RECEIVABLES PURCHASE AGREEMENT
Exhibit
10.2
Dated
as
of July 25, 2007
Among
XXXX
FUNDING COMPANY LLC
as
the
Seller
and
CAFCO,
LLC
and
VARIABLE
FUNDING CAPITAL COMPANY LLC
as
the
Investors
and
CITIBANK,
N.A.
and
WACHOVIA
BANK, NATIONAL ASSOCIATION
as
Banks
and
CITICORP
NORTH AMERICA, INC.
as
the
Program Agent
and
CITICORP
NORTH AMERICA, INC.
and
WACHOVIA
BANK, NATIONAL ASSOCIATION
as
Investor Agents
and
XXXX
CORPORATION
as
Collection Agent
Page
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Page
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-iii-
SCHEDULES
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SCHEDULE
I
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-
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Lock-Boxes/Deposit
Accounts
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SCHEDULE
II
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-
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Credit
and Collection Policy
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SCHEDULE
III
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-
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Addresses
|
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SCHEDULE
IV
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-
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Seller
UCC Information
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SCHEDULE
V
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-
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Special
Concentration Limits
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SCHEDULE
VI
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-
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Originators
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ANNEX
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ANNEX
A-1
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-
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Form
of Monthly Report
|
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ANNEX
A-2
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-
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Form
of Weekly Report
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ANNEX
B
|
-
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Form
of Deposit Account Agreement
|
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ANNEX
C-1
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-
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Form
of Opinion of Cravath, Swaine & Xxxxx LLP
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ANNEX
C-2
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-
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Form
of Opinion of Xxxxxxxx, Xxxxxx & Finger, P.A.
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ANNEX
C-3
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-
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Form
of Opinion of General Counsel of the Parent
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ANNEX
C-4
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-
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Form
of Opinion of Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP
|
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ANNEX
C-5
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-
|
Form
of Opinion of Hunton & Xxxxxxxx LLP
|
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ANNEX
C-6
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-
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Form
of Opinion of Xxxxxxxx, Loop & Xxxxxxxx, LLP
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|
ANNEX
C-7
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-
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Form
of Opinion of Blake, Xxxxxxx & Xxxxxxx LLP
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ANNEX
D
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-
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Form
of Assignment and Acceptance
|
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ANNEX
E
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-
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Form
of Funds Transfer Letter
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ANNEX
F
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-
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Form
of Parent Undertaking
|
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ANNEX
G
|
-
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Form
of Collateral Advance Account Agreement
|
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ANNEX
H
|
-
|
Form
of Letter of Credit Request
|
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ANNEX
I
|
-
|
Form
of Purchase Request
|
-iv-
RECEIVABLES
PURCHASE
AGREEMENT
Dated
as
of July 25, 2007
XXXX
FUNDING COMPANY LLC, a Delaware limited liability company (the “Seller”),
CAFCO, LLC, a Delaware limited liability company, as an Investor (as defined
herein), VARIABLE FUNDING CAPITAL COMPANY LLC, a Delaware limited liability
company, as an Investor, CITIBANK, N.A., as a Bank (as defined herein), WACHOVIA
BANK, NATIONAL ASSOCIATION, as a Bank, WACHOVIA BANK, NATIONAL ASSOCIATION,
as
an Investor Agent (as defined herein), CITICORP NORTH AMERICA, INC., a Delaware
corporation (“CNAI”), as program agent (the “Program Agent”) for
the Investors and the Banks and as an Investor Agent, and XXXX CORPORATION,
a
Virginia corporation, as Collection Agent, agree as follows:
PRELIMINARY
STATEMENT. The Seller has acquired, and may continue to acquire, Receivables
from the Originators (as hereinafter defined), either by purchase or by
contribution to the capital of the Seller, as determined from time to time
by
the Seller and the Originators. The Seller is prepared to sell undivided
fractional ownership interests (referred to herein as “Receivable
Interests”) in the Receivables. The Investors may, in their respective sole
discretion, purchase such Receivable Interests, and the Banks are prepared
to
purchase such Receivable Interests on a committed basis, in each case on the
terms set forth herein. Accordingly, the parties agree as follows:
DEFINITIONS
SECTION
1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
“Adjusted
Eurodollar Rate” means, for any Fixed Period, an interest rate per annum
equal to the rate per annum obtained by dividing (i) the Eurodollar Rate for
such Fixed Period by (ii) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Fixed Period.
