement and the other Transaction Documents, including (a) all rating agency fees, (b) subject to Section 5.2(a) (Inspections; annual agreed upon procedures audit), all reasonable fees and expenses associated with any audits and other due diligence, (c) except as otherwise provided in Section 2.20(a) (Extension of Scheduled Commitment Facility Termination Date), any amendments, waivers or consents under the Transaction Documents and (d) to the extent not included in the CP Rate for any Conduit Purchaser or Committed Purchaser refinanced, directly or indirectly, through the issuance of Commercial Paper, all reasonable costs incurred by such Conduit Purchaser to open and maintain accounts in Local Currencies in connection with the Investments made by it hereunder. In addition, the Seller agrees to pay on written demand all costs and expenses (including reasonable counsel fees and expenses), of each of the Administrative Agent, the Purchaser Agents, the Conduit Purchasers, the Committed Purchasers, the Program Support Providers and their respective Affiliates, incurred in connection with the enforcement of, or any dispute, work-out, litigation or preparation for litigation involving, this Agreement or any other Transaction Document.
11.5 No proceedings; no recourse
Each of the parties hereto, each assignee of an Investment or any interest therein and each Person which enters into a commitment to purchase Investments or interests therein hereby agrees that it will not institute against any Conduit Purchaser (including, for the avoidance of doubt, any Conduit Purchaser acting as a Committed Purchaser hereunder) any proceeding of the type referred to in the definition of Event of Bankruptcy so long as any Commercial Paper or other senior indebtedness issued
by such Conduit Purchaser (or its related commercial paper issuer) shall be outstanding or there shall not have elapsed two years plus one day since the last day on which any such Commercial Paper or other senior indebtedness shall have been outstanding.
11.6 Confidentiality
(a) The Fee Letters and any other pricing information relating to the facility contemplated by the Transaction Documents (including such information set forth in any engagement letter, term sheet or proposal prior to the Closing Date) (collectively, “Product Information”) is confidential. Each of the Seller, the Performance Undertaking Provider and the Master Servicer agrees:
(i) to keep all Product Information confidential and to disclose Product Information only to those of its officers, employees, agents, accountants, legal counsel and other representatives (collectively “Representatives”) who have a need to know such Product Information for the purpose of assisting in the negotiation, completion and administration of the facility contemplated hereby (the “Facility”);
(ii) to use the Product Information only in connection with the Facility and not for any other purpose; and
(iii) to cause its Representatives to comply with these provisions and to be responsible for any failure of any Representative to so comply.
The provisions of this Section 11.6 shall not apply to Product Information that is or hereafter becomes (through a source other than the Seller, the Master Servicer, the Performance Undertaking Provider or any of their respective Affiliates or Representatives) a matter of general public knowledge. The provisions of this Section 11.6 shall not prohibit the Seller, the Performance Undertaking Provider or the Master Servicer from filing with any governmental or regulatory agency any information or other documents with respect to the Transaction Documents as may be required by applicable Law.
(b) The Seller, each Purchaser, each Purchaser Agent, and the Administrative Agent agrees to maintain the confidentiality of all non-public information with respect to the Transaction Parties, the Receivables, the Collections, the Related Security, the Collection Accounts or any other matters furnished or delivered to it pursuant to or in connection with this Agreement or any other Transaction Document (including, for the avoidance of doubt, any such information obtained from another Committed Purchaser, Conduit Purchaser, Purchaser Agent, or the Administrative Agent); provided that such information may be disclosed (i) to such party’s Affiliates or such party’s or its Affiliates officers, employees, agents, accountants, legal counsel and other representatives or professional advisers (collectively “Purchaser Representatives”), in each case, who have a need to know such information for the purpose of assisting in the negotiation, completion and administration of the Facility contemplated hereby, (ii) to such party’s permitted (including potential) assignees and
participants (and their respective affiliates, representatives and professional advisers) to the extent such disclosure is made pursuant to a written agreement of confidentiality substantially similar to this Section 11.6(b), (iii) to any rating agency (including by means of a password-protected internet website maintained in connection with Rule 17g-5) and to the Program Support Providers for each Conduit Purchaser, (iv) to the extent required by applicable Law or by any Official Body, (v) to any Person who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any interest of such Committed Purchaser or Conduit Purchaser hereunder to the extent such disclosure is made pursuant to a written agreement of confidentiality substantially similar to this Section 11.6(b), and (vi) to the extent necessary in connection with the enforcement of any Transaction Document.
The provisions of Section 11.6(b) shall not apply to information that is or hereafter becomes (through a source other than the applicable Purchaser, Purchaser Agent or the Administrative Agent or any Purchaser Representative associated with such party) a matter of general public knowledge. The provisions of this Section 11.6 shall not prohibit any Purchaser, any Purchaser Agent or the Administrative Agent from filing with or making available to any governmental or regulatory agency any information or other documents with respect to the Transaction Documents as may be required by applicable Law or requested by such governmental or regulatory agency.
11.7 Further Assurances
From time to time as may be necessary, each of the Seller and the Master Servicer shall (a) cooperate with each Rating Agency in connection with any review of the Transaction Documents which may be undertaken by such Rating Agency and (b) provide each Rating Agency with such information or access to such information as they may reasonably request in connection with any future review of the ratings referred to above.
11.8 Execution in Counterparts
This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or by electronic file in a format that is accessible by the recipient shall be effective as delivery of a manually executed counterpart of this Agreement.
