EXHIBIT 10.17
[___] JANUARY 2000
____________________________________________________________
SERVICING AGREEMENT
____________________________________________________________
TULIP ASSET PURCHASE COMPANY B.V.
AS PURCHASER
[LEVI ▇▇▇▇▇▇▇ _______]
AS SERVICER
AND
LEVI ▇▇▇▇▇▇▇ & CO
AS PARENT
CONTENTS
CLAUSE PAGE
1. DEFINITIONS........................................................... 1
2. APPOINTMENT OF SERVICER............................................... 3
3. THE SERVICES.......................................................... 4
4. COLLECTIONS AND THE ACCOUNTS.......................................... 5
5. COSTS, EXPENSES AND REMUNERATION...................................... 6
6. INFORMATION........................................................... 7
7. COVENANTS OF THE SERVICER............................................. 7
8. SERVICER'S INDEMNITY.................................................. 9
9. SERVICES NON-EXCLUSIVE................................................ 9
10. TERMINATION........................................................... 10
11. CHANGE OF SERVICER.................................................... 11
12. FURTHER ASSURANCE..................................................... 11
13. DISCLOSURE OF INFORMATION............................................. 13
14. NOTICES AND COUNTERPARTS.............................................. 14
15. VARIATION............................................................. 14
16. ASSIGNMENT............................................................ 14
17. PARTIAL INVALIDITY.................................................... 14
18. NO LIABILITY AND NO PETITION.......................................... 14
19. GOVERNING LAW......................................................... 15
20. JURISDICTION.......................................................... 15
THE SCHEDULES
The First Schedule : Form of Monthly Report
The Second Schedule : The Collection Accounts
The Third Schedule: : The Operating Accounts
THIS SERVICING AGREEMENT is made the [ ] day of December 1999
BETWEEN
(1) TULIP ASSET PURCHASE COMPANY B.V., a Dutch private company with limited
liability having its registered office at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (the "PURCHASER");
(2) [LEVI ▇▇▇▇▇▇▇ _________], a [________] company having its registered office
at [________________________] RC [____] (the "SERVICER", which expression
shall include any person appointed as servicer for the Purchaser for the
purpose of and in accordance with this Agreement), and
(3) LEVI ▇▇▇▇▇▇▇ & CO. a Delaware corporation having its head office at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ (the "PARENT").
WHEREAS:
(A) The Seller and the Purchaser have agreed, upon the terms and subject to the
conditions of the Receivables Purchase Agreement referred to below, that
the Seller may from time to time offer to sell and to assign Eligible
Receivables to the Purchaser and the Purchaser shall accept any such offer
upon the terms thereof.
(B) The Servicer is willing to act for the Purchaser in the performance of
certain services in relation to the Purchased Receivables upon the terms
and subject to the conditions contained in this Agreement.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS
1.1 In this Agreement and in the Recitals hereto, except so far as the context
otherwise requires:
"ACCOUNT BANK" means ABN AMRO Bank N.V. acting through its office at
Amsterdam and any person appointed as Account Bank under the Accounts
Administration Agreement;
"ACCOUNTS ADMINISTRATION AGREEMENT" means the accounts administration
agreement dated on or about the date hereof between ABN AMRO Bank N.V., the
Purchaser and the Issuer;
"ACCOUNTS ADMINISTRATOR" means ABN AMRO Bank N.V. acting through its office
at Amsterdam and any person appointed as accounts administrator under the
Accounts Administration Agreement;
"ADVANCE" means all Advances and Same Day Advances pursuant to the
Liquidity Facility Agreement and all Drawings under the Standby Letter of
Credit (as in each case defined therein);
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"COLLECTION ACCOUNT" means each of the accounts set out in the Second
Schedule with the Collection Account Banks utilised for the time being by
the Seller and/or the Servicer in relation to Collections on the Purchased
Receivables or such other account or accounts as may for the time being be
in addition thereto or substituted therefor;
"COLLECTION ACCOUNT BANKS" means each of the banks set out in the Second
Schedule or such other banks as may for the time being be nominated by the
Seller and/or the Servicer in addition thereto or substituted therefor;
"CP PROGRAMME" means the commercial paper programme established by the
Issuer pursuant to the Dealer Agreements;
"DEALER AGREEMENTS" means the dealer agreements relating to the CP
Programme dated on or after 1 December 1995 between the Issuer and the
Dealers (as defined therein);
"DISCOUNT PROTECTION AMOUNT" shall have the same meaning as in the
Receivables Purchase Agreement;
"DISCOUNT RESERVE LEDGER" shall have the same meaning as in the Receivables
Purchase Agreement;
"ENCUMBRANCE" means (a) any mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person, or (b) any type of
preferential arrangement (including any title transfer and retention
arrangement) the effect of which is to give a creditor a preferential
position in relation to any asset.