“Adverse
Claim” means a lien, security interest or other charge or encumbrance, or
any other type of preferential arrangement.
“Affected
Person” has the meaning specified in Section 2.08(a).
“Affiliate”
means, as to any Person, any other Person that, directly or indirectly, is
in
control of, is controlled by or is under common control with such Person or
is a
director or officer of such Person.
“Affiliated
Obligor” means any Obligor that is an Affiliate of another
Obligor.
“Agent”
means any of the Program Agent or any Investor Agent and “Agents” means,
collectively, the Program Agent and the Investor Agents.
“Agent
Fee Agreement” means the fee agreement of even date between the Seller and
the Program Agent with respect to certain fees to be paid by the Seller to
the
Program Agent in connection with this Agreement and the transactions
contemplated hereby, as the same may be amended or restated from time to
time.
“Aggregate
Loss and Dilution Reserve” means, on any date, an amount equal to the
product of (a) the Aggregate Loss and Dilution Reserve Percentage on such date
multiplied by (b) the Net Receivables Pool Balance on such date.
“Aggregate
Loss and Dilution Reserve Percentage” means, as of any date, the greater of
(a) the sum of (i) the Dynamic Loss Reserve Percentage as of such date plus
(ii)
the Dynamic Dilution Reserve Percentage as of such date and (b) the sum of
(i)
the Loss Reserve Floor Percentage as of such date plus (ii) the Dilution Reserve
Floor Percentage as of such date.
“Alternate
Base Rate” means a fluctuating interest rate per annum as shall be in effect
from time to time, which rate shall be at all times equal to the highest
of:
(a) the
rate of interest announced publicly by Citibank in New York, New York, from
time
to time as Citibank’s base rate;
(b) 1/2
of one percent above the latest three-week moving average of secondary market
morning offering rates in the United States for three-month certificates of
deposit of major United States money market banks, such three-week moving
average being determined weekly on each Monday (or, if such day is not a
Business Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis of such rates reported
by
certificate of deposit dealers to and published by the Federal Reserve Bank
of
New York or, if such publication shall be suspended or terminated, on the basis
of quotations for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected by Citibank,
in
either case adjusted to the nearest 1/4 of one percent or, if there is no
nearest 1/4 of one percent, to the next higher 1/4 of one percent;
and
(c) the
Federal Funds Rate.
“Amortization
Date” means the earliest day on which a Termination Date has occurred for
all outstanding Receivable Interests.
“Applicable
Margin” means, at any time, 1.25% per annum.
“Asset
Purchase Agreement” means (a) in the case of any Bank other than Citibank
and Wachovia, the asset purchase agreement or other similar liquidity agreement
entered into by such Bank concurrently with the Assignment and Acceptance
pursuant to which it became party to this Agreement and (b) in the case of
Citibank and Wachovia, the secondary market agreement, asset purchase agreement
or other similar liquidity agreement entered into by such Bank for the benefit
of its respective Investor, to the extent relating to the sale or transfer
of
interests in Receivable Interests, in each case as amended or modified from
time
to time.
“Assignee
Rate” for any Fixed Period for any Receivable Interest means an interest
rate per annum equal to the Eurodollar Rate for such Fixed Period plus the
Applicable Margin; provided, however, that in case
of:
(i) any
Fixed Period on or prior to the first day of which an Investor or Bank shall
have notified the Program Agent and each Investor Agent that the introduction
of
or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that
it is
unlawful, for such Investor or Bank to fund such Receivable Interest at the
Assignee Rate set forth above (and such Investor or Bank shall not have
subsequently notified the Program Agent and each Investor Agent that such
circumstances no longer exist),
(ii) any
Fixed Period of one to (and including) 29 days (it being understood and agreed
that this clause (ii) shall not be applicable to a Fixed Period for which Yield
is to be computed by reference to the Eurodollar Rate that is intended to have
a
one-month duration but due solely to LIBOR interest period convention the
duration thereof will be less than 30 days),
(iii) any
Fixed Period as to which the Program Agent and each Investor Agent does not
receive notice, by no later than 12:00 noon (New York City time) on the third
Business Day preceding the first day of such Fixed Period, that the related
Receivable Interest will not be funded by CAFCO and VFCC through the issuance
of
Promissory Notes or commercial paper, as the case may be, or
(iv) any
Fixed Period for a Receivable Interest the aggregate Capital of which allocated
to the Investors or the Banks is less than $500,000,
the
“Assignee Rate” for such Fixed Period shall be an interest rate per annum
equal to the Alternate Base Rate in effect from time to time during such Fixed
Period plus the Applicable Margin; provided, further that at any
time when an Event of Termination shall exist, the “Assignee Rate” for
such Fixed Period shall be an interest rate per annum equal to the Alternate
Base Rate in effect from time to time during such Fixed Period plus the
Applicable Margin plus 2%; provided even further that the
Agents and the Seller may agree in writing from time to time upon a different
“Assignee Rate”.