11.9 Integration; Binding Effect; Survival of Termination; Severability
This Agreement and the other Transaction Documents executed by the parties hereto on the date hereof contain the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof superseding all prior oral or written understandings. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns (including any trustee in bankruptcy). Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms and shall remain in full force and effect until the Final Payout Date; provided, that the provisions of Sections 2.11, 2.12, 2.13, 2.14, 2.15, 10, 11.4, 11.5, 11.6, 11.11, 11.13, 11.15, and 11.17 shall survive any termination of this Agreement. If any one or more of the provisions of this Agreement shall for any reason whatsoever be held invalid, then such provisions shall be deemed severable from the remaining provisions of this Agreement and shall in no way affect the validity or enforceability of such other provisions.
11.10 Governing law; consent to jurisdiction; waiver of jury trial
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(b) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of the Supreme Court of the State of New York sitting in the Borough of Manhattan and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement. Each party hereto hereby irrevocably waives, to the fullest extent that it may legally do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
(c) Each of the parties hereto consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to it at its address specified herein. Nothing in this Section 11.10 shall affect the right of any party to serve legal process in any manner permitted by Law.
(d) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO WAIVES ITS RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
11.11 Right of Setoff
Each Purchaser is hereby authorized (in addition to any other rights it may have) at any time after the occurrence of the Facility Termination Date following the occurrence of a Facility Termination Event to set off, appropriate and apply (without presentment, demand, protest or other notice which are hereby expressly waived) any amounts and any other indebtedness held or owing by such Purchaser to, or for the account of, the Seller against the amount of the Transaction Party Obligations owing by the Seller to such Person.
11.12 Ratable payments
If any Committed Purchaser, whether by setoff or otherwise, has payment made to it with respect to any Transaction Party Obligation in a greater proportion than that received by any other Committed Purchaser entitled to receive a ratable share of such Transaction Party Obligation, such Committed Purchaser agrees, promptly upon demand, to purchase for cash without recourse or warranty a portion of such Transaction Party Obligation held by the other Committed Purchasers so that after such purchase each Committed Purchaser will hold its ratable proportion of such Transaction Party Obligation; provided that if all or any portion of such excess amount is thereafter recovered from such Committed Purchaser, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest. Notwithstanding the foregoing, if a Purchaser receives any payment through a proceeding against a Transaction Party and the other Purchasers were provided an opportunity to participate in such proceeding but opted not to, then such Purchaser may retain any such amounts.
11.13 Limitation of Liability
(a) No claim may be made by any party against any other party or their respective Affiliates, directors, officers, employees, attorneys or agents (each a “Default Party”) for any special, indirect, consequential or punitive damages in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement or any other Transaction Document, or any act, omission or event occurring in connection herewith or therewith, except with respect to any claim arising out of the willful misconduct or gross negligence of such Default Party; and each party hereto hereby waives, releases, and agrees not to sue upon any claim for any
such damages, whether or not accrued and whether or not known or suspected to exist in its favor.
(b) Notwithstanding anything to the contrary contained herein or any other Transaction Document, the obligations of the respective Conduit Purchasers (including, for the avoidance of doubt, any Conduit Purchaser acting as a Committed Purchaser hereunder) under this Agreement and all other Transaction Documents are solely the corporate obligations of each such Conduit Purchaser and shall be payable only at such time as funds are actually received by, or are available to, such Conduit Purchaser in excess of funds necessary to pay in full all outstanding Commercial Paper issued by such Conduit Purchaser and shall be non-recourse other than with respect to such excess funds, and without limiting Section 11.5, if ever and until such time as such Conduit Purchaser has sufficient funds to pay such obligation shall not constitute a claim against such Conduit Purchaser. Each party hereto agrees that the payment of any claim of any such party shall be subordinated to the payment in full of all Commercial Paper.
(c) No recourse under any obligation, covenant or agreement of any party hereto contained in this Agreement or any other Transaction Document shall be had against any incorporator, stockholder, officer, director, member, manager, employee or agent of such party or any of their Affiliates (solely by virtue of such capacity) by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement and the other Transaction Documents are solely a corporate obligation of such party, and that no personal liability whatever shall attach to or be incurred by any incorporator, stockholder, officer, director, member, manager, employee or agent of any party hereto or any of their Affiliates (solely by virtue of such capacity) or any of them under or by reason of any of the obligations, covenants or agreements of such party contained in this Agreement or any other Transaction Document, or implied therefrom, and that any and all personal liability for breaches by any party of any of such obligations, covenants or agreements, either at common law or at equity, or by statute, rule or regulation, of every such incorporator, stockholder, officer, director, member, manager, employee or agent is hereby expressly waived as a condition of and in consideration for the execution of this Agreement or any other Transaction Document; provided that the foregoing shall not relieve any such Person from any liability it might otherwise have as a result of grossly negligent or fraudulent actions taken or grossly negligent or fraudulent omissions made by them.
