Preview of our top selling Receivables Financing Agreement
BNP Paribas / Crown Holdings - Master Receivables Transfer And Servicing Agreement
THIS MASTER RECEIVABLES TRANSFER AND SERVICING AGREEMENT is made on 21 June 2005
BETWEEN:
(1) FRANCE TITRISATION, a societe anonyme incorporated under the laws of
France, licensed by the Autorite des marches financiers as a societe
de gestion, whose registered office is located at 41, avenue de
l'Opera, 75002 Paris (France), registered with the Trade and
Companies Register of Paris under number 353 053 531, represented for
the purposes hereof by a duly authorised representative whose name
appears on the signature page, acting for itself and for the account
of the FCC CROWN RECEIVABLES EUROPE (the Management Company);
(2) BNP PARIBAS, a societe anonyme incorporated under the laws of France,
whose registered office is at 16, boulevard des Italiens, 75009 Paris
(France), registered with the Trade and Companies Register of Paris
under number 662 042 449, licensed as a credit institution in France
by the Comite des Etablissements de Credit et des Entreprises
d'Investissement, represented for the purposes hereof by a duly
authorised representative whose name appears on the signature page
(the Custodian);
(3) each of the entities listed in Part A of Schedule 1 of Appendix 1,
represented for the purposes hereof by a duly authorised
representative whose name appears on the signature page (the French
Sellers or the French Servicers);
(4) each of the entities listed in Part B of Schedule 1 of Appendix 1,
represented for the purposes hereof by a duly authorised
representative whose name appears on the signature page (the English
Sellers or the English Servicers, the French Sellers and the English
Sellers are hereinafter referred to collectively as the Sellers and
the French Servicers and the English Servicers are hereinafter
referred to collectively as the Servicers);
(5) CROWN EMBALLAGE FRANCE SAS, a societe par action simplifiee
incorporated under the laws of France, whose registered office is
located at 67, rue Arago, 93400 Saint Ouen (France), registered with
the Trade and Companies Register of Bobigny under number 954 200 838,
represented for the purposes hereof by a duly authorised
representative whose name appears on the signature page (the French
Administrative Agent); and
(6) CROWN PACKAGING UK PLC, a Public Limited Company incorporated under
the laws of England and Wales, whose registered office is located at
Downsview Road, Wantage, Oxfordshire, OX12 9BP (United-Kingdom),
registered under number 178090, represented for the purposes hereof
by a duly authorised representative whose name appears on the
signature page (the English Administrative Agent, the French
Administrative Agent and the English Administrative Agent are
hereinafter referred to collectively as the Administrative Agents),
(together, the Parties and each a Party).
WHEREAS:
A. The Management Company and the Custodian have decided to establish a
fonds commun de creances, known as FCC CROWN RECEIVABLES EUROPE,
governed by the provisions of Articles L. 214-43 et seq. of the
French Code monetaire et financier (previously Law no. 88-1201 of 23
December 1988), of the Decree n(degree) 2004-1255 of 24 November 2004
and the FCC Regulations dated the same date as this Agreement, for
the purposes of purchasing Receivables from the Sellers and issuing
the Units.
B. The Sellers wish to sell and the Management Company, on behalf of the
FCC, wishes to purchase Receivables from the Sellers relating to Sale
of Products carried out by the Sellers under Contracts entered into
between the Sellers and Debtors in the ordinary course of business
with the benefit of all related ancillary security and other rights,
if any, on the terms and subject to the conditions of this Master
Receivables Transfer and Servicing Agreement.
C. It is intended that the Senior Units to be issued by the FCC on any
Interest Payment Date will be subscribed by Eliopee. The Seller Units
and the Subordinated Units will be subscribed by the Parent Company.
D. The FCC delegates to each Seller, acting as Servicer, the task of
managing and collecting the relevant Receivables sold by it, for the
account of the FCC, on the terms and conditions set out in this
Master Receivables Transfer and Servicing Agreement.
E. The French Sellers and the French Servicers appoint the French
Administrative Agent, and the English Sellers and the English
Servicers appoint the English Administrative Agent, to act as their
agent (mandataire) in connection with certain administrative tasks to
be carried out pursuant to the Securitisation Programme.