"ISSUER" means Tulip Financing Corporation a company incorporated with
limited liability and having its registered office at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇;
"MONTHLY REPORT" means the monthly report delivered by the Servicer
pursuant to Clause 6.2 in the form set out in the First Schedule or as
otherwise agreed from time to time between the Servicer and the Purchaser;
"NOTE" means a commercial paper note issued by the Issuer for the purpose
of funding the Purchaser under the Funding Agreement and purchased by a
Dealer pursuant to the Dealer Agreements and includes the commercial paper
notes represented by a Note in global form;
"OPERATING ACCOUNT" means the interest bearing accounts designated as such
in the Third Schedule and operated by ABN AMRO Bank N.V. as Accounts
Administrator in the name of the Purchaser at the Account Bank utilised for
the time being for the purposes of the Servicing Agreement and the Accounts
Administration Agreement or such other account or accounts as may for the
time being be in addition thereto or substituted therefor in accordance
with the provisions of the Accounts Administration Agreement;
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"PURCHASED RECEIVABLES" means any Receivables assigned, sold or transferred
or purported to be assigned, sold or transferred to the Purchaser pursuant
to the Receivables Purchase Agreement;
"RECEIVABLES PURCHASE AGREEMENT" means the receivables purchase agreement
dated on or about the date hereof between the Purchaser and the Seller;
"RECORD" means, in respect of any Receivable, all Contracts,
correspondence, notes of dealings and other documents, books, books of
account, registers, records and other information (including, without
limitation, computer programmes, tapes, discs, punch cards, data processing
software and related property and rights) maintained (and recreated in the
event of destruction of the originals thereof) with respect to such
Receivable and the related Debtor;
"SELLER" means [Levi ▇▇▇▇▇▇▇ __________];
"SERVICES" means the services to be provided by the Servicer hereunder;
"TERMINATION DATE" means the date upon which a Termination Event occurs or,
if such date is not a business day, the next following business day; and
"TERMINATION EVENT" shall have the same meaning as in the Receivables
Purchase Agreement.
1.2 Any reference in this Agreement to a "BUSINESS DAY" means any day (other
than a Saturday or a Sunday) on which banks are open for business in
[Amsterdam or ________].
1.3 The headings in this Agreement shall not affect its interpretation.
1.4 Words denoting the singular number only shall include the plural number
also and vice versa; and words denoting persons only shall include firms
and corporations and vice versa.
1.5 References in this Agreement to any statutory provision shall be deemed
also to refer to any statutory or other modification, re-enactment or
replacement thereof or any statutory instrument, order or regulation made
thereunder or under any such re-enactment.
1.6 The Schedules shall form part of this Agreement.
1.7 Terms defined in the Receivables Purchase Agreement shall unless otherwise
defined herein or the context otherwise requires, bear the same meanings
herein.
1.8 Save where the contrary is indicated in this Agreement, any reference in
this Agreement to a time of day shall be construed as a reference to time
in Amsterdam.
2. APPOINTMENT OF SERVICER
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2.1 Subject to Clause 3, until termination pursuant to Clause 10, the Purchaser
hereby appoints [____________] to be the Servicer in its name and on its
behalf to service, collect and administer all Purchased Receivables and
perform all related functions in the same manner as it services Receivables
other than the Purchased Receivables, and the Servicer hereby accepts such
appointment by the Purchaser on the terms and subject to the conditions of
this Agreement.
2.2 During the continuance of its appointment hereunder, the 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 the
Servicer reasonably considers necessary, convenient or incidental to the
administration of the Purchased Receivables or the exercise of the rights,
powers, duties and discretions referred to in Clause 2.1 and the
performance of its other duties and obligations under this Agreement.
3. THE SERVICES
3.1 Without prejudice to the generality of Clause 2, the duties of the Servicer
shall include the provision of the Services and the specific duties set out
in this Agreement.