11.14 Limitation on the addition and termination of Originators
(a) Without limiting the right of any Originator to terminate its rights and obligations to sell Receivables to a Purchaser pursuant to and in accordance with the applicable Originator Sale Agreement, the Seller shall not consent to any request made to terminate any Originator Sale Agreement or to terminate the right or obligation of any Originator to continue selling its Receivables to the Seller or any Intermediate Transferor (as applicable) thereunder, nor will
any Originator which is the subject of such request be terminated under an Originator Sale Agreement, in each case unless (i) the Master Servicer provides the Administrative Agent, the Purchaser Agents and each Committed Purchaser with a certificate (signed by a Responsible Officer of the Master Servicer) which attaches a Monthly Report or Weekly Report, as applicable, giving pro forma effect to any reduction in the Net Eligible Receivables Balance resulting from the termination of such Originator or Originator Sale Agreement, and which certifies that, after giving pro forma effect to such termination and any prepayments of Investments on or prior to the date of such termination, the Aggregate Invested Amount does not exceed the Funding Base, (ii) no Facility Termination Event (other than with respect to the Originator so terminated) or Portfolio Event has occurred and is continuing (both before and after giving effect to such termination) and (iii) the Administrative Agent and the Purchaser Agents will have received ten (10) Business Days’ prior written notice of such termination. In the event any Originator or Originator Sale Agreement is so terminated, the ratios used in calculating the performance triggers or reserves shall be determined as if the Receivables of such Originator or Originators under such Originator Sale Agreement, as applicable, had never existed.
(b) The Seller will not, and will not permit any Intermediate Transferor to, consent to the addition of a new Originator under an Originator Sale Agreement except (i) with the consent of the Administrative Agent and each Purchaser Agent (such consent not to be unreasonably withheld), (ii) upon the satisfaction of the conditions precedent specified in such Originator Sale Agreement, and (iii) a reaffirmation from the Performance Undertaking Provider in form and substance reasonably satisfactory to the Administrative Agent and the Required Committed Purchasers pursuant to which the Performance Undertaking Provider reaffirms its obligations under the Performance Undertaking after giving effect to the addition of such new Originator thereunder, together with any opinions and certificates in connection with the addition of such new Originator reasonably requested by the Administrative Agent, the Purchaser Agent or the Seller.
(c) the Seller will not enter into any new Intermediate Transfer Agreement without the prior consent of the Administration Agent and each Purchaser Agent.
(d) Bunge Limited, acting on behalf of one or more of its Subsidiaries organized under the laws of a jurisdiction which at the time of such request is not an Approved Originator Jurisdiction, may submit a request in writing to the Administrative Agent in order to seek the approval of the addition of a new Approved Originator Jurisdiction (and a related new Approved Obligor Jurisdiction, Approved Currency and Approved Contract Jurisdiction to the extent necessary) and the entry into a new Originator Sale Agreement relating to such new Approved Originator Jurisdiction, provided that:
(i) the Administrative Agent shall respond to any such request as soon as reasonably practicable following receipt thereof, and any approval of
such request, subject to clause (ii) below, shall be “in principle” and may be conditional upon the execution by Bunge Limited of a mandate letter to be entered into with Rabobank in which Rabobank shall indicate its estimate of the costs to be incurred in adding such Subsidiary(ies) as a new Originator(s) hereunder, including the costs of due diligence in connection with, and structuring of, the securitization of such proposed new Originator’s Receivables;
(ii) notwithstanding any indication of approval of any such request by the Administrative Agent pursuant to clause (i) above, the addition of the proposed new Approved Originator Jurisdiction (and a related new Approved Obligor Jurisdiction, Approved Currency and Approved Contract Jurisdiction to the extent necessary) and any proposed new Originator organized under the laws thereof shall be subject to the final approval of each Purchaser Agent and confirmation from the Rating Agencies that the addition of such new Originator(s) will not result in the reduction or withdrawal of the then-current ratings of any Conduit Purchaser’s Commercial Paper;
(iii) each Person proposed to become a new Originator has become a party to the Servicing Agreement as a Sub-Servicer and, if applicable, with respect to a new Intermediate Transferor, is reasonably satisfactory to each Committed Purchaser;
(iv) the Originator Sale Agreement and, if applicable, Intermediate Transfer Agreement are in form and substance satisfactory to each Purchaser Agent;
(v) the Seller shall have delivered such instruments, opinions and other documents any Committed Purchasers may reasonably request in connection therewith (including amendment of the Performance Undertaking to include the obligations of any new Originator), all of which shall be in form and substance satisfactory to such Committed Purchasers;
(vi) no Facility Termination Event or Portfolio Event has occurred and is continuing or would result therefrom; and
(vii) the Administrative Agent and each Purchaser Agent shall have received an amendment hereto reflecting such new Originator Sale Agreement and/or Intermediate Transfer Agreement.
11.15 Judgment Currency
(a) If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum owing hereunder in one currency into another currency, each party hereto agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures in the relevant jurisdiction the first currency could be
purchased with such other currency on the Business Day immediately preceding the day on which final judgment is given.
(b) The obligations of the Seller in respect of any sum due to any party hereto or any holder of the obligations owing hereunder (the “Applicable Creditor”) shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than the currency in which such sum is stated to be due hereunder (the “Agreement Currency”), be discharged only to the extent that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in the relevant jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less than the sum originally due to the Applicable Creditor in the Agreement Currency, the Seller agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable Creditor against such loss and if the amount of the Agreement Currency so purchased is more than the sum originally due to the Applicable Creditor in the Agreement Currency, such Applicable Creditor agrees to return any such excess to the Seller. The obligations of the Seller contained in this Section 11.15 shall survive the termination of this Agreement and the payment of all other amounts owing hereunder.
11.16 USA Patriot Act
Each Purchaser hereby notifies the Seller that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and any similar Law in any relevant jurisdiction (the “Acts”), it is required to obtain, verify and record information that identifies the Transaction Parties, which information includes the name and address of each Transaction Party and other information that will allow such Purchaser to identify such Transaction Party in accordance with the Acts.
