EXHIBIT 10.28
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RECEIVABLES PURCHASE AND SERVICING AGREEMENT
DATED AS OF APRIL 11, 2002,
BY AND AMONG
WNC RECEIVABLES, LLC,
AS SELLER,
WABASH FINANCING LLC,
AS SERVICER,
WNC RECEIVABLES MANAGEMENT CORP.,
AS INDEPENDENT MEMBER,
AND
GENERAL ELECTRIC CAPITAL CORPORATION,
AS INITIAL PURCHASER AND AS AGENT
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WNC Receivables, LLC Receivables Purchase
and Servicing Agreement
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS AND INTERPRETATION.........................................................................1
Section 1.01. Definitions................................................................................1
Section 1.02. Rules of Construction......................................................................2
ARTICLE II. AMOUNTS AND TERMS OF PURCHASES........................................................................2
Section 2.01. Purchases..................................................................................2
Section 2.02. Optional Changes in Maximum Purchase Limit.................................................2
Section 2.03. Investment Base Certificates; Notices Relating to Purchases and Reductions in Capital
Investment.............................................................................3
Section 2.04. Conveyance of Receivables..................................................................4
Section 2.05. Facility Termination Date..................................................................5
Section 2.06. Daily Yield................................................................................5
Section 2.07. Fees.......................................................................................6
Section 2.08. Time and Method of Payments................................................................6
Section 2.09. Capital Requirements; Additional Costs; Illegality.........................................7
Section 2.10. Breakage Costs.............................................................................8
Section 2.11. Purchase Excess............................................................................8
ARTICLE III. CONDITIONS PRECEDENT.................................................................................9
Section 3.01. Conditions to Effectiveness of Agreement...................................................9
Section 3.02. Conditions Precedent to All Purchases.....................................................10
ARTICLE IV. REPRESENTATIONS AND WARRANTIES.......................................................................11
Section 4.01. Representations and Warranties of the Seller..............................................11
Section 4.02. Representations and Warranties of the Servicer............................................17
Section 4.03. Representations and Warranties of the Independent Member..................................18
ARTICLE V. GENERAL COVENANTS OF THE SELLER AND THE INDEPENDENT MEMBER............................................22
Section 5.01. Affirmative Covenants of the Seller.......................................................22
Section 5.02. Reporting Requirements of the Seller; Bringdown Certificates..............................24
Section 5.03. Negative Covenants of the Seller..........................................................24
Section 5.04. Affirmative Covenants of Independent Member...............................................26
Section 5.05. Negative Covenants of Independent Member..................................................28
Section 5.06. Post-Closing Deliveries...................................................................29
ARTICLE VI. COLLECTIONS AND DISBURSEMENTS........................................................................30
Section 6.01. Establishment of Accounts.................................................................30
Section 6.02. Funding of Collection Account.............................................................32
Section 6.03. Daily Disbursements From the Collection Account...........................................32
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Section 6.04. [Reserved]................................................................................33
Section 6.05. Liquidation Settlement Procedures.........................................................33
Section 6.06. Termination Procedures....................................................................34
ARTICLE VII. SERVICER PROVISIONS.................................................................................35
Section 7.01. Appointment of the Servicer...............................................................35
Section 7.02. Duties and Responsibilities of the Servicer...............................................35
Section 7.03. Collections on Receivables................................................................35
Section 7.04. Authorization of the Servicer.............................................................36
Section 7.05. Servicing Fees............................................................................36
Section 7.06. Representations and Warranties of the Servicer............................................37
Section 7.07. Covenants of the Servicer.................................................................38
ARTICLE VIII. GRANT OF SECURITY INTERESTS........................................................................39
Section 8.01. Seller's Grant of Security Interest.......................................................39
Section 8.02. Seller's Certification....................................................................40
Section 8.03. [Reserved]................................................................................40
Section 8.04. Delivery of Collateral....................................................................40
Section 8.05. Seller Remains Liable.....................................................................41
Section 8.06. Covenants of the Seller and the Servicer Regarding the Seller Collateral..................41
ARTICLE IX. TERMINATION EVENTS...................................................................................44
Section 9.01. Termination Events........................................................................44
Section 9.02. Events of Servicer Termination............................................................47
ARTICLE X. REMEDIES..............................................................................................49
Section 10.01. Actions Upon Termination Event...........................................................49
Section 10.02. Exercise of Remedies.....................................................................51
Section 10.03. Power of Attorney........................................................................51
Section 10.04. Continuing Security Interest.............................................................51
ARTICLE XI. SUCCESSOR SERVICER PROVISIONS........................................................................52
Section 11.01. Servicer Not to Resign...................................................................52
Section 11.02. Appointment of the Successor Servicer....................................................52
Section 11.03. Duties of the Servicer...................................................................52
Section 11.04. Effect of Termination or Resignation.....................................................53
ARTICLE XII. INDEMNIFICATION.....................................................................................53
Section 12.01. Indemnities by the Seller................................................................53
Section 12.02. Indemnities by the Servicer..............................................................55
Section 12.03. Limitation of Damages; Indemnified Persons...............................................56
ARTICLE XIII. AGENT..............................................................................................56
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Section 13.01. Authorization and Action.................................................................56
Section 13.02. Reliance.................................................................................56
Section 13.03. GECC and Affiliates......................................................................57
ARTICLE XIV. MISCELLANEOUS.......................................................................................57
Section 14.01. Notices..................................................................................57
Section 14.02. Assignment and Participations............................................................58
Section 14.03. Termination; Survival of Seller Secured Obligations Upon Facility Termination Date.......60
Section 14.04. Costs, Expenses and Taxes................................................................60
Section 14.05. Confidentiality..........................................................................62
Section 14.06. Binding Effect; Successors and Assigns...................................................62
Section 14.07. Complete Agreement; Modification of Agreement............................................62
Section 14.08. Amendments and Waivers...................................................................62
Section 14.09. No Waiver; Remedies......................................................................63
Section 14.10. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.............................63
Section 14.11. Counterparts.............................................................................64
Section 14.12. Severability.............................................................................65
Section 14.13. Section Titles...........................................................................65
Section 14.14. Further Assurances.......................................................................65
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EXHIBITS, SCHEDULES AND ANNEXES
Exhibit 2.02(a) Form of Commitment Reduction Notice
Exhibit 2.02(b) Form of Commitment Termination Notice
Exhibit 2.03(a)(i) Form of Daily Investment Base Certificate
Exhibit 2.03(a)(ii) Form of Weekly Investment Base Certificate
Exhibit 2.03(a)(iii) Form of Monthly Report
Exhibit 2.03(b) Form of Purchase Request
Exhibit 2.04(a) Form of Purchase Assignment
Exhibit 5.02 Form of Bringdown Certificate
Exhibit 10.03 Form of Power of Attorney
Exhibit A Credit and Collection Policy
Schedule 4.01(b) Seller's Executive Offices; Collateral Locations;
Legal or Other Names; Organizational Identification
Number FEIN
Schedule 4.01(h) Membership Interests of Seller; Equity Interests of
Independent Member
Schedule 4.01(r) Seller's Deposit and Disbursement Accounts
Schedule 5.05(b) Independent Member's Existing Liens
Annex 5.02 Reporting Requirements of the Seller
Annex 7.02 Investment Reports
Annex X Definitions
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THIS RECEIVABLES PURCHASE AND SERVICING AGREEMENT (as amended, supplemented
or otherwise modified and in effect from time to time, this "Agreement") is
entered into as of April 11, 2002, by and among WNC RECEIVABLES, LLC, a Delaware
limited liability company (the "Seller"), WABASH FINANCING LLC, a Delaware
limited liability company ("WFL"), in its capacity as servicer hereunder (in
such capacity, the "Servicer"), WNC RECEIVABLES MANAGEMENT CORP., a Delaware
corporation (the "Independent Member"), and GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, as the sole initial purchaser (a
"Purchaser" and, together with its successors and assigns, the "Purchasers") and
as administrative agent for the Purchasers hereunder (in such capacity, the
"Agent").
RECITALS
A. The Seller is a special purpose limited liability company owned by
Wabash National, L.P., a Delaware limited partnership, and NOAMTC, Inc., a
Delaware corporation (each, an "Originator", and collectively, the
"Originators") and by the Independent Member (the Independent Member, the
Originators, the Seller, WFL and the Performance Guarantor being sometimes
hereinafter referred to collectively as the "Seller Parties").
B. The Seller has been formed for the purpose of purchasing, or
otherwise acquiring by capital contribution, all trade receivables of the
Originators.
C. The Seller intends to sell, and subject to the terms and conditions
hereof, the Purchasers intend to purchase, undivided percentage interests in
such trade receivables from time to time as described herein.
D. The Agent has been requested and is willing to act as Agent on
behalf of the Purchasers in connection with the making of such purchases.
E. In order to effectuate the purposes of this Agreement, the
Purchasers desire to appoint WFL to service, administer and collect the
receivables acquired by the Purchasers pursuant to this Agreement and WFL is
willing to act in such capacity as Servicer hereunder on the terms and
conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
WNC Receivables, LLC Receivables Purchase
and Servicing Agreement
ARTICLE I.
DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions. Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in Annex X.
Section 1.02. Rules of Construction. For purposes of this Agreement,
the rules of construction set forth in Annex X shall govern. All Appendices
hereto, or expressly identified to this Agreement, are incorporated herein by
reference and, taken together with this Agreement, shall constitute but a single
agreement.
ARTICLE II.
AMOUNTS AND TERMS OF PURCHASES
Section 2.01. Purchases. From and after the Closing Date and until the
Facility Termination Date and subject to the terms and conditions hereof, each
of the Purchasers severally agrees to purchase its Pro Rata Share of each
Purchaser Interest (each such purchase hereunder, a "Purchase") from the Seller
from time to time, and the Seller agrees to sell such Purchaser Interests to the
Purchasers. Under no circumstances shall the Purchasers make any Purchase if,
after giving effect thereto, a Purchase Excess would exist.
Section 2.02. Optional Changes in Maximum Purchase Limit.
(a) So long as no Incipient Termination Event or Termination Event
shall have occurred and be continuing, the Seller may, not more than twice
during each calendar year, reduce the Maximum Purchase Limit permanently;
provided that (i) the Seller shall give ten Business Days' prior written notice
of any such reduction to the Agent substantially in the form of Exhibit 2.02(a)
(each such notice, a "Commitment Reduction Notice"), (ii) any partial reduction
of the Maximum Purchase Limit shall be in a minimum amount of $5,000,000 or an
integral multiple thereof, (iii) no such reduction shall reduce the Maximum
Purchase Limit below $15,000,000, and (iv) any such reduction must be
accompanied by payment of the fee required by Section 2.02(c).
(b) The Seller may at any time on at least 90 days' prior written
notice by the Seller to the Agent irrevocably terminate the Maximum Purchase
Limit; provided that (i) such notice of termination shall be substantially in
the form of Exhibit 2.02(b) (the "Commitment Termination Notice"), (ii) the
Seller shall reduce the Capital Investment to zero and make all payments
required by Section 2.03(c) at the time and in the manner specified therein, and
(iii) such reduction must be accompanied by payment of the fee required by
Section 2.02(c). Upon such termination, the Seller's right to request that the
Purchasers make Purchases hereunder shall simultaneously terminate and the
Facility Termination Date shall automatically occur.
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(c) If all or any portion of the Maximum Purchase Limit is reduced or
terminated in accordance with this Section 2.02 prior to the first anniversary
of the Closing Date, then the Seller shall pay the Agent, for the ratable
account of the Purchasers, an amount equal to (i) the amount by which the
Maximum Purchase Limit is so reduced multiplied by (ii) 1.0%.
(d) Each written notice required to be delivered pursuant to Sections
2.02(a) and (b) shall be irrevocable, shall be promptly delivered by the Agent
to the Purchasers and shall be effective (i) on the day of receipt if received
by the Agent not later than 4:00 p.m. (New York time) on any Business Day and
(ii) on the immediately succeeding Business Day if received by the Agent after
such time on such Business Day or if any such notice is received on a day other
than a Business Day (regardless of the time of day such notice is received).
Each such notice of termination or reduction shall specify, respectively, the
amount of, or the amount of the proposed reduction in, the Maximum Purchase
Limit.
Section 2.03. Investment Base Certificates; Notices Relating to
Purchases and Reductions in Capital Investment.
(a) (i) Not later than 1:00 p.m. (New York time) on each
Business Day (other than the first Business Day of each week), the
Servicer shall deliver to the Agent for distribution to the Purchasers
an Officer's Certificate in the form of Exhibit 2.03(a)(i) (each, a
"Daily Investment Base Certificate").
(ii) Not later than 1:00 p.m. (New York time) on the first
Business Day of each week, the Servicer shall deliver to the Agent for
distribution to the Purchasers an Officer's Certificate for the period
of the immediately preceding week in the form of Exhibit 2.03(a)(ii)
(each, a "Weekly Investment Base Certificate"); provided that if (i) an
Incipient Termination Event or a Termination Event shall have occurred
and be continuing or (ii) the Agent, in good faith, believes that an
Incipient Termination Event or a Termination Event is imminent or deems
the Purchasers' rights or interests in the Transferred Receivables or
the Seller Collateral insecure, the Servicer shall deliver a Weekly
Investment Base Certificate to the Agent for distribution to the
Purchasers at such more frequent intervals as the Agent may request
from time to time.
(iii) Not later than the 18th day of each month, commencing
with May 18, 2002 (or if any such day is not a Business Day, the next
succeeding Business Day thereafter, the Servicer shall deliver to the
Agent for distribution to the Purchasers a Monthly Report in the form
of Exhibit 2.03(a)(iii) hereto.
(iv) Capital Investment Available shall be determined by the
Agent based on information related to the Seller Collateral available
to it, including (A) any information obtained in connection with any
audit or reflected in the most recent Daily Investment Base
Certificate, Weekly Investment Base Certificate or any other Investment
Report delivered to the Agent for distribution to the Purchasers or (B)
any other information that may be available to the Purchasers and the
Agent.
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(b) Each Purchase shall be made upon the provision of notice by the
Seller to the Agent in the manner provided herein. Any such notice must be given
in writing no later than 1:00 p.m. (New York time) (i) the day of the proposed
Purchase Date set forth therein if an Index Rate Purchase is being requested; or
(ii) at least two (2) LIBOR Business Days immediately preceding the proposed
Purchase Date set forth therein if a LIBOR Rate Purchase is being requested or
if the request is to convert a LIBOR Rate Purchase to an Index Rate Purchase, if
applicable. Each such notice (a "Purchase Request") shall (i) be substantially
in the form of Exhibit 2.03(b), (ii) be irrevocable and (iii) specify the amount
of the requested increase in Capital Investment (which shall be in an amount not
less than (i) $1,000,000 (or a larger integral multiple of $500,000) for a LIBOR
Rate Purchase request; or (ii) $100,000 (or a larger integral multiple of
$10,000) for an Index Rate Purchase request) and the proposed Purchase Date
(which shall be a Business Day), and shall include such other information as may
be required by any Purchaser or the Agent.
Section 2.04. Conveyance of Receivables.
(a) Purchase Assignment. On or prior to the Closing Date, the Seller
shall complete, execute and deliver to the Agent for the benefit of the
Purchasers an assignment substantially in the form of Exhibit 2.04(a) (the
"Purchase Assignment") in order to evidence the Purchases.
(b) Funding of Collection Account; Increases in Capital Investment.
(i) Funding of Collection Account by Purchasers. Following
receipt of any Purchase Request, and subject to satisfaction of the
conditions set forth in Section 3.02, each of the Purchasers shall make
available to or on behalf of the Seller on the Purchase Date specified
therein such Purchaser's Pro Rata Share of the lesser of the requested
increase in Capital Investment specified in such Purchase Request and
Capital Investment Available by depositing such amount in same day
funds into the Collection Account.
(ii) Payment of Purchase Price. Each of the Purchasers shall,
or shall cause the Agent to, deposit into the Seller Account on each
Business Day during the Revolving Period, in same day funds, all
amounts on deposit in the Collection Account that are to be disbursed
to or on behalf of the Seller pursuant to Section 6.03 as payment for
the Purchaser Interests.
(c) Vesting of Ownership.
(i) Effective on and as of each Purchase Date, the Agent on
behalf of the Purchasers shall own each the Purchaser Interests sold by
the Seller hereunder on such Purchase Date. The Seller shall not take
any action inconsistent with such ownership and shall not claim any
ownership interest in such Purchaser Interests.
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(ii) The Seller shall indicate in its Records that interests
in the Transferred Receivables have been sold hereunder and that
ownership of such interests is vested in the Agent on behalf of the
Purchasers. In addition, the Seller shall respond to any inquiries with
respect to the ownership of any Transferred Receivable by stating that
interests therein have been sold hereunder and that ownership of such
interests is vested in the Agent for the benefit of the Purchasers. The
Seller and the Servicer shall hold all Contracts and other documents
and incidents relating to such Transferred Receivables in trust for the
benefit of the Agent on behalf of the Purchasers, as the owner thereof,
and for the sole purpose of facilitating the servicing of such
Transferred Receivables. The Seller and the Servicer hereby acknowledge
that their retention and possession of such Contracts and documents
shall at all times be at the sole discretion of the Agent and in a
custodial capacity for the Agent's (on behalf of the Purchasers)
benefit only.
(d) Repurchases of Transferred Receivables. If any Originator is
required to repurchase Transferred Receivables from the Seller pursuant to
Section 4.05 of the Sale Agreement, each of the Purchasers shall sell and
reconvey its Pro Rata Share of the Purchaser Interests in such Transferred
Receivables to the Seller, if and to the extent a Purchase Excess exists or
would exist pursuant to such sale and reconveyance, for cash in an amount equal
to such Purchaser's Pro Rata Share of the Outstanding Balance of the Receivables
being repurchased.
Section 2.05. Facility Termination Date. Notwithstanding anything to
the contrary set forth herein, the Purchasers shall not have any obligation to
purchase any additional Purchaser Interests from and after the Facility
Termination Date.
Section 2.06. Daily Yield.
(a) The Seller shall pay Daily Yield to the Agent, for the account of
the Purchasers, for each day on which any Capital Investment is outstanding, in
the manner and at the times specified in Sections 6.03 and 6.05.
(b) Notwithstanding the foregoing, the Seller shall pay interest at the
applicable Daily Yield Rate on unpaid Daily Yield and on any other amount
payable by the Seller hereunder (to the extent permitted by law) that shall not
be paid in full when due (whether at stated maturity, by acceleration or
otherwise) for the period commencing on the due date thereof to (but excluding)
the date the same is indefeasibly paid in full.
(c) Solely for purposes of calculating Daily Yield, funds will be
deemed to be credited to the outstanding Capital Investment one day after
receipt thereof.
Section 2.07. Fees.
(a) On or prior to the Closing Date, the Seller shall pay to the Agent,
for the account of itself and the Purchasers, the fees set forth in the Fee
Letter that are payable on the Closing Date.
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(b) On each Settlement Date, the Seller shall pay to the Servicer or to
the Successor Servicer, as applicable, the Servicing Fee or the Successor
Servicing Fees and Expenses, respectively, in each case to the extent of
available funds therefor as provided in Section 6.03(b).
Section 2.08. Time and Method of Payments.
(a) Subject to the provisions of Sections 6.02, 6.03, and 6.05 all
payments in reduction of Capital Investment and all payments of Daily Yield,
fees and other amounts payable by the Seller hereunder shall be made in Dollars,
in immediately available funds, to the Agent (for its account or the account of
the Purchasers or the applicable Affected Parties or Indemnified Persons) not
later than 1:00 p.m. (New York time) on the due date therefor. Any such payment
made on such date but after such time shall be deemed to have been made on, and
Daily Yield shall continue to accrue and be payable thereon until, the next
succeeding Business Day. If any such payment becomes due on a day other than a
Business Day, the maturity thereof will be extended to the next succeeding
Business Day and Daily Yield thereon shall be payable during such extension. The
Agent is hereby authorized to add the amount of any Daily Yield, fees and other
amounts payable by the Seller hereunder which are not paid when due to the
Capital Investment.
(b) Any and all payments by the Seller hereunder shall be made in
accordance with this Section 2.08 without setoff or counterclaim and free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, excluding taxes on or measured by
the net income of any Affected Party imposed by the United States, the Affected
Party's jurisdiction of organization (or, in the case of an individual,
jurisdiction in which individual's primary residence is located) or any other
jurisdiction in which such Affected Party has established a taxable nexus other
than in connection with the transactions contemplated hereby and by the Sale
Agreement on or measured by the overall net income of such Affected Party to the
extent that the computation of such taxes is consistent with the Intended
Characterization (such non-excluded taxes, levies, imposts, deductions, charges
and withholdings being "Indemnified Taxes"). If the Seller shall be required by
law to deduct any Indemnified Taxes from or in respect of any sum payable
hereunder, (i) the sum payable shall be increased as much as shall be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.08) the Affected Party entitled to
receive any 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 taxing or other authority in accordance with applicable law. Within 30
days after the date of any payment of Indemnified Taxes, the Seller shall
furnish to the Agent the original or a certified copy of a receipt evidencing
payment thereof. The Seller shall indemnify any Affected Party from and against,
and, within ten days of demand therefor, pay any Affected Party for, the full
amount of Indemnified Taxes (together with any taxes imposed by any jurisdiction
on amounts payable under this Section 2.08) paid by such Affected Party and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Indemnified Taxes were correctly or legally
asserted.
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(c) Any Purchaser exercising a right of setoff or otherwise receiving
any payment on account of the Seller Secured Obligations in excess of its Pro
Rata Share thereof shall purchase for cash (and the other Purchasers or holders
shall sell) such participations in each such other Purchaser's or holder's Pro
Rata Share of the Seller Secured Obligations as would be necessary to cause such
Purchaser to share the amount so offset or otherwise received with each other
Purchaser or holder in accordance with their respective Pro Rata Shares (other
than offset rights exercised by any Purchaser with respect to this Section 2.08
or Section 2.09).
Section 2.09. Capital Requirements; Additional Costs; Illegality.
(a) If the Agent on behalf of any Affected Party shall have determined
that the adoption after the date hereof of any law, treaty, governmental (or
quasi-governmental) rule, regulation, guideline or order regarding capital
adequacy, reserve requirements or similar requirements or compliance by such
Affected Party with any request or directive regarding capital adequacy, reserve
requirements or similar requirements (whether or not having the force of law)
from any central bank or other Governmental Authority increases or would have
the effect of increasing the amount of capital, reserves or other funds required
to be maintained by such Affected Party against commitments made by it under
this Agreement or any other Related Document and thereby reducing the rate of
return on such Affected Party's capital as a consequence of its commitments
hereunder or thereunder, then the Seller shall from time to time upon demand by
the Agent pay to the Agent on behalf of such Affected Party additional amounts
sufficient to compensate such Affected Party for the Seller's Share of such
reduction together with interest thereon from the date of any such demand until
payment in full at the applicable Daily Yield Rate. A certificate as to the
amount of that reduction and showing the basis of the computation thereof
submitted by the Agent to the Seller shall be final, binding and conclusive on
the parties hereto (absent manifest error) for all purposes.
(b) If, due to any Regulatory Change, there shall be any increase in
the cost to any Affected Party of agreeing to make or making, funding or
maintaining any commitment hereunder, under any other Related Document,
including with respect to any Purchases, Capital Investment, or any reduction in
any amount receivable by such Affected Party hereunder or thereunder, including
with respect to any Purchases, Capital Investment (any such increase in cost or
reduction in amounts receivable are hereinafter referred to as "Additional
Costs"), then the Seller shall, from time to time upon demand by the Agent, pay
to the Agent on behalf of such Affected Party additional amounts sufficient to
compensate such Affected Party for the Seller's Share of such Additional Costs
together with interest thereon from the date demanded until payment in full
thereof at the applicable Daily Yield Rate. Such Affected Party agrees that, as
promptly as practicable after it becomes aware of any circumstance referred to
above that would result in any such Additional Costs, it shall, to the extent
not inconsistent with its internal policies of general application, use
reasonable commercial efforts to minimize costs and expenses incurred by it and
payable to it by the Seller pursuant to this Section 2.09(b).