“Assignment
and Acceptance” means an assignment and acceptance agreement entered into by
a Bank, an Eligible Assignee, such Bank’s Investor Agent and the Program Agent,
pursuant to which such Eligible Assignee may become a party to this Agreement,
in substantially the form of Annex D hereto.
“Bank
Commitment” of any Bank means, (a) with respect to Citibank, $125,000,000 or
such amount as reduced or increased by any Assignment and Acceptance entered
into among Citibank, another Bank, the Investor Agent for Citibank and the
Program Agent, (b) with respect to Wachovia, $125,000,000 or such amount as
reduced or increased by any Assignment and Acceptance entered into among
Wachovia, another Bank, the Investor Agent for Wachovia and the Program Agent
or
(c) with respect to a Bank (other than Citibank or Wachovia) that has entered
into an Assignment and Acceptance, the amount set forth therein as such Bank’s
Bank Commitment, in each case as such amount may be reduced or increased by
an
Assignment and Acceptance entered into among such Bank, an Eligible Assignee,
the Investor Agent for such Bank and the Program Agent, and as may be further
reduced (or terminated) pursuant to the next sentence. Any reduction (or
termination) of the Purchase Limit pursuant to the terms of this Agreement
shall
reduce ratably (or terminate) each Bank’s Bank Commitment.
“Banks”
means Citibank, Wachovia and each Eligible Assignee that shall become a party
to
this Agreement pursuant to Section 11.03.
“Business
Day” means any day on which (i) banks are not authorized or required to
close in New York City or the State of Missouri, and (ii) if this definition
of
“Business Day” is utilized in connection with the Eurodollar Rate, dealings are
carried out in the London interbank market.
“CAFCO”
means CAFCO, LLC and any successor or assign of CAFCO that is a receivables
investment company which in the ordinary course of its business issues
commercial paper or other securities to fund its acquisition and maintenance
of
receivables.
“CAFCO
Group” means the Group for which CAFCO is the Investor.
“Canada-U.S.
Convention” means the Canada-United States Income Tax Convention (1980), as
amended, modified or replaced from time to time.
“Canadian
Dollars” means dollars in the lawful currency of Canada.
“Canadian
Receivable” means any Receivable, the Obligor of which has a billing address
in Canada.
“Capital”
of any Receivable Interest means the original amount paid to the Seller for
such
Receivable Interest at the time of its purchase by an Investor or a Bank
pursuant to this Agreement or, in the case of an L/C Receivable Interest, the
amount determined pursuant to Section 2.18(c), or such amount divided or
combined in accordance with Section 2.07, in each case reduced from time to
time
by Collections distributed on account of such Capital pursuant to Section
2.04(d) or, in the case of an L/C Receivable Interest, reduced as provided
in
Section 2.18(g) or 2.18(l); provided that if such Capital shall have been
reduced by any distribution and thereafter all or a portion of such distribution
is rescinded or must otherwise be returned for any reason, such Capital shall
be
increased by the amount of such rescinded or returned distribution, as though
it
had not been made.
“Cash
Secured Advance” means, in respect of any Bank, without duplication, the
aggregate amount of the proceeds (a) (i) of the advance, if any, made by
such
Bank pursuant to Section 2.01(d) and (ii) of such Bank’s Ratable Share of any
applications of Collections of Receivables during the Term Period for such
Bank’s Group to reduce the “Capital” in respect of the Receivable
Interest hereunder and (b) on deposit at such time in the Collateral Advance
Account (including any such proceeds invested by the Program Agent at such
time
in Eligible Investments pursuant to Section 6.07(c)), it being understood
that
the amount of such Bank’s Cash Secured Advance shall be decreased by such Bank’s
Ratable Share of the funds paid from time to time from the Collateral Advance
Account to the Seller to make a purchase of a Receivable Interest from time
to
time during the Term Period for such Bank’s Group.
