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EXHIBIT 10.34
EXECUTION COPY
RECEIVABLES PURCHASE AGREEMENT
THIS RECEIVABLES PURCHASE AGREEMENT ("Agreement") is dated as of the 22nd
day of October, 1998, by and between APPLIED MATERIALS, INC., a Delaware
corporation ("Seller") and DEUTSCHE FINANCIAL SERVICES CORPORATION, a Nevada
corporation ("Purchaser").
R E C I T A L S
A. Among other things, Seller sells certain manufacturing products and
provides services related thereto in the ordinary course of its business (the
"Products" and the "Services", respectively, or collectively, the "Goods").
B. Seller may sell and Purchaser may purchase from time to time, on the
terms and conditions set forth herein, all of Seller's right, title and interest
in and to payment for the Products sold and Services rendered by Seller to the
Obligors (as defined herein) (such accounts collectively referred to herein as
the "Receivables" or, individually, a "Receivable").
C. Purchaser wishes that Seller act as Purchaser's initial Collection
Agent with respect to Receivables sold by Seller in connection with the
collection of the amounts owing on the Receivables, and wishes to pay the Seller
a Collection Agent Fee, as herein defined, in return for the Seller's services
as Collection Agent.
D. Seller and Purchaser desire to enter into this Agreement to govern the
purchase and sale of the Receivables, the administration and collection thereof,
and related matters.
NOW, THEREFORE, in consideration of the agreements contained herein and
for other good and valuable consideration, the parties hereto mutually agree as
follows:
ARTICLE 1
Definitions
Section 1.1. Definitions.
Except as otherwise specified in this Agreement, all references (i) to any
Person, other than Seller, shall be deemed to include such Person's successors
and assigns, and (ii) to any law, agreement, statute or contract specifically
defined or referred to in this Agreement shall be deemed references to such
agreement, or contract as the same may be supplemented, amended, waived,
consolidated, replaced or modified from time to time, but only to the extent
permitted by, and effected in accordance with, the terms hereof. The words
"herein," "hereof" and "hereunder" and words of similar import, when used in
this Agreement shall refer to this Agreement as a whole and not to any provision
of this Agreement, and "Article," "Section," "paragraph," "Schedule" and
respective references are to this Agreement unless otherwise specified. Whenever
the context so requires, words importing any gender include the other genders.
Any of the terms defined in this Article 1 may, unless
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the context otherwise requires, be used in the singular or the plural depending
on the reference; the singular includes the plural and the plural includes the
singular.
All terms defined in this Article 1 shall have the defined meanings when
used in this Agreement or, except as otherwise expressly stated therein, any
certificate, opinion or other document delivered pursuant to this Agreement.
All accounting terms not otherwise defined in this Article 1 or elsewhere
in this Agreement shall have the meanings assigned them in conformity with GAAP.
All terms used in Article 9 of the UCC and not specifically defined in this
Article 1 or elsewhere in this Agreement shall be defined herein as such terms
are defined in the UCC as in effect in the State of California on the date
hereof.
References to "writing" include printing, typing, lithography and other
means of reproducing words in a tangible visible form. References to "written"
include "printed," "typed," "lithographed" and other adjectives relating to
words reproduced in a tangible visible form consistent with the preceding
sentence including electronic mail. The words "including," "includes" and
"include" shall be deemed to be followed by the words "without limitation."
A/R Limit. As defined in Section 2.1.B.
Balance. As defined in Section 2.1.B.
Billing Date. The date on which an invoice is issued with respect to the
sale of Goods resulting in the creation of a Receivable.
Business Day. Any day on which dealings in currencies and exchange may be
carried on in the interbank eurodollar market, excluding Saturday, Sunday and
any day which is a day on which national banking institutions are authorized or
required by law or other governmental action to close.
Collateral. As defined in Section 5.1.
Collection Agent. A Person that is selected and appointed by Purchaser, in
accordance with Section 3.1, to act on Purchaser's behalf in the administration,
servicing and collection of the Sold Receivables. Such Person may be Seller. The
term "Collection Agent" includes a Successor Collection Agent.
Collection Agent Fee. A fee calculated and payable by Purchaser to Seller
in accordance with the terms of Article 4 hereof.
Collection Settlement Date. With respect to each Funding Date in connection
with the sale of Sold Receivables to Purchaser, the related First Collection
Settlement Date (the 60th day after such Funding Date or if such date is not a
Business Day, the Business Day thereafter), and to the extent the Outstanding
Balances of such Sold Receivables have not been reduced to zero, each succeeding
Business Day.
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Collections. All amounts received by the Collection Agent or Purchaser from
any Obligor as a payment with respect to a Sold Receivable.
Contract. An agreement pursuant to which an Obligor agrees to pay money to
Seller for Products sold or Services rendered by Seller in the ordinary course
of its business.
Credit Adjustment. Any refund, rebate, credit, early pay discount or other
adjustment granted to an Obligor with respect to a Sold Receivable after such
Receivable is sold to Purchaser.
Defaulted Receivable. (i) A Sold Receivable that the Collection Agent
determines in good faith to be uncollectible, or (ii) a Sold Receivable which
remains unpaid, for any reason, including without limitation, set off by the
Obligor (whether in connection with the same or a related transaction or
unrelated transaction) or a bankruptcy proceeding of the Obligor where the
Obligor is the debtor, more than 45 days from the Billing Date.
Discount. With respect to any Sold Receivable, an amount equal to the
product of: (a) the LIBOR Rate (Reserve Adjusted)-Two Month plus ninety-eight
one-hundredths of one percent (0.98%) per annum of the Outstanding Balance of
such Sold Receivable, and (b) 60/365.
Dollars. Lawful money of the United States of America.
Eligible Receivable. Any Receivable which does not otherwise constitute an
Ineligible Receivable.
Eurocurrency Liabilities. Has the meaning specified in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to
time.
Eurocurrency Reserve Percentage. For any Purchase, means the reserve
percentage, if any, applicable two (2) Business Days before the date the
applicable LIBOR Rate is determined under regulations issued from time to time
by the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
emergency, supplemental or other marginal reserve requirement for a member bank
of the Federal Reserve System in New York City) with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference to which
the interest rate on Purchases is determined) having a one-month term for LIBOR
Rate-One Month, and a two-month term, for LIBOR Rate-Two Month.
Event of Default. As defined in Section 12.1.
Facility Termination Date. The earlier of the Termination Date or when
Purchaser terminates this Agreement under Section 12.2.
Federal Bankruptcy Code. The bankruptcy code of the United States of
America codified in Title 11 of the United States Code, as amended.
Financing Statement. The financing statements that are properly filed with
the various Secretaries of State or other jurisdictions to perfect security
interests in any property described by such financing statements.
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First Collection Settlement Date. With respect to each Funding Date that
date which is sixty (60) days after such Funding Date, provided that if such
date is not a Business Day, then the First Collection Settlement Date shall be
the next succeeding Business Day.
Funding Date. The Initial Funding Date, and such other and further dates as
the parties hereto may agree to in writing as of the date on which Purchaser
acquires additional Receivables hereunder.
GAAP. Generally accepted accounting principles set forth in the opinions
and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other
entity as may be approved by a significant segment of the accounting profession,
which are applicable to the circumstances as of the date of determination.
Goods. As defined in the Recitals to this Agreement.
Indemnitees. As defined in Section 10.1.
Ineligible Receivables. Shall mean any of the following, as determined by
Purchaser in its reasonable discretion, at the time of each Purchase hereunder:
(a) Receivables created from the sale of Goods and services not in
accordance with Seller's Payment Terms as described in Exhibit III
attached hereto;
(b) Receivables created from the sale of Goods that allow for payment to
be made more than forty-five (45) days after the Billing Date and/or
Receivables which are unpaid more than forty-five (45) days from the
Billing Date;
(c) all Receivables of an Obligor if fifty percent (50%) or more of the
Outstanding Balance of all such Obligor's Receivables are more than
forty-five (45) days past the applicable due date;
(d) all Receivables of an Obligor if the Outstanding Balance of all Sold
Receivables of such Obligor exceeds either (i) Fifty Million Dollars
($50,000,000.00) (or any other Dollar limitations as may be set forth
on Schedule B hereto, as amended from time to time) or as otherwise
agreed to by Purchaser, or (ii) fifty percent (50%) of the Outstanding
Balance of all Eligible Receivables;
(e) Receivables with respect to which the Obligor is an officer, employee,
agent, parent, Subsidiary or affiliate of Seller or has common
officers or directors with Seller;
(f) Receivables arising out of any consignment sale;
(g) Receivables with respect to which the payment by the Obligor is
conditional, other than as may be required by applicable statute;
(h) Receivables with respect to which the Obligor is not a commercial or
institutional entity;
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(i) Receivables with respect to which Seller is or may become liable to
the Obligor thereof for goods sold or services rendered by such
Obligor to Seller, other than as may be required by applicable
statute;
(j) Receivables with respect to which any warranty or representation
provided in Sections 7.3, 8.4 or 8.8 is not true and correct;
(k) Receivables which represent goods purchased for a personal, family or
household purpose;
(l) Receivables which are progress payment, retention or contra accounts;
(m) Receivables with respect to which the Obligor is in default of any
material provision of any agreement between Seller and Obligor
governing such Receivable, including, without limitation, Receivables
paid with checks returned and marked "Insufficient Funds" and
Receivables which are otherwise in dispute and, in each case, not
resolved within thirty (30) days;
(n) Receivables arising pursuant to documentation not satisfactory to
Purchaser in its sole discretion;
(o) Receivables on which the Obligor is not located in the United States
if such Receivable is not fully secured by foreign credit insurance or
letter of credit, in each case acceptable to Purchaser in its sole
discretion;
(p) Receivables which were not incurred in the ordinary course of Seller's
business;
(q) Receivables which, prior to sale, were not owned by Seller; or
(r) any and all other Receivables which Purchaser deems to be
unacceptable; provided, however, that Receivables of the Obligors
listed on Schedule B hereto which also satisfy paragraphs (c) through
(q) above, shall be deemed acceptable to Purchaser, subject to any
limitations in such Schedule B.