IT IS HEREBY AGREED:
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SECTION I:
DEFINITIONS AND INTERPRETATION
1 DEFINITIONS AND INTERPRETATION
1.1 INCORPORATION OF DEFINITIONS
In this Master Receivables Transfer and Servicing Agreement (including the Recitals, the Appendixes and the Schedules) (hereinafter referred to as this Agreement), except as so far as the context otherwise requires, capitalised words and expressions shall have the same meanings as set out in the Master Definitions Agreement of even date executed by the Parties.
1.2 PRINCIPLES OF CONSTRUCTION
This Agreement incorporates the principles of construction set out in clause 3 of the Master Definitions Agreement as though the same were set out in full in this Agreement. In the event of any conflict between the provisions of this Agreement and the principles of construction set out in the Master Definitions Agreement, the provisions of this Agreement shall prevail.
1.3 COMMON TERMS
This Agreement incorporates the common terms set out in clause 4 of the Master Definitions Agreement as though the same were set out in full in this Agreement. In the event of any conflict between the provisions of this Agreement and the common terms set out in the Master Definitions Agreement, the provisions of this Agreement shall prevail.
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SECTION II:
ASSIGNMENT OF RECEIVABLES
2 COMMITMENT TO SELL THE RECEIVABLES TO THE FCC
2.1 COMMITMENT TO SELL
Subject to the terms and conditions of this Agreement, the Sellers agree to sell to the FCC, on each Transfer Date, all title to and rights in the Eligible Receivables, from the FCC Establishment Date (inclusive) until the Final Termination Date (exclusive).
2.2 ACCEPTANCE
Subject to the terms and conditions of this Agreement and in particular subject to the satisfaction (or waiver) of all of the conditions precedent set out in Schedule 6 of Appendix 1 and in Schedule 2 of the relevant Seller's Appendix, the FCC accepts the undertaking of the Sellers pursuant to Clause 2.1 and agrees to accept the offer for sale of the Eligible Receivables made by the Sellers.
2.3 SELECTION OF THE RECEIVABLES
On each Cut-Off Date immediately preceding a given Transfer Date, the Sellers shall select the Receivables to be offered for sale to the FCC through an Individual Transfer Offer in accordance with Clause 3.1. Each Receivable shall comply with the Eligibility Criteria set out in Schedule 2 of Appendix 1 and, where relevant in Schedule 1 of the relevant Seller's Appendix.
If, on a given Transfer Date, a Seller has transferred one or more Receivables relating to a given Debtor to the FCC in accordance with the terms and conditions of this Agreement, such Seller is obligated to offer for sale to the FCC on all subsequent Transfer Dates all Receivables for such Debtor, provided that these Receivables shall comply with the Eligibility Criteria set out in Schedule 2 of Appendix 1 and, where relevant in Schedule 1 of the relevant Seller's Appendix.
2.4 FINANCING ELIGIBILITY CRITERIA
At the latest on each Information Date immediately preceding the relevant Transfer Date, the Management Company shall have verified the compliance of each Eligible Receivable with the Financing Eligibility Criteria set out in Schedule 23 of Appendix 1.
The Parties expressly acknowledge that, pursuant to the FCC Regulations, Senior Units and Seller Units issued by the FCC, on the FCC Establishment Date and on each subsequent Interest Payment Date are backed by Eligible Financing Receivables only.
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3 OFFER AND ACCEPTANCE
The sale and transfer of the Eligible Receivables to the FCC shall be performed, with respect to each Cut-Off Period, in accordance with the procedure contemplated in Clauses 3.1 to 3.5.
3.1 INDIVIDUAL TRANSFER OFFER
No later than 10.00 a.m. on each Information Date immediately preceding the relevant Transfer Date:
(a) each Seller shall deliver to the relevant Administrative Agent an
Individual Transfer Offer in the form set out in Schedule 4 of
Appendix 1 together with an usable, accurate and complete Computer
File substantially in the form set out in Schedule 26 of Appendix 1,
in which each Eligible Receivable included in the relevant Individual
Transfer Offer shall be designated and identified (designee et
individualisee); and
(b) each Administrative Agent shall deliver to the Management Company
(with a copy to the Custodian) the relevant Consolidated Transfer
Offer in the form set out in Schedule 19 of Appendix 1, comprising
all the Individual Transfer Offers received from the relevant Sellers
together with the corresponding Computer File attached thereto, in
accordance with Sub-clause (a) above.