3.2 The Servicer shall:
(a) give directions with respect to each Collection Account in respect of
the transfers and payments to be made hereunder;
(b) endeavour at its own expense to recover amounts due from Debtors in
accordance with the Credit and Collection Policies and in particular
(but without prejudice to the generality of the foregoing) exercise
all enforcement measures concerning amounts due from Debtors. For this
purpose the Servicer is hereby authorised to ▇▇▇ Debtors in any court
in [________] or in any other competent jurisdiction for the account
of the Purchaser, the Purchaser being obliged where necessary to
assist the Servicer in exercising all rights and remedies under and in
connection with the relevant Purchased Receivables;
(c) keep Records, books of account and documents relating to Purchased
Receivables and any receivables otherwise made or serviced by the
Servicer such that the Purchased Receivables can separately be
identified;
(d) keep records for all taxation purposes, including for the purposes of
value added tax;
(e) hold all Records relating to the Purchased Receivables in its
possession to the order and the benefit of the Purchaser;
(f) assist the Purchaser in discharging any Related Security in respect of
any Purchased Receivables which have been repaid; and
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(g) assist the Purchaser's auditors and provide information to them upon
request.
3.3 The Servicer shall not sub-contract or delegate the performance of any of
its obligations under this Agreement without the approval of the Purchaser,
such approval not to be unreasonably withheld.
3.4 The Servicer shall, where its obligations hereunder have been sub-
contracted in accordance with Clause 3.3 above, remain fully liable to the
Purchaser to the same extent and under the same terms as if the Servicer
itself was servicing the Receivables.
4. COLLECTIONS AND THE ACCOUNTS
4.1 The Servicer hereby covenants with the Purchaser that (i) on the date
hereof the Collection Accounts and the Collection Account Banks are those
(and only those) set out in the Second Schedule and (ii) thereafter the
Servicer shall not alter or permit any alteration to be made to the
contents of the Second Schedule or to the resolutions and instructions
relating to the Collection Accounts without the prior written notification
to the Purchaser.
4.2 (a) The Servicer shall use all reasonable endeavours to make all
Collections or to ensure payment of all sums, due under or in
connection with the Purchased Receivables and Related Security on
behalf of the Purchaser and will on behalf of the Purchaser enforce
all covenants and obligations of Debtors due to the Purchaser in the
same manner as it does in relation to its Receivables generally and,
where applicable, in accordance with the Credit and Collection
Policies.
(b) The Servicer covenants with the Purchaser that it will comply with the
Credit and Collection Policies in regard to each Purchased Receivable,
any Related Security and the related Contract. If the Servicer shall
propose to modify the Credit and Collection Policies in connection
with the Purchased Receivables, it shall give prior written notice of
such modification to the Purchaser and, if such modification is
considered by the Servicer, in its reasonable opinion, to be material,
such modification shall only take effect with the prior written
consent of the Purchaser, which shall not be unreasonably withheld.
4.3 The Servicer shall procure that, in relation to each Purchased Receivable,
all Collections in respect of Purchased Receivables shall be made into the
Collection Accounts forthwith upon receipt by the Servicer of the amount in
question (and to the extent practicable on the same day as such receipt).
In respect of any Collections received by any sub-contractor appointed in
accordance with Clause 3.3, the Servicer shall be deemed to receive such
Collections as soon as the same have been paid to such sub-contractor.
4.4 The Servicer shall procure that, subject always to the provisions of Clause
7 of the Receivables Purchase Agreement:
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(a) prior to the giving of notice to the Servicer pursuant to Clause 10.1,
on each Collection Payment Date all Collections in respect of
Purchased Receivables received during the immediately preceding
Collection Period shall be transferred (for same day value) into the
Operating Account; and
(b) after the giving of notice to the Servicer pursuant to Clause 10.1,
all Collections in respect of Purchased Receivables shall be
transferred (for same day value) on a daily basis into the Operating
Account.
4.5 The Servicer hereby covenants and declares that, pending such transfer to
the Operating Account, all sums paid into or otherwise standing to the
credit of the Collection Accounts in relation to Purchased Receivables
shall be held by it to the order and the benefit of the Purchaser and that
it will give directions to the Collection Account Banks in relation to such
sums on and subject to the terms of this Agreement (including, but not
limited to, Clause 4) and comply with its duties and obligations hereunder.