(c) Notwithstanding anything to the contrary contained herein, if the
introduction of or any change in any law or regulation (or any change in the
interpretation
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WNC Receivables, LLC Receivables Purchase
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thereof) shall make it unlawful, or any central bank or other Governmental
Authority shall assert that it is unlawful, for any Purchaser to agree to make
or to make or to continue to fund or maintain any LIBOR Rate Purchase, then,
unless such Purchaser is able to make or to continue to fund or to maintain such
LIBOR Rate Purchase at another branch or office of such Purchaser without, in
Purchaser's opinion, adversely affecting it or its Purchases or the income
obtained therefrom, on notice thereof and demand therefor by such Purchaser to
Seller, Seller shall forthwith (i) repurchase all outstanding LIBOR Rate
Purchases; or (ii) convert all LIBOR Rate Purchases into Index Rate Purchases.
(d) Determinations by any Affected Party for purposes of this Section
2.09 of the effect of any Regulatory Change on its costs of making, funding or
maintaining any commitments hereunder, under any other Related Document or on
amounts receivable by it hereunder or thereunder or of the additional amounts
required to compensate such Affected Party in respect of any Additional Costs
shall be set forth in a written notice to the Seller in reasonable detail and
shall be final, binding and conclusive on the Seller (absent manifest error) for
all purposes.
Section 2.10. Breakage Costs. The Seller shall pay to the Agent for the
account of the applicable Purchaser, upon request of such Purchaser, such amount
as shall compensate the Purchaser for any loss, cost or expense incurred by such
Purchaser (as determined by such Purchaser) as a result of any reduction by the
Seller in Capital Investment (and accompanying loss of Daily Yield thereon)
other than on the maturity date of the financing used to fund such Capital
Investment, which compensation shall include an amount equal to any loss or
expense incurred by the Purchaser during the period from the date of such
reduction or to (but excluding) such maturity date if the rate of interest
obtainable by the Purchaser upon the redeployment of funds in an amount equal to
such reduction is less than the interest rate applicable to such financing
source (any such loss, cost or expense, "Breakage Costs"). The determination by
a Purchaser of the amount of any such loss or expense shall be set forth in a
written notice to the Seller in reasonable detail and shall be final, binding
and conclusive on the Seller (absent manifest error) for all purposes.
Section 2.11. Purchase Excess. On each Business Day during the
Revolving Period and after completion of the disbursements specified in Section
6.03, the Agent shall notify the Seller and the Servicer of any Purchase Excess
on such day, and the Seller shall deposit the amount of such Purchase Excess in
the Collection Account by 1:00 p.m. (New York time) on the immediately
succeeding Business Day.
ARTICLE III.
CONDITIONS PRECEDENT
Section 3.01. Conditions to Effectiveness of Agreement. The Purchasers
shall not be obligated to purchase Purchaser Interests hereunder on the occasion
of the initial Purchase, nor shall the Purchasers or the Agent be obligated to
take, fulfill or perform any other
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action hereunder, until the following conditions have been satisfied, in the
sole discretion of, or waived in writing by, the Purchasers and the Agent:
(a) Purchase Agreement; Other Related Documents. This Agreement shall
have been duly executed by, and delivered to, the parties hereto and the
Purchasers and the Agent shall have received such other documents, instruments,
agreements and legal opinions as each Purchaser and the Agent shall request in
connection with the transactions contemplated by this Agreement, including all
those listed in the Schedule of Documents, each in form and substance
satisfactory to each Purchaser and the Agent.
(b) Governmental Approvals. Each of the Seller Parties shall have
obtained all required consents and approvals of all Persons, including all
requisite Governmental Authorities, to the execution, delivery and performance
of this Agreement and the other Related Documents to which it is a party and the
consummation of the transactions contemplated hereby or thereby.
(c) Compliance with Laws. Each of the Seller Parties shall be in
compliance in all material respects with all applicable foreign, federal, state
and local laws and regulations, including those specifically referenced in
Section 5.01(a).
(d) Payment of Fees. The Seller shall have paid all fees required to be
paid by it on the Closing Date, including all fees required hereunder and under
the Fee Letter, and shall have reimbursed each Purchaser for all fees, costs and
expenses of closing the transactions contemplated hereunder and under the other
Related Documents, including each Purchaser's legal and audit expenses, and
other document preparation costs.
(e) Representations and Warranties. Each representation and warranty by
any of the Seller Parties contained herein and in each other Related Document to
which such Seller Party is a party shall be true and correct as of the Closing
Date, except to the extent that such representation or warranty expressly
relates solely to an earlier date.
(f) No Termination Event. No Incipient Termination Event or Termination
Event hereunder shall have occurred and be continuing or would result after
giving effect to any of the transactions contemplated on the Closing Date.
(g) Intercreditor Agreement. The Agent shall have received, in form and
substance satisfactory to the Agent, a fully executed Intercreditor Agreement.
(h) Consents. The Agent shall have received, in form and substance
satisfactory to Agent, fully executed copies of all consents required from
creditors of the various members of the Parent Group necessary to permit the
transactions contemplated by the Sale Agreement and hereby.
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Section 3.02. Conditions Precedent to All Purchases. The Purchasers
shall not be obligated to purchase Purchaser Interests hereunder on any Purchase
Date if, as of the date thereof:
(a) any representation or warranty of the Seller, the Servicer or the
Independent Member contained herein or in any of the other Related Documents
shall be untrue or incorrect in any material respect as of such date, either
before or after giving effect to the Purchase of Purchaser Interests on such
date and to the application of the proceeds therefrom, except to the extent that
such representation or warranty expressly relates to an earlier date and except
for changes therein expressly permitted by this Agreement;
(b) any event shall have occurred, or would result from the Purchase of
Purchaser Interests on such Purchase Date or from the application of the
proceeds therefrom, that constitutes an Incipient Termination Event, a
Termination Event, an Incipient Servicer Termination Event or an Event of
Servicer Termination;
(c) the Seller or the Servicer is not in compliance with any of its
covenants or other agreements set forth herein, including, without limitation,
the delivery of Monthly Reports and Investment Base Certificates.
(d) the Facility Termination Date shall have occurred;
(e) either before or after giving effect to such Purchase and to the
application of the proceeds therefrom, a Purchase Excess would exist;
(f) any of the Seller Parties shall fail to have taken such other
action, including delivery of approvals, consents, opinions, documents and
instruments to the Agent (on behalf of the Purchasers), as any Purchaser or the
Agent may reasonably request; or
(g) the Agent shall have determined that any event or condition has
occurred that has had, or could reasonably be expected to have or result in, a
Material Adverse Effect
The delivery by the Seller of a Purchase Request and the acceptance by the
Seller of the funds from such Purchase on any Purchase Date shall be deemed to
constitute, as of any such Purchase Date, a representation and warranty by the
Seller that the conditions in this Section 3.02 have been satisfied.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Seller. To induce
each Purchaser to purchase the Purchaser Interests and the Agent to take any
action hereunder, the Seller makes the following representations and warranties
to each Purchaser and the Agent as of
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the Closing Date and, except to the extent provided otherwise below, as of each
Purchase Date, each and all of which shall survive the execution and delivery of
this Agreement.
(a) Legal Existence; Compliance with Law. The Seller (i) is a limited
liability company duly organized, validly existing and in good standing under
the laws of Delaware (which is Seller's only state of organization); (ii) is
duly qualified to conduct business and is in good standing in each other
jurisdiction where its ownership or lease of property or the conduct of its
business requires such qualification; (iii) has the requisite limited liability
company power and authority and the legal right to own, pledge, mortgage or
otherwise encumber and operate its properties, to lease the property it operates
under lease, and to conduct its business, in each case, as now, heretofore and
proposed to be conducted; (iv) has all licenses, permits, consents or approvals
from or by, and has made all filings with, and has given all notices to, all
Governmental Authorities having jurisdiction, to the extent required for such
ownership, operation and conduct; (v) is in compliance with its certificate of
formation and limited liability company agreement; and (vi) subject to specific
representations set forth herein regarding ERISA, tax and other laws, is in
compliance with all applicable provisions of law, except where the failure to
comply, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(b) Executive Offices; Collateral Locations; Legal or Other Names;
Organizational Identification Number; FEIN. As of the Closing Date, the current
location of the Seller's chief executive office, principal place of business,
other offices, the warehouses and premises within which any Seller Collateral is
stored or located, and the locations of its records concerning the Seller
Collateral (including originals of the Seller Assigned Agreements) are set forth
in Schedule 4.01(b) and none of such locations has changed within the past 12
months (or such shorter time as the Seller has been in existence). During the
prior five years (or such shorter time as the Seller has been in existence),
except as set forth in Schedule 4.01(b), the Seller has not been known as or
used any legal, fictitious or trade name. In addition, Schedule 4.01(b) lists
the organizational identification number issued by Seller's state of
organization or states that no such number has been issued and lists the federal
employer identification number of the Seller.
(c) Power, Authorization, Enforceable Obligations. The execution,
delivery and performance by the Seller of this Agreement and the other Related
Documents to which it is a party, the creation and perfection of all Liens and
ownership interests provided for therein: (i) are within the Seller's limited
liability company powers; (ii) have been duly authorized by all necessary or
proper limited liability company and Equity Holder action; (iii) do not
contravene any provision of the Seller's certificate of formation or limited
liability company agreement; (iv) do not violate any law or regulation, or any
order or decree of any court or Governmental Authority; (v) do not conflict with
or result in the breach or termination of, constitute a default under or
accelerate or permit the acceleration of any performance required by, any
indenture, mortgage, deed of trust, lease, agreement or other instrument to
which the Seller or any Originator is a party or by which the Seller or any
Originator or any of the property of the Seller or any Originator is bound; (vi)
do not result in the creation or imposition of any Adverse Claim
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upon any of the property of the Seller or any Originator; and (vii) do not
require the consent or approval of any Governmental Authority or any other
Person, except those which have been duly obtained, made or complied with prior
to the Closing Date as provided in Section 3.01(b). The exercise by each of the
Purchasers, the Seller or the Agent of any of its rights and remedies under any
Related Document to which it is a party, do not require the consent or approval
of any Governmental Authority or any other Person (other than consents or
approvals solely relating to or required to be obtained by a Purchaser or the
Agent, and subject to the Bankruptcy Code), except those which will have been
duly obtained, made or complied with prior to the Closing Date as provided in
Section 3.01(b). On or prior to the Closing Date, each of the Related Documents
to which the Seller is a party shall have been duly executed and delivered by
the Seller and each such Related Document shall then constitute a legal, valid
and binding obligation of the Seller enforceable against it in accordance with
its terms.
(d) No Litigation. No Litigation is now pending or, to the knowledge of
the Seller, threatened against the Seller that (i) challenges the Seller's right
or power to enter into or perform any of its obligations under the Related
Documents to which it is a party, or the validity or enforceability of any
Related Document or any action taken thereunder, (ii) seeks to prevent the
transfer, sale, pledge or contribution of any Receivable or the consummation of
any of the transactions contemplated under this Agreement or the other Related
Documents, or (iii) has a reasonable risk of being determined adversely to the
Seller and that, if so determined, could have a Material Adverse Effect. As of
the Closing Date there is no Litigation pending or threatened that seeks damages
or injunctive relief against, or alleges criminal misconduct by, the Seller.
(e) Solvency. Both before and after giving effect to (i) the
transactions contemplated by this Agreement and the other Related Documents and
(ii) the payment and accrual of all transaction costs in connection with the
foregoing, the Seller is and will be Solvent.
(f) Material Adverse Effect. Since the date of the Seller's
organization, (i) the Seller has not incurred any obligations, contingent or
non-contingent liabilities, liabilities for charges, long-term leases or unusual
forward or long-term commitments that, alone or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, (ii) no contract,
lease or other agreement or instrument has been entered into by the Seller or
has become binding upon the Seller's assets and no law or regulation applicable
to the Seller has been adopted that has had or could reasonably be expected to
have a Material Adverse Effect and (iii) the Seller is not in default and no
third party is in default under any material contract, lease or other agreement
or instrument to which the Seller is a party that alone or in the aggregate
could reasonably be expected to have a Material Adverse Effect. Since the date
of the Seller's organization, no event has occurred that alone or together with
other events could reasonably be expected to have a Material Adverse Effect.
(g) Ownership of Property; Liens. No Transferred Receivable is subject
to any Adverse Claim, none of the other properties and assets of the Seller are
subject to any Adverse Claims other than Permitted Seller Encumbrances, and
there are no facts, circumstances or conditions known to the Seller that may
result in (i) with respect to the Transferred
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Receivables, any Adverse Claims (including Adverse Claims arising under
Environmental Laws) and (ii) with respect to its other properties and assets,
any Adverse Claims (including Adverse Claims arising under Environmental Laws)
other than Permitted Seller Encumbrances. The Seller has received all
assignments, bills of sale and other documents, and has duly effected all
recordings, filings and other actions necessary to establish, protect and
perfect the Seller's right, title and interest in and to the Transferred
Receivables and its other properties and assets. The Seller has rights in and
the power to transfer the Transferred Receivables. The Seller has rights in and
the power to transfer each item of the Seller Collateral upon which it purports
to ▇▇▇▇▇ ▇ ▇▇▇▇ hereunder free and clear of any and all Liens other than
Permitted Seller Encumbrances. The Liens granted to the Agent for the benefit of
the Purchasers pursuant to Section 8.01 will at all times be fully perfected
first priority Liens in and to the Seller Collateral.
(h) Ventures, Subsidiaries and Affiliates; Outstanding Equity Interests
and Indebtedness. The Seller has no Subsidiaries, is not engaged in any joint
venture or partnership with any other Person, and is not an Affiliate of any
other Person. All of the issued and outstanding Equity Interests of the Seller
are owned by each of its members in the amounts set forth on Schedule 4.01(h).
There are no outstanding rights to purchase, options, warrants or similar rights
or agreements pursuant to which the Seller may be required to issue, sell,
repurchase or redeem any of its Equity Interests or other equity securities or
any Equity Interest or other equity securities of its Subsidiaries. All
outstanding Indebtedness of the Seller as of the Closing Date is described in
Section 5.03(i).
(i) Taxes. All tax returns, reports and statements, including
information returns, required by any Governmental Authority to be filed by the
Seller have been filed with the appropriate Governmental Authority on or before
the applicable due date (including any extensions thereof) and all charges have
been paid prior to the date on which any fine, penalty, interest or late charge
may be added thereto for nonpayment thereof (or any such fine, penalty,
interest, late charge or loss has been paid), excluding charges or other amounts
being contested in accordance with Section 5.01(e). Proper and accurate amounts
have been withheld by the Seller or such Affiliate from its respective employees
for all periods in full and complete compliance with all applicable federal,
state, local and foreign laws and such withholdings have been timely paid to the
respective Governmental Authorities. Seller has not executed or filed with the
IRS or any other Governmental Authority any agreement or other document
extending, or having the effect of extending, the period for assessment or
collection of any charges.
(j) Full Disclosure. All information contained in this Agreement, any
Investment Base Certificate or any of the other Related Documents, or any
written statement furnished by Seller or by the Servicer or any other Seller
Party on behalf of the Seller to the Agent for the benefit of the Purchasers
pursuant to the terms of this Agreement or any of the other Related Documents is
true and accurate in every material respect, and none of this Agreement, any
Investment Base Certificate or any of the other Related Documents, or any
written statement furnished by Seller or by the Servicer or any other Seller
Party on behalf of the Seller to the Agent for distribution to the Purchasers
pursuant to the terms of this Agreement or
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any of the other Related Documents is misleading as a result of the failure to
include therein a material fact.
(k) ERISA. The Seller is in compliance with ERISA and has not incurred
and does not expect to incur any liabilities (except for premium payments
arising in the ordinary course of business) payable to the PBGC under ERISA.
(l) Brokers. No broker or finder acting on behalf of the Seller was
employed or utilized in connection with this Agreement or the other Related
Documents or the transactions contemplated hereby or thereby and the Seller has
no obligation to any Person in respect of any finder's or brokerage fees in
connection therewith.
(m) Margin Regulations. The Seller is not engaged in the business of
extending credit for the purpose of "purchasing" or "carrying" any "margin
security," as such terms are defined in Regulation U of the Federal Reserve
Board as now and from time to time hereafter in effect (such securities being
referred to herein as "Margin Stock"). The Seller owns no Margin Stock, and no
portion of the proceeds of the purchase price for Transferred Receivables sold
hereunder will be used, directly or indirectly, for the purpose of purchasing or
carrying any Margin Stock, for the purpose of reducing or retiring any
Indebtedness that was originally incurred to purchase or carry any Margin Stock
or for any other purpose that might cause any portion of such proceeds to be
considered a "purpose credit" within the meaning of Regulations T, U or X of the
Federal Reserve Board. The Seller will not take or permit to be taken any action
that might cause any Related Document to violate any regulation of the Federal
Reserve Board.
(n) Nonapplicability of Bulk Sales Laws. No transaction contemplated by
this Agreement or any of the Related Documents requires compliance with any bulk
sales act or similar law.
(o) Securities Act and Investment Company Act Exemptions. Each Purchase
of Purchaser Interests under this Agreement will constitute (i) a "current
transaction" within the meaning of Section 3(a)(3) of the Securities Act and
(ii) a purchase or other acquisition of notes, drafts, acceptances, open
accounts receivable or other obligations representing part or all of the sales
price of merchandise, insurance or services within the meaning of Section
3(c)(5) of the Investment Company Act.
(p) Government Regulation. The Seller is not an "investment company" or
an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act.
The Purchase of Purchaser Interests by the Purchasers hereunder, the application
of the proceeds thereof and the consummation of the transactions contemplated by
this Agreement and the other Related Documents will not violate any provision of
any such statute or any rule, regulation or order issued by the Securities and
Exchange Commission.
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(q) Nonconsolidation. The Seller is operated in such a manner that the
separate legal existence of the Seller, on the one hand, and any member of the
Parent Group, on the other hand, would not be disregarded in the event of the
bankruptcy or insolvency of any member of the Parent Group and, without limiting
the generality of the foregoing:
(i) the Seller is a limited purpose limited liability company
whose activities are restricted in its certificate of formation and
limited liability company agreement to those activities expressly
permitted hereunder and under the other Related Documents and the
Seller has not engaged, and does not presently engage, in any activity
other than those activities expressly permitted hereunder and under the
other Related Documents, nor has the Seller entered into any agreement
other than this Agreement, the other Related Documents to which it is a
party and, with the prior written consent of the Required Purchasers
and the Agent, any other agreement necessary to carry out more
effectively the provisions and purposes hereof or thereof;
(ii) no member of the Parent Group or any individual at the
time he or she is acting as an officer of any such member is or has
been involved in the day-to-day management of the Seller;
(iii) other than the purchase and acceptance through capital
contribution of Transferred Receivables, the payment of dividends and
the return of capital to the Originators, the payment of Servicing Fees
to the Servicer under this Agreement and the transactions evidenced by
the Ancillary Services and Lease Agreement, the Seller engages and has
engaged in no inter-entity transactions with any member of the Parent
Group;
(iv) the Seller maintains limited liability company records
and books of account separate from that of each member of the Parent
Group, holds regular limited liability company meetings and otherwise
observes limited liability company formalities and has a business
office separate from that of each member of the Parent Group;
(v) the financial statements and books and records of the
Seller and the Originators reflect the separate legal existence of the
Seller;
(vi) (A) the Seller maintains its assets separately from the
assets of each member of the Parent Group (including through the
maintenance of separate bank accounts and except for any Records to the
extent necessary to assist the Servicer in connection with the
servicing of the Transferred Receivables), (B) the Seller's funds
(including all money, checks and other cash proceeds) and assets, and
records relating thereto, have not been and are not commingled with
those of any member of the Parent Group and (C) the separate creditors
of the Seller will be entitled to be satisfied out of the Seller's
assets prior to any value in the Seller becoming available to the
Seller's members;
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(vii) except as otherwise expressly permitted hereunder, under
the other Related Documents and under the Seller's organizational
documents, no member of the Parent Group (A) pays the Seller's
expenses, (B) guarantees the Seller's obligations, or (C) advances
funds to the Seller for the payment of expenses or otherwise;
(viii) all business correspondence and other communications of
the Seller are conducted in the Seller's own name, on its own
stationery and through a separately-listed telephone number;
(ix) the Seller does not act as agent for any member of the
Parent Group, but instead presents itself to the public as a limited
liability company separate from each such member and independently
engaged in the business of purchasing and financing Receivables;
(x) the Seller maintains at least (A) one Independent Member
(as defined in Seller's limited liability company agreement as in
effect on the date hereof) that has two Independent Directors (as
defined in Seller's limited liability company agreement as in effect on
the date hereof) and (B) two Independent Managers (as defined in
Seller's limited liability company agreement as in effect on the date
hereof);
(xi) the Seller's certificate of formation and limited
liability company agreement require (A) the affirmative vote of each
manager, including the Independent Managers, and each member (including
the Independent Member, pursuant to the authorization of its board of
directors including the affirmative votes of its Independent Directors)
before a voluntary petition under Section 301 of the Bankruptcy Code
may be filed by the Seller, and (B) the Seller to maintain (1) correct
and complete books and records of account and (2) minutes of the
meetings and other proceedings of its members and managers.
(r) Deposit and Disbursement Accounts. Schedule 4.01(r) lists all banks
and other financial institutions at which the Seller maintains deposit or other
bank accounts as of the Closing Date, including any Lockbox Accounts, and such
schedule correctly identifies the name, address and telephone number of each
depository, the name in which the account is held, a description of the purpose
of the account, and the complete account number therefor.
(s) Transferred Receivables.
(i) Transfers. Each Transferred Receivable was purchased by or
contributed to the Seller on the relevant Transfer Date pursuant to the
Sale Agreement.
(ii) Eligibility. Each Transferred Receivable designated as an
Eligible Receivable in each Investment Base Certificate constitutes an
Eligible Receivable as of the date specified in such Investment Base
Certificate.
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(iii) No Material Adverse Effect. The Seller has no knowledge
of any fact (including any defaults by the Obligor thereunder on any
other Receivable) that would cause it or should have caused it to
expect that any payments on each Transferred Receivable designated as
an Eligible Receivable in any Investment Base Certificate will not be
paid in full when due or to expect any other Material Adverse Effect.
(iv) Nonavoidability of Transfers. The Seller shall (A) have
received each Contributed Receivable as a contribution to the capital
of the Seller by the applicable Originator and (B) (1) have purchased
each Sold Receivable from the applicable Originator for cash
consideration and (2) have accepted assignment of any Eligible
Receivables transferred pursuant to Section 4.05 of the Sale Agreement,
in each case in an amount that constitutes fair consideration and
reasonably equivalent value therefor. Each Sale of a Sold Receivable
effected pursuant to the terms of the Sale Agreement shall not have
been made for or on account of an antecedent debt owed by any
Originator to the Seller and no such Sale is or may be avoidable or
subject to avoidance under any bankruptcy laws, rules or regulations.
(t) Representations and Warranties in Other Related Documents. Each of
the representations and warranties of the Seller contained in the Related
Documents (other than this Agreement) is true and correct in all respects and
the Seller hereby makes each such representation and warranty to, and for the
benefit of, the Purchasers and the Agent as if the same were set forth in full
herein.
(u) Servicing Software. The Seller has all necessary licenses and
rights to use the Servicing Software.
Section 4.02. Representations and Warranties of the Servicer. To induce
the Purchasers to purchase the Purchaser Interests and the Agent to take any
action required to be performed by it hereunder, the Servicer represents and
warrants to the Purchasers and the Agent, which representation and warranty
shall survive the execution and delivery of this Agreement, that each of the
representations and warranties of the Servicer (whether made by the Servicer in
its capacity as an Originator or as Servicer) contained in any Related Document
is true and correct and, if made by the Servicer in its capacity as an
Originator, applies with equal force to the Servicer in its capacity as
Servicer, and the Servicer hereby makes each such representation and warranty
to, and for the benefit of, the Purchasers and the Agent as if the same were set
forth in full herein.