Each Individual Transfer Offer shall be irrevocable and binding on each Seller when delivered to the Management Company through the intermediary of the relevant Administrative Agent.
3.2 CONSISTENCY TESTS
No later than 4.00 p.m. on each Calculation Date immediately preceding the relevant Transfer Date, the Management Company shall have performed the Consistency Tests. Pursuant to the provisions of Part F of Schedule 6 of Appendix 1, should any of the Consistency Tests be not satisfied in all respects for any reason whatsoever, the FCC shall be prohibited from accepting any Individual Transfer Offer and the corresponding Consolidated Transfer Offer on that Calculation Date and on the corresponding Transfer Date.
3.3 ACCEPTANCE
Subject to the terms and conditions of this Agreement and, in particular, subject to the satisfaction (or waiver) of the conditions precedent set out in Schedule 6 of Appendix 1 and, where relevant, in Schedule 2 of the relevant Seller's Appendix, the Management Company shall, no later than 4.00 p.m. on each Calculation Date immediately preceding the relevant Transfer Date, unless the Management Company delivers a Notice of Refusal in the form of Schedule 21 of Appendix 1 to the relevant Administrative Agent pursuant to which any Individual Transfer Offer received from any Seller on the relevant Information Date shall be refused, accept such Individual Transfer Offer by delivering an Acceptance to the relevant Administrative Agent, in the form of Schedule 20 of Appendix 1.
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The procedure referred to in this Sub-clause shall constitute an acceptance by the Management Company to acquire from the relevant Seller all of the Seller's title to, and rights in, the Eligible Receivables to be transferred to the Management Company on the following Transfer Date, pursuant to the terms and conditions of this Agreement.
If between the issuance of the relevant Acceptance on the said Calculation Date and the relevant Transfer Date (included), any of the conditions precedent set out in Schedule 6 of Appendix 1 and, where relevant, in Schedule 2 of the relevant Seller's Appendix is not any longer fulfilled with respect to such Seller, it is hereby expressly acknowledged and agreed that the relevant Acceptance shall be automatically (de plein droit) null and void and with no formalities in respect of the Eligible Receivables (if any) offered for transfer in such Individual Transfer Offer and, the relevant transfer of such Eligible Receivables shall be rescinded forthwith and automatically (de plein droit).
3.4 NO EFFECTIVE TRANSFER
The Parties agree that the delivery of an Acceptance by the Management Company of the Individual Transfer Offers shall not result in the transfer of title to the corresponding Eligible Receivables and that the transfer of the title to such Eligible Receivables shall only be effected in accordance with Clause 4.2.
3.5 NO INDEPENDENT INVESTIGATION
Without prejudice to the statutory requirements of the Management Company under all applicable laws and regulations, the Parties acknowledge and agree that before issuing any Acceptance, neither the Management Company nor the Custodian will make any independent investigation in relation to the Seller, the Receivables (including any Ancillary Right), the Debtors, the Contracts or compliance with the Eligibility Criteria of any Debtors or Receivables. The relevant Acceptance shall be made by the Management Company on the assumption that:
(a) each of the representations and warranties given by the Sellers as
referred to in Clause 25 and each of the representations and
warranties given by the Servicers as referred to in Clause 26, as
applicable, is true and accurate in all material respects when
rendered or deemed to be repeated and that each of the undertakings
given by the Sellers as referred to in Clause 25 and each of the
undertakings given by the Servicers as referred to in Clause 26 shall
be complied with at all relevant times; and
(b) each of the Eligibility Criteria is satisfied on the corresponding
Information Date and Transfer Date, the compliance of such
Eligibility Criteria being an essential and determining condition
(condition essentielle et determinante) for the FCC, the Management
Company and the Custodian, without which the FCC, the Management
Company and the Custodian would not have entered into this Agreement.
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4 ASSIGNMENT OF RECEIVABLES
4.1 PROCEDURE
Subject to acceptance by the Management Company of any Individual Transfer Offer on each Calculation Date pursuant to Clause 3, each Seller hereby undertakes to perform all actions set out in Clauses 4.2 and 4.3 in order to ensure that no later than 12.00 p.m. on the corresponding Transfer Date all of Seller's title to and rights in the Receivables listed in such Individual Transfer Offer shall be assigned to the FCC.