4.6 The Servicer shall keep and maintain Records, on a Receivable by Receivable
basis, for the purposes of identifying, in particular, at any time amounts
paid by and to each Debtor, any amount due by or to a Debtor, the source of
receipts which are paid into each Collection Account and the Operating
Account, and the balance from time to time outstanding on each Collection
Account with respect to each Debtor. The Servicer shall give the Purchaser
notice of any material change to its administrative and operating
procedures in relation to the keeping and maintaining of Records and any
such material change shall only take effect with the prior written consent
of the Purchaser, which shall not be unreasonably withheld.
4.7 If the Servicer receives any money whatsoever arising from the Purchased
Receivables, or otherwise, which money belongs to the Purchaser or is to be
paid to the Purchaser or into the Operating Account, pursuant to this
Agreement or otherwise, it will hold such money to the order and the
benefit of the Purchaser and will forthwith upon receipt thereof whether by
the Servicer itself or any sub-contractor pay or hold the same in
accordance with the relevant terms of this Agreement or as otherwise
directed by the Purchaser.
5. COSTS, EXPENSES AND REMUNERATION
5.1 The Servicer undertakes on behalf of the Purchaser, that it shall incur,
for its own account, any costs, expenses and charges in connection with the
enforcement of any Receivable and/or the Purchaser's rights and remedies in
relation thereto and it is agreed that the Servicer shall have no recourse
or claim for indemnification or payment against the Purchaser in respect of
such costs, expenses and charges.
5.2 The Servicer is not entitled to any remuneration or indemnity in respect of
the performance of its duties under this Agreement save as expressly
provided herein. The Servicer acknowledges that the undertakings of the
Purchaser under the
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Receivables Purchase Agreement constitute adequate consideration for its
own undertakings hereunder.
6. INFORMATION
6.1 The Servicer shall keep safe and shall use all reasonable endeavours to
maintain Records and shall maintain either in computer readable form or in
legible writing Records in relation to each Purchased Receivable. The
Servicer shall keep Records in relation to the Purchased Receivables in a
manner such that it is easily distinguishable from Records in relation to
other receivables of which the Servicer is originator, owner or servicer.
6.2 The Servicer shall prepare the Monthly Report for the Purchaser in respect
of the Purchased Receivables and shall deliver the same to the Purchaser
not later than the third business day before each Collection Payment Date,
provided that upon the occurrence of a Downgrade Trigger the Servicer shall
deliver two Monthly Reports to the Purchaser (i) not later than the third
business day before each Collection Payment Date, and (ii) on the twelfth
day following the Collection Payment Date.
6.3 The Servicer shall prepare and deliver to the Purchaser such further
information and/or reports, whether in writing or otherwise, as the
Purchaser may reasonably require from time to time. All reports or
certificates delivered by the Servicer under this Clause 6 shall be signed
by an authorised signatory of the Servicer.
7. COVENANTS OF THE SERVICER
7.1 The Servicer hereby covenants with the Purchaser that it will:
(a) give the time and attention of a proper merchant and will exercise the
due care of a proper merchant in the performance of the Services with
respect to the Purchased Receivables;
(b) ensure that the procedures that are applied by the Servicer in
connection with the recovery of Collections and the management of the
Purchased Receivables are the same as those applied by the Servicer in
connection with receivables beneficially owned by the Seller;
(c) consider the interests of the Purchaser the L/C Bank and the Agent in
its relations with Debtors and in its exercise of any discretion
arising from its performance of the Services;
(d) obtain and keep in force all licences, approvals, authorisations and
consents which may be necessary or desirable in connection with the
performance of the Services;
(e) at its expense and in a timely manner fully perform and comply with
all provisions, covenants and other promises required to be observed
by it under
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the Contracts and Related Security documents related to the Purchased
Receivables;
(f) comply with all legal requirements in relation to all Purchased
Receivables;
(g) not terminate, amend or revoke this Agreement without the prior
consent of the Purchaser the L/C Bank and the Agent;
(h) not, without the prior consent of the Purchaser, change the Receivable
Due Date relevant to a Purchased Receivable, if such change would
impair the collectability of such Purchased Receivable;
(i) not create or permit to subsist any Encumbrance over all or any of the
Collection Accounts;
(j) not sell, assign or otherwise dispose of, or create or permit to exist
any Adverse Claim upon or with respect to any goods the subject of any
Purchased Receivable or any Purchased Receivable or Related Contract
or Related Security, or upon or with respect to any Collection
Account, or assign any right to receive income in respect thereof or
attempt, purport or agree to do any of the foregoing; and
(k) except as otherwise permitted under this Agreement or under the
Receivables Purchase Agreement, not without the prior consent of the
Purchaser (which shall not be unreasonable withheld) extend, amend or
otherwise modify the terms of any Purchased Receivable or amend,
modify or waive any term or condition of any Contract related thereto,
Provided always that the Servicer shall have no power to enter into any new
contracts on behalf of the Purchaser nor to act as any form of branch,
agency or representative of the Purchaser nor to direct, administer or
manage any aspect of the Purchaser's business (without prejudice to the
specific activities expressly contemplated in this Agreement). Equally the
Servicer shall be liable only to perform the Services herein specified; the
Purchaser shall have no right to direct the Servicer.