11.17 No proceeding; limited recourse
(a) Each of the parties hereto hereby agrees that (i) it will not institute against the Seller any proceeding of the type referred to in the definition of Event of Bankruptcy until there shall have elapsed two years plus one day since the Final Payout Date and (ii) notwithstanding anything contained herein or in any other Transaction Document to the contrary, the obligations of the Seller under the Transaction Documents are solely the corporate obligations of the Seller and shall be payable solely to the extent of funds which are received by the Seller pursuant to the Transaction Documents and available for such payment in accordance with the terms of the Transaction Documents and shall be non-recourse other than with respect to such available funds and, without limiting Section 11.17, if ever and until such time as the Seller has sufficient funds to pay such obligation shall not constitute a claim against the Seller.
(b) No recourse under any obligation, covenant or agreement of the Seller contained in this Agreement or any other Transaction Document shall be had
against any incorporator, stockholder, officer, director, member, manager, employee or agent of the Seller by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement and the other Transaction Documents are solely a corporate obligation of the Seller, and that no personal liability whatever shall attach to or be incurred by any incorporator, stockholder, officer, director, member, manager, employee or agent of the Seller or any of them under or by reason of any of the obligations, covenants or agreements of the Seller contained in this Agreement or any other Transaction Document, or implied therefrom, and that any and all personal liability for breaches by the Seller of any of such obligations, covenants or agreements, either at common law or at equity, or by statute, rule or regulation, of every such incorporator, stockholder, officer, director, member, manager, employee or agent is hereby expressly waived as a condition of and in consideration for the execution of this Agreement; provided that the foregoing shall not relieve any such Person from any liability it might otherwise have as a result of fraudulent actions taken or fraudulent omissions made by them.
11.18 Acknowledgment and Consent to Bail-In of EEA Financial Institutions
Notwithstanding anything to the contrary in any Transaction Document or in any other agreement, arrangement or understanding among the parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Transaction Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder that may be payable to it by any party hereto that is an EEA Financial Institution; and
(b) the effects of any Bail-in Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Transaction Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.
[Signature pages follow.]
EXECUTION of Receivables Transfer Agreement:
The parties have shown their acceptance of the terms of this Agreement by executing it below.
BUNGE SECURITIZATION B.V., as Seller
By:
Name:
Title:
By:
Name:
Title:
KONINKLIJKE BUNGE B.V., as Master Servicer and Subordinated Lender
By:
Name:
Title:
By:
Name:
Title:
BUNGE LIMITED, as Performance Undertaking Provider
By:
Name:
Title:
By:
Name:
Title:
S-1 Receivables Transfer Agreement
COÖPERATIEVE RABOBANK U.A., as Administrative Agent, Committed Purchaser and Purchaser Agent
By:
Name:
Title:
NIEUW AMSTERDAM RECEIVABLES CORPORATION B.V. as Conduit Purchaser
By:
Name:
Title:
S-2 Receivables Transfer Agreement
CRÉDIT AGRICOLE CORPORATE & INVESTMENT BANK, as Purchaser Agent and Committed Purchaser
By:
Name:
Title:
By:
Name:
Title:
S-3 Receivables Transfer Agreement
BNP PARIBAS, LONDON BRANCH, as Purchaser Agent
By:
Name:
Title:
MATCHPOINT FINANCE PLC, as Committed Purchaser and Conduit Purchaser
By:
Name:
Title:
S-4 Receivables Transfer Agreement
S-5 Receivables Transfer Agreement
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated []
Reference is made to the Receivables Transfer Agreement, dated June 1, 2011 (as it may from time to time be amended, restated, supplemented, renewed, extended or otherwise modified from time to time, the “Receivables Transfer Agreement”), among Bunge Securitization B.V., as Seller, Koninklijke Bunge B.V., as Master Servicer, Bunge Limited, as Performance Undertaking Provider, the Persons from time to time parties thereto as Conduit Purchasers, and Committed Purchasers, and Coöperatieve Rabobank U.A., as Administrative Agent and as Purchaser Agent. Terms defined in the Receivables Transfer Agreement are used herein with the same meaning.
[Assigning Committed Purchaser] (the “Assignor”), [Eligible Assignee] (the “Assignee”) and [Name of applicable Purchaser Agent], in its capacity as Purchaser Agent for the Purchaser Group which includes the Assignor [and the Assignee] (in such capacity, the “Purchaser Agent”), hereby agree as follows:
1. Purchase and Sale of Interest
The Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Receivables Transfer Agreement as of the Effective Date (as defined below) interest in and to all of the Assignor’s rights and obligations under the Receivables Transfer Agreement as of the date hereof (including, without limitation, its Commitment and all Investments, if any, or interests therein owned by it) equal to the percentage (the “Percentage”) interest specified on Schedule I attached hereto. After giving effect to such sale and assignment, [the Assignee will be a Committed Purchaser in the Purchaser Group that includes [Name of Conduit Purchaser] and the Assignee’s Commitment will be as set forth in Section 2 of the signature page hereto. As consideration for the sale and assignment contemplated in this Section 1, the Assignee shall pay to the Assignor on the Effective Date (as defined below) in immediately available funds an amount equal to [$][€][], representing the purchase price payable by the Assignee for the interests in the transferred interest sold and assigned to the Assignee under this Section 1.
2. Representations and Disclaimers of Assignor
The Assignor:
(a) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any Adverse Claim created by it;
(b) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Transaction Document or any other instrument or document furnished pursuant thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Receivables Transfer Agreement or any other Transaction Document or any such other instrument or document furnished pursuant thereto, or the perfection, priority or value of any ownership interest or security interest created or purported to be created under the Receivables Transfer Agreement or under any Originator Sale Agreement; and
(c) makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Transaction Party or the performance or observance by any Transaction Party of any of its respective obligations under the Receivables Transfer Agreement or any other Transaction Document or any other instrument or document furnished pursuant thereto.