Section 4.03. Representations and Warranties of the Independent Member.
To induce each Purchaser to purchase the Purchaser Interests and the Agent to
take any action hereunder, the Independent Member makes the following
representations and warranties to each Purchaser and the Agent as of the Closing
Date and, except to the extent provided otherwise below, as of each Purchase
Date, each and all of which shall survive the execution and delivery of this
Agreement.
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(a) Legal Existence; Compliance with Law. The Independent Member (i) is
a corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation; (ii) is duly qualified to conduct
business and is in good standing in each other jurisdiction where its ownership
or lease of property or the conduct of its business requires such qualification;
(iii) has the requisite corporate power and authority and the legal right to
own, pledge, mortgage or otherwise encumber and operate its properties, to lease
the property it operates under lease, and to conduct its business, in each case,
as now, heretofore and proposed to be conducted; (iv) has all licenses, permits,
consents or approvals from or by, and has made all filings with, and has given
all notices to, all Governmental Authorities having jurisdiction, to the extent
required for such ownership, operation and conduct; (v) is in compliance with
its certification of incorporation; and (vi) subject to specific representations
set forth herein regarding ERISA, tax and other laws, is in compliance with all
applicable provisions of law, except where the failure to comply, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(b) Power, Authorization, Enforceable Obligations. The execution,
delivery and performance by the Independent Member of this Agreement and the
other Related Documents to which it is a party, the creation and perfection of
all Liens and ownership interests provided for therein: (i) are within the
Independent Member's corporate powers; (ii) have been duly authorized by all
necessary or proper corporate and shareholder action; (iii) do not contravene
any provision of the Independent Member's certificate of incorporation; (iv) do
not violate any law or regulation, or any order or decree of any court or
Governmental Authority; (v) do not conflict with or result in the breach or
termination of, constitute a default under or accelerate or permit the
acceleration of any performance required by, any indenture, mortgage, deed of
trust, lease, agreement or other instrument to which the Independent Member is a
party or by which the Independent Member or any of the property of the
Independent Member is bound; (vi) do not result in the creation or imposition of
any Adverse Claim upon any of the property of the Independent Member; and (vii)
do not require the consent or approval of any Governmental Authority or any
other Person, except those which have been duly obtained, made or complied with
prior to the Closing Date as provided in Section 3.01(c). The exercise by each
of the Purchasers or the Agent of any of its rights and remedies under any
Related Document to which it is a party, do not require the consent or approval
of any Governmental Authority or any other Person (other than consents or
approvals solely relating to or required to be obtained by a Purchaser or the
Agent, and subject to the Bankruptcy Code), except those which will have been
duly obtained, made or complied with prior to the Closing Date as provided in
Section 3.01(c). On or prior to the Closing Date, each of the Related Documents
to which the Independent Member is a party shall have been duly executed and
delivered by the Independent Member and each such Related Document shall then
constitute a legal, valid and binding obligation of the Independent Member
enforceable against it in accordance with its terms.
(c) No Litigation. No Litigation is now pending or, to the knowledge of
the Independent Member, threatened against the Independent Member that (i)
challenges the Independent Member's right or power to enter into or perform any
of its obligations under the Related Documents to which it is a party, or the
validity or enforceability of any Related
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Document or any action taken thereunder, or (ii) has a reasonable risk of being
determined adversely to the Independent Member and that, if so determined, could
have a Material Adverse Effect. As of the Closing Date there is no Litigation
pending or threatened that seeks damages or injunctive relief against, or
alleges criminal misconduct by, the Independent Member.
(d) Solvency. Both before and after giving effect to the transactions
contemplated by this Agreement and the other Related Documents, the Independent
Member is and will be Solvent.
(e) Material Adverse Effect. Since the date of the Independent Member's
organization, (i) the Independent Member has not incurred any obligations,
contingent or non-contingent liabilities, liabilities for charges, long-term
leases or unusual forward or long-term commitments that, alone or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, (ii)
no contract, lease or other agreement or instrument has been entered into by the
Independent Member or has become binding upon the Independent Member's assets
and no law or regulation applicable to the Independent Member has been adopted
that has had or could reasonably be expected to have a Material Adverse Effect
and (iii) the Independent Member is not in default and no third party is in
default under any material contract, lease or other agreement or instrument to
which the Independent Member is a party that alone or in the aggregate could
reasonably be expected to have a Material Adverse Effect. Since the date of the
Independent Member's incorporation, no event has occurred that alone or together
with other events could reasonably be expected to have a Material Adverse
Effect.
(f) Ownership of Property; Liens. No asset of the Independent Member is
subject to any Adverse Claim other than Permitted Independent Member
Encumbrances, and there are no facts, circumstances or conditions known to the
Independent Member that may result in any Adverse Claims (including Adverse
Claims arising under Environmental Laws) other than Permitted Independent Member
Encumbrances.
(g) Ventures, Subsidiaries and Affiliates; Outstanding Equity Interests
and Indebtedness. Except for the Seller, the Independent Member has no
Subsidiaries and is not engaged in any joint venture or partnership with any
other Person. All of the issued and outstanding Equity Interests of the
Independent Member is owned by the Performance Guarantor. There are no
outstanding rights to purchase, options, warrants or similar rights or
agreements pursuant to which the Independent Member may be required to issue,
sell, repurchase or redeem any of its Equity Interests or other equity
securities or any Equity Interest or other equity securities of the Seller. As
of the Closing Date, the Independent Member has not outstanding Indebtedness.
(h) Taxes. All tax returns, reports and statements, including
information returns, required by any Governmental Authority to be filed by the
Independent Member have been filed with the appropriate Governmental Authority
on or before the applicable due date (including any extensions thereof) and all
charges have been paid prior to the date on which any fine, penalty, interest or
late charge may be added thereto for nonpayment thereof (or any such
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fine, penalty, interest, late charge or loss has been paid), excluding charges
or other amounts being contested in accordance with Section 5.01(e). Proper and
accurate amounts have been withheld by the Independent Member from its employees
for all periods in full and complete compliance with all applicable federal,
state, local and foreign laws and such withholdings have been timely paid to the
respective Governmental Authorities. The Independent Member has not executed or
filed with the IRS or any other Governmental Authority any agreement or other
document extending, or having the effect of extending, the period for assessment
or collection of any charges.
(i) Full Disclosure. All information contained in this Agreement or any
of the other Related Documents, or any written statement furnished by or on
behalf of the Independent Member to either the Agent or the Purchasers pursuant
to the terms of this Agreement or any of the other Related Documents is true and
accurate in every material respect, and none of this Agreement or any of the
other Related Documents, or any written statement furnished by or on behalf of
the Independent Member to either the Agent or the Purchasers pursuant to the
terms of this Agreement or any of the other Related Documents is misleading as a
result of the failure to include therein a material fact.
(j) ERISA. The Independent Member is in compliance with ERISA and has
not incurred and does not expect to incur any liabilities (except for premium
payments arising in the ordinary course of business) payable to the PBGC under
ERISA.
(k) Nonconsolidation. The Independent Member is operated in such a
manner that the separate legal existence of the Independent Member, on the one
hand, and any other member of the Parent Group or Seller, on the other hand,
would not be disregarded in the event of the bankruptcy or insolvency of any
such other member of the Parent Group or Seller and, without limiting the
generality of the foregoing:
(i) the Independent Member is a limited purpose corporation
whose activities are restricted in its certificate of incorporation to
those activities expressly permitted hereunder and under the other
Related Documents, and the Independent Member has not engaged, and does
not presently engage, in any activity other than those activities
expressly permitted hereunder and under the other Related Documents,
nor has the Independent Member entered into any agreement other than
this Agreement, the other Related Documents to which it is a party and,
with the prior written consent of the Required Purchasers and the
Agent, any other agreement necessary to carry out more effectively the
provisions and purposes hereof or thereof;
(ii) none of the Seller, any member of the Parent Group nor
any individual at the time he or she is acting as an officer of the
Seller or any such member is or has been involved in the day-to-day
management of the Independent Member;
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(iii) other than with respect to the acquisition of membership
interests of the Seller, the Independent Member engages and has engaged
in no inter-entity transactions with any member of the Parent Group or
the Seller;
(iv) the Independent Member maintains corporate records and
books of account separate from that of each member of the Parent Group
and the Seller, holds regular corporate meetings and otherwise observes
corporate formalities and has a business office separate from that of
each member of the Parent Group and the Seller;
(v) the financial statements and books and records of the
Independent Member, each member of the Parent Group and the Seller
reflect the separate legal existence of the Independent Member;
(vi) (A) the Independent Member maintains its assets
separately from the assets of each member of the Parent Group and the
Seller, (B) the Independent Member's funds (including all money, checks
and other cash proceeds) and assets, and records relating thereto, have
not been and are not commingled with those of any member of the Parent
Group or the Seller and (C) the separate creditors of the Independent
Member will be entitled to be satisfied out of the Independent Member
`s assets prior to any value in the Independent Member becoming
available to the Independent Member's Equity Holders;
(vii) except as otherwise expressly permitted hereunder, under
the other Related Documents and under the Independent Member's Organic
Documents, none of the Seller or any member of the Parent Group (A)
pays the Independent Member's expenses, (B) guarantees the Independent
Member's obligations, or (C) advances funds to the Independent Member
for the payment of expenses or otherwise;
(viii) all business correspondence and other communications of
the Independent Member are conducted in the Independent Member's own
name, on its own stationery and through a separately-listed telephone
number;
(ix) the Independent Member does not act as agent for any
member of the Parent Group or the Seller, but instead presents itself
to the public as a corporation separate from the Seller and from each
such member and independently engaged in the business of purchasing and
financing Receivables;
(x) the Independent Member maintains at least two Independent
Directors (as defined in Independent Member's certificate of
incorporation) each of whom (A) is not a Equity Holder, director,
officer, employee or associate, or any relative of the foregoing, of
any member of the Parent Group (other than the Independent Member), all
as provided in its Organic Document, (B) has (1) prior experience as an
independent director for a corporation whose organizational documents
required the unanimous consent of all independent directors before such
company could consent to the
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institution of bankruptcy or insolvency proceedings against it or could
file a petition seeking relief under any applicable federal or state
law relating to bankruptcy, and (ii) at least three years of employment
experience with one or more entities that provide, in the ordinary
course of the respective businesses, advisory, management or placement
services to issuers of securitization or structured finance
instruments, agreement or securities, and (iii) is otherwise acceptable
to the Agent;
(xi) the Organic Document of the Independent Member requires
(A) the affirmative vote of each independent director before a
voluntary petition under Section 301 of the Bankruptcy Code may be
filed by the Independent Member, and (B) the Independent Member to
maintain (1) correct and complete books and records of account and (2)
minutes of the meetings and other proceedings of its Equity Holders and
board of directors.
ARTICLE V.
GENERAL COVENANTS OF THE SELLER AND THE INDEPENDENT MEMBER
Section 5.01. Affirmative Covenants of the Seller. The Seller covenants
and agrees that from and after the Closing Date and until the Termination Date:
(a) Compliance with Agreements and Applicable Laws. The Seller shall
perform each of its obligations under this Agreement and the other Related
Documents and comply with all federal, state and local laws and regulations
applicable to it and the Transferred Receivables, including those relating to
truth in lending, retail installment sales, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection practices, privacy,
licensing, taxation, ERISA and labor matters and Environmental Laws and
Environmental Permits, except to the extent that the failure to so comply,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. The Seller shall comply in all respects with the Credit
and Collection Policies with respect to each Transferred Receivable and the
Contract therefor, except to the extent that such noncompliance could not
reasonably be expected to have a Material Adverse Effect.
(b) Maintenance of Existence and Conduct of Business. The Seller shall:
(i) do or cause to be done all things necessary to preserve and keep in full
force and effect its legal existence and its rights and franchises; (ii)
continue to conduct its business substantially as now conducted or as otherwise
permitted hereunder and in accordance with (1) the terms of its certificate of
formation and limited liability company agreement, (2) Sections 4.01(q) and (r)
and (3) the assumptions set forth in each legal opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ or
other counsel to the Seller from time to time delivered pursuant to Section
3.02(d) of the Sale Agreement with respect to issues of substantive
consolidation and true sale and absolute transfer; (iii) at all times maintain,
preserve and protect all of its assets and properties used or useful in the
conduct of its business, including all licenses, permits, charters and
registrations, and keep the same in good repair, working order and condition in
all material respects (taking into consideration ordinary
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wear and tear) and from time to time make, or cause to be made, all necessary or
appropriate repairs, replacements and improvements thereto consistent with
industry practices; and (iv) transact business only in its legal name as
reflected in the records of the Secretary of State of the State of Delaware. The
Seller shall keep adequate books and records with respect to its business
activities in which proper entries, reflecting all financial transactions, are
made in accordance with the Agreement Accounting Principles and on a basis
consistent with the financial statements delivered pursuant to Section 5.02(a).
(c) Deposit of Collections. The Seller shall deposit or cause to be
deposited promptly into a Lockbox Account, and in any event no later than the
first Business Day after receipt thereof, all Collections Seller may receive
with respect to any Transferred Receivable.
(d) Use of Proceeds. The Seller shall utilize the proceeds of the
Purchases made hereunder solely for (i) the purchase of Receivables from the
Originators pursuant to the Sale Agreement, (ii) the payment of lawful
distributions to its economic members, and (iii) the payment of administrative
fees or Servicing Fees or expenses to the Servicer or routine administrative or
operating expenses, in each case only as expressly permitted by and in
accordance with the terms of this Agreement and the other Related Documents.
(e) Payment, Performance and Discharge of Obligations.
(i) Subject to Section 5.01(e)(ii), the Seller shall pay,
perform and discharge or cause to be paid, performed and discharged
promptly all charges payable by it, including (A) charges imposed upon
it, its income and profits, or any of its property (real, personal or
mixed) and all charges with respect to tax, social security and
unemployment withholding with respect to its employees, and (B) lawful
claims for labor, materials, supplies and services or otherwise before
any thereof shall become past due.
(ii) The Seller may in good faith contest, by appropriate
proceedings, the validity or amount of any charges or claims described
in Section 5.01(e)(i); provided that (A) adequate reserves with respect
to such contest are maintained on the books of the Seller, in
accordance with GAAP, (B) such contest is maintained and prosecuted
continuously and with diligence, (C) none of the Seller Collateral
becomes subject to forfeiture or loss as a result of such contest, (D)
no Lien shall be imposed to secure payment of such charges or claims
other than inchoate tax liens and (E) none of the Purchasers or the
Agent has advised the Seller in writing that such Affected Party
reasonably believes that failure to pay or to discharge such claims or
charges could have or result in a Material Adverse Effect.
(f) ERISA. The Seller shall give the Agent prompt written notice of any
event that could result in the imposition of a Lien under Section 412 of the
Code or Section 302 or 4068 of ERISA.
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Section 5.02. Reporting Requirements of the Seller; Bringdown
Certificates. The Seller hereby agrees that, from and after the Closing Date and
until the Termination Date, it shall deliver or cause to be delivered to the
Agent for distribution to the Purchasers, the financial statements, notices and
other information at the times, to the Persons and in the manner set forth in
Annex 5.02 hereto. With each delivery of the annual audited Financial Statements
pursuant to and in accordance with paragraph (a) of Annex 5.02 hereto, each of
the Seller, Servicer and Independent Member shall deliver to the Agent an
Officer's Certificate in the form of Exhibit 5.02 hereto ("Bringdown
Certificate").
Section 5.03. Negative Covenants of the Seller. The Seller covenants
and agrees that, without the prior written consent of the Required Purchasers
and the Agent, from and after the Closing Date until the Termination Date:
(a) Sale of Equity Interests and Assets. The Seller shall not sell,
transfer, convey, assign or otherwise dispose of, or assign any right to receive
income in respect of, any of its properties or other assets, including its
Equity Interests (whether in a public or a private offering or otherwise), any
Transferred Receivable or Contract therefor or any of its rights with respect to
any Lockbox or any Lockbox Account, the Collection Account or any other deposit
account in which any Collections of any Transferred Receivable are deposited
except as otherwise expressly permitted by this Agreement or any of the other
Related Documents. Notwithstanding the foregoing, each Originator and the
Independent Member can pledge its Equity Interests of Seller (including, without
limitation, any income or distributions therefrom) as required by the Credit
Agreement.
(b) Liens. The Seller shall not create, incur, assume or permit to
exist (i) any Adverse Claim on or with respect to its Transferred Receivables or
(ii) any Adverse Claim on or with respect to its other properties or assets
(whether now owned or hereafter acquired) except for Permitted Seller
Encumbrances. In addition, the Seller shall not become a party to any agreement,
note, indenture or instrument or take any other action that would prohibit the
creation of a Lien on any of its properties or other assets in favor of the
Agent for the benefit of the Purchasers as additional collateral for the Seller
Secured Obligations, except as otherwise expressly permitted by this Agreement
or any of the other Related Documents.
(c) Modifications of Receivables, Contracts or Credit and Collection
Policies. The Seller shall not, without the prior written consent of the Agent
and with respect to clause (ii) only (i) extend, amend, rescind, forgive,
discharge, compromise, waive, cancel or otherwise modify the terms of any
Transferred Receivable or amend, modify or waive any term or condition of any
Contract related thereto, provided that the Seller may authorize the Servicer to
take such actions as are expressly permitted by the terms of any Related
Document or the Credit and Collection Policies, or (ii) amend, modify or waive
any term or provision of the Credit and Collection Policies to the extent such
action would be a material change to its Credit and Collection Policies or would
negatively affect the timing or amount collected of Receivables in any material
respect.
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(d) Changes in Instructions to Obligors. The Seller shall not make any
change in its instructions to Obligors regarding the deposit of Collections with
respect to the Transferred Receivables without the prior written consent of the
Agent.
(e) Capital Structure and Business. The Seller shall not (i) make any
changes in any of its business objectives, purposes or operations that could
have or result in a Material Adverse Effect, (ii) make any change in its capital
structure as described on Schedule 4.01(h), including the issuance of any Equity
Interests or other securities convertible into Equity Interests or any revision
of the terms of its outstanding Equity Interests, (iii) reorganize itself under
the laws of any jurisdiction other than the jurisdiction in which it is
organized as of the date hereof without the prior written consent of Agent, or
(iv) permit the Independent Member to amend its certificate of formation or
limited liability company agreement. The Seller shall not engage in any business
other than as provided in its organizational documents and the Related
Documents.
(f) Mergers, Subsidiaries, Etc. The Seller shall not directly or
indirectly, by operation of law or otherwise, (i) form or acquire any
Subsidiary, or (ii) merge with, consolidate with, acquire all or substantially
all of the assets or Equity Interests of, or otherwise combine with or acquire,
any Person.
(g) Sale Characterization; Sale Agreement. The Seller shall not make
statements or disclosures, prepare any financial statements or in any other
respect account for or treat the transactions contemplated by the Sale Agreement
(including for accounting, tax and reporting purposes) in any manner other than
(i) with respect to each Sale of each Sold Receivable effected pursuant to the
Sale Agreement, as a true sale and absolute assignment of the title to and sole
record and beneficial ownership interest of the Transferred Receivables by the
Originators to the Seller and (ii) with respect to each contribution of
Contributed Receivables thereunder, as an increase in the stated capital of the
Seller.
(h) Restricted Payments. The Seller shall not enter into any lending
transaction with any other Person. The Seller shall not at any time (i) advance
credit to any Person or (ii) declare any dividends, repurchase any Equity
Interest, return any capital, or make any other payment or distribution of cash
or other property or assets in respect of the Seller's Equity Interests if,
after giving effect to any such advance or distribution, a Purchase Excess,
Incipient Termination Event or Termination Event would exist or otherwise result
therefrom.
(i) Indebtedness. The Seller shall not create, incur, assume or permit
to exist any Indebtedness, except (i) Indebtedness of the Seller to any Affected
Party, Indemnified Person, the Servicer or any other Person expressly permitted
by this Agreement or any other Related Document, (ii) deferred taxes, (iii)
unfunded pension fund and other employee benefit plan obligations and
liabilities to the extent they are permitted to remain unfunded under applicable
law, and (iv) indorser liability in connection with the indorsement of
negotiable instruments for deposit or collection in the ordinary course of
business.
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(j) Prohibited Transactions. The Seller shall not enter into, or be a
party to, any transaction with any Person except as expressly permitted
hereunder or under any other Related Document.
(k) Investments. Except as otherwise expressly permitted hereunder or
under the other Related Documents, the Seller shall not make any investment in,
or make or accrue loans or advances of money to, any Person, including any
member, director, manager, officer or employee of the Seller or any member of
the Parent Group, through the direct or indirect lending of money, holding of
securities or otherwise, except with respect to Transferred Receivables and
Permitted Investments.
(l) Commingling. The Seller shall not deposit or permit the deposit of
any funds that do not constitute Collections of Transferred Receivables or into
any Lockbox Account. If such funds are nonetheless deposited into a Lockbox
Account and the Seller so notifies the Agent, the Agent shall promptly remit any
such amounts to the applicable Originator.
(m) ERISA. The Seller shall not, and shall not cause or permit any of
its ERISA Affiliates to, cause or permit to occur an event that could result in
the imposition of a Lien under Section 412 of the Code or Section 302 or 4068 of
ERISA.
(n) Related Documents. The Seller shall not amend, modify or waive any
term or provision of any Related Document without the prior written consent of
the Agent.
(o) Manager Policies. The Seller shall not modify the terms of any
policy of its managers if such modification could have or result in a Material
Adverse Effect.
Section 5.04. Affirmative Covenants of Independent Member. Independent
Member covenants and agrees that from and after the Closing Date and until the
Termination Date:
(a) Compliance with Agreements and Applicable Laws. Independent Member
shall perform each of its obligations under this Agreement and the other Related
Documents and comply with all federal, state and local laws and regulations
applicable to it, including those relating to truth in lending, retail
installment sales, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices, privacy, licensing, taxation, ERISA
and labor matters and Environmental Laws and Environmental Permits, except to
the extent that the failure to so comply, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(b) Maintenance of Existence and Conduct of Business. Independent
Member shall: (i) do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and its rights and
franchises; (ii) continue to conduct its business substantially as now conducted
or as otherwise permitted hereunder and in accordance with (A) the terms of its
Organic Document, (B) Sections 4.01(q) and (r) and (C) the assumptions set forth
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in each legal opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ or other counsel to Independent Member
from time to time delivered pursuant to Section 3.02(f) with respect to issues
of substantive consolidation; (iii) at all times maintain, preserve and protect
all of its assets and properties used or useful in the conduct of its business,
including all licenses, permits, charters and registrations, and keep the same
in good repair, working order and condition in all material respects (taking
into consideration ordinary wear and tear) and from time to time make, or cause
to be made, all necessary or appropriate repairs, replacements and improvements
thereto consistent with industry practices; and (iv) transact business only in
such corporate and trade names as are set forth in Section 5.4(b).
(c) Payment, Performance and Discharge of Obligations.
(i) Subject to Section 5.4(c)(ii), Independent Member shall
pay, perform and discharge or cause to be paid, performed and
discharged promptly all charges payable by it, including (A) charges
imposed upon it, its income and profits, or any of its property (real,
personal or mixed) and all charges with respect to tax, social security
and unemployment withholding with respect to its employees, and (B)
lawful claims for labor, materials, supplies and services or otherwise
before any thereof shall become past due./
(ii) Independent Member may in good faith contest, by
appropriate proceedings, the validity or amount of any charges or
claims described in Section 5.4(c)(i); provided, that (A) adequate
reserves with respect to such contest are maintained on the books of
Independent Member, in accordance with GAAP, (B) such contest is
maintained and prosecuted continuously and with diligence, (C) no Lien
shall be imposed to secure payment of such charges or claims other than
inchoate tax liens and (D) none of the Purchasers or the Agent has
advised Independent Member in writing that such Affected Party
reasonably believes that failure to pay or to discharge such claims or
charges could have or result in a Material Adverse Effect.