4.2 TRANSFER DOCUMENT
Each transfer of Eligible Receivables together with any Ancillary Rights relating thereto from any Seller to the FCC shall be performed by way of Transfer Document (acte de cession de creances) complying with Articles L. 214-43 et seq. of the French Code monetaire et financier and with the Decree.
No later than 10.00 a.m. on any Transfer Date, the Seller, having issued an Individual Transfer Offer on the Information Date immediately preceding the relevant Transfer Date, shall send, via the relevant Administrative Agent, to the Management Company by fax and messenger the corresponding Transfer Document (acte de cession de creances) in compliance with the form set out in Schedule 5 of Appendix 1, duly executed and dated by the relevant Seller, together with an usable, accurate and complete Transfer File substantially in the form set out in Schedule 26 of Appendix 1, in which each Eligible Receivable included in the relevant Transfer Document shall be designated and identified (designee et individualisee).
No later than 12.00 p.m. on the relevant Transfer Date, the Management Company shall deliver the relevant Transfer Document to the Custodian, who shall keep it under its own responsibility in accordance with FCC Regulations.
4.3 EFFECT
Pursuant to the provisions of Article L. 214-43 of the French Code monetaire et financier, the Eligible Receivables together with any Ancillary Rights relating thereto shall be sold and transferred to the FCC by delivery to the Management Company of the relevant Transfer Document. Such transfer, as a matter of French law, shall be valid between the FCC and the Seller and enforceable against third parties (including the Debtors) without any further formalities, irrespective of the law governing the Eligible Receivables and the law of the country where the Debtors are located, as at the date affixed on the relevant Transfer Document upon its delivery by the relevant Seller to the Management Company. The Parties hereby expressly acknowledge and agree that the relevant transfer of Eligible Receivables shall be automatically and without any further formality rescinded (resolu de plein droit) if the Initial Purchase Price (or the Purchase Price, as the case may be) is not paid to the relevant Administrative Agent in accordance with Clause 5.2.2.
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4.4 ADDITIONAL FORMALITIES
Notwithstanding the provisions of Clause 4.3, each of the Sellers and the Management Company expressly agree and acknowledge that the assignment of Eligible Receivables from Sellers to the FCC, in compliance with this Clause 4, may not be enforceable against certain Debtors until notice of the sale of such Eligible Receivables has been given to the relevant Debtor in accordance with the law governing the Eligible Receivables (other than French law) or the law of the country where such Debtors are located (other than French law). However, the Management Company (or, as the case may be, the Back-Up Servicer) may, at all times, inform the relevant Seller that it believes appropriate to make, carry out or comply with such notifications, filings, acts, registrations and other formalities, as may, in the reasonable opinion of the Management Company (or, as the case may be, the Back-Up Servicer), be required to ensure that the assignment of the Eligible Receivables becomes enforceable against the corresponding Debtors, subject always to the provisions of Clause 8.
4.5 NO FORMALITIES IN RELATION TO ANCILLARY RIGHTS
Notwithstanding any provision in this Agreement to the contrary, and in particular Clause 4.3, the Parties expressly acknowledge and agree that they will not comply with the additional specific formalities, if any, which might be required under any applicable laws and regulations for the transfer to the FCC of any Ancillary Rights to be enforceable or perfected. Consequently, the Parties expressly acknowledge and agree to all legal, economic and factual consequences which may arise, relating to, inter alia (but not limited to), validity, efficiency, effectiveness or enforceability of the transfer or retransfer of any such Ancillary Right.
4.6 FAILURE TO PERFORM
Should any Seller, for any reason which is the fault of the Seller, fail to strictly perform any of the steps, procedures or formalities and/or to deliver the documents as set out herein, particularly (but without limitation) Clause 4.2, within the required timeframe, such Seller shall indemnify the FCC for any reasonable costs incurred by the FCC directly or indirectly as a result of such failure of the Seller.
5 PURCHASE PRICE
5.1 DETERMINATION OF THE PURCHASE PRICE
The Purchase Price for the Eligible Receivables offered for transfer by means of an Individual Transfer Offer on any Information Date shall be equal to the aggregate of the Net Invoices Amounts of the corresponding Eligible Receivables as set out in such Individual Transfer Offer. No later than 4.00 p.m. on the Calculation Date immediately preceding the relevant Transfer Date, the Management Company shall notify the Purchase Price amount for the Transferred Receivables to the Sellers, via the relevant Administrative Agent.