Initial Funding Date. The date that Purchaser makes its initial Purchase of
Receivables, in accordance with Section 2.1, which, unless otherwise agreed to
by the parties in writing, shall be October 23, 1998.
LIBOR Rate-One-Month. Shall mean, for purposes solely of calculation of the
Collection Agent Fee, the London Interbank Offered Rate (LIBOR) for one-month
deposits in U.S. Dollars that appears on Page 3745 of the Bloomberg News Service
(or any other page that may replace any such page on such service in the
reasonable judgment of Purchaser) on the Business Day of any such Collection
Agent Fee payment.
LIBOR Rate-Two Month. Shall mean for any Purchase, the London Interbank
Offered Rate (LIBOR) for two-month deposits in U.S. Dollars that appears on Page
3745 of the Bloomberg News Service (or any other page that may replace any such
page on such service in the reasonable
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judgment of Purchaser) on the third Business Day immediately preceding a Funding
Date.
LIBOR Rate (Reserve Adjusted)-One Month. Shall mean, the rate per annum
obtained by dividing the LIBOR Rate-One Month by a percentage equal to 100%
minus the Eurocurrency Reserve Percentage.
LIBOR Rate (Reserve Adjusted)-Two Month. Shall mean, the rate per annum
obtained by dividing the LIBOR Rate-Two Month by a percentage equal to 100%
minus the Eurocurrency Reserve Percentage.
Lien. A mortgage, pledge, lien, security interest or other charge or
encumbrance of any kind (including without limitation any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest).
Net Purchase Price. With respect to any Eligible Receivable, the total
Outstanding Balance of such Eligible Receivable, minus: (i) the Discount
attributable to such Eligible Receivable, as determined as of the Settlement
Date and (ii) Twenty-Three One Hundredths of One Percent (0.23%) of the total
Outstanding Balance of such Eligible Receivable, as of such Settlement Date.
Notices. All notices, requests, demands and other communications provided
for under this Agreement.
Obligor. Each customer to whom Seller has sold Products or provided
Services and who has agreed to pay money to Seller therefor whether or not
pursuant to a Contract.
Officer's Certificate. A certificate executed on behalf of Seller by its
chief financial officer, treasurer or other authorized officer.
Outstanding Balance. With respect to any Sold Receivable as of any date,
the total outstanding principal balance thereof as of such date.
Outstanding Eligible Receivables. As at any moment, all Eligible
Receivables which are then outstanding (i.e., not yet paid by their respective
Obligors).
Party. Seller or Purchaser, as defined.
Person. Natural persons, corporations, limited partnerships, general
partnerships, joint stock companies, joint ventures, incorporated or
unincorporated associations, companies, limited liability companies, trusts or
other organizations, whether or not legal entities, and governments and agencies
and political subdivisions thereof, or any other entity of any kind.
Prime Rate. The prime rate as published in The Wall Street Journal. The
Prime Rate will change and take effect for purposes of this Agreement on the day
of any change in the prime rate published in The Wall Street Journal.
Products. As defined in the Recitals to this Agreement.
Purchase. A purchase of Receivables made by Purchaser pursuant to Section
2.1.
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Receivables. As defined in the Recitals to this Agreement.
Receivables Purchase Settlement Statement. A statement substantially in the
form of Exhibit II to be executed by Seller and Purchaser, prepared in
accordance with Section 2.1.C and other provisions of this Agreement.
Releases. The termination statements or other documents that are filed with
the various Secretaries of State or other jurisdictions for the purpose of
releasing any security interests that have been filed or perfected through the
filing of one or more Financing Statements.
Request for Information or Copies. The documents that are submitted to the
various Secretaries of State or other jurisdictions for the purpose of
ascertaining whether or not any financing statements, tax liens, judgment liens
or other filings have been filed with respect to some item of property.
Secretary of State. Any Secretary of State, or any person acting in an
official capacity for such person or for other jurisdictions, elected or
appointed, to receive filings of Financing Statements, articles of incorporation
or other documents pertaining to the business structure or operation of any of
the entities referred to in this Agreement.
Services. As defined in the Recitals to this Agreement.
Settlement Date. The first Business Day immediately preceding each Funding
Date, and such other dates as may be agreed to in writing by Seller and
Purchaser.
Sold Receivable. A Receivable purchased by Purchaser until paid in full by
the Obligor.
Status Report. As defined in Section 3.2.B.
Subsidiary. With respect to any Person, any corporation, association or
other business entity of which more than 50% of the total voting power of shares
of common stock or units of ownership or beneficial interest entitled to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person.
Successor Collection Agent. As defined in Section 3.1.C.
Termination Date. As defined in Section 11.1.
UCC. The California Uniform Commercial Code.
ARTICLE 2
Amount and Terms of Purchase Commitments
Section 2.1. Purchase of Receivables.
A. Sale; Effective Date of Sale.
(i) Generally. On each Funding Date, Purchaser shall Purchase the
Eligible Receivables from Seller, in accordance with the terms hereof, that
Purchaser has elected, in its sole discretion, to Purchase.
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Purchaser's decision to make a Purchase hereunder will not be binding until the
funds are actually advanced. A condition of each Purchase on any Funding Date
shall be delivery by Seller of the Receivables Purchase Settlement Statement
required pursuant to Section 2.1.C on the Settlement Date. No Purchase shall
occur after the Facility Termination Date or if Purchaser exercises its rights
under Section 12.2.
(ii) Limitations. Notwithstanding anything herein, Seller shall have no
obligation to sell, and Purchaser shall have no obligation to Purchase, any
Receivables: (1) on any dates other than the Funding Dates, and (2) which fail
to comply with the terms hereof.
B. Purchase; Transfer of Receivables. Each Purchase hereunder shall take
place on the applicable Funding Date, at the office of Purchaser at 0000 Xxxx
Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000-0000, or such other place as may be
mutually agreed upon by Seller and Purchaser. Purchaser shall purchase the
applicable Receivables on any Funding Date for an aggregate purchase price equal
to the Net Purchase Price of the Eligible Receivables reflected on the
Receivables Purchase Settlement Statement prepared in connection with such
Purchase. Seller agrees further that, at all times during the term of this
Agreement, the aggregate cumulative amount of all Net Purchase Prices received
by Seller in respect of the then Outstanding Eligible Receivables, minus all
Collections received thereon (the "Balance"), shall not exceed One Hundred
Million Dollars ($100,000,000.00) (the "A/R Limit"). Title to all Receivables
which are acquired by Purchaser shall pass to Purchaser on the applicable
Funding Date. Each Purchase shall be made without recourse, except as
specifically provided herein.
C. Receivables Purchase Settlement Statements. On each Settlement Date,
Seller shall execute a Receivables Purchase Settlement Statement, dated as of
such date, which, among other things: (i) assigns and transfers to Purchaser,
effective as of the Funding Date, all right, title and interest of Seller in and
to the Sold Receivables described in the schedule attached to such Receivables
Purchase Settlement Statement, free and clear of all security interests, liens,
charges, encumbrances and rights of others, other than the respective Obligor's
interest in the Products and/or Services, as appropriate, relating thereto, (ii)
includes copies of all invoices and a summary of all sales resulting in Sold
Receivables, and a calculation of the Eligible Receivables to be sold, a
schedule of the Sold Receivables, and the Net Purchase Price, and (iii) provides
such other information as Purchaser may reasonably request at least five (5)
days in advance of such Settlement Date for the purpose of effecting the
transactions contemplated hereby.
D. Collateral Assignment. Certain of the Obligors have granted Seller a
Lien on certain of such Obligor's assets as security for the obligations of such
Obligor to Seller. On or prior to each Settlement Date, Seller shall deliver to
Purchaser, assignments of all security agreements, instruments or other
documents pursuant to which such Obligors have granted Seller such a Lien in its
assets.
E. Power of Attorney. Seller hereby grants to Purchaser an irrevocable
power of attorney, with full power of substitution, coupled with an interest, to
take in the name of Seller or in Purchaser's own name all steps necessary or
advisable to (i) whether or not an Event of Default has occurred and is
continuing, endorse and negotiate any writing or other right of any kind held or
owned by Seller or transmitted to or received by Purchaser as payment on account
or otherwise in respect of any Sold Receivables, and (ii) effective upon the
occurrence and during the continuance of any Event of Default, enforce,
foreclose, demand or accelerate on any writing or other right of any kind held
or owned by Seller or transmitted to or received by Purchaser as payment on
account or
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otherwise in respect of any Sold Receivable, and (ii) effective upon the
occurrence and during the continuance of any Event of Default, enforce,
foreclose, demand or accelerate on any writing or other right of any kind held
or owned by Seller or transmitted to or received by Purchaser as payment on
account or otherwise in respect of any Sold Receivable.
ARTICLE 3
Collections; Maintenance of Records;
Disbursements of Collections
Section 3.1. Collection Procedure.
A. Appointment of Seller as Collection Agent. Purchaser hereby appoints
Seller to act as Collection Agent with respect to Sold Receivables and Seller
hereby accepts such appointment until a Successor Collection Agent is appointed
in accordance with the terms hereof.