7.2 The covenants of the Servicer shall remain in force until this Agreement is
terminated, but without prejudice to any right or remedy of the Purchaser
arising from breach of any such covenant prior to the date of termination
of this Agreement.
7.3 The Servicer shall have systems in place in relation to the Purchased
Receivables that are capable of providing the information to which the
Purchaser is reasonably and properly entitled pursuant to this Agreement
and shall use all reasonable endeavours to maintain such systems in working
order.
7.4 The Servicer hereby agrees that the Purchaser, any firm of independent
auditors retained by the Purchaser and/or any other representatives of the
Purchaser shall be authorised to conduct at the expenses of the Servicer an
annual site visit of the
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premises of the Servicer, the first such visit taking place one year
following the date of this Agreement, in order to:
(a) inspect and satisfy itself or themselves that the systems are in
place, maintained in working order and are capable of providing the
information to which it or they are reasonably and properly entitled
pursuant to this Agreement or the Receivables Purchase Agreement; and
(b) examine and make copies of and abstracts from all Records;
Provided that no Records, files or other information other than to that
which the Purchaser is entitled so to examine, copy or make abstracts from
shall be removed from the Servicer's premises and such Records, files or
other information shall remain confidential and shall not be used or
disclosed or divulged to any person (except to the extent and in the
circumstances permitted by this Agreement and the Receivables Purchase
Agreement and in accordance with applicable law) without the prior consent
of the Servicer, such consent not to be unreasonably withheld.
7.5 Notwithstanding the foregoing, the Servicer at the request of the
Purchaser, shall allow reasonable access during normal business hours to
any representative of the Purchaser and allow such representative to
perform the duties specified in Clause 7.4 (a) and (b) hereof.
8. SERVICER'S INDEMNITY
8.1 The Servicer shall indemnify the Purchaser and its respective directors,
officers and employees against all liabilities, losses, damages, actions,
proceedings and claims (and costs, demands and expenses including
reasonable legal expenses incidental thereto) which may be brought against,
suffered or incurred by the Purchaser, and/or such directors, officers and
employees by reason of any wrongful or negligent act, default or omission
by the Servicer or any director, officer, employee or agent of the Servicer
(including, for the avoidance of doubt, any sub-contractor of the Servicer)
in the performance of its duties hereunder.
8.2 The Servicer shall have no liability for any obligation of a Debtor under
any Purchased Receivables and nothing herein shall constitute a guarantee,
or similar obligation, by the Servicer of any Purchased Receivables or any
Debtor.
8.3 The Servicer shall have no liability for the obligations of the Purchaser
and nothing herein shall constitute a guarantee, or similar obligation, by
the Servicer of the Purchaser in respect of any obligations thereof.
9. SERVICES NON-EXCLUSIVE
Nothing in this Agreement shall prevent the Servicer from rendering
services similar to those provided for in this Agreement to other persons,
firms or companies carrying on business similar to or in competition with
the business of the Purchaser.