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5.2 PAYMENT OF THE PURCHASE PRICE
The Purchase Price for the Transferred Receivables shall be payable in Euro and in Sterling in accordance with Sub-clauses 5.2.2 and 5.2.3.
5.2.1 Computation of the Initial Purchase Price and the Deferred Purchase Price
In relation to each Transfer Date (other than the FCC Establishment Date), the Management Company will calculate the Purchase Price, the Initial Purchase Price and the Deferred Purchase Price with respect to the Eligible Receivables offered for sale and transfer on such Transfer Date and, no later than 4.00 p.m. on the Calculation Date immediately preceding the relevant Transfer Date, the Management Company shall notify such amounts to the Sellers, via the relevant Administrative Agent.
5.2.2 Payment of the Initial Purchase Price
The Initial Purchase Price payable in respect of the Eligible Receivables offered for sale and transfer on any Secondary Transfer Date (or the Purchase Price payable in respect of the Eligible Receivables offered for sale and transfer on any Principal Transfer Date) shall be payable by the FCC no later than 3.00 p.m. on the Secondary Transfer Date (or the Principal Transfer Date, as relevant) immediately following the Calculation Date on which the Initial Purchase Price (or the Purchase Price, as relevant) has been calculated by the Management Company, by transferring the Initial Purchase Price (or the Purchase Price, as relevant) to the credit of the relevant Administrative Agent Account by debiting the FCC General Account, provided that the Administrative Agents shall receive the Initial Purchase Price (or the Purchase Price, as relevant) in the capacity as legal agent (mandataire) of the Sellers in accordance with Clauses 21 and 22.
5.2.3 Payment of the Deferred Purchase Price
The Deferred Purchase Price payable in respect of the Eligible Receivables offered for sale and transfer on any Secondary Transfer Date shall be payable by the FCC no later than 3.00 p.m. on the next Secondary Transfer Date or at the latest on the next Principal Transfer Date, by transferring the Deferred Purchase Price to the credit of the relevant Administrative Agent Account by debiting the FCC General Account, provided that the Administrative Agents shall receive the Deferred Purchase Price in the capacity as legal agent (mandataire) of the Sellers in accordance with Clauses 21 and 22.
5.3 DISCHARGE
Payment of the Purchase Price in compliance with Clause 5.2 shall result in the full and definitive discharge of the FCC's payment obligations in respect of the Transferred Receivables. Each Seller hereby irrevocably undertakes, that upon payment of the Purchase Price in accordance with Clause 5.2, it will not assert any claim against the FCC, and hereby releases and waives any such claim, for payment by the FCC of any amounts in respect of the Purchase Price.
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6 FAILURE TO CONFORM TO THE ELIGIBILITY CRITERIA
6.1 REMEDIES
If, at any time after the execution of this Agreement, any Party becomes aware that any of the Eligibility Criteria relating to any Transferred Receivable was false or incorrect on the corresponding Information Date or Transfer Date, that Party shall inform the other parties without delay by written notice, and the relevant Seller may remedy the breach by the earliest of:
(a) three (3) Business Days from the day such Seller becomes aware of
such breach; or
(b) three (3) Business Days following receipt of the written notice sent
by any other party to this Agreement.
6.2 PROCEDURE
If the breach referred to in Clause 6.1 is not remedied in a manner reasonably satisfactory to the Management Company, or is not capable of being remedied within the timeframe specified in the said Clause 6.1, the Parties shall:
(a) subject to the provisions of Sub-clause (b) below, proceed as
follows:
(i) no later than 10.00 a.m. on the next Information Date
following the expiration of the time periods in Clause 6.1,
the relevant Seller, via the relevant Administrative Agent,
shall deliver to the Management Company a computer file
listing, designating and identifying such Affected
Receivables (designee et individualisee);
(ii) no later than 4.00 p.m. on the Calculation Date following
the Information Date in Sub-clause 6.2(a)(i), the
Management Company shall notify the relevant Seller, via
the relevant Administrative Agent, the detailed
calculations of the Retransferred Amount corresponding to
such Affected Receivables;
(iii) no later than 10.00 a.m. on the Retransfer Date following
the Calculation Date in Sub-clause 6.2(a)(ii), the transfer
of such Affected Receivables shall be automatically and
without any further formality rescinded (resolu de plein
droit);
(iv) no later than 10.00 a.m. on the Retransfer Date following
the Calculation Date in Sub-clause 6.2(a)(ii), the relevant
Seller, via the relevant Administrative Agent, shall credit
the FCC General Account with the corresponding
Retransferred Amount;
(v) in respect of each Cut-Off Period, each Servicer, by no
later than 2.00 p.m. one (1) Business Day before the
Payment Date or Interest Payment Date shall pass an
irrevocable order for a wire transfer with the following
libelle "Repurchases -- Crown Securitisation" for
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French Sellers and through SWIFT with an MT101 order for
English Sellers in order that by no later than 10.00 a.m.