(d) ERISA. Independent Member shall give the Agent prompt written
notice of any event that could result in the imposition of a Lien under Section
412 of the Code or Section 302 or 4068 of ERISA.
Section 5.05. Negative Covenants of Independent Member. Independent
Member covenants and agrees that, without the prior written consent of the
Purchasers and the Agent, from and after the Closing Date until the Termination
Date:
(a) Sale of Equity Interests and Assets. Independent Member shall not
sell, transfer, convey, assign or otherwise dispose of, or assign any right to
receive income in respect of, any of its properties or other assets, including
its Equity Interests (whether in a public or a private offering or otherwise),
except as otherwise expressly permitted by this Agreement or any of the other
Related Documents.
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(b) Liens. Independent Member shall not create, incur, assume or permit
to exist (i) any Adverse Claim on or with respect to its other properties or
assets (whether now owned or hereafter acquired) except for the Liens set forth
in Schedule 5.5(b) and other Permitted Independent Member Encumbrances. In
addition, Independent Member shall not become a party to any agreement, note,
indenture or instrument or take any other action that would prohibit the
creation of a Lien on any of its properties or other assets in favor of the
Agent for the benefit of the Purchasers as additional collateral for Seller
Secured Obligations, except as otherwise expressly permitted by this Agreement
or any of the other Related Documents.
(c) Capital Structure and Business. Independent Member shall not (i)
make any changes in any of its business objectives, purposes or operations that
could have or result in a Material Adverse Effect, (ii) make any change in its
capital structure as described on Schedule 4.01(h), including the issuance of
any Equity Interest or any securities convertible into Equity Interests or any
revision of the terms of its outstanding Equity Interests, or (iii) amend its
Organic Document. Independent Member shall not change its jurisdiction of
incorporation, legal name, identity or organizational structure. Independent
Member shall not change its organization identification number, if any, issued
by its state of incorporation. Independent Member shall not engage in any
business other than as provided in its Organic Documents and the applicable
Related Documents.
(d) Mergers, Subsidiaries, Etc. Independent Member shall not directly
or indirectly, by operation of law or otherwise, (i) form or acquire any
Subsidiary, or (ii) merge with, consolidate with, acquire all or substantially
all of the assets or Equity Interests of, or otherwise combine with or acquire,
any Person.
(e) Restricted Payments. Independent Member shall not enter into any
lending transaction with any other Person. Independent Member shall not at any
time (i) advance credit to any Person or (ii) declare any dividends, repurchase
any Equity Interest, return any capital, or make any other payment or
distribution of cash or other property or assets in respect of Independent
Member's Equity Interests if, after giving effect to any such advance or
distribution, an Incipient Termination Event or Termination Event would exist or
otherwise result therefrom.
(f) Indebtedness. Independent Member shall not create, incur, assume or
permit to exist any Indebtedness, except (i) Indebtedness of Independent Member
to any Affected Party, Indemnified Person, or any other Person expressly
permitted by this Agreement or any other Related Document, (ii) deferred taxes,
(iii) unfunded pension fund and other employee benefit plan obligations and
liabilities to the extent they are permitted to remain unfunded under applicable
law, and (iv) indorser liability in connection with the indorsement of
negotiable instruments for deposit or collection in the ordinary course of
business.
(g) Prohibited Transactions. Independent Member shall not enter into,
or be a party to, any transaction with any Person except as expressly permitted
hereunder or under any other Related Document.
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(h) Investments. Except as otherwise expressly permitted hereunder or
under the other Related Documents, Independent Member shall not make any
investment in, or make or accrue loans or advances of money to, any Person,
including any Equity Holder, director, officer or employee of Independent
Member, the Parent or any of the Parent's other Subsidiaries, through the direct
or indirect lending of money, holding of securities or otherwise, except with
respect to its membership interest in the Seller and Permitted Investments.
(i) ERISA. Independent Member shall not, and shall not cause or permit
any of its ERISA Affiliates to, cause or permit to occur an event that could
result in the imposition of a Lien under Section 412 of the Code or Section 302
or 4068 of ERISA.
(j) Related Documents. Independent Member shall not amend, modify or
waive any term or provision of any Related Document without the prior written
consent of the Agent.
(k) Board Policies. Independent Member shall not modify the terms of
any policy or resolutions of its board of directors if such modification could
have or result in a Material Adverse Effect.
Section 5.06. Post-Closing Deliveries.
(a) Servicing Software Rights. As soon as possible, but in no event
later than June 14, 2002, the Seller shall have delivered, or shall have caused
to be delivered to the Agent, in form and substance satisfactory to Agent,
written authorization of the licensor of the Servicing Software to use such
Servicing Software for the purpose of obtaining information about and servicing
the Transferred Receivables or shall have received written documentation
confirming that an Originator or the Seller owns such Servicing Software.
(b) Landlord Waivers. As soon as possible, but in no event later than
April 29, 2002, in the case of the St. Louis Real Estate, and in no event later
than June 14, 2002, in the case of any other leased location, the Seller shall
have delivered, or shall have caused to be delivered, to the Agent, in form and
substance satisfactory to Agent, fully executed landlord waivers for each leased
location of Originators, Servicer and Seller where such Person maintains (i)
books, records, Contracts, Servicing Software or other information regarding the
Transferred Receivables or (ii) chattel paper or instruments that are
Transferred Receivables.
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ARTICLE VI.
COLLECTIONS AND DISBURSEMENTS
Section 6.01. Establishment of Accounts.
(a) Lockbox Accounts.
(i) The Seller has established with each Lockbox Account Bank
one or more Lockbox Accounts. The Seller agrees that the Agent shall
have exclusive dominion and control of each Lockbox Account and all
monies, instruments and other property from time to time on deposit
therein. The Seller shall not make or cause to be made, or have any
ability to make or cause to be made, any withdrawals from any Lockbox
Account except as provided in Section 6.01(b)(ii).
(ii) The Seller and the Servicer have instructed all existing
Obligors of Transferred Receivables, and shall instruct all future
Obligors of such Receivables, to make payments in respect thereof only
(A) by check or money order mailed (1) to one or more lockboxes or post
office boxes under the control of the Agent (each, a "Lockbox" and,
collectively, the "Lockboxes") or (2) in the case of deposits to be
made into a Retail Deposit Account, to an Originator for deposit into a
Retail Deposit Account established with a Lockbox Account Bank for the
immediately next Business Day automated clearing house credit to a
Lockbox Account subject to a Lockbox Account Agreement or (B) by wire
transfer or moneygram directly to a Lockbox Account. Schedule 4.01(r)
lists all Lockboxes and all Lockbox Account Banks at which the Seller
maintains Lockbox Accounts as of the Closing Date, and such schedule
correctly identifies (1) with respect to each such Lockbox Account
Bank, the name, address and telephone number thereof, (2) with respect
to each Lockbox Account, the name in which such account is held and the
complete account number therefor, and (3) with respect to each Lockbox,
the lockbox number and address thereof. The Seller and the Servicer
shall endorse, to the extent necessary, all checks or other instruments
received in any Lockbox so that the same can be deposited in the
Lockbox Account, in the form so received (with all necessary
endorsements), on the first Business Day after the date of receipt
thereof. In addition, each of the Seller and the Servicer shall deposit
or cause to be deposited into a Lockbox Account all cash, checks, money
orders or other proceeds of Transferred Receivables or Seller
Collateral received by it other than in a Lockbox or a Lockbox Account,
in the form so received (with all necessary endorsements), not later
than the close of business on the first Business Day following the date
of receipt thereof, and until so deposited all such items or other
proceeds shall be held in trust for the benefit of the Agent. Neither
the Seller nor the Servicer shall make any deposits into a Lockbox or
any Lockbox Account except in accordance with the terms of this
Agreement or any other Related Document.
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(iii) If, for any reason, a Lockbox Agreement terminates or
any Lockbox Account Bank fails to comply with its obligations under the
Lockbox Agreement to which it is a party, then the Seller shall
promptly notify all Obligors of Transferred Receivables who had
previously been instructed to make wire payments to a Lockbox Account
maintained at any such Lockbox Account Bank to make all future payments
to a new Lockbox Account in accordance with this Section 6.01(a)(iii).
The Seller shall not close any such Lockbox Account unless it shall
have (A) received the prior written consent of the Agent, (B)
established a new account with the same Lockbox Account Bank or with a
new depositary institution satisfactory to the Agent, (C) entered into
an agreement covering such new account with such Lockbox Account Bank
or with such new depositary institution substantially in the form of
such Lockbox Agreement or that is satisfactory in all respects to the
Agent (whereupon, for all purposes of this Agreement and the other
Related Documents, such new account shall become a Lockbox Account,
such new agreement shall become a Lockbox Agreement and any new
depositary institution shall become a Lockbox Account Bank), and (D)
taken all such action as the Agent shall require to grant and perfect a
first priority Lien in such new Lockbox Account to the Agent for the
benefit of the Purchasers under Section 8.01 of this Agreement. Except
as permitted by this Section 6.01(a), neither the Seller nor the
Servicer shall open any new Lockbox or Lockbox Account without the
prior written consent of the Agent.
(b) Collection Account.
(i) The Agent has established and shall maintain the
Collection Account with the Depositary. The Collection Account shall be
registered in the name of the Agent and the Agent shall, subject to the
terms of this Agreement, have exclusive dominion and control thereof
and of all monies, instruments and other property from time to time on
deposit therein.
(ii) Pursuant to Section 6.02, the Seller shall instruct each
Lockbox Account Bank to transfer, and the Seller hereby grants the
Agent the authority to instruct each such Lockbox Account Bank to
transfer, on each Business Day in same day funds, all available funds
in each Lockbox Account to the Collection Account. The Purchasers and
the Agent may deposit into the Collection Account from time to time all
monies, instruments and other property received by any of them as
proceeds of the Transferred Receivables. On each Business Day the Agent
shall instruct and cause the Depositary (which instruction may be in
writing or by telephone confirmed promptly thereafter in writing) to
release funds on deposit in the Collection Account in the order of
priority set forth in Section 6.03.
(iii) If, for any reason, the Depositary wishes to resign as
depositary of the Collection Account or fails to carry out the
instructions of the Agent, then the Agent shall promptly notify the
Purchasers. Neither the Purchasers nor the Agent shall close the
Collection Account unless (A) a new deposit account has been
established with the
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Depositary, (B) the Agent have entered into an agreement covering such
new account with such new depositary institution satisfactory in all
respects to the Agent (whereupon such new account shall become the
Collection Account for all purposes of this Agreement and the other
Related Documents), and (C) the Agent has taken all such action as the
Agent shall require to grant and perfect a first priority Lien in such
new Collection Account to the Agent on behalf of the Purchasers.
Section 6.02. Funding of Collection Account. As soon as practicable,
and in any event no later than 1:00 p.m. (New York time) on each Business Day:
(a) the Agent shall transfer or cause to be transferred, to the extent
then available, all Collections deposited in any Lockbox Account prior to such
Business Day to the Collection Account;
(b) the Purchasers or the Agent shall deposit in the Collection Account
the amount, if any, required pursuant to Sections 2.04(b)(i);
(c) if, on the immediately preceding Business Day, the Agent shall have
notified the Seller of any Purchase Excess, then the Seller shall deposit cash
in the amount of such Purchase Excess in the Collection Account;
(d) if on such Business Day the Seller is required to make other
payments under this Agreement not previously paid out of Collections (including
Additional Amounts and Indemnified Amounts not previously paid), then the Seller
shall deposit an amount equal to such payments in the Collection Account;
(e) if, on the immediately preceding Business Day, an Originator made a
capital contribution or repurchased a Transferred Receivable pursuant to Section
4.05 of the Sale Agreement or made a payment as a result of any Dilution Factors
pursuant to Section 4.02(p) of the Sale Agreement, then the Seller shall deposit
in the Collection Account cash in the amount so received from such Originator
for such contribution or for such repurchase or payment;
(f) the Servicer shall deposit in the Collection Account the
Outstanding Balance of any Transferred Receivable the Servicer elects to pay
pursuant to Section 7.04; and
(g) the Seller shall deposit in the Collection Account the Outstanding
Balance of any Transferred Receivable the Seller elects to pay pursuant to
Section 8.06(d).
Section 6.03. Daily Disbursements From the Collection Account. On each
Business Day no later than 2:00 p.m. (New York time) during the Revolving
Period, and following the transfers made pursuant to Section 6.02, the Agent
shall disburse all Collections then on deposit in the Collection Account in the
following priority:
(a) to the Agent on behalf of the Purchasers:
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(i) an amount equal to the sum of:
(A) accrued and unpaid Daily Yield;
(B) the accrued and unpaid Unused Facility Fee;
and
(C) any Additional Amounts or Indemnified
Amounts then due and not paid.
(b) To the Servicer, the accrued and unpaid Servicing Fee (calculated
assuming that the Servicing Fee Rate is the applicable rate).
(c) to the Purchasers:
(i) their respective Pro Rata Shares of an amount equal to any
Purchase Excess to be applied in reduction of Capital Investment;
(ii) their respective Pro Rata Shares of an amount equal to
all other deposits made in the Collection Account pursuant to Section
6.02 (other than 6.02(b)) and not otherwise disbursed pursuant to
Section 6.03(a), Section 6.03(b), or 6.03(c)(i); and
(iii) if, pursuant to a Repayment Notice, the Seller has
requested a reduction of the Capital Investment, then to the
Purchasers, their respective Pro Rata Shares of the lesser of (A) the
amount of such requested reduction of Capital Investment and (B) such
balance.
(d) to the Seller Account, the balance of any amounts remaining after
making the foregoing disbursements.
Section 6.04. [Reserved]
Section 6.05. Liquidation Settlement Procedures. On each Business Day
from and after the Facility Termination Date until the Termination Date, the
Agent shall, as soon as practicable, transfer all amounts in the Collection
Account in the following priority:
(a) if a Successor Servicer has assumed the responsibilities and
obligations of any Servicer in accordance with Section 11.02, then to the
Successor Servicer an amount equal to its accrued and unpaid Successor Servicing
Fees and Expenses;
(b) to the Purchasers, their respective Pro Rata Shares of an amount
equal to accrued and unpaid Daily Yield;
(c) to the Purchasers, their respective Pro Rata Shares of an amount
equal to the unpaid Capital Investment;
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(d) to the Agent, an amount equal to accrued and unpaid Unused Facility
Fees;
(e) all Additional Amounts and Indemnified Amounts incurred and payable
to any Indemnified Person;
(f) to the initial Servicer an amount equal to such Servicer's ratable
portion of the accrued and unpaid Servicing Fee;
(g) to the Seller Account, the balance of any funds remaining after
payment in full of all amounts set forth in this Section 6.5.
Section 6.06. Termination Procedures.
(a) On the earlier of (i) the first Business Day after the Facility
Termination Date on which the Capital Investment has been reduced to zero or
(ii) the Final Purchase Date, if the Seller Secured Obligations have not been
paid in full, the Seller shall immediately deposit in the Collection Account an
amount sufficient to make such payments in full.
(b) On the Termination Date, all amounts on deposit in the Collection
Account shall be disbursed to the Seller and all ownership interests or Liens of
the Agent for the benefit of the Purchasers in and to all Transferred
Receivables and all Liens of the Agent for the benefit of the Purchasers in and
to the Seller Collateral shall be released by the Agent. Such disbursement shall
constitute the final payment to which the Seller is entitled pursuant to the
terms of this Agreement.
(c) Seller acknowledges that it is not authorized to file any financing
statement or amendment or termination statement with respect to any financing
statement without the written consent of Agent and agrees that it will not do so
without the prior written consent of Agent, subject to Seller's rights under
Section 9-509(d)(2) of the UCC.
ARTICLE VII.
SERVICER PROVISIONS
Section 7.01. Appointment of the Servicer. Each of the Purchasers
hereby appoints the Servicer as its agent, and the Seller hereby acknowledges
such appointment, to service the Transferred Receivables and enforce its rights
and interests in and under each Transferred Receivable and Contract therefor and
to serve in such capacity until the termination of its responsibilities pursuant
to Sections 9.02 or 11.01. In connection therewith, the Servicer hereby accepts
such appointment and agrees to perform the duties and obligations set forth
herein. The Servicer may, with the prior written consent of each Purchaser and
the Agent, subcontract with a Sub-Servicer for the collection, servicing or
administration of the Transferred Receivables; provided that (a) the Servicer
shall remain liable for the performance of the duties and obligations of such
Sub-Servicer pursuant to the terms hereof and (b) any Sub-Servicing
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Agreement that may be entered into and any other transactions or services
relating to the Transferred Receivables involving a Sub-Servicer shall be deemed
to be between the Sub-Servicer and the Servicer alone, and the Purchasers and
the Agent shall not be deemed parties thereto and shall have no obligations,
duties or liabilities with respect to the Sub-Servicer.
Section 7.02. Duties and Responsibilities of the Servicer. Subject to
the provisions of this Agreement, the Servicer shall prepare and deliver the
Investment Reports in the manner set forth in Annex 7.02 when and as required
under Section 2.03 and shall conduct the servicing, administration and
collection of the Transferred Receivables and shall take, or cause to be taken,
all actions that (i) may be necessary or advisable to service, administer and
collect each Transferred Receivable from time to time, (ii) the Servicer would
take if the Transferred Receivables were owned by the Servicer, and (iii) are
consistent with industry practice for the servicing of such Transferred
Receivables.
Section 7.03. Collections on Receivables.
(a) In the event that the Servicer is unable to determine the specific
Transferred Receivables on which Collections have been received from the Obligor
thereunder, the parties agree for purposes of this Agreement only that such
Collections shall be deemed to have been received on such Receivables in the
order in which they were originated with respect to such Obligor. In the event
that the Servicer is unable to determine the specific Transferred Receivables on
which discounts, offsets or other non-cash reductions have been granted or made
with respect to the Obligor thereunder, the parties agree for purposes of this
Agreement only that such reductions shall be deemed to have been granted or made
(i) prior to a Termination Event, on such Receivables as determined by the
Servicer, and (ii) from and after the occurrence of a Termination Event, in the
reverse order in which they were originated with respect to such Obligor.
(b) If the Servicer determines that amounts unrelated to the
Transferred Receivables (the "Unrelated Amounts") have been deposited in the
Collection Account, then the Servicer shall provide written evidence thereof to
the Agent no later than the first Business Day following the day on which the
Servicer had actual knowledge thereof, which evidence shall be provided in
writing and shall be otherwise satisfactory to each such Affected Party. Upon
receipt of any such notice, the Agent shall segregate the Unrelated Amounts and
the same shall not be deemed to constitute Collections on Transferred
Receivables and shall not be subject to the provisions of Article VI.
Section 7.04. Authorization of the Servicer. Each of the Purchasers
hereby authorizes the Servicer, and the Seller acknowledges such authorization,
to take any and all reasonable steps in its name and on its behalf necessary or
desirable and not inconsistent with the ownership of the Purchaser Interests
purchased by the Purchasers hereunder, in the determination of the Servicer, to
(a) collect all amounts due under any Transferred Receivable, including
endorsing its name on checks and other instruments representing Collections on
such Receivable, and execute and deliver any and all instruments of satisfaction
or cancellation or of partial or full
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release or discharge and all other comparable instruments with respect to any
such Receivable and (b) after any Transferred Receivable becomes a Delinquent
Receivable or a Defaulted Receivable and to the extent permitted under and in
compliance with applicable law and regulations, commence proceedings with
respect to the enforcement of payment of any such Receivable and the Contract
therefor and adjust, settle or compromise any payments due thereunder, in each
case to the same extent as the applicable Originator could have done if it had
continued to own such Receivable. Each Originator, the Seller, the Agent and
each Purchaser shall furnish the Servicer with any powers of attorney and other
documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder. Notwithstanding anything to the
contrary contained herein, the Agent shall have the absolute and unlimited right
to direct the Servicer (whether the Servicer is WFL or otherwise) (i) to
commence or settle any legal action to enforce collection of any Transferred
Receivable or (ii) to foreclose upon, repossess or take any other action that
the Agent deems necessary or advisable with respect thereto; provided that in
lieu of commencing any such action or taking other enforcement action, the
Servicer may, at its option, elect to pay to the Purchasers, their respective
Pro Rata Shares of the Capital Investment with respect to the Purchaser Interest
in such Transferred Receivable. In the event Servicer elects to pay the
Purchasers their respective Pro Rata Shares of the Capital Investment with
respect to the Purchaser Interest in such Transferred Receivable as provided
above, the Agent, on behalf of the Purchasers, shall transfer to Servicer the
Purchaser Interest in such Transferred Receivable. In no event shall the
Servicer be entitled to make any Affected Party a party to any Litigation
without such Affected Party's express prior written consent, or to make the
Seller a party to any Litigation without the Agent's consent.
Section 7.05. Servicing Fees. As compensation for its servicing
activities and as reimbursement for its reasonable expenses in connection
therewith, the Servicer shall be entitled to receive the Servicing Fees in
accordance with Sections 6.03 and 6.05. The Servicer shall be required to pay
for all expenses incurred by it in connection with its activities hereunder
(including any payments to accountants, counsel or any other Person) and shall
not be entitled to any payment therefor other than the Servicing Fees.
Section 7.06. Representations and Warranties of the Servicer. To induce
the Purchasers to purchase the Purchaser Interests and the Agent to take any
action required to be performed by it hereunder, the Servicer represents and
warrants to the Purchasers and the Agent, which representation and warranty
shall survive the execution and delivery of this Agreement:
(a) Existence; Compliance with Law. The Servicer (i) is a limited
liability company duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization; (ii) is duly qualified to conduct
business and is in good standing in each other jurisdiction where its ownership
or lease of property or the conduct of its business requires such qualification,
except where the failure to be so qualified would not have a Material Adverse
Effect; (iii) has the requisite limited liability company power and authority
and the legal right to own and operate its properties, to lease the property it
operates under lease, and to conduct its business as now, heretofore and
proposed to be conducted; (iv) has all licenses, permits, consents
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or approvals from or by, and has made all filings with, and has given all
notices to, all Governmental Authorities having jurisdiction, to the extent
required for such ownership, operation and conduct, except where the failure to
do so would not have a Material Adverse Effect; (v) is in compliance with its
charter and bylaws; and (vi) subject to specific representations set forth
herein regarding ERISA, tax and other laws, is in compliance with all applicable
provisions of law, except where the failure to comply, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
(b) Power, Authorization, Enforceable Obligations. The execution,
delivery and performance by the Servicer of this Agreement and the other Related
Documents to which it is a party and, solely with respect to clause (vii) below,
the exercise by each of the Purchasers, the Seller or the Agent of any of its
rights and remedies under any Related Document to which it is a party: (i) are
within the Servicer's limited liability company power; (ii) have been duly
authorized by all necessary or proper limited liability company and shareholder
action; (iii) do not contravene any provision of the Servicer's charter or
bylaws; (iv) do not violate any law or regulation, or any order or decree of any
court or Governmental Authority; (v) do not conflict with or result in the
breach or termination of, constitute a default under or accelerate or permit the
acceleration of any performance required by, any indenture, mortgage, deed of
trust, lease, agreement or other instrument to which the Servicer is a party or
by which the Servicer or any of the property of the Servicer is bound; (vi) do
not result in the creation or imposition of any Adverse Claim upon any of the
property of the Servicer; and (vii) do not require the consent or approval of
any Governmental Authority or any other Person, except those referred to in
Section 3.01(b), all of which will have been duly obtained, made or complied
with prior to the Closing Date. On or prior to the Closing Date, each of the
Related Documents to which the Servicer is a party shall have been duly executed
and delivered by the Servicer and each such Related Document shall then
constitute a legal, valid and binding obligation of the Servicer enforceable
against it in accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights and by general principles of equity.