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10. TERMINATION
10.1 If any of the following events shall occur:
(i) the Servicer and/or the Seller, so long as the Seller is Servicer,
fails to make payment under this Agreement and/or the Receivables
Purchase Agreement on the date such payment is due and payable as
specified in such Agreement, or upon demand where no date is
specified, subject to a three day grace period after notification;
(ii) the Servicer and/or the Seller, so long as the Seller is Servicer,
fails to perform any of its other obligations under this Agreement
and/or the Receivables Purchase Agreement, subject to a three day
grace period after notification;
(iii) any representation or warranty in this Agreement or in any report or
any information provided by the Servicer is materially false or
incorrect;
(iv) the Servicer and/or the Seller enters into a voluntary arrangement
with its creditors, is declared bankrupt, is defendant in an action
for its bankruptcy which remains undismissed for a period of thirty
days, takes any corporate action or legal proceedings are started
against it for its gerechtelijk akkoord / concordat, dissolution or
liquidation, or a gerechtelijke bewindvoerder / administrateur
judiciaire, sekwester / sequestre or similar officer is appointed in
relation to the Servicer and/or the Seller, or any stoppage of
payments (staking van betalingen / cessation de paiements) occurs;
(v) any material adverse change occurs in the financial position or the
collection procedures of the Servicer; or
(vi) there is a default by the Seller or any of the Sellers under the
Foreign RPAs in respect of any of their payment obligations to third
parties in aggregate in excess of [USD 25,000,000] or its equivalent
at any time;
(vii) there is a change of control of the Servicer,
then the Purchaser may, without prejudice to its other rights, by notice in
writing to the Servicer terminate the appointment of the Servicer under
this Agreement.
10.2 On and after termination of the appointment of the Servicer under this
Agreement pursuant to Clause 10.1, all rights, obligations (other than
liability for breaches of this Agreement by the Servicer or liability in
tort on the part of the Servicer prior to such termination and the
Servicer's obligations under Clauses 10.3, 12 and 13 and the Servicer's
liability under Clause 8.1 with respect to the performance of its duties
hereunder), authority and power of the Servicer under this Agreement shall
be terminated and of no further effect.
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10.3 Upon termination of the appointment of the Servicer under this Agreement
pursuant to Clause 10.1, the Servicer shall forthwith deliver to the
Accounts Administrator or as it shall direct the Records in its possession
or under its control relating to the affairs of or belonging to the
Purchaser and the Purchased Receivables and any Related Security and any
other security therefor and any moneys then held by the Servicer on behalf
of the Purchaser and shall take such further action as the Purchaser may
reasonably direct, including (but without limitation), if so requested,
granting or assigning or sub-licensing such licences in respect of
intellectual property of the Servicer as may be necessary to enable the
Services to be performed by a substitute servicer.
10.4 The appointment of the Servicer under this Agreement shall terminate (but
without affecting any accrued rights and liabilities hereunder) at such
time as (i) the Purchaser has no further interest in any of the Purchased
Receivables and no further commitment under the Receivables Purchase
Agreement and (ii) the Servicer is notified by the Purchaser that such is
the case.
10.5 Following termination of the appointment of the Servicer the Servicer shall
be entitled to receive, on the date such amounts would have fallen to be
paid but for such termination, all fees and other moneys, if any, accrued
up to the date of termination but shall not be entitled to any other or
further compensation otherwise than pursuant to Clause 5.
11. CHANGE OF SERVICER
If notice is given to terminate the appointment of the existing Servicer in
accordance with this Agreement and to appoint a new Servicer, the existing
Servicer and the Purchaser shall execute such documents and take such
actions as such new Servicer and the Purchaser may require for the purpose
of vesting in such new Servicer the rights and obligations of the existing
Servicer under this Agreement and releasing the existing Servicer from its
future obligations under this Agreement.
12. GUARANTEE
12.1 The Parent irrevocably and unconditionally guarantees to the Purchaser the
due and punctual observance and performance of all terms, conditions and
covenants on the part of the Servicer contained in this Agreement and
agrees to pay from time to time on first demand any and every sum or sums
of money which the Servicer is at any time liable to pay to the Purchaser
under or pursuant to this Agreement and which has become due and payable
but has not been paid at the time such demand is made.
12.2 The Parent irrevocably and unconditionally agrees as a primary and
independent obligation to indemnify the Purchaser from time to time on
demand from and against any loss incurred by the Purchaser as a result of
any of the obligations of the Servicer under or pursuant to this Agreement
being or becoming void, voidable, unenforceable or ineffective as against
the Servicer for any reaon whatsoever, whether or not known
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to the Purchaser or any other person, the amount of such loss being the
amount which the Purchaser would otherwise have been entitled to recover
from the Servicer.