B. Duties and Standard of Care as Collection Agent.
(1) The Collection Agent will endeavor to collect the amount owing to
Purchaser on each Sold Receivable in accordance with terms hereof, as and when
the same becomes due, at Seller's cost and expense and as agent for Purchaser,
but subject to the right of Purchaser to direct and control such activities in
accordance with the terms hereof.
(2) In performing its functions and duties on behalf of Purchaser as
the Collection Agent, Seller shall exercise the same care that it would exercise
in the collection of Receivables for its own account, in accordance with, among
other things, Seller's current Collection Procedures attached hereto as Exhibit
IV, which standard of care shall not be less than the standard of care prevalent
in the industry in which Seller engages. Collection Agent may amend, from time
to time, its Collection Procedures with the consent of Purchaser, such consent
not to be unreasonably withheld.
(3) The Collection Agent may allow such Credit Adjustments for
Purchaser's account as the Collection Agent may determine in good faith to be
either (i) appropriate to facilitate maximum Collections or (ii) required by
applicable law or any applicable Contract and may receive any Products relating
thereto, subject to Purchaser's aforesaid interests, as may be returned or
rejected by, or repossessed from, the Obligors; provided, however, that any
Credit Adjustment shall be reflected in a Status Report or other writing
delivered by Collection Agent to Purchaser prepared for the period in which the
Credit Adjustment was made, and the amount of any such Credit Adjustment shall
be paid to Purchaser in full, in good funds, on each Collection Settlement Date.
With respect to each Defaulted Receivable, the Collection Agent shall have the
power and authority, on behalf of Purchaser, to take action in accordance with
Seller's standard collection policies (including, in the case of any such
Receivable in respect of which a security interest in Products shall have been
obtained, the repossession and resale of such Products). Purchaser may request,
to the extent reasonable, from time to time information relating to any
Defaulted Receivable. A Collection Agent other than Seller may also make Credit
Adjustments for Purchaser's account with the consent of Purchaser. Any such
Credit Adjustment made pursuant to clause (ii) above by a Collection Agent other
than Seller, shall be treated the same as a Credit Adjustment made by Seller as
Collection Agent, including for purposes of requiring payment or credit by
Seller.
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(4) In the enforcement or collection of any Sold Receivable, the
Collection Agent must obtain Purchaser's prior written consent to name Purchaser
as a party in any legal proceeding; provided, however, that nothing contained
herein shall limit Purchaser's right, exercisable in its sole discretion,
following demand made by Purchaser on Seller and Seller's refusal or inability
to proceed against an Obligor, to xxx or proceed against any Obligor in its own
name at any time upon two (2) days prior written notice to Seller after the 60th
day after the applicable Funding Date. Moreover, notwithstanding the foregoing,
(i) following the occurrence and during the continuance of any Event of Default
after notice to Seller, (ii) if Seller has determined in good faith that a Sold
Receivable is uncollectible, or (iii) if (1) an Obligor becomes insolvent or
becomes subject to the Federal Bankruptcy Code, any state insolvency law or any
similar law, as a debtor, (2) an Obligor makes a general assignment for the
benefit of creditors, or (3) a receiver is appointed for any assets of an
Obligor; no demand by Purchaser on Seller shall be required before Purchaser may
xxx or proceed against any Obligor in its own name.
(5) Purchaser may at any time with contemporaneous notice to Seller,
contact any Obligor utilizing the form of verification letter attached hereto as
Schedule C, for any purpose related to the performance of audits and
verification analyses, and the determination of account balances and other data
maintained by Seller. Except for sending the verification letter to the Obligors
and except as otherwise provided herein, Purchaser shall not contact any Obligor
with respect to the transactions contemplated herein. Purchaser may at any time
following (i) the occurrence and during the continuance of an Event of Default;
or (ii) the termination of Seller as Collection Agent: (a) notify any Obligor of
the purchase by Purchaser of any Sold Receivable hereunder; (b) direct any
Obligor to make all payments in respect of Sold Receivables directly to
Purchaser at an address designated by Purchaser, or to a third party or a bank
or depositary designated by Purchaser; and/or (c) proceed directly against any
Obligor, either with respect to the collection of any Sold Receivable or any
related matter.
(6) All Collections received by the Collections Agent on and prior to
the related First Collection Settlement Date shall be paid on each Tuesday (for
Collections received by the Collection Agent during the immediately preceding
calendar week), directly to the Purchaser as provided in Section 3.3. All
Collections received by the Collections Agent after the related First Collection
Settlement Date, shall be paid within one Business Day directly to the Purchaser
as provided in Section 3.3. On any Collection Settlement Date, Seller shall
remit to Purchaser, for Purchaser's own account, all amounts representing Credit
Adjustments which relate to the Sold Receivables which are applicable to each
such Collection Settlement Date. All payments and all amounts received in
settlement, adjustment or liquidation of any Sold Receivable will be credited by
Purchaser on the Business Day good funds are received by Purchaser. All payments
in respect of Sold Receivables of a particular Obligor shall be applied against
specific items of Sold Receivables as specifically identified in writing by the
Obligor thereon. If an Obligor fails to so specify, then the Collection Agent
shall use its best efforts, including contacting such Obligor, to determine the
appropriate application of the payment.
C. Termination of Appointment. Upon the occurrence and continuance of an
Event of Default or upon termination of this Agreement, Purchaser may at any
time immediately terminate Seller's
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appointment as the Collection Agent by delivery of a notice of such termination
in writing to Seller, provided, however, that if there exists no Event of
Default, Purchaser's termination of Seller as Collection Agent shall be
effective fifteen (15) days after Purchaser's giving of notification thereof to
Seller. Upon the termination of Seller as the Collection Agent, without
limitation, (i) Purchaser, or a financial institution designated by Purchaser
(Purchaser in such capacity or such third party, a "Successor Collection
Agent"), shall administer the administrative, servicing and collection functions
with respect to Purchases from Seller in any commercially reasonable manner and
in accordance with this Agreement; (ii) Purchaser shall, at any time thereafter,
be entitled to notify the Obligors on any Sold Receivables to make payment of
amounts due thereunder directly to Purchaser at an address designated by
Purchaser or to such third party or to a bank or other depositary designated by
Purchaser; and (iii) Seller shall, at its own expense, (a) if so requested by
Purchaser, endorse each instrument, if any, evidencing any Sold Receivable to
Purchaser in such manner as Purchaser shall reasonably direct and (b) perform
any and all acts and execute any and all documents as may be reasonably
requested by Purchaser in order to effect the purposes of this Agreement and the
Purchase of Receivables and to perfect and protect the ownership interest of
Purchaser in the Sold Receivables.
Section 3.2. Records and Reports.
A. Maintenance of Records. Until the earlier of the termination of this
Agreement or until each Sold Receivable has been paid in full, Purchaser shall
have the right (but not the obligation), for the purposes hereunder described,
to enter upon Seller's premises from time to time during normal business hours
following three (3) Business Days notice to Seller (unless an Event of Default
has occurred and is continuing, in which event no advance notice will be
required hereunder, but such entry shall be during normal business hours) during
the term of this Agreement. The purposes for which Purchaser may enter pursuant
to the terms of this Section 3.2 are as follows: (i) to examine Seller's books,
accounts, records or other papers pertaining to Sold Receivables and otherwise
pertaining to the transactions which are the subject of this Agreement, and for
no other purposes; (ii) to examine the Collateral; (iii) to appraise the
Collateral as security; (iv) to verify the condition of the Collateral; (v) to
verify that all Collateral has been properly accounted for; and (vi) to verify
that Seller is in compliance with all terms and provisions of this Agreement;
provided, in all cases, that Purchaser shall have no right to examine any
documents covered by attorney-client privileges or attorney work-product. Any
fees, costs or expenses incurred by Purchaser in connection with such
inspections, audits and examinations as aforesaid, shall be the sole
responsibility of Purchaser (unless an Event of Default has occurred and is
continuing, in which event Seller shall be solely responsible for such fees,
costs and expenses). From time to time upon the reasonable written request of
Purchaser, Seller, at its own expense, will deliver to Purchaser, or any agent
selected by Purchaser (which agent Seller shall have consented to, such consent
not to be unreasonably withheld), as the case may be: (i) a schedule of the Sold
Receivables (or Sold Receivables relating to such Obligors as Purchaser may
specify) sold by Seller to Purchaser indicating as to each such Sold Receivable
information as to the Obligor thereon, the Outstanding Balance thereof, the
location of any Contract evidencing such Sold Receivable and such other
information as Purchaser may reasonably deem appropriate; and (ii) copies of any
such Contract and such records and invoices pertaining thereto and evidence
thereof as Purchaser may reasonably deem necessary to enable Purchaser to
enforce its rights thereunder. At Purchaser's
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request, Seller shall: (a) identify and hold as agent for Purchaser at the
offices of Seller listed in Schedule A hereto (including without limitation for
the purpose of protecting Purchaser's ownership interest therein) all books,
records and documents evidencing or relating to the Sold Receivables, including
any underlying Contracts, and maintain a current record of all Sold Receivables
owned by Purchaser at any time in such reasonable detail and in form and
substance satisfactory to Purchaser; (b) xxxx the legend "Receivables assigned
to Deutsche Financial Services Corporation, under a Receivables Purchase
Agreement, dated as of October 22, 1998" on Seller's aging schedule applicable
to the Sold Receivables, and upon the occurrence of an Event of Default, on such
instruments as Purchaser may from time to time reasonably designate; and/or (c)
maintain and implement administrative and operating procedures (including
without limitation an ability to recreate records evidencing the Sold
Receivables in the event of the destruction of the original records), and keep
and maintain all documents, books, records and other information reasonably
necessary for the collection of the Sold Receivables for Purchaser.