(c) No Litigation. No Litigation is now pending or, to the knowledge of
the Servicer, threatened against the Servicer that (i) challenges the Servicer's
right or power to enter into or perform any of its obligations under the Related
Documents to which it is a party, or the validity or enforceability of any
Related Document or any action taken thereunder, (ii) seeks to prevent the
transfer, sale, pledge or contribution of any Receivable or the consummation of
any of the transactions contemplated under this Agreement or the other Related
Documents, or (iii) has a reasonable risk of being determined adversely to the
Servicer and that, if so determined, could have a Material Adverse Effect.
(d) Full Disclosure. No information contained in this Agreement, any
Investment Report or any of the other Related Documents, or any written
statement furnished by or on behalf of the Servicer to any Purchaser or the
Agent pursuant to the terms of this Agreement or any of the other Related
Documents contains any untrue statement of a material
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fact or omits or will omit to state a material fact necessary to make the
statements contained herein or therein not misleading in light of the
circumstances under which they were made.
(e) Other Representations and Warranties. Each of the representations
and warranties of the Servicer (whether made by the Servicer in its capacity as
an Originator or as the Servicer) contained in any Related Document is true and
correct and, if made by the Servicer in its capacity as an Originator, applies
with equal force to the Servicer in its capacity as Servicer.
Section 7.07. Covenants of the Servicer. The Servicer covenants and
agrees that from and after the Closing Date and until the Termination Date:
(a) Ownership of Transferred Receivables. The Servicer shall identify
the Transferred Receivables clearly and unambiguously in its Servicing Records
to reflect that such Transferred Receivables have been sold or contributed to
the Seller and, following the Purchase of Purchaser Interests in such
Transferred Receivables under this Agreement, are owned by the Agent for the
benefit of the Purchasers.
(b) Compliance with Credit and Collection Policies. The Servicer shall
comply in all respects with the Credit and Collection Policies with respect to
each Transferred Receivable and the Contract therefor, except to the extent that
such noncompliance could not reasonably be expected to have a Material Adverse
Effect. The Servicer shall not amend, waive or modify any term or provision of
the Credit and Collection Policies without the prior written consent of the
Agent.
ARTICLE VIII.
GRANT OF SECURITY INTERESTS
Section 8.01. Seller's Grant of Security Interest. The parties hereto
intend that each Purchase of Purchaser Interests to be made hereunder shall
constitute a purchase and sale of undivided percentage ownership interests in
the Transferred Receivables and not a loan. Notwithstanding the foregoing, in
addition to and not in derogation of any rights now or hereafter acquired by the
Purchasers or the Agent hereunder, the parties hereto intend that this Agreement
shall constitute a security agreement under applicable law. In such regard and,
in any event, to secure the prompt and complete payment, performance and
observance of all Seller Secured Obligations, and to induce the Purchasers to
enter into this Agreement and perform the obligations required to be performed
by it hereunder in accordance with the terms and conditions thereof, the Seller
hereby grants, assigns, conveys, pledges, hypothecates and transfers to the
Agent, for the benefit of itself and the Purchasers, a Lien upon and security
interest in all of its right, title and interest in, to and under, but none of
its obligations arising from, the following property, whether now owned by or
owing to, or hereafter acquired by or arising in favor of, the Seller (including
under any trade names, styles or derivations of the Seller), and regardless of
where located (all of which being hereinafter collectively referred to as the
"Seller Collateral"):
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(a) all Receivables, Contracts therefor and Collections thereon;
(b) the Sale Agreement, all Lockbox Agreements and all other Related
Documents now or hereafter in effect relating to the purchase, servicing or
processing of Receivables (collectively, the "Seller Assigned Agreements"),
including (i) all rights of the Seller to receive moneys due and to become due
thereunder or pursuant thereto, (ii) all rights of the Seller to receive
proceeds of any insurance, indemnity, warranty or guaranty with respect thereto,
(iii) all claims of the Seller for damages or breach with respect thereto or for
default thereunder, and (iv) the right of the Seller to amend, waive or
terminate the same and to perform and to compel performance and otherwise
exercise all remedies thereunder;
(c) all of the following (collectively, the "Seller Account
Collateral"):
(i) all deposit accounts, including the Lockbox Accounts, the
Lockboxes, and all funds on deposit therein and all certificates and
instruments, if any, from time to time representing or evidencing any
deposit account, the Lockbox Accounts, the Lockboxes or such funds,
(ii) the Collection Account and all funds on deposit therein
and all certificates and instruments, if any, from time to time
representing or evidencing the Collection Account or such funds,
(iii) all certificates, instruments and investment property,
if any, from time to time representing or evidencing such Investments,
(iv) all notes, certificates of deposit and other instruments
from time to time delivered to or otherwise possessed by the Agent, any
Purchaser or any assignee or agent on behalf of the Agent or any
Purchaser in substitution for or in addition to any of the then
existing Seller Account Collateral, and
(v) all interest, dividends, cash, instruments, investment
property and other property from time to time received, receivable or
otherwise distributed with respect to or in exchange for any and all of
the then existing Seller Account Collateral;
(d) all software and hardware;
(e) all other property that may from time to time hereafter be granted
and pledged by the Seller or by any Person on its behalf under this Agreement,
including any deposit with a Purchaser or the Agent of additional funds by the
Seller; and
(f) to the extent not otherwise included, all proceeds and products of
the foregoing and all accessions to, substitutions and replacements for, and
profits of, each of the foregoing Seller Collateral (including proceeds that
constitute property of the types described in Sections 8.01(a) through (e).
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Section 8.02. Seller's Certification. The Seller hereby certifies that
(a) the benefit of the representations, warranties and covenants of each
Originator and member of the Parent Group to the Seller under the Sale Agreement
shall have been assigned by the Seller to the Agent on behalf of the Purchasers
hereunder; (b) the rights of the Seller to require a capital contribution from
the Originators or to require payment of a Rejected Amount from an Originator
under the Sale Agreement may be enforced by the Agent on behalf of the
Purchasers; and (c) the Sale Agreement provides that the representations,
warranties and covenants described in Sections 4.01, 4.02 and 4.04 thereof, the
indemnification and payment provisions of Article V thereof and the provisions
of Sections 4.04(j), 9.03 and 9.14 thereof shall survive the sale of the
Transferred Receivables (and undivided percentage ownership interests therein)
and the termination of the Sale Agreement and this Agreement.
Section 8.03. [Reserved].
Section 8.04. Delivery of Collateral. All certificates or instruments
representing or evidencing the Seller Collateral shall be delivered to and held
by or on behalf of the Agent and shall be in suitable form for transfer by
delivery or shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to the Agent. The
Agent shall have the right (a) at any time to exchange certificates or
instruments representing or evidencing Seller Collateral for certificates or
instruments of smaller or larger denominations and (b) at any time in its
discretion following the occurrence and during the continuation of a Termination
Event and without notice to the Seller, to transfer to or to register in the
name of the Agent or its nominee any or all of the Seller Collateral. The Seller
will, (A) at all times from and after the date hereof, clearly and conspicuously
▇▇▇▇ its computer and master data processing books and records with a legend
describing the Agent's interest (on behalf of the Purchasers) in the
Receivables, and (B) segregate (from all other receivables then owned or being
serviced by the Seller) all contracts relating to each Receivable.
Section 8.05. Seller Remains Liable. It is expressly agreed by the
Seller that, anything herein to the contrary notwithstanding, the Seller shall
remain liable under any and all of the Transferred Receivables, the Contracts
therefor, the Seller Assigned Agreements and any other agreements constituting
the Seller Collateral to which it is a party to observe and perform all the
conditions and obligations to be observed and performed by it thereunder.
Neither the Purchasers nor the Agent shall have any obligation or liability
under any such Receivables, Contracts or agreements by reason of or arising out
of this Agreement or the granting herein of a Lien thereon or the receipt by the
Agent or any Purchaser of any payment relating thereto pursuant hereto. The
exercise by any Purchaser or the Agent of any of its respective rights under
this Agreement shall not release any Originator, the Seller or the Servicer from
any of their respective duties or obligations under any such Receivables,
Contracts or agreements. Neither the Purchasers nor the Agent shall be required
or obligated in any manner to perform or fulfill any of the obligations of any
Originator, the Seller or the Servicer under or pursuant to any such Receivable,
Contract or agreement, or to make any payment, or to make any inquiry as to the
nature or the sufficiency of any payment received by it or the sufficiency of
any performance by any party under any such Receivable, Contract or agreement,
or to present or file any claims, or
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to take any action to collect or enforce any performance or the payment of any
amounts that may have been assigned to it or to which it may be entitled at any
time or times.
Section 8.06. Covenants of the Seller and the Servicer Regarding the
Seller Collateral.
(a) Offices and Records. The Seller shall maintain its principal place
of business and chief executive office and the office at which it stores its
Records at the respective locations specified in Schedule 4.01(b) or, upon 30
days' prior written notice to the Agent, at such other location in a
jurisdiction where all action requested by the Agent pursuant to Section 14.14
shall have been taken with respect to the Seller Collateral. Each of the Seller
and the Servicer shall, at its own cost and expense, maintain adequate and
complete records of the Transferred Receivables and the Seller Collateral,
including records of any and all payments received, credits granted and
merchandise returned with respect thereto and all other dealings therewith. Each
of the Seller and the Servicer shall ▇▇▇▇ conspicuously with a legend, in form
and substance satisfactory to the Agent, its books and records, computer tapes,
computer disks and credit files pertaining to the Seller Collateral, and its
file cabinets or other storage facilities where it maintains information
pertaining thereto, to evidence this Agreement and the assignment and Liens
granted pursuant to this Article VIII. Upon the occurrence and during the
continuance of a Termination Event, the Seller and the Servicer shall deliver
and turn over such books and records to the Agent or its representatives at any
time on demand of the Agent. Prior to the occurrence of a Termination Event and
upon notice from the Agent, the Seller and the Servicer shall permit any
representative of the Agent to inspect such books and records and shall provide
photocopies thereof to the Agent as more specifically set forth in Section
8.06(b).
(b) Access. Each of the Seller and the Servicer shall, at its own
expense, during normal business hours, from time to time upon one Business Day's
prior notice as frequently as the Agent determines to be appropriate: (i)
provide the Purchasers, the Agent and any of their respective officers,
employees and agents access to its properties (including properties utilized in
connection with the collection, processing or servicing of the Transferred
Receivables), facilities, advisors and employees (including officers) and to the
Seller Collateral, (ii) permit the Purchasers, the Agent and any of their
respective officers, employees and agents to inspect, audit and make extracts
from its books and records, including all Records, (iii) permit the Purchasers
or the Agent and their respective officers, employees and agents to inspect,
review and evaluate the Transferred Receivables and the Seller Collateral and
(iv) permit the Purchasers or the Agent and their respective officers, employees
and agents to discuss matters relating to the Transferred Receivables or its
performance under this Agreement or the other Related Documents or its affairs,
finances and accounts with any of its officers, directors, employees,
representatives or agents (in each case, with those persons having knowledge of
such matters) and with its independent certified public accountants. If (A) an
Incipient Termination Event or a Termination Event shall have occurred and be
continuing or (B) the Agent, in good faith, believes that an Incipient
Termination Event or a Termination Event is imminent or deems the Purchasers'
rights or interests in the Transferred Receivables, the Seller Assigned
Agreements or any other Seller Collateral insecure, then each of the Seller and
the Servicer shall,
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at its own expense, provide such access at all times and without advance notice
and provide the Purchasers or the Agent with access to its suppliers and
customers. Each of the Seller and the Servicer shall make available to the Agent
and its counsel, as quickly as is possible under the circumstances, originals or
copies of all books and records, including Records, that the Agent may request.
Each of the Seller and the Servicer shall deliver any document or instrument
necessary for the Agent, as the Agent may from time to time request, to obtain
records from any service bureau or other Person that maintains records for the
Seller or the Servicer, and shall maintain duplicate records or supporting
documentation on media, including computer tapes and disks owned by the Seller
or the Servicer.
(c) Communication with Accountants. Each of the Seller and the Servicer
authorizes the Purchasers and the Agent to communicate directly with its
independent certified public accountants and authorizes and shall instruct those
accountants and advisors to disclose and make available to the Purchasers and
the Agent any and all financial statements and other supporting financial
documents, schedules and information relating to the Seller or the Servicer
(including copies of any issued management letters) with respect to its
business, financial condition and other affairs.
(d) Collection of Transferred Receivables. Except as otherwise provided
in this Section 8.06(d), the Servicer shall continue to collect or cause to be
collected, at its sole cost and expense, all amounts due or to become due to the
Seller under the Transferred Receivables, the Seller Assigned Agreements and any
other Seller Collateral. In connection therewith, the Seller and the Servicer
shall take such action as it, and from and after the occurrence and during the
continuance of a Termination Event, the Agent, may deem necessary or desirable
to enforce collection of the Transferred Receivables, the Seller Assigned
Agreements and the other Seller Collateral; provided that the Seller or the
Servicer may, rather than commencing any such action or taking any other
enforcement action, at its option, elect to pay to the Agent, for the account of
the Purchasers (in accordance with its Purchaser Interests), the Outstanding
Balance of any such Transferred Receivable; provided further, that if (i) an
Incipient Termination Event or a Termination Event shall have occurred and be
continuing or (ii) the Agent, in good faith believes that an Incipient
Termination Event or a Termination Event is imminent or deems the Purchasers'
rights or interests in the Transferred Receivables, the Seller Assigned
Agreements or any other Seller Collateral insecure, then the Agent may, without
prior notice to the Seller or the Servicer, notify or cause the Servicers to
notify any Obligor under any Transferred Receivable or obligors under the Seller
Assigned Agreements of the assignment of such Transferred Receivables or Seller
Assigned Agreements, as the case may be, to the Agent on behalf of the
Purchasers hereunder and direct that payments of all amounts due or to become
due to the Seller thereunder be made directly to the Agent or any servicer,
collection agent or lockbox or other account designated by the Agent and, upon
such notification and at the sole cost and expense of the Seller and the
Servicer, the Agent may enforce collection of any such Transferred Receivable or
the Seller Assigned Agreements and adjust, settle or compromise the amount or
payment thereof.
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(e) Performance of Seller Assigned Agreements. Each of the Seller and
the Servicer shall (i) perform and observe all the terms and provisions of the
Seller Assigned Agreements to be performed or observed by it, maintain the
Seller Assigned Agreements in full force and effect, enforce the Seller Assigned
Agreements in accordance with their terms and take all action as may from time
to time be requested by the Agent in order to accomplish the foregoing, and (ii)
upon the request of and as directed by the Agent, make such demands and requests
to any other party to the Seller Assigned Agreements as are permitted to be made
by the Seller or the Servicer thereunder.
ARTICLE IX.
TERMINATION EVENTS
Section 9.01. Termination Events. If any of the following events (each,
a "Termination Event") shall occur (regardless of the reason therefor):
(a) (i) the Seller shall fail to make any payment of any Seller Secured
Obligation when due and payable and the same shall remain unremedied for one
Business Day or (ii) the Seller or Independent Member shall fail or neglect to
perform, keep or observe any other provision of this Agreement (including,
without limitation any covenant contained in Annex 4.04(l) to the Sale
Agreement) or the other Related Documents to which it is a party (other than any
provision embodied in or covered by any other clause of this Section 9.01) and
the same shall remain unremedied for two Business Days or more after written
notice thereof shall have been given by the Agent to the Seller; or
(b) a default or breach shall occur under any other agreement, document
or instrument to which Independent Member, any other member of the Parent Group
or the Seller is a party or by which any such Person or its property is bound,
and such default or breach (i) involves the failure to make any payment when due
in respect of any Indebtedness in excess of a principal amount of $1,000,000 in
the aggregate (other than the Seller Secured Obligations) of any such Person or
(ii) which would permit any holder of such Indebtedness or a trustee or agent to
cause Indebtedness or a portion thereof which, except with respect to the
Seller, is in excess of a principal amount of $1,000,000 in the aggregate to
become due prior to its stated maturity or prior to its regularly scheduled
dates of payment or (iii) causes Indebtedness or a portion thereof which, except
with respect to the Seller, is in excess of a principal amount of $1,000,000 in
the aggregate to become due prior to its stated maturity or prior to its
regularly scheduled dates of payment; in each case, regardless of whether such
default is waived, or such right is exercised, by such holder, trustee or agent;
or
(c) a case or proceeding shall have been commenced against Independent
Member, any other member of the Parent Group or the Seller seeking a decree or
order in respect of any such Person (i) under the Bankruptcy Code or any other
applicable federal, state or foreign bankruptcy or other similar law, (ii)
appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator
(or similar official) for any such Person or for any substantial
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part of such Person's assets, or (iii) ordering the winding-up or liquidation of
the affairs of any such Person; or
(d) Independent Member, any other member of the Parent Group or the
Seller shall (i) file a petition seeking relief under the Bankruptcy Code or any
other applicable federal, state or foreign bankruptcy or other similar law, (ii)
consent or fail to object in a timely and appropriate manner to the institution
of proceedings thereunder or to the filing of any such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee or sequestrator (or similar official) for any such Person or
for any substantial part of such Person's assets, (iii) make an assignment for
the benefit of creditors, or (iv) take any limited liability company action in
furtherance of any of the foregoing; or
(e) (i) Independent Member, any other member of the Parent Group or the
Seller generally does not pay its debts as such debts become due or admits in
writing its inability to, or is generally unable to, pay its Indebtedness as
such Indebtedness become due or (ii) the fair market value of any Originator's
or the Seller's liabilities exceeds the fair market value of its assets; or
(f) a final judgment or judgments for the payment of money in excess of
$1,000,000 in the aggregate at any time outstanding, or $500,000 for any one
judgment, shall be rendered against Independent Member, any other member of the
Parent Group, the Seller, or any Affiliate thereof and the same shall not,
within 30 days after the entry thereof, have been discharged or execution
thereof stayed or appealed (and bonded pending appeal to the extent required),
or shall not have been discharged prior to the expiration of any such stay; or
(g) a judgment or order for the payment of money shall be rendered
against the Seller or Independent Member; or
(h) (i) any information contained in any Investment Base Certificate is
untrue or incorrect in any respect, or (ii) any representation or warranty of
any member of the Parent Group, Independent Member, or the Seller herein or in
any other Related Document or in any written statement, report, financial
statement or certificate (other than an Investment Base Certificate) made or
delivered by or on behalf of any member of the Parent Group or the Seller hereto
or thereto is untrue or incorrect in any material respect as of the date when
made or deemed made; or
(i) any Governmental Authority (including the IRS or the PBGC) shall
file notice of a Lien with regard to any assets of any member of the Parent
Group or the Seller (other than a Lien (i) limited by its terms to assets other
than Receivables and (ii) not materially adversely affecting the financial
condition of such Originator or the ability of WFL to perform as Servicer
hereunder); or
(j) any Governmental Authority (including the IRS or the PBGC) shall
file notice of a Lien with regard to any of the assets of the Seller or
Independent Member; or
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(k) there shall have occurred any event which materially adversely
impairs in the reasonable judgment of the Agent the ability of any Originator to
originate Receivables of a credit quality which are at least of the credit
quality of the Receivables in the initial Purchase, or the Agent shall have
determined (and so notified the Seller) that any event or condition that has had
or could reasonably be expected to have or result in a Material Adverse Effect
has occurred; or
(l) (i) a default or breach shall occur under any provision of Sections
4.02(p), 4.05, 5.01, 9.14, or Annex 4.04(l) of the Sale Agreement and the same
shall remain unremedied for one Business Day or more after the occurrence
thereof, (ii) a default or breach shall occur under any other provision of the
Sale Agreement and the same shall remain unremedied for two Business Days or
more after written notice thereof shall have been given by the Agent to the
Seller or (iii) the Sale Agreement shall for any reason cease to evidence the
transfer to the Seller of the legal and equitable title to, and ownership of,
the Transferred Receivables; or
(m) except as otherwise expressly provided herein, any Lockbox
Agreement or the Sale Agreement shall have been modified, amended or terminated
without the prior written consent of the Required Purchasers and the Agent; or
(n) an Event of Servicer Termination shall have occurred; or
(o) with respect to the Transferred Receivables, (i) prior to the
Purchase of Purchaser Interests therein hereunder, the Seller shall cease to
hold valid and properly perfected title to and sole record and beneficial
ownership in such Transferred Receivables or (ii) after the Purchase of
Purchaser Interests hereunder, the Agent (on behalf of the Purchasers) shall
cease to hold either valid and properly perfected title to and sole record and
beneficial ownership in the related Transferred Receivables or a first priority,
perfected Lien in the related Transferred Receivables or any of the Seller
Collateral; or
(p) a Change of Control shall occur with respect to any member of the
Parent Group or the Seller; or
(q) the Seller or Independent Member shall amend its Organic Documents
without the express prior written consent of the Required Purchasers and the
Agent; or
(r) the Seller shall have received an Election Notice pursuant to
Section 2.01(d) of the Sale Agreement; or
(s) the Seller's Net Worth Percentage shall be less than 5%; or
(t) any Event of Default (as defined in the Credit Facility) shall
occur and be continuing or the Credit Facility shall terminate or shall
otherwise cease to be in full force and effect; or
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(u) any material provision of any Related Document shall for any reason
cease to be valid, binding and enforceable in accordance with its terms (or any
Originator, Independent Member, or the Seller shall challenge the enforceability
of any Related Document or shall assert in writing, or engage in any action or
inaction based on any such assertion, that any provision of any of the Related
Documents has ceased to be or otherwise is not valid, binding and enforceable in
accordance with its terms); or
(v) Performance Guarantor shall fail to perform or observe any term,
covenant or agreement required to be performed by it under the Sale Agreement,
or the Performance Undertaking shall cease to be effective or to be the legally
valid, binding and enforceable obligation of Performance Guarantor, or
Performance Guarantor shall directly or indirectly contest in any manner such
effectiveness, validity, binding nature or enforceability; or
(w) the Parent's committed revolving credit agreement in effect the
date hereof shall (i) terminate or (ii) fail to be refinanced prior to the
maturity date thereunder on terms and provisions acceptable to the Agent and
Purchasers; or
(x) the Senior Notes in effect as of the date hereof shall (i)
terminate or (ii) fail to be refinanced or repaid prior to the maturity dates
thereunder on terms and provisions acceptable to the Agent and Purchasers;
then, and in any such event, the Agent shall, at the request of, or may, with
the consent of, the Required Purchasers or the Agent, by notice to the Seller,
declare the Facility Termination Date to have occurred without demand, protest
or further notice of any kind, all of which are hereby expressly waived by the
Seller; provided that the Facility Termination Date shall automatically occur
(i) upon the occurrence of any of the Termination Events described in Sections
9.01(c), (d), (e) or (r) or (ii) three days after the occurrence of the
Termination Event described in Section 9.01(a)(i) if the same shall not have
been remedied by such time, in each case without demand, protest or any notice
of any kind, all of which are hereby expressly waived by the Seller.