3. Representations and Agreements of Assignee
The Assignee:
(a) confirms that it has received a copy of the Receivables Transfer Agreement and the other Transaction Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase its interest in and to the Assignor’s right, title and interest in the Commitment and Investments being purchased by it hereunder;
(b) agrees that it will, independently and without reliance upon the Administrative Agent, any Purchaser Agent, the Assignor or any other Purchaser or any of their respective Affiliates and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Receivables Transfer Agreement and any other Transaction Document;
(c) appoints and authorizes the Administrative Agent [and the Purchaser Agent] to take such action as agent on its behalf and to exercise such powers under the Receivables Transfer Agreement and the other Transaction Documents and any other instrument or document furnished pursuant thereto as are delegated to the Administrative Agent [and the Purchaser Agent, respectively,] by the terms thereof, together with such powers and discretion as are reasonably incidental thereto;
(d) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Receivables Transfer Agreement and this Assignment and Acceptance are required to be performed by it as a Committed Purchaser;
(e) specifies as its address and telecopier number for notices the office set forth beneath its name on the signature pages hereof;
(f) represents that this Assignment and Acceptance has been duly authorized, executed and delivered by the Assignee pursuant to its corporate powers and constitutes the legal, valid and binding obligation of the Assignee;
(g) represents that as of the Effective Date it is an Eligible Assignee; and
(h) [other representations to be included, if applicable].
4. Effectiveness of Assignment
Following the execution of this Assignment and Acceptance by the Assignor, [the Purchaser Agent,] and the Assignee, it will be delivered to the Administrative Agent for acceptance and recording by the Administrative Agent and to the Master Servicer. The effective date of this Assignment and Acceptance shall be the later of (a) the date the Administrative Agent receives this Assignment and Acceptance executed by the parties hereto, including the Consent to Assignment attached hereto as Annex I executed by the Seller, (the “Effective Date”) or (b) the date of this Assignment and Acceptance.
5. Rights of the Assignee
Upon such acceptance and recording by the Administrative Agent, as of the Effective Date, (i) the Assignee shall be a party to the Receivables Transfer Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a Committed Purchaser thereunder, hereunder and under the other Transaction Documents and (ii) the Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Receivables Transfer Agreement.
6. Payments
Upon such acceptance and recording by the Administrative Agent, from and after the Effective Date, the Administrative Agent, the Purchaser Agent, the Seller, the Performance Undertaking Provider or the Servicer, as the case may be, shall make all payments under the Receivables Transfer Agreement in respect of the interest assigned hereby (including, without limitation, all payments of fees with respect thereto) to the Assignee or the Purchaser Agent for the benefit of the Assignee in accordance with the Receivables Transfer Agreement. The Assignor and Assignee shall make all appropriate adjustments in payments under the Receivables Transfer Agreement for periods prior to the Effective Date directly between themselves.
7. Governing Law
This Assignment and Acceptance and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the law of the State of New York, other
than those conflict of law provisions that would defer to the substantive laws of another jurisdiction. This governing law election has been made by the parties in reliance (at least in part) on Section 5-1401 of the General Obligation Law of the State of New York, as amended (as and to the extent applicable), and other applicable Law.
Schedule I
Assignment and Acceptance
Dated , []
Section 1.
Percentage: _________%
Section 2.
Assignee’s Commitment as of the Effective Date: [€][$]*
Principal Balance of Investments [€][$]
held by Assignee as of the Effective Date: [€][$]
Section 3.
Effective Date:** , [•]
* The Assignee’s Commitment shall be no less than $100,000,000 (in U.S. Dollars or the Dollar Equivalent).
** This date should be no earlier than the date of acceptance by the Administrative Agent as indicated below as the date the Administrative Agent executes this Assignment and Acceptance.
The parties have shown their acceptance of the terms of this Assignment and Acceptance by executing it below.
[NAME OF ASSIGNOR]
By:
Name:
Title:
[NAME OF ASSIGNEE]
By:
Name:
Title:
Address and telecopier number for Notices:
[Insert]
Accepted this _______ day of
___________ []
COӦPERATIEVE RABOBANK U.A., as Administrative Agent
By:
Name:
Title:
AGREED TO:
__________________________________, as Purchaser Agent
By:
Name:
Title:
ANNEX I TO
ASSIGNMENT AND ACCEPTANCE
CONSENT TO ASSIGNMENT
[________] []
Coöperatieve Rabobank U.A.
245 Park Avenue, 37th Floor
New York, New York 10167
Attention: [______________]
Reference is made to the Receivables Transfer Agreement dated as of June 1, 2011 (as it may from time to time be amended, restated, supplemented, renewed, extended or otherwise modified from time to time, being the “Receivables Transfer Agreement”), among Bunge Securitization B.V., as Seller, Koninklijke Bunge B.V., as Master Servicer, Bunge Limited, as Performance Undertaking Provider, the Persons from time to time parties thereto as Conduit Purchasers and Committed Purchasers, and Coöperatieve Rabobank U.A., as Administrative Agent and as Purchaser Agent. Unless otherwise defined herein, terms defined in the Receivables Transfer Agreement are used herein as therein defined.
The undersigned hereby consents to the execution, delivery and performance of the foregoing Assignment and Acceptance by the Assignor and the Assignee as defined therein on the terms and conditions specified therein and agrees that such Assignee is an Eligible Assignee under and as defined in the Receivables Transfer Agreement.