12.3 The obligations of the Parent herein contained shall constitute and be
continuing obligations notwithstanding any settlement of account or other
matter or thing whatsoever and shall not be considered satisfied by any
intermediate payment or satisfaction of all or any of the obligations of
the Servicer under this Agreement and shall continue in full force and
effect until final payment in full of all amounts owing by the Servicer
hereunder total satisfaction of all the actual and contingent obligations
of the Servier hereunder.
12.4 The obligations of the Parent herein contained shall not be discharged,
impaired or otherwise affected by:
(i) the winding-up, dissolution, administration or re-organisation of the
Servicer or any other person or any change in its status, function,
control or ownership;
(ii) any of the obligations of the Servicer or any other person hereunder
being or becoming illegal, invalid, unenforceable or ineffective in
any respect;
(iii) time or other indulgence being granted or agreed to be granted to the
Servicer or any other person in respect of its obligations hereunder;
(iv) any amendment to, or any variation, waiver or release of, any
obligations of the Servicer or any other person hereunder;
(v) any failure to take, or fully to take, any security contemplated
hereby or otherwise agreed to be taken in respect of the obligations
of the Servicer hereunder;
(vi) any other act, event or omission which, but for this Clause 12.4,
might operate to discharge, impair or otherwise affect any of the
obligations of the Parent herein contained or any other rights, power
or remedies conferred upon the Purchaser by the Agreement.
12.5 The Parent agrees that, so long as any amounts are or may be owed by the
Servicer hereunder or the Servicer is under any actual or contingent
obligations hereunder, the Parent shall not exercise any rights which the
Parent may at any time have, by reason of the performance by it of its
obligations hereunder:
(i) to be indemnified by the Servicer; or
(ii) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Purchaser hereunder.
13. FURTHER ASSURANCE
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The parties hereto agree that they will co-operate fully to take all such
further actions and execute any further documents as may be necessary or
desirable to give full effect to the arrangements contemplated by this
Agreement.
14. DISCLOSURE OF INFORMATION
None of the parties hereto shall, during the continuance of this Agreement
or after its termination, disclose to any person, firm or company
whatsoever (except with the authority of the other parties hereto) any
information which that party has acquired under or in connection with this
Agreement other than:
(a) to employees, officers or agents of any of ABN AMRO Bank N.V., the
Banks under the Liquidity Facility Agreement, the Facilities, the
Issuer, Standard & Poor's, ▇▇▇▇▇'▇, and the Dealers under the Dealer
Agreements (but not, for the avoidance of doubt, holders of
commercial paper issued thereunder);
(b) in connection with any proceedings arising out of or in connection
with this Agreement, any Funding Agreement, either of the Facilities
or the preservation or maintenance of its rights thereunder, subject
to prior notice to the Servicer;
(c) if required to do so by an order of a court of competent jurisdiction
whether in pursuance of any procedure for discovering documents or
otherwise subject to prior notice to the Servicer;
(d) pursuant to any law or regulation or requirement of any governmental
agency in accordance with which that party is required or accustomed
to act subject to prior notice to the Servicer;
(e) to any governmental, banking or taxation authority or competent
jurisdiction subject to prior notice to the Servicer; or
(f) to its auditors or legal or other professional advisers,
Provided that the above restriction shall not apply to:
(i) employees or officers or agents of the parties referred to in (a)
above any part of whose functions are or may be in any way related to
this Agreement;
(ii) information already known to a recipient otherwise than in breach of
this Clause;
(iii) information also received from another source on terms not requiring
it to be kept confidential; and
(iv) information which is or becomes publicly available otherwise than in
breach of this Clause.
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15. NOTICES AND COUNTERPARTS
15.1 Each communication to be made hereunder shall (except expressly permitted
otherwise) be made in writing but, unless otherwise stated, may be made by
facsimile or letter.
15.2 Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall (unless that other person has by
fifteen days' written notice to the other specified another address) be
made or delivered to that other person at the address identified with its
signature below and shall be deemed to have been made or delivered (in the
case of any communication made by facsimile) when despatched or (in the
case of any communication made by letter) when left at that address. Any
communication sent by facsimile shall be promptly confirmed by letter but
the non-delivery or non-receipt of any such letter shall not affect the
validity of the original facsimile communication.