Section 9.02. Events of Servicer Termination. If any of the following
events (each, an "Event of Servicer Termination") shall occur (regardless of the
reason therefor):
(a) the Servicer shall (i) fail to make any payment or deposit required
to be made by it under this Agreement or any other Related Document, (ii) fail
to deliver any reports required to be delivered by it under this Agreement or
any other Related Document (including, without limitation, any Investment Base
Certificate) and such failure shall remain unremedied for one (1) Business Day
or more, or (iii) fail or neglect to perform, keep or observe any other
provision of this Agreement or the other Related Documents (whether in its
capacity as an Originator or as Servicer) and the same shall remain unremedied
for two (2) Business Days or more after written notice thereof shall have been
given by the Agent to the Servicer; or
(b) a default or breach shall occur under any other agreement, document
or instrument to which the Servicer is a party or by which Servicer or its
property is bound, and
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such default or breach (i) involves the failure to make any payment when due in
respect of any Indebtedness (other than the Seller Secured Obligations) of
Servicer which, except as provided in clause (iii) below, is not cured within a
period of fifteen days, or (ii) permits any holder of such Indebtedness or a
trustee or agent to cause Indebtedness or a portion thereof which is in excess
of a principal amount of $100,000 in the aggregate to become due prior to its
stated maturity or prior to its regularly scheduled dates of payment, and which,
except as provided in clause (iii) below, is not cured within a period of thirty
days, or (iii) causes Indebtedness or a portion thereof which is in excess of a
principal amount of $100,000 in the aggregate to become due prior to its stated
maturity or prior to its regularly scheduled dates of payment; in each case,
regardless of whether such default is waived, or such right is exercised, by
such holder, trustee or agent; or
(c) a case or proceeding shall have been commenced against the Servicer
or any Affiliate thereof which acts as a Sub-Servicer seeking a decree or order
in respect of any such Person (i) under the Bankruptcy Code or any other
applicable federal, state or foreign bankruptcy or other similar law, (ii)
appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator
(or similar official) for any such Person or for any substantial part of such
Person's assets, or (iii) ordering the winding-up or liquidation of the affairs
of any such Person; or
(d) the Servicer or any Affiliate thereof which acts as a Sub-Servicer
shall (i) file a petition seeking relief under the Bankruptcy Code or any other
applicable federal, state or foreign bankruptcy or other similar law, (ii)
consent or fail to object in a timely and appropriate manner to the institution
of proceedings thereunder or to the filing of any such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee or sequestrator (or similar official) for any such Person or
for any substantial part of such Person's assets, (iii) make an assignment for
the benefit of creditors, or (iv) take any limited liability company action in
furtherance of any of the foregoing; or
(e) (i) the Servicer or any Affiliate thereof which acts as a
Sub-Servicer generally does not pay its debts as such debts become due or admits
in writing its inability to, or is generally unable to, pay its Indebtedness as
such Indebtedness become due or (ii) the fair market value of the Servicer's
liabilities exceeds the fair market value of its assets; or
(f) a final judgment or judgments for the payment of money in excess of
$500,000 in the aggregate at any time outstanding shall be rendered against the
Servicer or any Affiliate thereof which acts as a Sub-Servicer and the same
shall not, within 30 days after the entry thereof, have been discharged or
execution thereof stayed or bonded pending appeal, or shall not have been
discharged prior to the expiration of any such stay; or
(g) (i) any information contained in any Investment Base Certificate is
untrue or incorrect in any respect, or (ii) any representation or warranty of
the Servicer herein or in any other Related Document or in any written
statement, report, financial statement or certificate (other than an Investment
Base Certificate) made or delivered by the Servicer to any Affected
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Party hereto or thereto is untrue or incorrect in any respect as of the date
when made or deemed made; or
(h) the Agent shall have determined that any event or condition that
materially adversely affects the ability of the Servicer to collect the
Transferred Receivables or to otherwise perform hereunder has occurred; or
(i) a Termination Event shall have occurred or this Agreement shall
have been terminated; or
(j) a deterioration has taken place in the quality of servicing of
Transferred Receivables or other Receivables serviced by the Servicer that the
Agent, in its sole discretion, determines to be material, and such material
deterioration has not been eliminated within 30 days after written notice
thereof shall have been given by the Agent to the Servicer; or
(k) any Originator shall, or the Servicer shall, assign or purport to
assign any of their respective obligations hereunder or under the Sale Agreement
without the prior written consent of the Agent; or
(l) a Change of Control shall occur with respect to the Servicer; or
(m) if the Servicer is a member of the Parent Group, an Event of
Default (as defined in the Credit Facility) shall occur and be continuing; or
(n) the Seller's members shall have determined that it is in the best
interests of the Seller to terminate the duties of the Servicer hereunder and
shall have given the Servicer, the Purchasers and the Agent at least 30 days'
written notice thereof;
then, and in any such event, the Agent shall, at the request of, or
may, with the consent of, the Required Purchasers or the Agent, by delivery of a
Servicer Termination Notice to the Seller and the Servicer, terminate the
servicing responsibilities of the Servicer hereunder, without demand, protest or
further notice of any kind, all of which are hereby waived by the Servicer. Upon
the delivery of any such notice, all authority and power of the Servicer under
this Agreement and the Sale Agreement shall pass to and be vested in the
Successor Servicer acting pursuant to Section 11.02; provided that
notwithstanding anything to the contrary herein, the Servicer agrees to continue
to follow the procedures set forth in Section 7.02 with respect to Collections
on the Transferred Receivables until a Successor Servicer has assumed the
responsibilities and obligations of the Servicer in accordance with Section
11.02.
ARTICLE X.
REMEDIES
Section 10.01. Actions Upon Termination Event. If any Termination Event
shall have occurred and be continuing and the Agent shall have declared the
Facility Termination Date
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to have occurred or the Facility Termination Date shall be deemed to have
occurred pursuant to Section 9.01, then the Agent may exercise in respect of the
Seller Collateral, in addition to any and all other rights and remedies granted
to it hereunder, under any other Related Document or under any other instrument
or agreement securing, evidencing or relating to the Seller Secured Obligations
or otherwise available to it, all of the rights and remedies of a secured party
upon default under the UCC (such rights and remedies to be cumulative and
nonexclusive), and, in addition, may take the following actions:
(a) The Agent may, without notice to the Seller except as required by
law and at any time or from time to time, charge, offset or otherwise apply
amounts payable to the Seller from the Collection Account, any Lockbox Account
or any part of such accounts in accordance with the priorities set forth in
Section 6.03 and 6.05 against all or any part of the Seller Secured Obligations.
(b) The Agent may, without notice except as specified below, solicit
and accept bids for and sell the Seller Collateral or any part thereof in one or
more parcels at public or private sale, at any exchange, broker's board or any
of the Purchasers' or the Agent's offices or elsewhere, for cash, on credit or
for future delivery, and upon such other terms as the Agent may deem
commercially reasonable. The Agent shall have the right to conduct such sales on
the Seller's premises or elsewhere and shall have the right to use any of the
Seller's premises without charge for such sales at such time or times as the
Agent deems necessary or advisable. The Seller agrees that, to the extent notice
of sale shall be required by law, at least ten Business Days' notice to the
Seller of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The Agent
shall not be obligated to make any sale of Seller Collateral regardless of
notice of sale having been given. The Agent may adjourn any public or private
sale from time to time by announcement at the time and place fixed for such
sale, and such sale may, without further notice, be made at the time and place
to which it was so adjourned. Every such sale shall operate to divest all right,
title, interest, claim and demand whatsoever of the Seller in and to the Seller
Collateral so sold, and shall be a perpetual bar, both at law and in equity,
against each Originator, the Seller, any Person claiming the Seller Collateral
sold through any Originator or the Seller, and their respective successors or
assigns. The Agent shall deposit the net proceeds of any such sale in the
Collection Account and such proceeds shall be disbursed in accordance with
Section 6.03 and 6.05.
(c) Upon the completion of any sale under Section 10.01(b), the Seller
or the Servicer shall deliver or cause to be delivered to the purchaser or
purchasers at such sale on the date thereof, or within a reasonable time
thereafter if it shall be impracticable to make immediate delivery, all of the
Seller Collateral sold on such date, but in any event full title and right of
possession to such property shall vest in such purchaser or purchasers upon the
completion of such sale. Nevertheless, if so requested by the Agent or by any
such purchaser, the Seller shall confirm any such sale or transfer by executing
and delivering to such purchaser all proper instruments of conveyance and
transfer and releases as may be designated in any such request.
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(d) At any sale under Section 10.01(b), the Purchasers, the Agent or
any other Purchaser Secured Party may bid for and purchase the property offered
for sale and, upon compliance with the terms of sale, may hold, retain and
dispose of such property without further accountability therefor.
(e) The Agent may exercise, at the sole cost and expense of the Seller,
any and all rights and remedies of the Seller under or in connection with the
Seller Assigned Agreements or the other Seller Collateral, including any and all
rights of the Seller to demand or otherwise require payment of any amount under,
or performance of any provisions of, the Seller Assigned Agreements.
Section 10.02. Exercise of Remedies. No failure or delay on the part of
the Agent in exercising any right, power or privilege under this Agreement and
no course of dealing between any member of the Parent Group or the Seller, on
the one hand, and the Agent, on the other hand, shall operate as a waiver of
such right, power or privilege, nor shall any single or partial exercise of any
right, power or privilege under this Agreement preclude any other or further
exercise of such right, power or privilege or the exercise of any other right,
power or privilege. The rights and remedies under this Agreement are cumulative,
may be exercised singly or concurrently, and are not exclusive of any rights or
remedies that the Agent would otherwise have at law or in equity. No notice to
or demand on any party hereto shall entitle such party to any other or further
notice or demand in similar or other circumstances, or constitute a waiver of
the right of the party providing such notice or making such demand to any other
or further action in any circumstances without notice or demand.
Section 10.03. Power of Attorney. On the Closing Date, each of the
Seller and the Servicer shall execute and deliver a power of attorney
substantially in the form attached hereto as Exhibit 10.03 (each, a "Power of
Attorney"). The power of attorney granted pursuant to each Power of Attorney is
a power coupled with an interest and shall be irrevocable until all of the
Seller Secured Obligations are indefeasibly paid or otherwise satisfied in full.
The powers conferred on the Agent under each Power of Attorney are solely to
protect the Agent's Liens upon and interests in the Seller Collateral and shall
not impose any duty upon the Agent to exercise any such powers. The Agent shall
not be accountable for any amount other than amounts that it actually receives
as a result of the exercise of such powers and none of the Agent's officers,
directors, employees, agents or representatives shall be responsible to the
Seller or the Servicer for any act or failure to act, except in respect of
damages attributable solely to their own gross negligence or willful misconduct
as finally determined by a court of competent jurisdiction.
Section 10.04. Continuing Security Interest. This Agreement shall
create a continuing Lien in the Seller Collateral until the conditions to the
release of the Liens of the Agent thereon set forth in Section 6.06(b) have been
satisfied.
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ARTICLE XI.
SUCCESSOR SERVICER PROVISIONS
Section 11.01. Servicer Not to Resign. The Servicer shall not resign
from the obligations and duties hereby imposed on it except upon a determination
that (a) the performance of its duties hereunder has become impermissible under
applicable law or regulation and (b) there is no reasonable action that the
Servicer could take to make the performance of its duties hereunder become
permissible under applicable law. Any such determination shall (i) with respect
to clause (a) above, be evidenced by an opinion of counsel to such effect and
(ii) with respect to clause (b) above, be evidenced by an Officer's Certificate
to such effect, in each case delivered to the Agent for distribution to the
Purchasers. No such resignation shall become effective until a Successor
Servicer shall have assumed the responsibilities and obligations of the Servicer
in accordance with Section 11.02.
Section 11.02. Appointment of the Successor Servicer. In connection
with the termination of the Servicer's responsibilities or the resignation by
the Servicer under this Agreement pursuant to Sections 9.02 or 11.01, the Agent
shall (a) succeed to and assume all of the Servicer's responsibilities, rights,
duties and obligations as Servicer (but not in any other capacity, it being
specifically understood that the Agent shall not assume any of the obligations
of the Servicer set forth in Section 12.02) under this Agreement (and except
that the Agent makes no representations and warranties pursuant to Section 4.02)
and (b) may at any time appoint a successor servicer to the Servicer that shall
be acceptable to the Agent and shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Servicer under this Agreement
(the Agent, in such capacity, or such successor servicer being referred to as
the "Successor Servicer"); provided that the Successor Servicer shall have no
responsibility for any actions of the Servicer prior to the date of its
appointment or assumption of duties as Successor Servicer. In selecting a
Successor Servicer, the Agent may obtain bids from any potential Successor
Servicer and may agree to any bid it deems appropriate. The Successor Servicer
shall accept its appointment by executing, acknowledging and delivering to the
Agent an instrument in form and substance acceptable to the Agent.
Section 11.03. Duties of the Servicer. The Servicer covenants and
agrees that, following the appointment of, or assumption of duties by, a
Successor Servicer:
(a) The Servicer shall terminate its activities as Servicer hereunder
in a manner that facilitates the transfer of servicing duties to the Successor
Servicer and is otherwise acceptable to each Purchaser and the Agent and,
without limiting the generality of the foregoing, shall timely deliver (i) any
funds to the Agent that were required to be remitted to the Agent for deposit in
the Collection Account and (ii) all Servicing Records and other information with
respect to the Transferred Receivables to the Successor Servicer at a place
selected by the Successor Servicer. The Servicer shall account for all funds and
shall execute and deliver such instruments and do such other things as may be
required to vest and confirm in the Successor Servicer all rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer.
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(b) The Servicer shall terminate each existing Sub-Servicing Agreement
and the Successor Servicer shall not be deemed to have assumed any of the
Servicer's interests therein or to have replaced the Servicer as a party
thereto.
Section 11.04. Effect of Termination or Resignation. Any termination of
or resignation by the Servicer hereunder shall not affect any claims that the
Seller, any Purchaser or the Agent may have against the Servicer for events or
actions taken or not taken by the Servicer arising prior to any such termination
or resignation.
ARTICLE XII.
INDEMNIFICATION
Section 12.01. Indemnities by the Seller.
(a) Without limiting any other rights that any Purchaser, the Agent or
any of their respective officers, directors, members, employees, attorneys,
agents or representatives (each, an "Indemnified Person") may have hereunder or
under applicable law, the Seller hereby agrees to indemnify and hold harmless
each Indemnified Person from and against any and all Indemnified Amounts that
may be claimed or asserted against or incurred by any such Indemnified Person in
connection with or arising out of the transactions contemplated under this
Agreement or under any other Related Document or any actions or failures to act
in connection therewith, including any and all legal costs and expenses arising
out of or incurred in connection with disputes between or among any parties to
any of the Related Documents; provided that the Seller shall not be liable for
any indemnification to a Indemnified Person to the extent that any such
Indemnified Amount (x) results from with respect to any Indemnified Person, (i)
such Indemnified Person's gross negligence or (ii) such Indemnified Person's
willful misconduct, in each case as finally determined by a court of competent
jurisdiction or (y) constitutes recourse for uncollectible or uncollected
Transferred Receivables. Without limiting the generality of the foregoing, the
Seller shall pay on demand to each Indemnified Person any and all Indemnified
Amounts relating to or resulting from:
(i) reliance on any representation or warranty made or deemed
made by the Seller (or any of its officers) under or in connection with
this Agreement or any other Related Document or on any other
information delivered by the Seller pursuant hereto or thereto that
shall have been incorrect in any material respect when made or deemed
made or delivered;
(ii) the failure by the Seller to comply with any term,
provision or covenant contained in this Agreement, any other Related
Document or any agreement executed in connection herewith or therewith,
any applicable law, rule or regulation with respect to any Transferred
Receivable or the Contract therefor, or the nonconformity of any
Transferred Receivable or the Contract therefor with any such
applicable law, rule or regulation; or
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(iii) (1) the failure to vest and maintain vested in the
Seller or the Agent valid and properly perfected title to and sole
record and beneficial ownership of the Receivables that constitute
Transferred Receivables, together with all Collections in respect
thereof, free and clear of any Adverse Claim, (2) the failure to
maintain or transfer to the Agent for the benefit of the Purchasers a
first, priority, perfected Lien in the Seller Collateral and (3) the
failure to maintain or transfer to the Agent a first priority,
perfected Lien therein;
(iv) any dispute, claim, offset or defense of any Obligor
(other than its discharge in bankruptcy to the payment of any
Transferred Receivable that is the subject of a Purchase hereunder
(including a defense based on such Receivable or the Contract therefor
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 or services giving
rise to such Receivable or the furnishing of or failure to furnish such
merchandise or services or relating to collection activities with
respect to such Receivable (if such collection activities were
performed by any of its Affiliates acting as Servicer), except to the
extent that such dispute, claim, offset or defense results solely from
any action or inaction on the part of any Indemnified Person or is
otherwise based on the inability of the Obligor to pay;
(v) any products liability claim or other claim arising out of
or in connection with merchandise, insurance or services that is the
subject of any Contract with respect to any Transferred Receivable;
(vi) the commingling of Collections with respect to
Transferred Receivables by the Seller at any time with its other funds
or the funds of any other Person;
(vii) any failure by the Seller to cause the filing of, or any
delay in filing, financing statements or other similar instruments or
documents under the UCC of any applicable jurisdiction or any other
applicable laws with respect to any Transferred Receivable that is the
subject of a Purchase hereunder, whether at the time of any such
Purchase or at any subsequent time; or
(viii) any failure of a Lockbox Account Bank to comply with
the terms of the applicable Lockbox Agreement.
(b) Any Indemnified Amounts subject to the indemnification provisions
of this Section 12.01 not paid in accordance with Article VI shall be paid by
the Seller to the Indemnified Person entitled thereto within five Business Days
following demand therefor.
Section 12.02. Indemnities by the Servicer.
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(a) Without limiting any other rights that an Indemnified Person may
have hereunder or under applicable law, the Servicer hereby agrees to indemnify
and hold harmless each Indemnified Person from and against any and all
Indemnified Amounts that may be claimed or asserted against or incurred by any
such Indemnified Person in connection with or arising out of any breach by the
Servicer of its obligations hereunder or under any other Related Document;
provided that the Servicer shall not be liable for any indemnification to an
Indemnified Person to the extent that any such Indemnified Amount (x) results
solely from with respect to any Indemnified Person, (i) such Indemnified
Person's gross negligence or (ii) such Indemnified Person's willful misconduct,
in each case as finally determined by a court of competent jurisdiction, or (y)
constitutes recourse for uncollectible or uncollected Transferred Receivables.
Without limiting the generality of the foregoing, the Servicer shall pay on
demand to each Indemnified Person any and all Indemnified Amounts relating to or
resulting from:
(i) reliance on any representation or warranty made or deemed
made by the Servicer (or any of its officers) under or in connection
with this Agreement or any other Related Document or on any other
information delivered by the Servicer pursuant hereto or thereto that
shall have been incorrect in any material respect when made or deemed
made or delivered;
(ii) the failure by the Servicer to comply with any term,
provision or covenant contained in this Agreement, any other Related
Document or any agreement executed in connection herewith or therewith,
any applicable law, rule or regulation with respect to any Transferred
Receivable or the Contract therefor, or the nonconformity of any
Transferred Receivable or the Contract therefor with any such
applicable law, rule or regulation;
(iii) the imposition of any Adverse Claim with respect to any
Transferred Receivable or the Seller Collateral as a result of any
action taken by the Servicer; or
(iv) the commingling of Collections with respect to
Transferred Receivables by the Servicer at any time with its other
funds or the funds of any other Person.
(b) Any Indemnified Amounts subject to the indemnification provisions
of this Section 12.02 not paid in accordance with Article VI shall be paid by
the Servicer to the Indemnified Person entitled thereto within five Business
Days following demand therefor.
Section 12.03. Limitation of Damages; Indemnified Persons. NO
INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS
AGREEMENT OR ANY OTHER RELATED DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY
BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY
THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES
THAT MAY BE
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ALLEGED AS A RESULT OF ANY TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.
ARTICLE XIII.
AGENT
Section 13.01. Authorization and Action. The Agent may take such action
and carry out such functions under this Agreement as are authorized to be
performed by it pursuant to the terms of this Agreement, any other Related
Document or otherwise contemplated hereby or thereby or are reasonably
incidental thereto; provided that the duties of the Agent hereunder shall be
determined solely by the express provisions of this Agreement, and, other than
the duties set forth in Section 13.02, any permissive right of the Agent
hereunder shall not be construed as a duty.
Section 13.02. Reliance. None of the Agent, any of its Affiliates or
any of their respective directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or the other Related Documents, except for
damages solely caused by its or their own gross negligence or willful misconduct
as finally determined by a court of competent jurisdiction. Without limiting the
generality of the foregoing, and notwithstanding any term or provision hereof to
the contrary, the Seller, the Servicer, each of the Purchasers hereby
acknowledges and agrees that the Agent (a) acts as agent hereunder for such
Purchaser and has no duties or obligations to, shall incur no liabilities or
obligations to, and does not act as an agent in any capacity for, the Seller
(other than, with respect to the Agent, under the Power of Attorney with respect
to remedial actions) or the Originators, (b) may consult with legal counsel,
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts, (c) makes no
representation or warranty hereunder to any Affected Party and shall not be
responsible to any such Person for any statements, representations or warranties
made in or in connection with this Agreement or the other Related Documents, (d)
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
the other Related Documents on the part of the Seller, the Servicer or any
Purchaser or to inspect the property (including the books and records) of the
Seller, the Servicer or any Purchaser, (e) shall not be responsible to the
Seller, the Servicer or any Purchaser for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or the other
Related Documents or any other instrument or document furnished pursuant hereto
or thereto, (f) shall incur no liability under or in respect of this Agreement
or the other Related Documents by acting upon any notice, consent, certificate
or other instrument or writing believed by it to be genuine and signed, sent or
communicated by the proper party or parties and (g) shall not be bound to make
any investigation into the facts or matters stated in any notice or other
communication hereunder and may rely on the accuracy of such facts or matters.
Notwithstanding the foregoing, the Agent acknowledges that it has a duty to
transfer funds
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between and among the Accounts and the Collection Account, in accordance with
Article VI and the instructions of the Servicer.
Section 13.03. GECC and Affiliates. GECC and its Affiliates may
generally engage in any kind of business with any Obligor, the Originators, the
Seller, the Servicer or any Purchaser, any of their respective Affiliates and
any Person who may do business with or own securities of such Persons or any of
their respective Affiliates, all as if GECC were not the Agent and without the
duty to account therefor to any Obligor, any Originator, the Seller, the
Servicer, any Purchaser or any other Person.
ARTICLE XIV.
MISCELLANEOUS
Section 14.01. Notices. Except as otherwise provided herein, whenever
it is provided herein that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties by any other parties, or whenever any of the parties desires to
give or serve upon any other parties any communication with respect to this
Agreement, each such notice, demand, request, consent, approval, declaration or
other communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt and three
Business Days after deposit in the United States Mail, registered or certified
mail, return receipt requested, with proper postage prepaid, (b) upon
transmission, when sent by facsimile (with such facsimile promptly confirmed by
delivery of a copy by personal delivery or United States Mail as otherwise
provided in this Section 14.01), (c) one Business Day after deposit with a
reputable overnight courier with all charges prepaid or (d) when delivered, if
hand-delivered by messenger, all of which shall be addressed to the party to be
notified and sent to the address or facsimile number set forth under its name on
the signature page hereof or to such other address (or facsimile number) as may
be substituted by notice given as herein provided. The giving of any notice
required hereunder may be waived in writing by the party entitled to receive
such notice. Failure or delay in delivering copies of any notice, demand,
request, consent, approval, declaration or other communication to any Person
(other than the Purchasers and the Agent) designated in any written notice
provided hereunder to receive copies shall in no way adversely affect the
effectiveness of such notice, demand, request, consent, approval, declaration or
other communication. Notwithstanding the foregoing, whenever it is provided
herein that a notice is to be given to any other party hereto by a specific
time, such notice shall only be effective if actually received by such party
prior to such time, and if such notice is received after such time or on a day
other than a Business Day, such notice shall only be effective on the
immediately succeeding Business Day.
Section 14.02. Assignment and Participations.