[__________________________________]
By:
Name:
Title:
EXHIBIT B
FORM OF INVESTMENT REQUEST
Dated as of _________, _________
Coöperatieve Rabobank U.A.
as Administrative Agent
245 Park Avenue, 37th Floor
New York, New York 10167
Attention: Eugene van Esveld
Ladies and Gentlemen:
The undersigned, BUNGE SECURITIZATION B.V., and, with respect to clauses (B) (solely to the Master Servicer’s knowledge) and (D) only, KONINKLIJKE BUNGE B.V., refer to the Receivables Transfer Agreement dated as of June 1, 2011 (as amended, amended and restated, supplemented, extended, renewed or otherwise modified from time to time, the “Receivables Transfer Agreement”), among BUNGE SECURITIZATION B.V., as Seller, KONINKLIJKE BUNGE B.V., as Master Servicer, BUNGE LIMITED, as Performance Undertaking Provider, the Persons from time to time party thereto as Conduit Purchasers and Committed Purchasers and COÖPERATIEVE RABOBANK U.A., as Administrative Agent, and Purchaser Agent. Unless otherwise defined herein, terms defined in the Receivables Transfer Agreement are used herein as therein defined.
The undersigned hereby gives you notice, irrevocably, pursuant to Section 2.2 of the Receivables Transfer Agreement that the undersigned hereby requests the following Investment(s) under the Receivables Transfer Agreement, and in that connection sets forth below the information relating to such Investment (the “Proposed Investment”) as required by Section 2.2(a)(ii) of the Receivables Transfer Agreement:
Prior Settlement Date Investment Amount
|
|
|
|
|
|
|
|
|
(i)
|
The current aggregate amount of such U.S. Dollar denominated Investment:
|
________________________
|
(ii)
|
The current aggregate amount of such EURO denominated Investment:
|
________________________
|
(iii)
|
The current aggregate amount of such Canadian Dollar denominated Investment:
|
________________________
|
(iv)
|
The current aggregate amount of such Hungarian Forint denominated Investment:
|
________________________
|
(v)
|
The current Aggregate Invested Amount in the Dollar Equivalent:
|
________________________
|
Proposed Settlement Date Investment
|
|
|
|
|
|
|
|
|
(i)
|
The proposed Cash Purchase Price portion of the U.S. Dollar denominated Investment:
|
________________________
|
(ii)
|
The proposed Cash Purchase Price portion of the EURO denominated Investment:
|
________________________
|
(iii)
|
The proposed Cash Purchase Price portion of the Canadian Dollar denominated Investment:
|
________________________
|
(iv)
|
The proposed Cash Purchase Price portion of the Hungarian Forint denominated Investment:
|
________________________
|
(v)
|
The Spot Rates (based on the most recent Exchange Rate Determination Date) for such Approved Currencies:1
|
|
|
EURO:
|
________________________
|
|
Canadian Dollar:
|
________________________
|
|
Hungarian Forint:
|
________________________
|
(vi)
|
The proposed Aggregate Invested Amount in the Dollar Equivalent:
|
________________________
|
(vii)
|
The requested Investment Date of such proposed Investment:
|
________________________
|
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Investment:
(A) the representations and warranties contained in Section 4.1 of the Receivables Transfer Agreement, in Section [_____] of the [______] RPA and in Section 9 of the Performance and Indemnity Agreement are correct in all material respects on and as of the date hereof, before and after giving effect to the Proposed Investment(s) and to the application of the proceeds therefrom, as though made on and as of the date hereof, other than any such representations and warranties that, by their terms, refer to a specific date other than the date of this Investment Request or the date of the Proposed Investment(s), in which case, as of such other dates;
(B) the Facility Termination Date has not occurred, and no event has occurred and is continuing, or would result from the Proposed Investment(s) or from the application of the proceeds therefrom, which constitutes a Facility Event or a Portfolio Event;
(C) no portion of the proceeds of such Investment(s) will be used by the Seller to pay the purchase price for any Receivable that was originated by an Originator with respect to which a Seller Termination Event has occurred and is continuing; and
(D) after giving effect to the Proposed Investment(s), the Aggregate Invested Amount will not exceed the lesser of (1) the Facility Limit and (2) the Funding Base on such Investment Date.
1 Include if Proposed Investments in such Approved Currencies are requested.
Delivery of an executed counterpart of this Investment Request by telecopier shall be effective as delivery of an original executed counterpart of this Investment Request.
Very truly yours,
BUNGE SECURITIZATION B.V.
By:
Name:
Title:
KONINKLIJKE BUNGE B.V.
By:
Name:
Title:
EXHIBIT C
FORM OF JOINDER AGREEMENT
Dated []
Reference is made to the Receivables Transfer Agreement, dated June 1, 2011, among Bunge Securitization B.V., as Seller, Koninklijke Bunge B.V., as Master Servicer, Bunge Limited, as Performance Undertaking Provider, the Persons from time to time party thereto as Conduit Purchasers and Committed Purchasers, and Coöperatieve Rabobank U.A., as Administrative Agent (as amended, amended and restated, supplemented, extended, renewed or otherwise modified from time to time, the “Receivables Transfer Agreement”). Terms defined in the Receivables Transfer Agreement are used herein with the same meaning.
[] (the “New Conduit Purchaser”), [] (the “New Purchaser Agent”), and [] (the “New Committed Purchaser(s)”; and together with the New Purchaser Agent and New Conduit Purchaser(s), the “New Purchaser Group”) agree as follows:
1. By execution and delivery of this Joinder Agreement and pursuant to Section 11.3(i) (New Purchaser Groups) of the Receivables Transfer Agreement, the New Purchaser Group elects to become a “Purchaser Group” under the Receivables Transfer Agreement.