B. Status Reports. Seller shall submit to Purchaser a Status Report on
the dates specified in the immediately following sentence, substantially in the
form of Exhibit V ("Status Report") consisting of information concerning
Collections, Credit Adjustments, and Defaulted Receivables. Seller shall submit
a Status Report to Seller (i) no later than the thirty-fifth (35th) day after a
Funding Date, with respect to the 30-day period which commenced on such Funding
Date, and (ii) no later than two (2) days after a First Collection Settlement
Date, with respect to the 30-day period immediately preceding such First
Collection Settlement Date. The Status Report shall include such other reports
as Purchaser shall reasonably request. If any date for the delivery of a Status
Report is not a Business Day, then such report shall be due on the next
succeeding Business Day.
Section 3.3. Manner and Time of Payments.
A. Payments to Seller. (i) On the Funding Date. With respect to any
Funding Date, so long as Purchaser receives the Receivables Purchase Settlement
Statement by 10:00 a.m., Pacific time, on the related Settlement Date, Purchaser
shall pay the amounts that are payable to Seller hereunder on such Funding Date,
as applicable, in immediately available funds deposited to the account of Seller
listed in Section 13.2 hereof, no later than 2:00 p.m., Pacific time, and
subject to the provisions of any other information reasonably requested by
Purchaser from Seller in connection therewith in effect on or prior to such
date. (ii) Collection Agent Fee. Purchaser's payment of the Collection Agent Fee
to Seller shall be made in immediately available funds deposited to the account
of Seller listed in Section 13.2 hereof, no later than 2:00 p.m., Pacific time,
on the dates and as otherwise provided under the terms of Article 4 hereof.
(iii) Generally. The foregoing notwithstanding, any amounts due Purchaser from
Seller hereunder or in connection herewith, may be deducted by Purchaser from
any amounts owed to Seller, with notice to Seller.
B. Payments to Purchaser. Seller shall pay the amounts that are payable
to Purchaser hereunder, in immediately available funds, deposited to the account
of Purchaser listed in Section 13.2 hereof, no later than 2:00 p.m., Pacific
time, on any Collection Settlement Date, or as otherwise provided, subject to
the provisions of any Status Report, or other information reasonably requested
by Purchaser from Seller in connection therewith in effect on or prior to such
date. In no
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way limiting the foregoing, Seller agrees to pay Purchaser the following:
(i) Delinquent Receivables. If the Outstanding Balance of a Sold
Receivable has not been paid in full on or before the 60th day after the Funding
Date on which the Purchaser purchased such Sold Receivable, then, the Seller
shall pay to the Purchaser an amount equal to the Payment Percentage of the
unpaid Outstanding Balance of such Sold Receivable for each day after such 60th
day that the Outstanding Balance is greater than zero until the earlier of (A)
the date on which the Seller notifies Purchaser that it has determined in good
faith that such Sold Receivable is uncollectible, (B) the date that is the 90th
day after the Funding Date on which the Purchaser purchased such Sold
Receivable, and (C) the date on which the Outstanding Balance is reduced to
zero. Any amount required to be paid under this paragraph shall be paid to the
Purchaser on the immediately following Collection Settlement Date. As used
herein, the "Payment Percentage" is equal to the sum of: (a) the LIBOR Rate
(Reserve Adjusted)-Two Month relating to the Purchase of such Sold Receivables
plus ninety-eight one-hundredths of one percent (0.98%) per annum, divided by
365, plus (b) Twenty-Three One Hundredths of One Percent (0.23%), divided by 60.
Section 3.4. Eurodollar Deposits Unavailable or Rate Unascertainable. (a)
In the event that on or prior to the date the LIBOR Rate-Two Month is
determined, Purchaser shall have determined (which determination shall be
conclusive and binding on the parties hereto) that by reason of circumstances
affecting the interbank eurodollar market, adequate and reasonable means do not
exist for ascertaining the LIBOR Rate-Two Month applicable to a Purchase,
Purchaser shall promptly give notice of such determination to Seller, and any
such Purchase shall be made using a Discount based upon the Prime Rate less the
difference in the per annum interest rate between the Prime Rate (at the date
the LIBOR Rate-Two Month ceased to exist) and the average of the LIBOR Rate-Two
Month over the 30-day period immediately preceding the date the LIBOR Rate-Two
Month ceased to exist. (b) In the event that on or prior to the date the LIBOR
Rate-One Month is determined, Purchaser shall have determined (which
determination shall be conclusive and binding on the parties hereto) that by
reason of circumstances affecting the interbank eurodollar market, adequate and
reasonable means do not exist for ascertaining the LIBOR Rate-One Month
applicable to calculation and payment of the Collection Agent Fee, Purchaser
shall promptly give notice of such determination to Seller, and any such
Collection Agent Fee shall be made based upon the Prime Rate less the difference
in the per annum interest rate between the Prime Rate (at the date the LIBOR
Rate-One Month ceased to exist) and the average of the LIBOR Rate-One Month over
the 30-day period immediately preceding the date the LIBOR Rate-One Month ceased
to exist.
ARTICLE 4
Collection Agent Fee
Section 4.1. Collection Agent Fee. A fee shall be payable by Purchaser to
Seller in its capacity as Collection Agent (the "Collection Agent Fee"), in an
amount equal to the LIBOR Rate (Reserve Adjusted)-One Month on the average daily
balance of the Collections received by Purchaser during the 30-day period
preceding each Collection Agent Fee payment date specified in the immediately
following sentence. The Collection Agent Fee shall be payable, in arrears, on
that date which is thirty (30) days after a Funding Date (provided that if such
date is not a Business Day, then on the next succeeding Business Day), and on
the
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First Collection Settlement Date. In no event, however, shall any Collection
Agent Fee be payable to Seller for Collections relating to the applicable Sold
Receivables received after the related First Collection Settlement Date. The
Collection Agent Fee is to be paid by the Purchaser to the Seller as Collection
Agent in consideration of Seller's agreement to serve as a Collection Agent and
as compensation for such Collection Agent's services. Any amounts due to
Purchaser from Seller hereunder, may be deducted from any Collection Agent Fee
and credited to Purchaser, upon notice to Seller. Following the termination of
Seller as a Collection Agent, Seller shall not continue to earn any Collection
Fees.
ARTICLE 5
Security Interest
Section 5.1. Sale; Grant of Security Interest. The parties hereto intend
that the Purchase by Purchaser of Sold Receivables pursuant to this Agreement
shall constitute a sale under all applicable laws. Notwithstanding such intent,
if for any reason the Sold Receivables are not under applicable law deemed to
have been Purchased by Purchaser, Purchaser shall be deemed to have made a loan
to Seller in the amount of the purchase price paid to Seller, secured by the
following grant of security in Seller's assets. In the event of any such
designation as a loan, all provisions of this Agreement referring to the sale of
the Sold Receivables shall be construed as the context may require as references
to the grant of a security interest in such Receivables. In such regard and in
any event to secure all of Seller's current and future debts to Purchaser under
this Agreement or any side letters entered into between Purchaser and Seller in
connection with this Agreement, whether now or hereafter existing, due or to
become due, direct or indirect, or absolute or contingent, indemnification
obligations pursuant to Section 10.1 and payments on account of Collections
received, Seller hereby assigns and grants to Purchaser a security interest in
all of Seller's right, title and interest now or hereafter existing in, to and
under (i) all Sold Receivables, now owned or hereafter acquired, (ii) all
contract rights, chattel paper, security agreements, instruments, documents of
title, deposit accounts, reserves and general intangibles, now owned or
hereafter acquired, all returned, reclaimed or repossessed inventory and
Products, in each case securing or otherwise supporting such Sold Receivables,
and (iii) all proceeds of any of the foregoing (the "Collateral"). To the extent
so defined, the above assets shall have the same meanings as in Article 9 of the
UCC. Seller will hold all of the Collateral in trust for Purchaser and will
account for and remit directly to Purchaser all such proceeds when payment is
required under terms of this Agreement. Purchaser's lien or security interest
will not be impaired by any payments Seller may make to any other person or
entity. This Agreement shall constitute a security agreement under applicable
law with regard to the security interest granted pursuant to this Section 5.1.
ARTICLE 6
Seller's Affirmative Covenants
Seller covenants and agrees that, unless Purchaser shall otherwise give its
express prior written consent, until the earlier of the termination of this
Agreement or each Sold Receivable has been paid in full, Seller shall comply
with and perform in accordance with all covenants contained in this Article 6.