15.3 Each communication and document made or delivered pursuant to this
Agreement shall be in English.
15.4 This Agreement may be executed in one or more counterparts.
16. VARIATION
No variation of this Agreement (including this Clause 15) shall be
effective unless it is in writing and signed by (or by some person duly
authorised by) each of the parties and unless each of the Rating Agencies
has confirmed in writing that the rating of the indebtedness for borrowed
money issued or sold by the Issuer will not be downgraded, withdrawn or
suspended as a result of such variation.
17. ASSIGNMENT
The Servicer may not assign its rights or transfer its obligations under
this Agreement.
18. PARTIAL INVALIDITY
Without prejudice to any other provision hereof, if one or more provisions
hereof is or becomes invalid, illegal or unenforceable in any respect in
any jurisdiction or with respect to any party such invalidity, illegality
or unenforceability in such jurisdiction or with respect to such party or
parties shall not, to the fullest extent permitted by applicable law,
render invalid, illegal or unenforceable such provision or provisions in
any other jurisdiction or with respect to any other party or parties
hereto. Such invalid, illegal or unenforceable provision shall be replaced
by the parties with a provision which comes as close as reasonably possible
to the commercial intentions of the invalid, illegal or unenforceable
provision.
19. NO LIABILITY AND NO PETITION
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19.1 No recourse under any obligation, covenant, or agreement of the Purchaser
contained in this Agreement shall be had against any shareholder, officer
or director of the Purchaser as such, by the enforcement of any assessment
or by any proceeding, by virtue of any statute or otherwise; it being
expressly agreed and understood that this Agreement is a corporate
obligation of the Purchaser and no personal liability shall attach to or be
incurred by the shareholders, officers, agents or directors of the
Purchaser as such, or any of them, under or by reason of any of the
obligations, covenants or agreements of such Purchaser contained in this
Agreement, or implied therefrom, and that any and all personal liability
for breaches by the Purchaser of any of such obligations, covenants or
agreements, either at law or by statute or constitution, of every such
shareholder, officer, agent or director is hereby expressly waived by the
Servicer as a condition of and consideration for the execution of this
Agreement.
19.2 The Servicer hereby undertakes to the Purchaser that, until one year and
one day has elapsed after the payment of all sums outstanding and owing
under the latest maturing note under the CP Programme, it will not petition
or commence proceedings for the administration or winding up (nor join any
person in a petition or proceedings for the administration or winding up)
of the Purchaser nor will it enforce any judgement against the Purchaser if
to do so would cause the Purchaser's financial situation to become such as
to make it liable to insolvency proceedings. The Servicer acknowledges that
its recourse against the Purchaser in respect of any matter provided in
this Agreement shall be limited at any time to the extent of the aggregate
of (a) the unpaid amount of any Purchase Price Advance payable under the
Receivables Purchase Agreement, and (b) the Deferred Purchase Price due,
owing or payable to it thereunder at that time (but only if and to the
extent that there are funds credited to the Operating Account which the
Accounts Administrator is entitled in accordance with the terms of the
Accounts Administration Agreement).
20. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
law of [________], and insofar as is necessary in relation to the powers
and authority granted to the Servicer pursuant to Clause to ▇▇▇ Debtors in
the courts of any jurisdiction, by the law of such jurisdiction.
21. JURISDICTION
Any dispute in connection with this Agreement shall be subject to the
jurisdiction of the courts of Brussels.
Signed in two originals the day and year first before written.
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SIGNATURES
TULIP ASSET PURCHASE COMPANY B.V.
By:
Address:
Fax:
Attention:
[LEVI ▇▇▇▇▇▇▇ __________________]
By:
Address:
Fax:
Attention:
LEVI ▇▇▇▇▇▇▇ & Co
By:
Address:
Fax:
Attention:
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THE FIRST SCHEDULE
[FORM OF MONTHLY REPORT]
See overleaf
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THE SECOND SCHEDULE
THE COLLECTION ACCOUNTS
ACCOUNT N(DEGREES). ACCOUNT NAME NAME AND ADDRESS OF
COLLECTION ACCOUNT BANK
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THE THIRD SCHEDULE
OPERATING ACCOUNTS
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