2. The effective date (the “Effective Date”) of this Joinder Agreement shall be the later of (i) the date on which a fully executed copy of this Joinder Agreement is delivered to the Administrative Agent, (ii) the date of this Joinder Agreement, [(iii) the effective date of that certain assignment agreement of even date herewith between the New Committed Purchaser and [Name of Committed Purchaser Assignor]] [and (iv) the effective date of that certain Accordion Increase Certificate of even date herewith between the Accordion Committed Purchaser and the Seller].
3. By executing and delivering this Joinder Agreement, each of the New Purchaser Agent, the New Conduit Purchaser(s) and the New Committed Purchaser(s) confirms to and agrees with each other party to the Receivables Transfer Agreement that (i) it has received a copy of the Receivables Transfer Agreement and the other Transaction Documents, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Joinder Agreement; (ii) it will, independently and without reliance upon the Administrative Agent, any other Purchaser Agent, any other Purchaser or any of their respective Affiliates, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Receivables Transfer Agreement and any Transaction Documents; (iii) it appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Receivables Transfer Agreement and the Transaction Documents and any other instrument or document furnished pursuant thereto as are delegated to the Administrative Agent by the terms thereof, together
with such powers and discretion as are reasonably incidental thereto; (iv) it will perform in accordance with their terms all of the obligations which by the terms of the Receivables Transfer Agreement and the documents or agreements to be delivered thereunder are required to be performed by it as a Purchaser Agent, a Conduit Purchaser, or a Committed Purchaser, respectively; (v) its address and telecopier number for notices shall be the office set forth beneath its name on the signature pages of this Joinder Agreement; (vi) the Purchaser Group Limit for the New Purchaser Group shall be as set forth on Schedule 1; (vii) the Purchaser Agent’s Account for the new Purchaser Agent shall be as set forth in Schedule 1 and (viii) this Joinder Agreement has been duly authorized, executed and delivered by it pursuant to its applicable corporate powers and constitutes the legal, valid and binding obligation of the New Purchaser Agent, the New Conduit Purchaser(s) and the New Committed Purchaser(s), respectively.
4. On the Effective Date of this Joinder Agreement, the New Purchaser Agent shall become a party to the Purchaser Fee Letter as a Purchaser Agent thereunder, and each of the New Purchaser Agent, the New Conduit Purchaser(s) and the New Committed Purchaser(s) shall join in and be a party to the Receivables Transfer Agreement and, to the extent provided in this Joinder Agreement, shall have the rights and obligations of a Purchaser Agent, a Conduit Purchaser and a Committed Purchaser, respectively, under the Receivables Transfer Agreement and the other Transaction Documents. Schedule 1 to the Receivables Transfer Agreement shall be amended to incorporate the information set forth on the signature pages and Schedule 1 to this Joinder Agreement.
5. This Joinder Agreement may be executed by one or more of the parties on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
6. This Joinder Agreement and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the law of the State of New York, other than those conflict of law provisions that would defer to the substantive laws of another jurisdiction. This governing law election has been made by the parties in reliance on Section 5-1401 of the General Obligation Law of the State of New York, as amended, and other applicable Law.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
EXECUTION:
The parties hereto have caused this Joinder Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
NEW CONDUIT PURCHASER(S):
[NAME(S)]
By:
Name:
Title:
Address and telecopier number for notices:
[Address]
[Telecopier No.]
NEW COMMITTED PURCHASER(S):
[NAME(S)]
By:
Name:
Title:
Address and telecopier number for notices:
[Address]
[Telecopier No.]
NEW PURCHASER AGENT:
[NAME]
By:
Name:
Title:
Address and telecopier number for notices:
[Address]
[Telecopier No.]
SCHEDULE 1
Purchaser Agent’s Account for New Purchaser Agent: []
Conduit Lending Limit for New Conduit Purchaser: []
Commitments of New Committed Purchasers: []
EXHIBIT D
Form of Italian Acknowledgment Deed
[FORM OF ACKNOWLEDGMENT DEED TO BE ATTACHED TO THE RTA – TO BE EXECUTED BY ANY OF THE ITALIAN COLLECTION ACCOUNT BANKS WITH CERTAIN DATE AT LAW (DATA CERTA)]
This acknowledgement deed dated [●] 2011 (“Acknowledgment Deed”) is made today by:
(1) BUNGE SECURITIZATION B.V., a private limited liability company organized under the laws of the Netherlands, whose registered office is at [●], enrolled with the Companies Register of [●] under number [●] (hereinafter the “Seller”);
(2) COÖPERATIEVE RABOBANK U.A. organized under the laws of the Netherlands, whose registered office is at [●], enrolled with the Companies Register of [●] under number [●], on behalf of the Purchasers, (hereinafter “Rabobank Nederland” or the “Italian Intermediate Transferor” and together with the Seller, the “Pledgees”);
(3) COÖPERATIEVE RABOBANK U.A. organized under the laws of the Netherlands, whose registered office is at [●], enrolled with the Companies Register of [●] under number [●], on behalf of the Purchasers (hereinafter, the “Administrative Agent”);
(4) BUNGE ITALIA S.P.A., a joint stock company organized under the laws of Italy, whose registered office is at [●], enrolled with the Companies Register of [●] under no. [●] (hereinafter, the “Bunge Italia” or the “Pledgor”);
(5) UNICREDIT S.P.A., a bank organized under the laws of Italy, whose registered office is at [●], enrolled with the Companies Register of [●] under no. [●] and with the bank register (Albo delle Banche) held by the Bank of Italy in accordance with article 13 of Italian legislative decree No. 385/93 (“MPS”/“Unicredit” or the “Italian Collection Account Bank”),] [TO BE CONFIRMED BY BUNGE ITALIA]
jointly, the “Parties”.