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Section 6.1. Financial Statements and Other Reports. Seller will maintain a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements of Seller in
conformity with GAAP. Seller will deliver to Purchaser:
A. as soon as available and in any event within 50 days after the end of
each of the first three quarters of each fiscal year of Seller, consolidated
balance sheets of Seller as of the end of such quarter and consolidated
statements of income and of cash flows of Seller for the period commencing at
the end of the previous fiscal year and ending with the end of such quarter,
certified by the Treasurer of Seller; provided that Seller may satisfy this
obligation by filing its Form 10-Q for such fiscal quarter with the Securities
and Exchange Commission;
B. as soon as available and in any event within 105 days after the end of
each fiscal year of Seller a copy of the annual report of such year for Seller
containing consolidated financial statements for such year certified by Seller's
independent public accountants; provided that Seller may satisfy this obligation
by filing its Form 10-K for such fiscal year with the Securities and Exchange
Commission;
C. promptly after the sending or filing thereof, copies of all reports
which Seller sends to its security holders generally, and copies of all
registration statements which Seller files with the Securities and Exchange
Commission or any national securities exchange (other than those on Form S-8);
D. promptly upon any vice president or president of Seller obtaining
knowledge or becoming aware of an occurrence of a breach of Seller's obligations
under this Agreement which would give rise to an Event of Default, an Officer's
Certificate specifying the nature and period of existence of any such breach,
condition or event, or specifying the notice given or action taken by such
holder or Person and the nature of such claimed breach, event or condition, and
what action, if any, Seller has taken, is taking and proposes to take with
respect thereto;
E. thirty (30) days' notice prior to Seller's changing its name or any
name under which it does business or relocating its chief executive offices or
relocating the books, records and documents evidencing the Receivables owned or
to be purchased by Purchaser hereunder;
F. prior to the implementation of any material change in Seller's
policies, procedures or practices with respect to extending credit to its
customers, making Credit Adjustments or collecting amounts owed by customers, in
each case that would affect Sold Receivables, a written description of such
proposed change at least ten (10) days in advance of such change;
G. with reasonable promptness, such other information, reports or
documents concerning the Receivables which are owned or to be purchased by
Purchaser hereunder, the underlying Contracts, or the credit or collection
policies, practices and procedures of Seller, as Purchaser may from time to time
reasonably request; and
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H. such other information respecting the financial condition or
operations of Seller as Purchaser may from time to time reasonably request.
Section 6.2. Corporate Existence, etc. Subject to Section 7.5 hereof,
Seller will at all times preserve and keep in full force and effect its
corporate existence and all material licenses, rights and privileges relating to
Sold Receivables, and qualify and remain qualified as a foreign corporation in
each jurisdiction in which such qualification is necessary to avoid a material
adverse effect on the validity, enforceability and collectibility of Sold
Receivables.
Section 6.3. Compliance with Laws, etc. Seller will comply in all material
respects with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, noncompliance with which would adversely
affect the validity, enforceability or collectibility of Sold Receivables.
Section 6.4. Transfer of Receivables. Seller shall take all steps necessary
or, in the reasonable opinion of Purchaser, advisable to validate or protect the
ownership interest of Purchaser in, or to defeat the assertion by any third
party of any adverse claims with respect to, the Sold Receivables or any
underlying Contracts. If an Event of Default by Seller hereunder has occurred
and is continuing, Seller hereby irrevocably authorizes Purchaser to execute and
deliver, in Seller's name and on Seller's behalf, such instruments and documents
(including bills of sale and assignments) necessary or desirable to evidence or
protect Purchaser's ownership interest in the Sold Receivables. Regardless of
whether an Event of Default by Seller has occurred and is continuing, Seller
hereby irrevocably authorizes Purchaser to execute and file, in Seller's name
and on Seller's behalf, financing statements (including amendments and
continuation statements) under the UCC (or similar law where the UCC is not
enacted) in such jurisdictions where it may be necessary to validate or protect
Purchaser's position as owner of, or, as provided in Section 5.1, secured party
with respect to, such Sold Receivables. Seller shall execute and deliver such
additional documents and shall take such further action as Purchaser may
reasonably request to effect or evidence the transfer of the Sold Receivables
and shall execute and deliver to Purchaser such powers-of-attorney as may be
necessary or appropriate to enable Purchaser to endorse for payment any check,
draft or other instrument delivered in payment of any amount under or in respect
of a Sold Receivable. If, at any time, Seller receives any cash or checks,
drafts or other instruments for the payment of money on account or otherwise in
respect of Sold Receivables, Seller shall segregate such cash and other items,
hold such cash and other items (properly endorsed, where required, so that such
items may be collected by Purchaser) in trust for Purchaser, and promptly paid
directly to Purchaser in accordance with Section 3.1.B(6).
Section 6.5. Assignment of Contracts; Instruments. Seller hereby assigns to
Purchaser all rights of Seller under each Contract underlying a Sold Receivable
relating to the collectibility of payments thereunder, security interests and
other liens created in connection therewith and the enforcement thereof, but
Purchaser does not and shall not thereby assume any obligations of Seller under
any such Contract. Such assignment shall include without limitation security
interests in favor of Seller in any property (including without limitation any
Goods) securing any Sold Receivable, whether pursuant to the contract underlying
such Sold Receivables or otherwise, and all terms and
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conditions of this Agreement shall be deemed applicable to such assigned
security interests generally in the same manner and to the same extent as
applied to the related Sold Receivable. In the event any Sold Receivable
becomes, either at the time of creation of such Sold Receivable or any time
thereafter, evidenced by a promissory note or other document or instrument
(other than a Contract), Seller will promptly endorse and physically deliver
such promissory note, document or instrument to Purchaser.
ARTICLE 7
Seller's Negative Covenants
Until the earlier of the termination of this Agreement or each Sold
Receivable has been paid in full, unless Purchaser shall otherwise give prior
written consent, Seller will perform all covenants contained in this Article 7.
Section 7.1. Character of Business. Seller will make no material change in
its Collection Procedures that would adversely affect the validity,
enforceability or collectibility of the Sold Receivables or materially adversely
affect the ability of Seller to perform its obligations hereunder without the
consent of Purchaser.
Section 7.2. Modification of Contracts. Except as set forth in Section
3.1.B(3), without the prior written consent of Purchaser, Seller will not amend,
modify or waive any term or condition of any Contract underlying any Sold
Receivable, which amendment, modification or waiver would adversely affect the
validity, enforceability or collectibility of such Receivable or adversely
affect Purchaser's right to collect any Sold Receivables.
Section 7.3. Quality of Receivables. Seller will not sell to Purchaser any
Receivable that is not an Eligible Receivable on the date of sale. Seller will
not sell to Purchaser any Receivable, that, on the date of sale : (i) is an
Ineligible Receivable; (ii) is evidenced by a promissory note or other document
or instrument (other than a Contract); (iii) does not conform with applicable
laws, rules or regulations or is based on a Contract that does not conform in
all material respects with applicable laws, rules or regulations; (iv) is a
Defaulted Receivable; (v) is a Receivable with respect to which Seller is
engaged in any dispute or warranty claim or which is subject to any lien, claim,
security interest, offset, counterclaims or defense; (vi) permits the Obligor to
pay less than the Outstanding Balance for any reason other than a Credit
Adjustment; (vii) does not satisfy the requirements of Sections 8.4 and 8.8
hereof in all material respects; or (viii) the Purchase of which by Purchaser,
or the sale of which by Seller, is subject to any order, judgment or decree of
any court, arbitrator or similar tribunal or governmental authority, or is the
subject of any proceedings before any such court, arbitrator or similar tribunal
or government authority purporting to enjoin or restrain Purchaser from making
any Purchase, Seller from selling such Receivable or the Collection Agent or
Purchaser from making any Collection of such Receivables. Purchaser may from
time to time, in its discretion, upon advance written notification to Seller,
withdraw its approval of any or all of the Obligors, including but not limited
to those listed on Schedule B hereto.
Section 7.4. Financial Statements. Seller will not prepare, or permit the
preparation of, any financial statements which shall account for the
transactions contemplated hereby in a manner that is
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inconsistent with Purchaser's ownership interest in the Sold Receivables.
Section 7.5. Restriction on Fundamental Changes. Seller can merge with
another Person if immediately thereafter, giving effect to such merger, no Event
of Default exists and either (i) the Seller survives the merger or (ii) the
successor agrees to be bound by this Agreement.
Section 7.6. Seller's Interest. Seller will not retain any interest in any
Sold Receivable hereunder and each sale of a Sold Receivable hereunder shall be
of all of Seller's right, title and interest in such Sold Receivable.
Section 7.7. Negative Pledge. Seller will not mortgage, pledge, grant or
permit to exist a security interest or Lien caused by it, in or upon any of the
Sold Receivables or the Collateral.
ARTICLE 8
Seller's Representations and Warranties
In order to induce Purchaser to enter into this Agreement and to make the
Purchases, Seller represents and warrants to Purchaser that the following
statements are true, correct and complete in all material respects (except to
the extent such representations and warranties are already qualified as to
materiality in which case they are true, correct and complete) as of the date
hereof and as of the date of each sale of Receivables hereunder (all
representations and warranties concerning Receivables shall be made solely as of
the date of the sale of such Receivables hereunder):
Section 8.1. Organization, Powers and Good Standing.
A. Organization and Powers. Seller is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation. Seller has all requisite corporate power and authority to own and
operate its properties, to carry on its business as such business is now
conducted and as it is proposed to be conducted hereunder, to enter into this
Agreement and to carry out the transactions contemplated hereby, except where
failure to have such licenses and permits would not have a material adverse
effect on the financial condition or assets of Seller.
B. Good Standing. Seller is in good standing wherever necessary to carry
on its present business and operations, except in jurisdictions in which the
failure to be in good standing has and will have no material adverse effect on
the conduct of the business of Seller or any adverse effect on the validity,
enforceability or collectibility of any Sold Receivable.
Section 8.2. Authorization of Sales, etc.
A. Authorization of Sales. The execution, delivery and performance of
this Agreement and the sales of Receivables sold and to be sold to Purchaser
hereunder and the grant of the security interest in the Collateral have been
duly authorized by all necessary corporate action by Seller.
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B. No Conflict. The execution, delivery and performance by Seller of this
Agreement and the sales of Receivables do not and will not: (i) violate any
provision of law applicable to Seller, the Certificate of Incorporation or
Bylaws of Seller, or any order, judgment or decree of any court or other agency
of government binding on Seller; (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under or permit
an acceleration or increased amortization of any material obligation of Seller;
(iii) result in or require the creation or imposition of any Lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of
Seller except as provided herein or pursuant to the terms hereof; or (iv)
require any approval of stockholders or any approval or consent of any Person
under any obligation of Seller or Contract to which Seller is a party other than
approvals or consents that have been obtained and disclosed in writing to
Purchaser.