(a) Subject to the terms of this Section 14.02, any Purchaser may make
an assignment to a qualified assignee of, or sale of participations in, at any
time or times, the Related Documents, its Pro Rata Share of the Purchaser
Interests and its Commitment or any
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portion thereof or interest therein, including any Purchaser's rights, title,
interests, remedies, powers or duties thereunder. Any assignment by a Purchaser
shall: (i) require the consent of Agent (which consent shall not be unreasonably
withheld or delayed with respect to a qualified assignee) and the execution of
an assignment agreement in form and substance reasonably satisfactory to, and
acknowledged by, Agent (an "Assignment Agreement"); (ii) be conditioned on such
assignee Purchaser representing to the assigning Purchaser and Agent that it is
purchasing the applicable Purchaser Interest to be assigned to it for its own
account, for investment purposes and not with a view to the distribution
thereof; (iii) after giving effect to any such partial assignment, the assignee
Purchaser shall have Commitments in an amount at least equal to $5,000,000 and
the assigning Purchaser shall have retained Commitments in an amount at least
equal to $5,000,000; and (iv) include a payment to Agent of an assignment fee of
$3,500. In the case of an assignment by a Purchaser under this Section 14.02(a),
the assignee shall have, to the extent of such assignment, the same rights,
benefits and obligations as all other Purchasers hereunder. The assigning
Purchaser shall be relieved of its obligations hereunder with respect to its
Commitments or assigned portion thereof from and after the date of such
assignment. Seller hereby acknowledges and agrees that any assignment shall give
rise to a direct obligation of Seller to the assignee and that the assignee
shall be considered to be a "Purchaser". In all instances, each Purchaser's
liability to invest in the Purchaser Interests hereunder shall be several and
not joint and shall be limited to such Purchaser's Pro Rata Share of the
applicable Commitment. In the event Agent or any Purchaser assigns or otherwise
transfers all or any part of the Seller Secured Obligations, Agent or any such
Purchaser shall so notify Seller. Notwithstanding the foregoing provisions of
this Section 14.02(a), any Purchaser may at any time pledge the Seller Secured
Obligations held by it and such Purchaser's rights under this Agreement and the
other Related Documents to a Federal Reserve Bank, and any Purchaser that is an
investment fund may assign the Seller Secured Obligations held by it and such
Purchaser's rights under this Agreement and the other Related Documents to
another investment fund managed by the same investment advisor; provided, that
no such pledge to a Federal Reserve Bank shall release such Purchaser from such
Purchaser's obligations hereunder or under any other Relevant Document.
(b) Any participation by a Purchaser of all or any part of its
Commitment shall be made with the understanding that all amounts payable by
Seller hereunder shall be determined as if that Purchaser had not sold such
participation, and that the holder of any such participation shall not be
entitled to require such Purchaser to take or omit to take any action hereunder
except actions directly affecting (i) any reduction in the principal amount of,
or interest rate or Fees payable with respect to, any Seller Secured Obligations
in which such holder participates, (ii) any extension of the scheduled
amortization of the principal amount of any Purchaser Interest in which such
holder participates or the final maturity date thereof, and (iii) any release of
all or substantially all of the Seller Collateral (other than in accordance with
the terms of this Agreement or the other Related Documents). Solely for purposes
of Sections 2.09 and 2.10, Seller acknowledges and agrees that a participation
shall give rise to a direct obligation of Seller to the participant and the
participant shall be considered to be a "Purchaser". Except as set forth in the
preceding sentence none of Seller, the Originators, Servicer nor Performance
Guarantor shall have any obligation or duty to any participant. Neither Agent
nor any Purchaser
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(other than the Purchaser selling a participation) shall have any duty to any
participant and may continue to deal solely with the Purchaser selling a
participation as if no such sale had occurred.
(c) Except as expressly provided in this Section 14.02, no Purchaser
shall, as between Seller and that Purchaser, or Agent and that Purchaser, be
relieved of any of its obligations hereunder as a result of any sale,
assignment, transfer or negotiation of, or granting of participation in, all or
any part of the Purchaser Interests or Seller Secured Obligations owed to such
Purchaser.
(d) Each of Seller and Servicer shall assist any Purchaser permitted to
sell assignments or participations under this Section 14.02 as reasonably
required to enable the assigning or selling Purchaser to effect any such
assignment or participation, including the execution and delivery of any and all
agreements, notes and other documents and instruments as shall be requested and
the preparation of informational materials for, and the participation of
management in meetings with, potential assignees or participants. Each of Seller
and Servicer shall certify the correctness, completeness and accuracy of all
descriptions of Seller, Servicer and their respective affairs contained in any
selling materials provided by it and all other information provided by it and
included in such materials.
(e) A Purchaser may furnish any information concerning Seller,
Servicer, the Originators or Performance Guarantor in the possession of such
Purchaser from time to time to assignees and participants (including prospective
assignees and participants); provided that such Purchaser shall obtain from
assignees or participants confidentiality covenants substantially equivalent to
those contained in Section 14.05.
Section 14.03. Termination; Survival of Seller Secured Obligations Upon
Facility Termination Date.
(a) 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 Termination Date.
(b) Except as otherwise expressly provided herein or in any other
Related Document, no termination or cancellation (regardless of cause or
procedure) of any commitment made by any Affected Party under this Agreement
shall in any way affect or impair the obligations, duties and liabilities of the
Seller or the rights of any Affected Party relating to any unpaid portion of the
Seller Secured Obligations, due or not due, liquidated, contingent or
unliquidated or any transaction or event occurring prior to such termination, or
any transaction or event, the performance of which is required after the
Facility Termination Date. Except as otherwise expressly provided herein or in
any other Related Document, all undertakings, agreements, covenants, warranties
and representations of or binding upon the Seller or the Servicer, and all
rights of any Affected Party hereunder, all as contained in the Related
Documents, shall not terminate or expire, but rather shall survive any such
termination or cancellation and shall continue in full force and effect until
the Termination Date; provided that
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the rights and remedies provided for herein with respect to any breach of any
representation or warranty made by the Seller or the Servicer pursuant to
Article IV, the indemnification and payment provisions of Article XII and
Sections 14.04, 14.05 and 14.06 shall be continuing and shall survive the
Termination Date.
Section 14.04. Costs, Expenses and Taxes. (a) The Seller shall
reimburse the Agent for all out-of-pocket expenses incurred in connection with
the negotiation and preparation of this Agreement and the other Related
Documents (including the reasonable fees and expenses of all of its special
counsel, advisors, consultants and auditors retained in connection with the
transactions contemplated thereby and advice in connection therewith). The
Seller shall reimburse the Purchasers and the Agent for all fees, costs and
expenses, including the fees, costs and expenses of counsel or other advisors
(including environmental and management consultants and appraisers) for advice,
assistance, or other representation in connection with:
(i) the forwarding to the Seller or any other Person on behalf
of the Seller by the Purchasers of any payments for Purchases made by
it hereunder;
(ii) any amendment, modification or waiver of, consent with
respect to, or termination of this Agreement or any of the other
Related Documents or advice in connection with the administration
thereof or their respective rights hereunder or thereunder;
(iii) any Litigation, contest or dispute (whether instituted
by the Seller, the Purchasers, the Agent or any other Person as a
party, witness, or otherwise (except any Litigation, contest or dispute
arising solely between Seller and Agent and/or the Purchasers with
respect to this Agreement in which Seller prevails because a court of
competent jurisdiction by final and nonappealable judgment determines
that Agent and/or Purchasers, as the case may be, have acted with gross
negligence or willful misconduct) in any way relating to the Seller
Collateral, any of the Related Documents or any other agreement to be
executed or delivered in connection herewith or therewith, including
any Litigation, contest, dispute, suit, case, proceeding or action, and
any appeal or review thereof, in connection with a case commenced by or
against the Seller or any other Person that may be obligated to the
Purchasers or the Agent by virtue of the Related Documents, including
any such Litigation, contest, dispute, suit, proceeding or action
arising in connection with any work-out or restructuring of the
transactions contemplated hereby during the pendency of one or more
Termination Events;
(iv) any attempt to enforce any remedies of the Purchasers or
the Agent against the Seller or any other Person that may be obligated
to them by virtue of any of the Related Documents, including any such
attempt to enforce any such remedies in the course of any work-out or
restructuring of the transactions contemplated hereby during the
pendency of one or more Termination Events;
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(v) any work-out or restructuring of the transactions
contemplated hereby during the pendency of one or more Termination
Events; and
(vi) efforts to (A) monitor the Purchases or any of the Seller
Secured Obligations, (B) evaluate, observe or assess the Originators,
the Seller or the Servicer or their respective affairs, and (C) verify,
protect, evaluate, assess, appraise, collect, sell, liquidate or
otherwise dispose of any of the Seller Collateral;
including all attorneys' and other professional and service providers'
fees arising from such services, including those in connection with any
appellate proceedings, and all expenses, costs, charges and other fees incurred
by such counsel and others in connection with or relating to any of the events
or actions described in this Section 14.04, all of which shall be payable, on
demand, by the Seller to the Purchasers or the Agent, as applicable. Without
limiting the generality of the foregoing, such expenses, costs, charges and fees
may include: fees, costs and expenses of accountants, environmental advisors,
appraisers, investment bankers, management and other consultants and paralegals;
court costs and expenses; photocopying and duplication expenses; court reporter
fees, costs and expenses; long distance telephone charges; air express charges;
telegram or facsimile charges; secretarial overtime charges; and expenses for
travel, lodging and food paid or incurred in connection with the performance of
such legal or other advisory services.
(b) In addition, the Seller shall pay on demand any and all stamp,
sales, excise and other taxes (excluding income taxes that are excluded from
Indemnified Taxes in accordance with Section 2.08(b)) and fees payable or
determined to be payable in connection with the execution, delivery, filing or
recording of this Agreement or any other Related Document, and the Seller agrees
to indemnify and save each Indemnified Person harmless from and against any and
all liabilities with respect to or resulting from any delay or failure to pay
such taxes and fees.
Section 14.05. Confidentiality.
(a) Except to the extent otherwise required by applicable law, as
required to be filed publicly with the Securities and Exchange Commission, or
unless the Agent shall otherwise consent in writing, the Seller and the Servicer
each agrees to maintain the confidentiality of this Agreement (and all drafts
hereof and documents ancillary hereto) in its communications with third parties
other than any Affected Party or any Indemnified Person and otherwise and not to
disclose, deliver or otherwise make available to any third party (other than its
directors, officers, members, employees, accountants or counsel) the original or
any copy of all or any part of this Agreement (or any draft hereof and documents
ancillary hereto) except to an Affected Party or an Indemnified Person.
(b) The Seller and the Servicer each agrees that it shall not (and
shall not permit any of its Subsidiaries to) issue any news release or make any
public announcement pertaining to the transactions contemplated by this
Agreement and the other Related Documents without the prior written consent of
the Purchasers and the Agent (which consent shall not be
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unreasonably withheld) unless such news release or public announcement is
required by law, in which case the Seller or the Servicer, as applicable, shall
consult with the Purchasers and the Agent prior to the issuance of such news
release or public announcement. The Seller may, however, disclose the general
terms of the transactions contemplated by this Agreement and the other Related
Documents to trade creditors, suppliers and other similarly-situated Persons so
long as such disclosure is not in the form of a news release or public
announcement.
Section 14.06. Binding Effect; Successors and Assigns. This Agreement
shall be binding upon and inure to the benefit of the Seller, the Servicer, the
Purchasers and the Agent and their respective successors and permitted assigns.
Section 14.07. Complete Agreement; Modification of Agreement. This
Agreement and the other Related Documents constitute the complete agreement
among the parties hereto with respect to the subject matter here of and thereof,
supersede all prior agreements and understandings relating to the subject matter
hereof and thereof, and may not be modified, altered or amended except as set
forth in Section 14.08.
Section 14.08. Amendments and Waivers. No amendment, modification,
termination or waiver of any provision of this Agreement or any of the other
Related Documents, or any consent to any departure by the Seller or the Servicer
therefrom, shall in any event be effective unless the same shall be in writing
and signed by each of the parties hereto or thereto.
Section 14.09. No Waiver; Remedies. The failure by any Purchaser or the
Agent, at any time or times, to require strict performance by the Seller or the
Servicer of any provision of this Agreement or any Purchase Assignment shall not
waive, affect or diminish any right of any Purchaser or the Agent thereafter to
demand strict compliance and performance herewith or therewith. Any suspension
or waiver of any breach or default hereunder shall not suspend, waive or affect
any other breach or default whether the same is prior or subsequent thereto and
whether the same or of a different type. None of the undertakings, agreements,
warranties, covenants and representations of the Seller or the Servicer
contained in this Agreement or any Purchase Assignment, and no breach or default
by the Seller or the Servicer hereunder or thereunder, shall be deemed to have
been suspended or waived by the Purchasers or the Agent unless such waiver or
suspension is by an instrument in writing signed by an officer of or other duly
authorized signatory of the Purchasers and the Agent and directed to the Seller
or the Servicer, as applicable, specifying such suspension or waiver. The rights
and remedies of the Purchasers and the Agent under this Agreement shall be
cumulative and nonexclusive of any other rights and remedies that the Purchasers
and the Agent may have under any other agreement, including the other Related
Documents, by operation of law or otherwise. Recourse to the Seller Collateral
shall not be required.
Section 14.10. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL.
61
WNC Receivables, LLC Receivables Purchase
and Servicing Agreement
(a) THIS AGREEMENT AND EACH OTHER RELATED DOCUMENT (EXCEPT TO THE
EXTENT THAT ANY RELATED DOCUMENT EXPRESSLY PROVIDES TO THE CONTRARY) AND THE
OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL IN ALL RESPECTS, INCLUDING
ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS
EXCEPT TO THE EXTENT THAT THE PERFECTION, EFFECT OF PERFECTION OR PRIORITY OF
THE INTERESTS OF THE AGENT IN THE RECEIVABLES OR REMEDIES HEREUNDER OR
THEREUNDER, IN RESPECT THEREOF, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF ILLINOIS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN ▇▇▇▇ COUNTY, CITY OF CHICAGO, ILLINOIS SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER RELATED DOCUMENT; PROVIDED THAT EACH PARTY HERETO
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE ▇▇▇▇ COUNTY; PROVIDED FURTHER, THAT NOTHING IN THIS AGREEMENT
SHALL BE DEEMED OR OPERATE TO PRECLUDE ANY PURCHASER OR THE AGENT FROM BRINGING
SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE
SELLER COLLATERAL OR ANY OTHER SECURITY FOR THE SELLER SECURED OBLIGATIONS, OR
TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF ANY PURCHASER OR THE
AGENT. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN
ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY
WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS,
COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT THE ADDRESS SET FORTH BENEATH ITS
NAME ON THE SIGNATURE PAGES HEREOF AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS
AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF ANY PARTY
62
WNC Receivables, LLC Receivables Purchase
and Servicing Agreement
HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 14.11. Counterparts. This Agreement may be executed in any
number of separate counterparts, each of which shall collectively and separately
constitute one agreement.
Section 14.12. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
Section 14.13. Section Titles. The section titles and table of contents
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.
Section 14.14. Further Assurances.
(a) Each of the Seller and the Servicer shall, at its sole cost and
expense, upon request of any Purchaser or the Agent, promptly and duly execute
and deliver any and all further instruments and documents and take such further
action that may be necessary or desirable or that any Purchaser or the Agent may
request to (i) perfect, protect, preserve, continue and maintain fully the
Purchases made and the right, title and interests (including Liens) granted to
the Agent under this Agreement, (ii) enable the Purchasers or the Agent to
exercise and enforce its rights under this Agreement or any of the other Related
Documents or (iii) otherwise carry out more effectively the provisions and
purposes of this Agreement or any other Related Document. Without limiting the
generality of the foregoing, the Seller shall, upon request of any Purchaser or
the Agent, (A) execute and file such financing or continuation statements, or
amendments
63
WNC Receivables, LLC Receivables Purchase
and Servicing Agreement
thereto or assignments thereof, and such other instruments or notices that may
be necessary or desirable or that any Purchaser or the Agent may request to
perfect, protect and preserve the Purchases made and the Liens granted pursuant
to this Agreement, free and clear of all Adverse Claims, (B) ▇▇▇▇, or cause the
Servicer to ▇▇▇▇, each Contract evidencing each Transferred Receivable with a
legend, acceptable to each Purchaser and the Agent evidencing that the Agent on
behalf of the Purchasers has purchased an undivided percentage ownership
interest in all right and title thereto and interest therein as provided herein
(for example, "This writing and the obligations evidenced or secured hereby have
been sold to General Electric Capital Corporation for itself and as Agent"), (C)
▇▇▇▇, or cause the Servicer to ▇▇▇▇, its master data processing records
evidencing such Transferred Receivables with such a legend and (D) notify or
cause the Servicer to notify Obligors of the sale of undivided percentage
ownership interests in the Transferred Receivables effected hereunder.
(b) Without limiting the generality of the foregoing, the Seller hereby
authorizes the Purchasers and the Agent, and each of the Purchasers hereby
authorizes the Agent, to file one or more financing or continuation statements,
or amendments thereto or assignments thereof, relating to all or any part of the
Transferred Receivables, including Collections with respect thereto, or the
Seller Collateral without the signature of the Seller or, as applicable, the
Agent or any Purchaser to the extent permitted by applicable law. A carbon,
photographic or other reproduction of this Agreement or of any notice or
financing statement covering the Transferred Receivables, the Seller Collateral
or any part thereof shall be sufficient as a notice or financing statement where
permitted by law.
64
WNC Receivables, LLC Receivables Purchase
and Servicing Agreement
IN WITNESS WHEREOF, the parties have caused this Receivables Purchase
and Servicing Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
WNC RECEIVABLES, LLC, as the Seller
By
-----------------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. Black
Title: Manager
Address:
WABASH FINANCING LLC, as the Servicer
By
-----------------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. Black,
Authorized Representative
Address:
65
'
WNC RECEIVABLES MANAGEMENT CORP.,
as the Independent Member
By
------------------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. Black
Title: Manager
Address:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Purchaser
By
------------------------------------------------------
Name:
---------------------------------------------------
Duly Authorized Signatory
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Account Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent
By
------------------------------------------------------
Name:
---------------------------------------------------
Duly Authorized Signatory
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Account Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
66
Exhibit 2.02(a)
FORM OF COMMITMENT REDUCTION NOTICE
[Insert Date]
WNC Receivables LLC
[Address]
[Attention: ]
General Electric Capital Corporation,
as Agent
c/o General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: [Account Manager]
Re: Receivables Purchase and Servicing Agreement
dated as of April 11, 2002
Ladies and Gentlemen:
This notice is given pursuant to Section 2.02(a) of that certain
Receivables Purchase and Servicing Agreement dated as of April 11 , 2002 (the
"PURCHASE AGREEMENT"), by and among WNC Receivables LLC (the "SELLER"), Wabash
Financing LLC (the "SERVICER"), WNC Receivables Management Corp. (the
"INDEPENDENT MEMBER") and General Electric Capital Corporation, a Delaware
corporation, as the sole initial Purchaser (together with its successors and
assigns, the "PURCHASERS") and as agent for the Purchasers (in such capacity,
the "AGENT"). Capitalized terms used and not otherwise defined herein shall have
the respective meanings ascribed to them in the Purchase Agreement.
Pursuant to Section 2.02(a) of the Purchase Agreement, the Seller
hereby irrevocably notifies the Purchasers and the Agent of its election to
permanently reduce the Maximum Purchase Limit to [$_____], effective as of
[_____ __], [___] (which is a Business Day at least ten days after the date this
notice is given). This reduction is the [first/second] reduction [for the
current calendar year] permitted by Section 2.02(a) of the Purchase Agreement.
After such reduction, the Maximum Purchase Limit will not be less than the
Capital Investment.
67
Very truly yours,
WNC RECEIVABLES LLC
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
68
Exhibit 2.02(b)
FORM OF COMMITMENT TERMINATION NOTICE
[Insert Date]
WNC Receivables LLC
[Address]
[Attention: ]
General Electric Capital Corporation,
as Agent
c/o General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: [Account Manager]
Re: Receivables Purchase and Servicing Agreement
dated as of April 11, 2002
Ladies and Gentlemen:
This notice is given pursuant to Section 2.02(b) of that certain
Receivables Purchase and Servicing Agreement dated as of April 11, 2002 (the
"PURCHASE AGREEMENT"), by and among WNC Receivables LLC (the "SELLER"), Wabash
Financing LLC (the "SERVICER"), WNC Receivables Management Corp. (the
"INDEPENDENT MEMBER") and General Electric Capital Corporation, a Delaware
corporation, as the sole initial Purchaser (together with its successors and
assigns, the "PURCHASERS") and as agent for the Purchasers (in such capacity,
the "AGENT"). Capitalized terms used and not otherwise defined herein shall have
the respective meanings ascribed to them in the Purchase Agreement.
Pursuant to Section 2.02(b) of the Purchase Agreement, the Seller
hereby irrevocably notifies the Purchasers and the Agent of its election to
terminate the Maximum Purchase Limit effective as of [_____ __], [___] (which is
a Business Day at least 90 days after the date this notice is given). In
connection therewith, the Seller shall reduce Capital Investment to zero on or
prior to such date and make all other payments required by Section 2.03(c) and
pay any other fees that are due and payable pursuant to the Fee Letter at the
time and in the manner specified therein.
69
Very truly yours,
WNC RECEIVABLES LLC
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
70
Exhibit 2.03(a)(i)
WNC RECEIVABLES LLC
DAILY INVESTMENT BASE CERTIFICATE
WABASH NATIONAL CORPORATION
DAILY INVESTMENT BASE CERTIFICATE
FOR THE DAY ENDED
--------------------------
WABASH
NATIONAL NATC TOTAL
-------- ---- ----------
Beginning of prior borrowing base accounts receivable balance -
+ Sales -
- Cash Collected -
- Cash discounts -
+/- Other -
----------
= GROSS AMOUNT OF ACCOUNTS - - -
Less ineligibles:
Past due (>60 days past due date or >90 days past invoice) -
Cross-aging (50% rule) -
Credit Balances (>60 days) -
Addbacks -
Foreign Customer Accounts (non-Canada) -
Government Accounts -
Contra Accounts -
▇▇ ▇▇▇▇ Pricing Adjustment -
▇▇▇▇ & Hold (no MSO issued) -
▇▇▇▇ & Hold (O/S > 45 days, >3% of gross A/R) -
Guaranteed Buybacks -
Trailers received not credited -
Committed Not Received (1) -
Sales Tax, FET and Commissions -
COD/Cash Accounts -
▇▇▇▇▇▇▇▇ to Individuals -
Intercompany Accounts -
Delayed ▇▇▇▇▇▇▇▇ -
Unissued Credits (Trade-ins) -
Chargebacks -
Disputed Invoices -
71
Unsatisfactory Credit Rating -
Due from Bankrupt or Insolvent Customer -
Customer Deposits -
----------
TOTAL INELIGIBLES - - -
Eligible Accounts Receivable - - -
Reserves: Concentration Excess as a % of Eligible A/R -
> 40% of terms 30 $5MM are
ineligble. After 5/12/02, all amounts of Committed Not Received will be held
ineligible if no offset letters in form and substance acceptable to GECC have
been received. At all times, Committed Not Received report shall be updated
weekly and all offsetting accounts shall be updated daily.
(2) Until 6/30/02, the greater of $7.5MM or 25% of Available A/R, not to exceed
$15MM. $15MM at all times after 6/30/02. If Block is less than $15MM at 6/15/02,
Block shall increase by $250M per day between 6/16/02 and 6/30/02 until it
reaches $15MM.
--------------------------------------------------------------------------------
ACCRUED SERVICING FEE RESERVE
Daily Servicing Fee (1% of prior day's Transferred Receivables) -
Month-to-Date Servicing Fee (Accrued Month-to-date) -
--------------------------------------------------------------------------------
SERVICING FEE CALCULATION
72
TRANSFERRED SERVICING
Day of Month RECEIVABLES FEE *
----------- ---------
1 -
2 -
3 -
4 -
5 -
6 -
7 -
8 -
9 -
10 -
11 -
12 -
13 -
14 -
15 -
16 -
17 -
18 -
19 -
20 -
21 -
22 -
23 -
24 -
25 -
26 -
27 -
28 -
29 -
30 -
31 -
----
Month to Date Accrual -
* 1% of Prior Day's Transferred Receivables, calculated on a 360 day basis.