Whereas:
(A) on [●] 2011, Bunge Italia, in its capacity as Pledgor and the Administrative Agent in the name and on behalf of the Seller and the Italian Intermediate Transferor, as pledgees, have entered into a deed of pledge over the Collection Accounts held by Bunge Italia with MPS/Unicredit as Italian Collection Account Bank (the “Deed of Pledge”);
(B) on [●] 2011, the Italian Collection Account Bank has received a copy of the Deed of Pledge and has entered into a letter of acceptance of the Pledge created over the relevant bank accounts (the “Acceptance”);
(C) on [●] 2011, the Italian Intermediate Transferor and the Seller have entered into an Italian intermediate transfer agreement, pursuant to which the Italian Intermediate Transferor has assigned to the Seller, in accordance with article 1260 and followings of the Italian civil code, inter alia, all its rights, title and interests in, to and under the Deed of Pledge (the “First Assignment”);
(D) on [●] 2011, the Seller and the Administrative Agent, inter alios, have entered into a transfer agreement governed by U.S.A. law (the “RTA”); in accordance with Clause 2.1 of the RTA, the Seller has transferred to the Administrative Agent, on behalf of the Purchasers (as defined in the RTA), all the rights, title and interests in, to and under, inter alia, the Deed of Pledge, including those assigned
D-1 Receivables Transfer Agreement
to it by the Italian Intermediate Transferor under the First Assignment (the “Second Assignment” and together with the First Assignment, (the “Assignments”)).
Now therefore, it is agreed as follows:
1. Capitalized terms used herein unless otherwise defined, have the same meaning given to them under the Deed of Pledge.
2. The Parties acknowledge and accept the Assignments as specified under Recitals (C) and (D) above, and hereby acknowledges that, following and within the limits of such Assignments, the Administrative Agent, on behalf of the Purchasers, is entitled to exercise all the rights of the Pledgees (including the enforcement of the Pledge), titles and interest under the Deed of Pledge (as transferred by the Seller to the Administrative Agent, in accordance with the Assignments), with no prejudice for the terms and conditions contained in the Acceptance.
3. The parties hereto acknowledge that the Assignments shall not be considered as a novation (novazione) of the Pledge which continues to be in full force and effect, valid and enforceable against third parties, as security for the prompt satisfaction of any and all Secured Claims.
D-2 Receivables Transfer Agreement
EXECUTION OF ACKNOWLEDGEMENTS DEED
For and on behalf of
BUNGE SECURITIZATION B.V.
_________________
By:
Title:
COÖPERATIEVE RABOBANK U.A. (as Italian Intermediate Transferor)
_________________
By:
Title:
COÖPERATIEVE RABOBANK U.A. (as Administrative Agent)
_________________
By:
Title:
BUNGE ITALIA S.P.A.
_________________
By:
Title:
UNICREDIT S.P.A.
_________________
By:
Title:
EXHIBIT E
FORM OF ACCORDION INCREASE CERTIFICATE
To: COÖPERATIEVE RABOBANK U.A., as Administrative Agent
From: BUNGE SECURITIZATION B.V., as Seller (or the Master Servicer on its behalf)
Dated: [●]
We refer to the Receivables Transfer Agreement dated June 1, 2011 (as it may be amended, restated, supplemented, renewed, extended or otherwise modified from time to time, the "Agreement"), among Bunge Securitization B.V. (the “Seller”), Koninklijke Bunge B.V. (the “Master Servicer”), the Conduit Purchasers from time to time party thereto, the Committed Purchasers from time to time party thereto, the Purchaser Agents from time to time party thereto, Coöperatieve Rabobank U.A., as the Administrative Agent (the “Administrative Agent”) and a Purchaser Agent, and Bunge Limited, as Performance Undertaking Provider.
1. This is an Accordion Increase Certificate. Terms defined in the Agreement have the same meaning in this Accordion Increase Certificate unless given a different meaning in this Accordion Increase Certificate.
2. We refer to Section 2.21 (Accordion Increase) of the Agreement:
(a) Each Accordion Committed Purchaser agrees to provide the Additional Commitment as set out in the table below opposite its name and in accordance with paragraph (g) of Section 2.21 (Accordion Increase).
(b) The proposed Accordion Increase Date is [●].
3. This Accordion Increase Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Accordion Increase Certificate.
4. This Accordion Increase Certificate and any non-contractual obligations arising out of or in connection with it are governed by and construed in accordance with the law of the State of New York.
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Accordion Committed Purchaser
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Additional Commitment
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Total Commitment
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[Signature page follows.]
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[Accordion Committed Purchaser(s)]
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By: _________________________
Name: _______________________
Title: ________________________
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Address: [●]
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[Bunge Securitization B.V., as Seller] [Koninklijke Bunge B.V., as Master Servicer]
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By: _________________________
Name: _______________________
Title: ________________________
By: _________________________
Name: _______________________
Title: ________________________
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This Accordion Increase Certificate is accepted by the Administrative Agent and the Accordion Increase Date is confirmed as [●].
Coöperatieve Rabobank U.A.
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By: _________________________
Name: _______________________
Title: ________________________
[Signature Page to Accordion Increase Certificate]