“Cash
Secured Advance Commencement Date” means, with respect to any Group, the
same day as the Term-Out Bank Purchase Date for such Group, provided that
the Cash Secured Advance Commencement Date shall occur if, but only if, the
Facility Termination Date shall not have occurred on or prior to such date
and
no Incipient Event of Termination or Event of Termination exists on such
date.
“Change
in Law” has the meaning specified in Section 2.08(c).
“Change
of Control Date” means (A) the first day on which any person, or group of
related persons, has beneficial ownership of more than 33 1/3% of the
outstanding voting stock of the Parent or (B) the date immediately following
the
first date on which the members of the board of directors of the Parent (the
“Board”) at the commencement of any period of 730 consecutive days
(together with any other directors whose appointment or election by the Board
or
whose nomination for election by the stockholders of the Parent was approved
by
a vote of at least a majority of the directors then in office who either were
directors at the beginning of such period or whose appointment or election
or
nomination for election was previously so approved) shall cease to constitute
a
majority of the Board at the end of such period; provided,
however, that a Change of Control Date shall not be deemed to have
occurred under clause (A) hereof if (x) the Parent shall have merged or disposed
of a portion of its assets in compliance with the requirements of subsection
5.02(c) of the Credit Agreement within 10 days after the acquisition of such
beneficial ownership shall have occurred and (y) no person or group of related
persons shall have beneficial ownership of more than 33 1/3% of the outstanding
voting stock of the Parent after such merger or disposition. For the purposes
of
this definition, the term “voting stock” shall mean stock of any class or
classes (however designated) having ordinary voting power for the election
of a
majority of the directors of the Parent other than stock having such power
only
by reason of a contingency.
“Citibank”
means Citibank, N.A., a national banking association.
“CNAI”
has the meaning specified in the introductory paragraph hereof.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Collateral
Advance Account” has the meaning specified in Section 6.07(a).
“Collateral
Advance Account Agreement” means an agreement among the Seller, the Program
Agent and the Collateral Advance Account Bank in substantially the form of
Annex G.
“Collateral
Advance Account Bank” has the meaning specified in
Section 6.07(a).
“Collateral
Advance Account Direction” has the meaning specified in
Section 6.07(b).
“Collection
Agent” means at any time the Person then authorized pursuant to Section 6.01
to administer and collect Pool Receivables.
“Collection
Agent Default” means the occurrence of any of the following:
(a) The
Collection Agent (i) shall fail to perform or observe any term, covenant or
agreement under this Agreement (other than as referred to in clause (ii), (iii),
(iv) or (v) of this subsection (a)) and such failure shall remain unremedied
for
30 days after the earlier of the Collection Agent’s actual knowledge thereof or
written notice thereof to the Collection Agent from the Program Agent or any
Investor Agent, (ii) shall fail to make when due any payment or deposit in
respect of Capital to be made by it under this Agreement, (iii) shall fail
to
make when due any payment or deposit of Yield, Fees or any other amounts (other
than in respect of Capital) to be made by it under this Agreement and such
failure shall remain unremedied for five days after the earlier of the
Collection Agent’s actual knowledge thereof or written notice to the Collection
Agent from the Program Agent or any Investor Agent, (iv) shall fail to deliver
any Seller Report when required or (v) shall fail to comply with Section
6.05(b); or
(b) Any
representation or warranty made or deemed made by the Collection Agent (or
any
of its officers) under or in connection with this Agreement or any other
Transaction Document or any information or report delivered by the Collection
Agent pursuant to this Agreement or any other Transaction Document shall prove
to have been incorrect or untrue in any material respect when made or deemed
made or delivered; or
(c) The
Collection Agent shall generally not pay its debts as such debts become due,
or
shall admit in writing its inability to pay its debts generally, or shall make
a
general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Collection Agent seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief
of
debtors, or seeking the entry of an order for relief or the appointment of
a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial part of its property)
shall occur; or the Collection Agent shall take any corporate or other action
to
authorize any of the actions set forth above in this clause (c); or
(d) The
Collection Agent shall fail to pay any principal of or premium or interest
on
any of its Debt which is outstanding in a principal amount of at least
$25,000,000 in the aggregate when the same becomes due and payable (whether
by
scheduled maturity, required prepayment, acceleration, demand or otherwise),
and
such failure shall continue after the applicable grace period, if any, specified
in the agreement or instrument relating to such Debt; or any other event
shall
occur or condition shall exist under any agreement or instrument relating
to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is that the maturity of such Debt is accelerated; or any such Debt
shall be declared to be due and payable, or required to be prepaid (other
than
by a regularly scheduled required prepayment), redeemed, purchased or defeased,
or an offer to repay, redeem, purchase or defease such Debt shall be required
to
be made, in each case prior to the stated maturity thereof;
or
(e) (i)
There shall have occurred any event which could reasonably be expected to
materially adversely affect the ability of the Collection Agent to collect
Pool
Receivables or otherwise perform its obligations under this Agreement and the
other Transaction Documents (it being understood and agreed that no such
material adverse effect shall arise solely as a result of a material adverse
change in the financial condition of the Collection Agent if such material
adverse change in the financial condition of the Collection Agent does not
otherwise trigger this clause (e)) or (ii) any provision of any Transaction
Document applicable to the Collection Agent shall cease to be effective and
valid and binding on the Collection Agent or the Collection Agent shall so
state
in writing; or
(f) One
or more judgments for the payment of money in an aggregate amount in excess
of
$25,000,000 (except to the extent covered by insurance as to which the insurer
has acknowledged such coverage in writing) shall be rendered against the
Collection Agent or any of its Subsidiaries or a combination thereof, and the
same shall remain undischarged for a period of 60 consecutive days during which
execution shall not be effectively stayed, or any action shall be taken by
a
judgment creditor to attach or levy upon any assets of the Collection Agent
or
any of its Subsidiaries to enforce any such judgment; or
(g) The
Collection Agent (if the Parent) shall fail to perform or observe any financial
covenant contained in the Credit Agreement (which, as of the date of this
Agreement consist of the consolidated leverage ratio and consolidated interest
coverage ratio contained in Sections 5.01(b) and 5.01(c) of the Credit
Agreement); or
(h) The
Collection Agent or any of its ERISA Affiliates shall incur, or shall be
reasonably likely to incur, liability in excess of $25,000,000 in the aggregate
as a result of one or more of the following: (i) the occurrence of any ERISA
Event; (ii) the partial or complete withdrawal of the Collection Agent or any
of
its ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization
or
termination of a Multiemployer Plan; or
(i) The
PBGC or the Internal Revenue Service shall, or shall indicate its intention
to,
file notice of a lien pursuant to Section 4068 of ERISA or Section 6320 of
the Code with regard to any of the assets of the Collection Agent.
“Collection
Agent Fee” has the meaning specified in Section 2.05(a).
“Collection
Agent Fee Reserve Percentage” means, on any date, an amount equal
to:
CAF
x
RTR
360
where:
|
|
CAF
=
|
the
percentage per annum used in the calculation of the Collection
Agent Fee
in effect on such date.
|
|
|
RTR
=
|
the
highest of the Three-Month Receivable Turnover Ratios calculated
for each
of the twelve most recently ended calendar
months.
|
“Collection
Delay Period” means 10 days or such other number of days as the Program
Agent may select upon three Business Days’ notice to the Seller.
“Collections”
means, with respect to any Receivable, all cash collections and other cash
proceeds of such Receivable, including, without limitation, all cash proceeds
of
Related Security with respect to such Receivable, and any Collection of such
Receivable deemed to have been received pursuant to Section 2.04.