C. Governmental Consents. The execution, delivery and performance by
Seller of this Agreement and the Purchases of Receivables do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by, any federal, state or other governmental authority or
regulatory body or other Person, other than a filing with certain Secretaries of
State and other jurisdictions evidencing the Purchase of Receivables hereunder,
and no transaction contemplated hereby requires compliance with any bulk sales
act or similar law.
D. Binding Obligation. This Agreement creates and constitutes legal,
valid and binding obligations of Seller, enforceable in accordance with its
terms, except as enforcement may be limited by applicable bankruptcy, insolvency
or similar laws and principles of equity.
Section 8.3. No Material Adverse Change. Since September 9, 1998, there has
been no material adverse change in the business, operations, properties, or
financial position of the Seller and its subsidiaries taken as a whole.
Section 8.4. Protection of Ownership Interest. All filings or other actions
under the UCC have been made or taken in each jurisdiction that are necessary or
appropriate to validate and perfect Purchaser's ownership interest in and rights
to collect any and all Sold Receivables and the proceeds thereof; Purchaser has
a valid and perfected ownership or security interest in the Sold Receivables and
the proceeds thereof, free and clear of all security interests, liens, charges,
encumbrances or rights of others except as otherwise expressly provided herein;
and no effective financing statement or other instrument similar in effect
covering all or any part of the Sold Receivables is currently on file or of
record at any location except as has been filed or recorded from time to time in
favor of Purchaser in accordance with this Agreement.
Section 8.5. Office Locations. As of the date hereof, the chief executive
office of Seller is located at the address of Seller's business office appearing
in Schedule A hereof, and the books, records and documents evidencing the
Receivables to be sold hereunder are located at Seller's business offices
located at the address appearing in Schedule A hereof.
Section 8.6. Taxes, etc. Seller's federal tax identification number is
00-0000000. There is no federal, state or local law or ordinance (other than
income or franchise tax laws applicable to
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Purchaser generally) under which any Receivable which is sold to Purchaser under
this Agreement shall be subjected to any property, excise, sales or other tax,
assessment or governmental charge other than income or franchise taxes of
Purchaser. To the extent any such Receivable is subject to any such tax,
assessment or governmental charge, Seller hereby agrees to pay all such taxes,
assessments and governmental charges.
Section 8.7. Disclosure. No representation or warranty of Seller contained
in this Agreement or any other document, certificate or written statement
furnished to Purchaser by Seller in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits to state any material fact necessary in order to make the statements
contained herein or therein, in the light of the circumstances under which they
were made, not misleading; provided that any projections, proforma or
preliminary financial information furnished are based on good faith estimates
and assumptions believed to be reasonable at the time made and Purchaser
acknowledges that such projections as to future events are not to be viewed as
facts and that actual results for such period may differ from such projected
results. There is no fact known to Seller (other than matters of a general
economic nature) that materially adversely affects the business, operations,
property, assets or condition (financial or otherwise) of Seller and its
Subsidiaries, taken as a whole, that has not been disclosed herein or in such
other documents, certificates and statements furnished to Purchaser for use in
connection with the transactions contemplated hereby.
Section 8.8. Receivables Valid and Binding; No Litigation. Each Receivable
sold to Purchaser hereunder constitutes at the time of sale the legal, valid and
binding obligation of the Obligor to Seller, subject to laws affecting the
rights of creditors generally. Each such Receivable complies at the time of sale
with the provisions of all applicable laws and regulations, whether federal,
state or local, applicable thereto, other than provisions as to which the
failure to comply would not adversely affect the validity, enforceability or
collectibility of the Receivables, and satisfies at the time of sale the
requirements of Section 7.3 hereof in all respects. Each such Receivable is
denominated and payable in Dollars. There are no known counterclaims or rights
of set-off limiting the right of Purchaser to collect the Outstanding Balance,
as adjusted for Credit Adjustments, of each such Receivable. To the best of
Seller's knowledge, there is no order, judgment or decree of any court,
arbitrator or similar tribunal or governmental authority purporting to enjoin or
restrain Purchaser from making any Purchase, Seller from selling any Receivable
or the Collection Agent or Purchaser from making any Collection, or which might
otherwise adversely affect Seller's ability to perform its obligations
hereunder. To the best of Seller's knowledge, there are no proceedings before
any court, arbitrator or similar tribunal or governmental authority seeking to
enjoin or restrain Purchaser from making any Purchase, Seller from selling any
Receivable or the Collection Agent or Purchaser from making any Collection, or
which might otherwise adversely affect Seller's ability to perform its
obligations hereunder.
Section 8.9. Satisfaction of Conditions Precedent. At the time of each
Purchase hereunder, each of the conditions precedent to such Purchase set forth
in Article 9 will have been (i) waived in writing by Purchaser, or (ii)
satisfied.
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ARTICLE 9
Conditions To Purchases
Section 9.1. Conditions to Initial Purchases. The obligation of Purchaser
to make its initial Purchase is, in addition to the conditions precedent
specified in Sections 9.2 and 9.3 hereof, subject to prior or concurrent
satisfaction of the following conditions. On or before the Initial Closing Date,
Seller shall deliver to Purchaser:
A. Good Standing, Etc. Evidence reasonably satisfactory to Purchaser that
Seller is duly organized and existing under the laws of Seller's state of
incorporation and in California;
B. Corporate Resolutions. Resolutions of the Board of Directors of Seller
approving and authorizing the execution, deliver and performance of this
Agreement and the sales of Receivables to be made hereunder, certified as of the
Initial Funding Date by its corporate secretary or an assistant secretary;
C. Signature and Incumbency Certificate. Signature and incumbency
certificates of the officers of Seller executing this Agreement;
D. UCC Searches. A certificate copy of each Request for Information or
Copies (Form UCC-11) (or a similar search report acceptable to Purchaser)
listing the Financing Statements filed with respect to the Collateral (or
similar search reports for jurisdictions where the UCC is not enacted), and
showing that no Financing Statements have been filed with respect to, and
presently cover, such Receivables (except those filed pursuant to this
Agreement); the foregoing notwithstanding, Purchaser hereby confirms that with
respect to the Initial Funding Date, Purchaser shall obtain such searches
required hereunder;
E. Agreement. Executed original of this Agreement;
F. Opinion of Counsel. Executed original of one or more favorable written
opinions of counsel, substantially in the form of Exhibit I hereto, reasonably
satisfactory to Purchaser, dated as of the Initial Funding Date;
G. UCC-1s. Purchaser shall have received from Seller acknowledgment
copies of all Financing Statements (Form UCC-1) filed with respect to the
Collateral in each jurisdiction where necessary or appropriate to perfect
Purchaser's ownership interest in such Collateral (or evidence of the
satisfaction of such similar filing or other requirements as may be so necessary
in each jurisdiction where the UCC is not enacted), Purchaser hereby agreeing
that with respect to the Initial Funding Date, if Purchaser has received duly
executed originals of the Financing Statements required hereunder at least two
(2) days prior to the Initial Funding Date, then the acknowledgment copies of
such filings required hereunder will be acceptable if received by Purchaser no
later than ten (10) Business Days after such Initial Funding Date;
H. Receivables Purchase Settlement Statement. As of the Settlement Date
in respect of the Initial Funding Date, Seller shall deliver the Receivables
Purchase Settlement Statement required by Section 2.1.C;
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I. Subordination Agreements. Subordination agreements in form and
substance acceptable to Purchaser from any and all prior filers with conflicting
security interests in the Collateral; and
J. Other Documents. Such other documents, certificates, submissions,
instruments, and agreements as reasonably requested by Purchaser relating to the
transaction herein contemplated.
Section 9.2. Conditions to All Purchases. The obligation of Purchaser to
make each Purchase, including the initial Purchase, is subject to the following
further conditions precedent:
A. Purchaser shall have received, in accordance with the provisions of
Section 2.1 as of any Settlement Date, an originally executed Receivables
Purchase Settlement Statement relating to such Purchase, signed by the chief
executive officer, the chief financial officer, the treasurer or any other
authorized officer or designee of Seller on behalf of Seller.
B. As of the date of any Purchase:
1. The representations and warranties of Seller contained herein shall be
true, correct and complete in all material respects on and as of the date
of Purchase to the same extent as though made on and as of that date;
2. All Receivables sold by Seller on such date hereunder shall comply in
all material respects with Section 7.3 hereof;
3. No event shall have occurred and be continuing or would result from
the consummation of the Purchase contemplated by such Receivables Purchase
Settlement Statement that would constitute an Event of Default or permit
the acceleration or the increased amortization of the obligations created,
or but for the passage of time or the giving of notice or both would
constitute an Event of Default or permit the acceleration or the increased
amortization of the obligations created, under this Agreement or any other
agreement to which Seller is a party;
4. Seller shall have performed in all material respects all agreements
and satisfied all conditions which this Agreement provides shall be
performed by it on or before such date of Purchase;
5. Seller shall have delivered such other and further Receivables
Purchase Settlement Statements as may be required hereunder;
6. There shall not have occurred and be continuing an Event of Default by
Seller under this Agreement;
7. Seller shall have delivered such other and further UCC-1s, amendments
thereto and Subordination Agreements as Purchaser shall deem reasonably
necessary; and
8. Seller shall have delivered such other documents, certificates,
submissions, instruments, and agreements as reasonably requested by
Purchaser relating to the transaction herein contemplated.