on the corresponding Transfer Date, all Retransfer Prices
received in Euro and in Sterling in respect of the
Affected Receivables to be repurchased are transferred to
the FCC Collection Account.
(b) in the event that an Affected Receivable does not exist, or no longer
exists, the relevant Seller and, where applicable, the Management
Company, shall not be obligated to comply with Sub-clause
6.2(a)(iii), but shall comply with Sub-clauses 6.2(a)(i), (ii), (iv)
and (v).
6.3 CONSEQUENCES
Compliance with Clause 6.2 shall result in the discharge and full release of any claim that the FCC might have had against such Seller on the basis of the inaccuracy of the representations and warranties with respect to any Affected Receivable, provided that this shall not affect the FCC's rights resulting from any other inaccuracy of the representations and warranties in respect of any other Transferred Receivable.
7 OPTION TO REPURCHASE
Pursuant to Article L. 214-43 of the French Code monetaire et financier, each Seller shall have the right, but not the obligation, to request the Management Company to transfer back to it one or more Defaulted Receivables by delivering to the Management Company, no later than 10.00 a.m. on the Information Date immediately preceding a Transfer Date, via the relevant Administrative Agent, an Individual Retransfer Request in the form set out in Schedule 25 of Appendix 1. For the avoidance of doubt, the Parties hereto agree and acknowledge that such right shall be exercised by the Sellers:
(a) on an exceptional basis; and
(b) because of external constraints only, such as tax reasons; and
(c) only for Defaulted Receivables which are definitely unrecoverable.
Upon receipt of an Individual Retransfer Request from the relevant Administrative Agent, the Management Company shall be free to accept or reject, in whole or in part, the corresponding Individual Retransfer Request. If any Individual Retransfer Request is not accepted by the Management Company by 10.00 a.m. on the Transfer Date immediately following the Information Date on which the Individual Retransfer Request was delivered to it, such Individual Retransfer Request shall automatically and with no formalities lapse.
In respect of each Cut-Off Period, each Servicer, by no later than 2.00 p.m. one (1) Business Day before the Payment Date or Interest Payment Date shall pass an irrevocable order for a wire transfer with the following libelle "Repurchases -- Crown Securitisation" for French Sellers and through SWIFT with an MT101 order for English Sellers in order that by no later than 10.00 a.m. on the corresponding Transfer
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Date, all Retransfer Prices received in Euro and in Sterling in respect of the Defaulted Receivables to be repurchased are transferred to the FCC Collection Account.
8 PERFECTION OF TRANSFER AGAINST DEBTORS
The FCC acknowledges and agrees that it shall not serve any Notice of Transfer to any Debtor unless as provided below.
Upon the occurrence of a Seller Termination Date with respect to any Seller, and without prejudice to any other rights of the FCC pursuant to the terms and conditions of the Securitisation Transaction Documents, the Management Company (or, as the case may be, the Back-Up Servicer) may serve a written Notice of Transfer substantially in the form set out in Schedule 7 of the relevant Seller's Appendix at any time as from the date immediately following the Seller Termination Date for the purpose of instructing the Debtors of that Seller to direct all future payments related to the Eligible Receivables originated by that Seller to the FCC.
9 LIQUIDATION OF THE FCC
Pursuant to the provisions of the Decree, the Management Company may or shall decide to liquidate the FCC in accordance with, and subject to the provisions of the FCC Regulations.