The undersigned hereby represents and warrants that the foregoing is a
true and accurate accounting in accordance with the Receivables Purchase and
Sale Agreement dated as of April
73
11, 2002, by and among WNC Receivables, LLC, as Seller, the undersigned, as
Servicer, WNC Receivables Management Corp., and General Electric Capital
Corporation, individually and as Agent, as amended from time to time (the
"Purchase Agreement") and that all representations and warranties of the Seller
and the Servicer set forth in Sections 4.01 and 4.02 of the Purchase Agreement
are true and correct as of the date hereof. Further, no event has occurred and
is continuing, as of the date hereof that constitutes an Incipient Termination
Event, a Termination Event, an Incipient Servicer Termination Event or an Event
of Servicer Termination.
WABASH FINANCING LLC, as Servicer
By:
-------------------------------------
Name:
Title:
74
Exhibit 2.03(a)(ii)
WNC RECEIVABLES LLC
WEEKLY INVESTMENT BASE CERTIFICATE
WABASH NATIONAL CORPORATION
WEEKLY INVESTMENT BASE CERTIFICATE
FOR THE WEEK ENDED
-----------------------
WABASH
NATIONAL NATC TOTAL
-------- ---- ----------
Beginning of prior borrowing base accounts receivable balance -
+ Sales -
- Cash Collected -
- Cash discounts -
+/- Other -
----------
= GROSS AMOUNT OF ACCOUNTS - - -
Less ineligibles:
Past Due (>60 days past due date or >90 days past invoice) -
Cross-aging (50% rule) -
Credit Balances (>60 days) -
Addbacks -
Foreign Customer Accounts (non-Canada) -
Government Accounts -
Contra Accounts -
▇▇ ▇▇▇▇ Pricing Adjustment -
▇▇▇▇ & Hold (no MSO issued) -
▇▇▇▇ & Hold (O/S > 45 days, >3% of gross A/R) -
Guaranteed Buybacks -
Committed Not Received (1) -
Sales Tax, FET and Commissions -
COD/Cash Accounts -
▇▇▇▇▇▇▇▇ to Individuals -
Intercompany Accounts -
Delayed ▇▇▇▇▇▇▇▇ -
Unissued Credits (Trade-ins) -
Chargebacks -
Disputed Invoices -
75
Unsatisfactory Credit Rating -
Due from Bankrupt or Insolvent Customer -
Customer Deposits -
----------
TOTAL INELIGIBLES - - -
Eligible Accounts Receivable - - -
Reserves: Concentration Excess as a % of Eligible A/R -
> 40% of terms 30 $5MM are ineligible.
After 5/12/02, all amounts of Committed Not Received will be held ineligible if
no offset letters in form and substance acceptable to GECC have been received.
At all times, Committed Not Received report shall be updated weekly and all
offsetting accounts shall be updated daily.
(2) Until 6/30/02, the greater of $7.5MM or 25% of Available A/R, not to exceed
$15MM. $15MM at all times after 6/30/02. If Block is less than $15MM at 6/15/02,
Block shall increase by $250M per day between 6/16/02 and 6/30/02 until it
reaches $15MM.
--------------------------------------------------------------------------------
ACCRUED SERVICING FEE RESERVE
Daily Servicing Fee (1% of prior day's Transferred Receivables) -
Month-to-Date Servicing Fee (Accrued Month-to-date) -
--------------------------------------------------------------------------------
SERVICING FEE CALCULATION
76
TRANSFERRED SERVICING
Day of Month RECEIVABLES FEE *
----------- ---------
1 -
2 -
3 -
4 -
5 -
6 -
7 -
8 -
9 -
10 -
11 -
12 -
13 -
14 -
15 -
16 -
17 -
18 -
19 -
20 -
21 -
22 -
23 -
24 -
25 -
26 -
27 -
28 -
29 -
30 -
31 -
----
Month to Date Accrual -
* 1% of Prior Day's Transferred Receivables, calculated on a 360 day basis.
The undersigned hereby represents and warrants that the foregoing is a
true and accurate accounting in accordance with the Receivables Purchase and
Sale Agreement dated as of April 11, 2002, by and among WNC Receivables, LLC, as
Seller, the undersigned, as
77
Servicer, WNC Receivables Management Corp., and General Electric Capital
Corporation, individually and as Agent, as amended from time to time (the
"Purchase Agreement") and that all representations and warranties of the Seller
and the Servicer set forth in Sections 4.01 and 4.02 of the Purchase Agreement
are true and correct as of the date hereof. Further, no event has occurred and
is continuing, as of the date hereof that constitutes an Incipient Termination
Event, a Termination Event, an Incipient Servicer Termination Event or an Event
of Servicer Termination.
WABASH FINANCING LLC, as Servicer
By:
------------------------------
Name:
Title:
78
Exhibit 2.03(a)(iii)
WNC RECEIVABLES LLC
MONTHLY REPORT
[MUTUALLY ACCEPTABLE FORM TO BE ATTACHED POST-CLOSING PRIOR TO
MAY 18, 2002, WHICH, WHEN ATTACHED, SHALL BE A PART OF THE
PURCHASE AGREEMENT]
79
Exhibit 2.03(b)
FORM OF PURCHASE REQUEST
[Insert Date]
WNC Receivables LLC
[Address]
[Attention: ]
General Electric Capital Corporation,
as Agent
c/o General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: [Account Manager]
Re: Receivables Purchase and Servicing Agreement
dated as of April , 2002
Ladies and Gentlemen:
This notice is given pursuant to Section 2.03(b) of that certain
Receivables Purchase and Servicing Agreement dated as of April 11, 2002 (the
"PURCHASE AGREEMENT"), by and among WNC Receivables LLC (the "SELLER"), Wabash
Financing LLC (the "SERVICER"), WNC Receivables Management Corp. (the
"INDEPENDENT MEMBER") and General Electric Capital Corporation, a Delaware
corporation, as the sole initial Purchaser (together with its successors and
assigns, the "PURCHASERS") and as agent for the Purchasers (in such capacity,
the "AGENT"). Capitalized terms used and not otherwise defined herein shall have
the respective meanings ascribed to them in the Purchase Agreement.
Pursuant to Section 2.01 of the Purchase Agreement, the Seller hereby
requests that a Purchase be made from the Seller on [_____ __], [____] (which is
a Business Day), in the amount of [$_____], to be disbursed to the Seller in
accordance with Section 2.04(b) of the Purchase Agreement. The Seller hereby
confirms that the conditions set forth in Section 3.02 of the Purchase Agreement
have been satisfied.
Very truly yours,
WNC RECEIVABLES LLC
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
80
Exhibit 2.04(a)
FORM OF PURCHASE ASSIGNMENT
THIS PURCHASE ASSIGNMENT (the "PURCHASE ASSIGNMENT") is entered into as
of April 11, 2002 by and between WNC RECEIVABLES LLC ("SELLER"), WNC RECEIVABLES
MANAGEMENT CORP. (the "INDEPENDENT MEMBER"), and GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent under the Purchase Agreement described below (the
"AGENT").
1. We refer to that certain Receivables Purchase and Servicing
Agreement (the "PURCHASE AGREEMENT") of even date herewith among the Seller, the
Servicer, the Independent Member, the Purchasers and the Agent. All of the
terms, covenants and conditions of the Purchase Agreement are hereby made a part
of this Purchase Assignment and are deemed incorporated herein in full.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Purchase Agreement.
2. For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Seller hereby sells to each of the
Purchasers, for the ratable benefit of the Purchasers, without recourse, except
as provided in Section 12.01 of the Purchase Agreement, an undivided interest in
all of the Seller's right, title and interest in, under and to all Transferred
Receivables (including all Collections, Records and proceeds with respect
thereto) sold from time to time by the Seller to such Purchasers under the
Purchase Agreement to the extent of such Purchasers' Purchaser Interest and
subject to the terms and conditions of the Purchase Agreement.
3. The Seller hereby covenants and agrees to sign, sell or execute and
deliver, or cause to be signed, sold or executed and delivered, and to do or
make, or cause to be done or made, upon request of the Agent and at the Seller's
expense, any and all agreements, instruments, papers, deeds, acts or things,
supplemental, confirmatory or otherwise, as may be reasonably required by the
Agent for the purpose of or in connection with acquiring or more effectively
vesting in the Agent, for the ratable benefit of the Purchasers, or evidencing
the vesting in the Agent of the property, rights, title and interests of the
Seller sold hereunder or intended to be sold hereunder to the Purchasers.
4. Wherever possible, each provision of this Purchase Assignment shall
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Purchase Assignment shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity without invalidating the remainder of
such provision or the remaining provisions of this Purchase Assignment.
5. BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
81
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
PURCHASE ASSIGNMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6. THIS PURCHASE ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO
THE PRINCIPLES THEREOF REGARDING CONFLICT OF LAWS, AND ANY APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA.
IN WITNESS WHEREOF, the parties have caused this Purchase
Assignment to be executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
WNC RECEIVABLES LLC, GENERAL ELECTRIC CAPITAL
AS SELLER CORPORATION, AS AGENT
By: By:
------------------------------------- ---------------------------------
Name: Name:
----------------------------------- -------------------------------
Title: Title:
---------------------------------- ------------------------------
82
Exhibit 5.02
FORM OF BRINGDOWN CERTIFICATE
- - -
[INSERT NAME OF APPLICABLE COMPANY]
Officer's Certificate
TO: GENERAL ELECTRIC CAPITAL CORPORATION, INDIVIDUALLY AND AS AGENT
I, [Name of Officer], the duly elected [Insert Title] of [Name of
Company], a ________________ (the "COMPANY"), hereby certify as follows:
1. Capitalized terms herein and not otherwise defined shall have the
respective meanings ascribed to them in the Receivables Sale and Contribution
Agreement (the "SALE AGREEMENT"), dated as of April 11, 2002, by and among
Wabash National Corporation, as Performance Guarantor, NOAMTC, Inc., Wabash
National, L.P., and WNC Receivables, LLC, or the Receivables Purchase and
Servicing Agreement (together with the Sale Agreement, the "AGREEMENTS"), dated
as of April 11 , 2002 by and among WNC Receivables, LLC, Wabash Financing LLC,
WNC Receivables Management Corp. and General Electric Capital Corporation,
individually and as Agent.
2. As of the date of this Certificate, the Company is Solvent.
3. Each of the representations and warranties of the Company contained
in the Related Documents to which the Company is a party is true and correct as
of the date hereof as though made on the date hereof (except for those
representations which speak only as of an earlier date).
4. Since September 30, 2001, no event has occurred that alone or
together with other events could reasonably be expected to have a Material
Adverse Effect.
5. As of the date of this Certificate, no event has occurred and is
continuing that constitutes an Incipient Termination Event, a Termination Event,
an Incipient Servicer Termination Event or an Event of Servicer Termination.
6. The Company is in material compliance with all applicable federal,
state, and local laws and regulations, including those relating to labor and
environmental matters and ERISA
7. Except as otherwise permitted under the Agreements, no Adverse
Claims have arisen or been granted with respect to the property of the Company
83
IN WITNESS WHEREOF, I have signed and delivered this Officer's
Certificate this __________ day of __________________, 200_.
[COMPANY NAME]
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
84
Form of
POWER OF ATTORNEY
This Power of Attorney is executed and delivered by Wabash Financing
LLC ("COMPANY"), as the Servicer under the Purchase Agreement (each as defined
below), to General Electric Capital Corporation, as Agent under the Purchase
Agreement (hereinafter referred to as "ATTORNEY"), pursuant to that certain
Receivables Purchase and Servicing Agreement dated as of April 11, 2002 (the
"PURCHASE AGREEMENT" ), by and among Company, the other parties thereto and
Attorney and the other Related Documents. Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in the Purchase
Agreement. No person to whom this Power of Attorney is presented, as authority
for Attorney to take any action or actions contemplated hereby, shall inquire
into or seek confirmation from Company as to the authority of Attorney to take
any action described below, or as to the existence of or fulfillment of any
condition to this Power of Attorney, which is intended to grant to Attorney
unconditionally the authority to take and perform the actions contemplated
herein, and Company irrevocably waives any right to commence any suit or action,
in law or equity, against any person or entity that acts in reliance upon or
acknowledges the authority granted under this Power of Attorney. The power of
attorney granted hereby is coupled with an interest and may not be revoked or
cancelled by Company until all Seller Secured Obligations under the Related
Documents have been indefeasibly paid in full and Attorney has provided its
written consent thereto.
Company hereby irrevocably constitutes and appoints Attorney (and all
officers, employees or agents designated by Attorney), with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in its place and stead and in its name or in Attorney's own
name, from time to time in Attorney's discretion, to take any and all
appropriate action and to execute and deliver any and all documents and
instruments that may be necessary or desirable to accomplish the purposes of
this Agreement, and, without limiting the generality of the foregoing, hereby
grants to Attorney the power and right, on its behalf, without notice to or
assent by it, upon the occurrence and during the continuance of any Termination
Event, to do the following: (a) open mail for it, and ask, demand, collect, give
acquittances and receipts for, take possession of, or endorse and receive
payment of, any checks, drafts, notes, acceptances, or other instruments for the
payment of moneys due, and sign and endorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications, and notices in connection with any of its property;
(b) effect any repairs to any of its assets, or continue or obtain any insurance
and pay all or any part of the premiums therefor and costs thereof, and make,
settle and adjust all claims under such policies of insurance, and make all
determinations and decisions with respect to such policies; (c) pay or discharge
any taxes, Liens, or other encumbrances levied or placed on or threatened
against it or its property; (d) defend any suit, action or proceeding brought
against it if it does not defend such suit, action or proceeding or if Attorney
believes that it is not pursuing such defense in a manner that will maximize the
recovery to Attorney, and settle, compromise or adjust any suit, action, or
proceeding described above and, in connection therewith, give such discharges or
releases as Attorney may deem appropriate; (e) file or prosecute any claim,
Litigation, suit or proceeding in
85
any court of competent jurisdiction or before any arbitrator, or take any other
action otherwise deemed appropriate by Attorney for the purpose of collecting
any and all such moneys due to it whenever payable and to enforce any other
right in respect of its property; (f) sell, transfer, pledge, make any agreement
with respect to, or otherwise deal with, any of its property, and execute, in
connection with such sale or action, any endorsements, assignments or other
instruments of conveyance or transfer in connection therewith; and (g) cause the
certified public accountants then engaged by it to prepare and deliver to
Attorney at any time and from time to time, promptly upon Attorney's request,
any and all financial statements or other reports required to be delivered by or
on behalf of Company under the Related Documents, all as though Attorney were
the absolute owner of its property for all purposes, and to do, at Attorney's
option and its expense, at any time or from time to time, all acts and other
things that Attorney reasonably deems necessary (so long as such acts or other
things do not conflict with the terms of the Purchase Agreement or the other
Related Documents) to perfect, preserve, or realize upon its property or assets
and the Purchasers' Liens thereon, all as fully and effectively as it might do.
Company hereby ratifies, to the extent permitted by law, all that said attorneys
shall lawfully do or cause to be done by virtue hereof.
86
IN WITNESS WHEREOF, this Power of Attorney is executed by Company, and
Company has caused its seal to be affixed pursuant to the authority of its board
of managers as of April 11, 2002.
--------------------------------
By:
-----------------------------
Name:
Title:
ATTEST:
-------------------------
By: (SEAL)
-----------------------------
Title:
--------------------------
[NOTARIZATION IN APPROPRIATE FORM FOR THE STATE OF EXECUTION IS REQUIRED.]
87
[Signature Page to Sale Agreement]
Annex 5.02
REPORTING REQUIREMENTS OF THE SELLER
The Seller shall furnish, or cause to be furnished, to the Agent for
distribution to the Purchasers:
(a) Annual Audited Financials. As soon as available, and in any event
within 90 days after the end of each fiscal year, (i) audited Financial
Statements for the Seller on a stand-alone basis consisting of a balance sheet
and statements of income and retained earnings and cash flows, setting forth in
comparative form in each case the figures for the previous fiscal year, which
Financial Statements shall be prepared in accordance with GAAP and certified
without qualification, by an independent certified public accounting firm of
national standing or otherwise acceptable to Agent. Such Financial Statements
shall be accompanied by the certification of the Seller's Authorized Officer
that all such Financial Statements present fairly in accordance with GAAP the
financial position, results of operations and statements of cash flows of the
Seller as at the end of such fiscal year and for the period then ended, and that
there was no Termination Event or Incipient Termination Event in existence as of
such time or, if a Termination Event or Incipient Termination Event has occurred
and is continuing, describing the nature thereof and all efforts undertaken to
cure such Termination Event or Incipient Termination Event.
(b) Monthly Financials. As soon as available, and in any event within
30 days after the end of each fiscal month, financial information regarding the
Seller, certified by an Authorized Officer of the Seller, consisting of (i) an
unaudited balance sheet as of the close of such fiscal quarter and the related
statements of income and cash flows for that portion of the fiscal year ending
as of the close of such fiscal quarter. Such financial information shall be
accompanied by (A) a statement in reasonable detail showing the calculations
used and (B) the certification of the Seller's Authorized Officer that such
financial information presents fairly in accordance with GAAP (subject to normal
year-end adjustments) the financial position, results of operations and
statements of cash flows of the Seller and each member of the Parent Group on a
consolidated and consolidating basis, as at the end of such fiscal quarter and
for the period then ended.
(c) Management Letters. Within five Business Days after receipt thereof
by the Seller, copies of all management letters, exception reports or similar
letters or reports (if any) received by the Seller from its independent
certified public accountants.
(d) Default Notices. As soon as practicable, and in any event within
one Business Day after an Authorized Officer of the Seller has actual knowledge
of the existence thereof, telephonic or telecopied notice of each of the
following events, in each case specifying the nature and anticipated effect
thereof and what action, if any, the applicable Seller Party proposes to take
with respect thereto, which notice, if given telephonically, shall be promptly
confirmed in writing on the next Business Day:
(i) any Incipient Termination Event or Termination Event;
88
(ii) any Adverse Claim made or asserted against any of the
Seller Collateral of which it becomes aware;
(iii) the occurrence of any event that would have a material
adverse effect on the aggregate value of the Seller Collateral or on
the assignments and Liens granted by the Seller pursuant to this
Agreement;
(iv) the commencement of a case or proceeding by or against
any Seller Party seeking a decree or order in respect of such Seller
Party (A) under the Bankruptcy Code or any other applicable federal,
state or foreign bankruptcy or other similar law, (B) appointing a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or
similar official) for any Seller Party or for any substantial part of
its assets, or (C) ordering the winding-up or liquidation of the
affairs of any Seller Party;
(v) the receipt of notice that (A) any Seller Party is being
placed under regulatory supervision, (B) any license, permit, charter,
registration or approval necessary for the conduct of the business of
any Seller Party is to be, or may be, suspended or revoked, or (C) any
Seller Party is to cease and desist any practice, procedure or policy
employed by it in the conduct of its business if such cessation may
have a Material Adverse Effect; or
(vi) any other event, circumstance or condition that has had
or could reasonably be expected to have a Material Adverse Effect.
(e) Litigation. Promptly upon learning thereof, written notice of any
Litigation affecting the Seller, the Independent Member, the Transferred
Receivables or the Seller Collateral, whether or not fully covered by insurance,
and regardless of the subject matter thereof that (i) seeks money damages, (ii)
seeks injunctive relief, (iii) alleges criminal misconduct on the part of the
Seller or the Independent Member, or (iv) would, if determined adversely, have a
Material Adverse Effect.
(f) Financial Statements, Bringdown Certificates and Notices Required
under the Sale Agreement. Within one Business Day after receipt thereof, all
financial statements, Bringdown Certificates and notices required to be
delivered by the Parent (or Performance Guarantor) or either of the Originators
under the Sale Agreement, and such additional financial and other information
respecting the Transferred Receivables, the Contracts therefor or the condition
or operations, financial or otherwise, of any of the Seller Parties as the Agent
shall, from time to time, request.
(g) Miscellaneous Certifications. As soon as available, and in any
event within 90 days after the end of each fiscal year, (i) a Bringdown
Certificate of each of the Seller and the Independent Member, and (ii) solely if
requested by the Agent due to a change in applicable law or circumstances, an
opinion of counsel, in form and substance satisfactory to the Purchasers and the
Agent, reaffirming as of the date of such opinion the opinions of counsel with
respect to the Seller delivered to the Agent for distribution to the Purchasers
on the Closing Date.
89
Annex 7.02
INVESTMENT REPORTS
The Servicer shall furnish, or cause to be furnished, to the Agent for
distribution to the Purchasers the following:
1. When and as required under Section 2.03 of the Purchase Agreement,
the Servicer shall deliver the Daily Investment Base Certificates, Weekly
Investment Base Certificates and Monthly Reports to the Agent with sufficient
copies for each of the Purchasers.
2. Together with each Weekly Investment Base Certificate, Servicer
shall deliver the following reports, each of which shall be prepared as of the
last day of the previous week; provided that if (i) an Incipient Termination
Event or a Termination Event shall have occurred and be continuing or (ii) the
Agent, in good faith, believes that an Incipient Termination Event or a
Termination Event is imminent or deems the Agent's rights or interests (for the
benefit of the Purchasers) in the Transferred Receivables or the Seller
Collateral insecure, then such reports shall be delivered for such periods and
as frequently as the Agent shall request:
(A) at the request of the Agent, with respect to each of the
Originators, a summary trial balance showing Receivables outstanding
aged from due date as follows: current, 1 to 30 days, 31 to 60 days, 61
to 90 days and 91 days or more, accompanied by such supporting detail
and documentation as shall be requested by the Agent in its reasonable
discretion;
(B) at the request of the Agent, with respect to each of the
Originators, a summary of aged accounts payable listing showing total
amounts owed to each vendor or supplier, with contra balances denoted
and accompanied by such supporting detail and documentation as shall be
requested by the Agent in its reasonable discretion; and
(C) such other reports, statements and reconciliations with
respect to the Investment Base or Seller Collateral as the Agent shall
from time to time request in its reasonable discretion, including,
without limitation, the following: (1) ▇▇▇▇ and hold; (2) ▇▇▇▇ and hold
(no MSO issued); (3) top 10 customer concentration; (4) committed but
not received; (5) sales tax, FET and commissions; (6) unissued credits
(invoices short paid); and (7) intercompany accounts.
3. Together with each Monthly Report, the Servicer shall deliver the
following reports, each of which shall be prepared as of the last day of the
previous month and provided 18 days after month end; provided that if (i) an
Incipient Termination Event or a Termination Event shall have occurred and be
continuing or (ii) the Agent, in good faith, believes that an Incipient
Termination Event or a Termination Event is imminent or deems the Agent's rights
or interests (for the benefit of the Purchasers) in the Transferred Receivables
or the Seller Collateral insecure, then such reports shall be delivered for such
periods and as frequently as the Agent shall request:
90
(A) with respect to each of the Originators, a detailed trial
balance showing Receivables outstanding aged from due date as follows:
current, 1 to 30 days, 31 to 60 days, 61 to 90 days and 91 days or
more, accompanied by such supporting detail and documentation as shall
be requested by the Agent in its reasonable discretion; and
(B) with respect to each of the Originators, an aged accounts
payable listing showing total amounts owed to each vendor or supplier,
with contra balances denoted and accompanied by such supporting detail
and documentation as shall be requested by the Agent in its reasonable
discretion; and
(C) with respect to each of the Originators, a Receivables
reconciliation to the general ledger and Financial Statements within 18
days after month end;
(D) with respect to each of the Originators, a Receivables
roll-forward;
(E) such other reports, statements and reconciliations with
respect to the Investment Base or Seller Collateral as the Agent shall
from time to time request in its reasonable discretion, including,
without limitation, the following: (1) ▇▇▇▇ and hold; (2) ▇▇▇▇ and hold
(no MSO issued); (3) top 10 customer concentration; (4) committed but
not received (trailers received, but not accounted for); (5) sales tax,
FET and commissions; (6) unissued credits (invoices short paid); (7)
intercompany accounts; (8) write-offs (trailing twelve months); (9)
warranty claims - cash and credits (trailing twelve months); (10)
buybacks; and (11) accounts receivable due from customers with
guaranteed trade-in value agreements or contracts.
91
Annex X
Definitions
92