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ARTICLE 10
Indemnities By Seller
Section 10.1. Right to Indemnification. Without prejudice to any other
rights that Purchaser may have hereunder or under applicable law, Seller agrees
to indemnify, pay and hold Purchaser and the employees and agents of Purchaser
(collectively called the "Indemnitees") harmless from and against, any and all
liabilities, obligations, losses, damages (including consequential damages,
except as expressly set forth below), penalties, actions, judgments, suits,
claims, costs and expenses (including without limitation the reasonable fees and
disbursements of counsel for such Indemnitees and reasonable costs of
investigation and accountants) (collectively, "Indemnified Amounts"), which
arise or result from: (i) any breach by Seller of its duties hereunder
individually or as the Collection Agent, in connection with the collection of
Sold Receivables; (ii) any dispute, claim, offset or defense of any Obligor
(other than as a result of the Obligor's bankruptcy or insolvency) to the
payment of any Receivable owned by Purchaser (including without limitation a
defense based on such Receivable or the underlying Contract not being the legal,
valid and binding obligation of such Obligor enforceable against such Obligor in
accordance with its terms), in either case other than as a result of an act or
omission of Purchaser not required or permitted under this Agreement; (iii) any
other claim resulting from the sale of the Products and Services underlying the
Receivable (including without limitation any warranty or product liability
claims); or (iv) any breach by Seller of any of the terms, covenants, conditions
or representations of this Agreement; excluding, in all cases however, (A)
Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of such Indemnitee, (B) consequential, indirect, punitive
or exemplary damages, except such damages which are imposed on the Indemnitee in
favor of any third party in connection with the actions described in (i) through
(iv) above, and (C) recourse for uncollectible Receivables and all income and
franchise taxes on Purchaser; provided, further, that if an arbitrator or court
of competent jurisdiction in a final non-appealable order determines that such
Indemnified Amounts arose in part from such Indemnitee's gross negligence or
willful misconduct, Seller shall reimburse such Indemnitee for the portion of
such claim not resulting from such Indemnitee's gross negligence or willful
misconduct. The obligations of Seller pursuant to this Section 10.1 shall
survive any termination of this Agreement.
Section 10.2. Notification of Potential Liability. Each party will make
good faith efforts to identify potential situations involving possible liability
under this Article 10, and to determine the amount, if any, of such liability or
obligations, and will, upon learning of such potential situations, promptly
advise the other party.
Section 10.3. Litigation. The Seller agrees at its expense, at the
Purchaser's request, to cooperate with the Purchaser in any action, suit or
proceeding brought by or against the Purchaser relating to any of the
transactions contemplated by this Agreement or to any of the Sold Receivables
owned by the Purchaser (other than an action, suit or proceeding by the Seller
against the Purchaser). In addition, the Seller agrees to notify the Purchaser
and the Purchaser agrees to notify the Seller, at the Seller's expense, promptly
upon learning of any pending or threatened action, suit or proceeding if the
judgment or expenses of defending such action, suit or proceeding would be
covered by Section 10.1 and (except for an action, suit or proceeding by the
Seller against the Purchaser) to consult with the Purchaser, concerning
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the defense and prior to settlement; provided, however, that if (i) the Seller
shall have acknowledged that Section 10.1 would cover any judgment or expenses
in any action, suit or proceeding and (ii) in the Purchaser's sole
determination, the Seller has the financial ability to satisfy such judgment or
expenses, then the Seller shall have the right, on the Purchaser's behalf but at
the Seller's expense, to defend such action, suit or proceeding with counsel
selected by the Seller and shall have sole discretion as to whether to litigate,
appeal or enter into an exclusively monetary settlement; and provided further
that (i) the Purchaser's failure to provide any notice pursuant to this Section
10.3 shall not affect the indemnification of any party by the Seller hereunder,
and (ii) the Seller's sole and exclusive remedy in the event of any such failure
to give notice by the Purchaser shall be a separate action against the Purchaser
for damages actually incurred by the Seller as a direct result of the
Purchaser's failure to provide such notice.
Section 10.4. Seller to Remain Obligated. Anything herein to the contrary
notwithstanding: (i) Seller shall remain responsible and liable under the
Contracts to the extent set forth in such Contracts or otherwise to perform all
of its duties and obligations thereunder to the same extent as if the Sold
Receivables applicable to such Contracts had not been sold to Purchaser
hereunder; (ii) the exercise by Purchaser of any of its rights hereunder shall
not release Seller from any of its duties or obligations under such Contracts;
and (iii) Purchaser shall not have any obligation or liability under such
Contracts by reason of the purchase of the applicable Sold Receivables
hereunder, nor shall Purchaser be obligated to perform any of the obligations or
duties of Seller thereunder.
ARTICLE 11
Termination
Section 11.1. Termination. Absent termination of this Agreement pursuant to
Article 12, this Agreement shall continue in full force and effect until the
earlier of the date (i) which is ninety (90) days after written notice from any
Party to the other Party of its election to terminate this Agreement, or (ii) on
which all obligations of Seller to Purchaser and Purchaser to Seller, have been
satisfied in full (the "Termination Date"). Subject to the provisions of Article
12, (i) no termination of this Agreement shall affect any monetary obligations
hereunder of any Party arising prior to the effective date of such termination,
(ii) no termination of this Agreement shall affect the obligation of Seller to
make any payments to Purchaser required hereunder, including but not limited to
payments of Credit Adjustments, (iii) no termination of this Agreement shall
affect any obligations which, specifically by their terms, survive termination
hereof, including but not limited to, Seller's indemnification obligations
hereunder, and (iv) payments of any and all amounts from Obligors with respect
to Sold Receivables (regardless of the existence of any other obligation or
indebtedness of such Obligors then owed to the Seller or any other person or
entity) to the Seller shall continue to be treated as Collections and shall be
applied to repayment of Sold Receivables as set forth herein. Notwithstanding
any such termination, Seller agrees that from time to time thereafter it will
promptly execute and deliver all further instruments and documents, and take all
further actions, that may be necessary or that Purchaser may reasonably request,
in order to perfect, protect or more fully evidence Purchaser's right, title and
interest in and to the Sold Receivables owned by Purchaser hereunder; to enable
Purchaser to exercise or enforce any such rights; to facilitate
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maximum Collections; and/or otherwise to effectuate the intent of the Parties
hereto with respect to the Sold Receivables and Collections.
ARTICLE 12
Events of Default
Section 12.1. Events of Default. Any of the following events will
constitute an Event of Default by Seller under this Agreement:
(a) Except for the breach described in Section 12.1(c) below, Seller
fails to perform any of its obligations contained herein or in any other related
agreements between Seller and Purchaser, and such breach is not cured within
thirty (30) days of Seller's receipt of written notice of such breach from
Purchaser;
(b) any representation, statement, report, or certificate made or
delivered by Seller to Purchaser is not accurate in all material respects when
made (or when deemed made);
(c) Seller fails to pay any of its monetary obligations payable to
Purchaser hereunder or under any other agreements related to this Agreement
within five (5) days of when due and payable;
(d) any event or condition shall occur which results in the
acceleration of the maturity of any debt of Seller or any subsidiary of Seller
to a third party in excess of $50,000,000 or enables (or, with the giving of
notice or lapse of time or both, would enable) the holder of such debt or any
Person acting on such holder's behalf to accelerate the maturity thereof;
(e) final judgments or orders for the payment of money in excess of
$50,000,000 in the aggregate (excluding amounts with respect to which a
financially sound and reputable insurer has admitted liability) shall be
rendered against the Seller or any subsidiary of Seller and such judgments or
orders shall continue unsatisfied or unstayed for a period of thirty (30)
consecutive days;
(f) an attachment, sale or seizure issues or is executed against any
assets of Seller or any subsidiary of Seller; provided, however, that no event
that would otherwise constitute an Event of Default under this Section 12.1(f)
shall be an Event of Default if the total assets of all entities with respect to
which such event has occurred which would otherwise have constituted an Event of
Default under Sections 12.1 (f), (h), or (i) do not exceed $50,000,000 in the
aggregate;
(g) Seller shall cease existence as a corporation, other than as
permitted under Section 7.5 hereof;
(h) Seller or any subsidiary of Seller shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of
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the foregoing; provided, however, that no event that would otherwise constitute
an Event of Default under this Section 12.1(h) shall be an Event of Default if
the total assets of all entities with respect to which such event has occurred
which would otherwise have constituted and Event of Default under Sections 12.1
(f), (h), or (i) do not exceed $50,000,000 in the aggregate; or
(i) an involuntary case or other proceeding shall be commenced
against Seller or any subsidiary of Seller seeking liquidation, reorganization
or other relief with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against Seller or any subsidiary of Seller under the
federal bankruptcy laws as now or hereafter in effect; provided, however, that
no event that would otherwise constitute an Event of Default under this Section
12.1(i) shall be an Event of Default if the total assets of all entities with
respect to which such event has occurred which would otherwise have constituted
and Event of Default under Sections 12.1 (f), (h) or (i) do not exceed
$50,000,000 in the aggregate.
Section 12.2. Remedies. If any Event of Default is not cured within the
period specified above, if any (with respect to Sections 12.1 (h) or (i)
Purchaser may act immediately upon the occurrence of any such Event of Default),
Purchaser may, at any time of its election, without prior notice or demand to
Seller, do any one or more of the following: (i) cease making Purchases
hereunder; (ii) declare the Facility Termination Date to have occurred; (iii)
apply a default charge to Seller's outstanding monetary obligations then due and
payable to Purchaser hereunder equal to the lesser of four percent (4%) per
annum in excess of the Prime Rate, or the highest lawful contract rate of
interest permitted by applicable law; provided, however, that such default
charge shall accrue only during the continuance of an Event of Default or until
payment of such monetary obligation and only be applicable to (A) Collections
which Seller has failed to pay to Purchaser in accordance with the terms hereof
after the applicable First Collection Settlement Date, and (B) Credit
Adjustments, any delinquent Receivables payments described in Section 3.3.B(i)
hereof, and any other obligations payable by Seller to Purchaser hereunder or
under any other related agreements, which Seller has failed to pay to Purchaser
when due (other than any indemnification obligations), or (iv) exercise any or
all rights under applicable law. All Purchaser's rights and remedies are
cumulative. The Purchaser's failure to exercise any of its rights or remedies
hereunder will not waive any of its rights or remedies as to any past, current
or future Event of Default.