In the event that the Management Company decides to liquidate the FCC in accordance with the provisions of the FCC Regulations, it shall be entitled to offer to the relevant Seller the possibility to repurchase the outstanding Transferred Receivables in whole, but not in part, within a single transaction, for a repurchase price determined in accordance with the provisions of the FCC Regulations. In such event, the relevant Seller shall have the discretionary right to refuse such proposal.
The relevant Seller shall not be entitled to accept the offer made by the Management Company unless the repurchase price applicable to the retransfer of the Transferred Receivables is equal to the market value of such Transferred Receivables, provided that such repurchase price shall in any event be sufficient so as to allow the Management Company to pay all principal and interest amounts due and payable in respect of the outstanding Units after the payment of all liabilities of the FCC ranking higher in the Orders of Priority, failing which such retransfer of the Transferred Receivables shall not take place. If the relevant Seller accepts the Management Company's offer, the assignment of the Transferred Receivables shall take place within five (5) Business Days following that acceptance and the relevant Seller shall pay the repurchase price by wire transfer to the credit of the relevant FCC Account.
If the relevant Seller refuses the Management Company's offer, the Management Company will use its best endeavours to assign the remaining outstanding Transferred Receivables to a credit institution or such other entity authorised by the French law and regulations to acquire the Transferred Receivables under similar terms and conditions.
The Management Company shall liquidate the FCC on the FCC Liquidation Date.
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Any Liquidation Surplus (boni de liquidation) shall be paid to the holder of the Subordinated Units as final payment of principal and interest of the said Subordinated Units.
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SECTION III:
SERVICING AND COLLECTION OF RECEIVABLES
10 APPOINTMENT OF THE SERVICERS
10.1 APPOINTMENT AND RESPONSIBILITIES
Pursuant to the provisions of Article L. 214-46 of the French Code monetaire et financier, each Seller, acting in its capacity as Servicer, will continue to perform the management, servicing and collection of the Transferred Receivables originated by it and sold to the FCC.
To this end, the Management Company hereby appoints each Servicer, with effect from the FCC Establishment Date, as its legal agent (mandataire) pursuant to Articles 1984 et seq. of the French Code civil to act solely (conjointement et sans solidarite) on behalf of the FCC in connection with the management, collection and servicing of the Transferred Receivables originated by it in its capacity as Seller, which shall include:
(a) performing all functions, duties and obligations under the
Securitisation Transaction Documents to which the Servicer is a
party;
(b) establishing and maintaining each of the Collection Accounts in the
name of the Servicer with the relevant Collection Account Bank and
operating the Collection Accounts;
(c) collecting all sums due in relation to the Transferred Receivables
into the Collection Accounts, including taking any necessary
enforcement action against the Debtors of the Transferred
Receivables;
(d) providing certain data administration and cash management services in
relation to the Transferred Receivables and reporting three times per
month on the performance of the Transferred Receivables; and
(e) performing those other functions as specifically provided for in this
Agreement,
in all such cases on behalf of the FCC as provided for in this Agreement and the Securitisation Transaction Documents.
10.2 ACCEPTANCE OF APPOINTMENT
Each Servicer accepts the appointment under Clause 10.1 under the terms and conditions of this Agreement.
In the event that a new Seller accedes, from time to time, to the Securitisation Programme pursuant to Clause 24.3:
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(a) the FCC shall appoint, pursuant to this Clause 10, such new Seller as
a new Servicer under the terms and conditions of this Agreement, in
connection with the Transferred Receivables originated by such Seller
in its capacity as Seller; and
(b) such new Seller shall accept such appointment under the terms and
conditions of this Agreement.
10.3 AUTHORITY OF THE SERVICERS
During the term of appointment under this Agreement, each Servicer shall, subject to the terms and conditions of this Agreement, have the full power, authority and right to do or cause to be done any and all things which it reasonably considers necessary, desirable or convenient for, or incidental to the performance of its duties, but always subject to compliance with the Servicing Procedures and provide that no action shall be taken which affects the FCC's or the Servicer's rights under the Securitisation Transaction Documents. Furthermore, each Servicer shall ensure that there is devoted to the performance of its obligations under this Agreement (including but not limited to, doing what is necessary to collect all amounts owed by the Debtors in connection with the Transferred Receivables) at least the same amount of time, attention, level of skill, care and diligence, as would be devoted if it were acting solely...
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