ARTICLE 13
Miscellaneous
Section 13.1. Costs, Expenses and Taxes. Seller shall pay on demand all
costs and expenses incurred by Purchaser in connection with enforcement of this
Agreement and the other documents to be delivered hereunder, including
accountants' and attorneys' fees and expenses. The obligations of Seller under
this Section 13.1 shall survive the termination of this Agreement.
Section 13.2. Addresses. All Notices provided for hereunder shall be in
writing (including facsimile transmissions or telegraphic or
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telex communications) and mailed (return receipt requested), telecopied,
telegraphed, telexed or delivered, as appropriate, to each party at the address
set forth as follows or at such other address as the party affected may
designate in a written notice to the other parties hereto complying as to
delivery with the terms of this Article 13. All such Notices and fund transfers
shall be effective when received.
If Notice to Purchaser:
Deutsche Financial Services Corporation
0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: Regional Vice President
Facsimile No.: (000) 000-0000
With a copy to:
Deutsche Financial Services Corporation
000 Xxxxxxxxx Xxxxxx Xxxxx
Xx. Xxxxx, XX 00000-0000
Attention: General Counsel
Facsimile No.: (000) 000-0000
If Notice to Seller:
Applied Materials, Inc.
0000 Xxxxxx Xxxxxx, X/X 0000
Xxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxx, Assistant Treasurer
Facsimile No.: (000) 000-0000
With a copy to:
Applied Materials, Inc.
0000 Xxxxxx Xxxxxx, X/X 0000
Xxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxx, Managing Director, Legal Affairs
Facsimile No.: (000) 000-0000
All funds transfers shall be made as follows:
If funds transfer to Purchaser:
Bank: Chase Manhattan Bank, New York
ABA Routing No.: 000000000
Account No.: 9102734903
Reference: Deutsche Financial Services
If funds transfer to Seller:
Bank: Mellon Bank, Pittsburgh, PA
ABA Routing No.: 000000000
Account No.: 020-8830
Reference: Applied Materials Inc.
Section 13.3. Further Cooperation. Seller agrees that from time to time, at
its expense, it will promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or that Purchaser
may reasonably request, in order to
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perfect, protect or more fully evidence Purchaser's right, title and interest in
and to the Sold Receivables owned by Purchaser hereunder or to enable Purchaser
to exercise or enforce any such rights. Purchaser will promptly execute and
deliver any release or termination statement required under the UCC when this
Agreement shall have terminated and all Sold Receivables shall have either been
collected in full or otherwise discharged in a manner reasonably satisfactory to
Purchaser.
Section 13.4. Severability. In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction,
shall, to the extent permitted by law, not in any way be affected or impaired
thereby.
Section 13.5. Amendments and Waivers. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by Seller or Purchaser
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Seller and Purchaser, and then such waiver or consent shall be
effective only in the specified instance and for the specific purpose for which
given.
Section 13.6. Cumulative Rights. All rights and remedies of the parties
hereto under this Agreement shall, except as otherwise specifically provided
herein, be cumulative and nonexclusive of any rights and remedies which they may
have under any other agreement or instrument, by operation of law, or otherwise.
Section 13.7. Effectiveness. This Agreement shall become effective when it
shall have been executed and delivered by all parties hereto and thereafter
shall be binding upon and inure to the benefit of Seller and Purchaser and their
respective successors and assigns, except that neither party shall have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the other party, which consent may in the discretion of such
other party be withheld; provided, however, that Purchaser may participate any
of its interest in this Agreement and the Sold Receivables to a third party,
with the consent of Seller if no Event of Default exists and no consent of
Seller but with notice to Seller if an Event of Default exists.
Section 13.8. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same Agreement.
Section 13.9. Confidentiality. The Purchaser and the Seller each shall hold
all non-public information obtained pursuant to this Agreement and the
transactions contemplated hereby or effected in connection herewith
confidential. Purchaser may make disclosure reasonably required by any bona fide
transferee or prospective transferee in connection with the contemplated
transfer of any Sold Receivable or participation in this Agreement by the
Purchaser so long as such Person signs a confidentiality agreement. Either Party
may disclose confidential information as required by law or as requested by any
governmental agency or representative thereof or pursuant to legal process;
provided that, unless specifically prohibited by applicable law or court order,
each party hereto shall notify the other parties hereto of any request by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the
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financial condition of the Purchaser by such governmental agency) for disclosure
of any such non-public information prior to disclosure of such information to
permit the party affected to contest such disclosure, if possible; provided
further that in no event shall the Purchaser be obligated or required to return
any materials furnished by the Seller.
Section 13.10. No Affiliation. Purchaser and Seller each hereby represents
and warrants that neither Purchaser nor Seller is under common control or
ownership with the other. Neither Seller nor Purchaser shall have any right or
authority to bind the other or create any obligation or responsibility, express
or implied, on behalf of the other, or in the other's name, except as may be
herein expressly permitted. Nothing stated in this Agreement shall be construed
as constituting Seller and Purchaser as partners or joint venturers, or as
creating the relationship of employer and employee, master and servant,
franchisor and franchisee, or principal and, except for Seller being Collection
Agent, agent between Seller and Purchaser.
Section 13.11. List of Schedules and Exhibits. The following Schedules and
Exhibits are attached to this Agreement and are incorporated herein by this
reference:
Schedule A - Seller's Chief Executive Offices
Schedule B - Acceptable Obligors
Schedule C - Form of Receivable Verification Letter
Exhibit I - Forms of Opinions of Counsel
Exhibit II - Form of Receivables Purchase Settlement
Statement
Exhibit III - Seller's Payment Terms
Exhibit IV - Seller's Collection Procedures
Exhibit V - Form of Monthly Status Report
Section 13.12. Limitation on Damages. Except as may be expressly provided
for in this Agreement or any other agreement between them, neither Purchaser nor
Seller shall be liable to the other for exemplary, consequential or punitive
damages.
Section 13.13. Jurisdiction; Jury Trial Waiver, Etc. ANY LEGAL PROCEEDING
WITH RESPECT TO ANY DISPUTE OR OTHER MATTER ARISING OUT OF OR IN ANY WAY RELATED
TO THIS AGREEMENT OR THE DOCUMENTS INSTRUMENTS OR AGREEMENTS RELATED HERETO WILL
BE TRIED IN A COURT OF COMPETENT JURISDICTION LOCATED IN SANTA XXXXX COUNTY,
CALIFORNIA, BY A JUDGE WITHOUT A JURY. SELLER AND PURCHASER WAIVE ANY RIGHT TO A
JURY TRIAL IN ANY SUCH PROCEEDING. SELLER AND PURCHASER FURTHER WAIVE ANY RIGHT
TO CLAIM ANY EXEMPLARY OR PUNITIVE DAMAGES IN ANY SUCH PROCEEDING.
Section 14. GOVERNING LAW. Purchaser and Seller acknowledge and agree that
this and all other agreements between Purchaser and Seller have been
substantially negotiated, and will be substantially performed, in the state of
California. Accordingly, Purchaser and Seller agree that this Agreement and all
matters relating hereto shall be governed by and construed in accordance with
the laws of the State of California.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement by their officers thereunto duly authorized as of the date first above
written.
THIS AGREEMENT CONTAINS JURY WAIVER AND PUNITIVE DAMAGES WAIVER PROVISIONS.
APPLIED MATERIALS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
Title: Vice President, Global
Finance and Treasurer
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
DEUTSCHE FINANCIAL SERVICES CORPORATION
By:/s/ Xxxxxx X. XxxXxxxxxx
------------------------------------
Xxxxxx X. XxxXxxxxxx
Title: Director of Operations
31
SCHEDULE A
CHIEF EXECUTIVE OFFICES
Applied Materials, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
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SCHEDULE B
ACCEPTABLE OBLIGORS
The following Obligors shall be deemed acceptable, subject in all events
to the terms of the Agreement and subject further to the maximum Outstanding
Balance limitation set forth opposite such Obligor's name, which additionally
are subject, in all events to the A/R Limit:
OBLIGOR MAXIMUM
OUTSTANDING
BALANCE LIMITATION
--------------------------------------------------------------------------------
1. Advanced Micro Devices, Inc. $ 2,198,944.17
2. International Business Machines Corporation $ 4,277,575.10
3. Intel Corporation $ 2,410,000.00
4. Lucent Technologies, Inc. $13,947,867.70
5. Motorola Corp. $ 8,532,489.68
6. National Semiconductor $ 4,772,451.80
7. Rockwell International $ 1,164,709.31
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SCHEDULE C
FORM OF RECEIVABLE VERIFICATION LETTER
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EXHIBIT I
FORMS OF OPINIONS OF COUNSEL
34
35
EXHIBIT II
FORM OF RECEIVABLES PURCHASE SETTLEMENT STATEMENT
35
36
EXHIBIT III
SELLER'S PAYMENT TERMS
36
37
EXHIBIT IV
SELLER'S COLLECTION PROCEDURES
37
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EXHIBIT V
FORM OF MONTHLY STATUS REPORT
(SELLER TO SUPPLY)
38