“Commitment
Termination Date” means the earliest of (a) July 23, 2008, unless
(i) the Seller shall have requested, which request shall be made not more
than 45 days prior to the then Commitment Termination Date, an extension of
the
then Commitment Termination Date to a date occurring not more than 364 days
after such then Commitment Termination Date, and (ii) with respect to each
Investor, one or more of its Related Banks which, immediately after giving
effect to such extension would have Bank Commitments in an aggregate amount
equal to such Investor’s Investor Purchase Limit to be in effect immediately
after giving effect to such extension, shall in their sole discretion consent
to
such extension, which consent shall be given not more than 30 days and not
less
than 10 days prior to the then Commitment Termination Date; provided,
however, that any failure of any Investor or Bank to respond to the Seller’s
request for such extension shall be deemed a denial of such request by such
Bank, (b) the date determined pursuant to Section 7.01, (c) the date the
Purchase Limit reduces to zero pursuant to Section 2.01(b) and (d) the
Repurchase Date pursuant to Section 2.20; provided, however,
that if, and only if, there shall have occurred a Cash Secured Advance
Commencement Date for any Group, the Commitment Termination Date for such Group
shall mean the earliest of July 18, 2012 and the dates referenced in the
preceding clauses (b), (c) and (d).
“Concentration
Limit” for any Obligor means at any time 3.50%
(“NormalConcentration Limit”), or such other higher percentage
(“Special Concentration Limit”) for such Obligor as set forth on Schedule
V hereto, and after the date of this Agreement as designated by the Program
Agent and each Investor Agent in a writing delivered to the Seller;
provided that in the case of an Obligor with any Affiliated Obligor, the
Concentration Limit shall be calculated as if such Obligor and such Affiliated
Obligor are one Obligor; provided further that the Program Agent
or any Investor Agent may, in its sole discretion, reduce or cancel any Special
concentration Limit upon three Business Days’ notice to the Seller (with a copy
to each of the other Agents).
“Contract”
means an agreement between any Originator and an Obligor pursuant to or under
which such Obligor shall be obligated to pay for merchandise or services from
time to time.
“CP
Costs” means, for each day, the sum of (i) discount or yield accrued on
Pooled Commercial Paper on such day, plus (ii) any and all accrued
commissions in respect of placement agents and commercial paper dealers
(currently 5 basis points per annum), and issuing and paying agent fees
incurred, in respect of such Pooled Commercial Paper for such day, plus
(iii) other costs associated with funding small or odd-lot amounts with
respect to all receivable purchase facilities which are funded by Pooled
Commercial Paper for such day, minus (iv) any accrual of income net of
expenses received on such day from investment of collections received under
all
receivable purchase facilities funded substantially with Pooled Commercial
Paper, minus (v) any payment received on such day net of expenses in
respect of the Liquidation Fee or similar fee related to the reduction of the
capital amount of any receivable interest of VFCC, pursuant to the terms of
any
receivable purchase facilities funded substantially with Pooled Commercial
Paper. In addition to the foregoing costs, if the Seller shall request any
incremental purchase of a Receivable Interest after the initial purchase under
this Agreement during any period of time determined by the Investor Agent for
the VFCC Group in its sole discretion to result in incrementally higher CP
Costs
applicable to such Receivable Interest, the Capital associated with any such
Receivable Interest shall, during such period, be deemed to be funded by VFCC
in
a special pool (which may include capital associated with other receivable
purchase facilities) for purposes of determining such additional CP Costs
applicable only to such special pool and charged each day during such period
against such Capital.
“CP
Fixed Period Date” means, for any Receivable Interest, the date of purchase
of such Receivable Interest and thereafter the last day of each calendar month
or any other day as shall have been agreed to in writing by the Program Agent,
the Investor Agents and the Seller prior to the first day of the preceding
Fixed
Period for such Receivable Interest or, if there is no preceding Fixed Period,
prior to the first day of such Fixed Period.
“Credit
Agreement” means the Credit Agreement, dated as of July 30, 2004, among
the Parent, the lenders party thereto from time to time, Citibank, N.A., as
administrative agent, the other agents and lead arranger party thereto from
time
to time, and any credit facility replacing or succeeding thereto, each as the
same may be amended, amended and restated, or modified or supplemented from
time
to time prior to the Credit Agreement Freeze Date (it being understood and
agreed that (i) prior to the Credit Agreement Freeze Date, any amendments
or waivers to any provision of the Credit Agreement incorporated herein or
referenced herein, if such amendment or waiver is effective pursuant to the
terms of the Credit Agreement, shall also be effective hereunder with respect
to
any incorporation or reference to any provision of the Credit Agreement, and
(ii) on and after the Credit Agreement Freeze Date, no amendment or waiver
to any provision of the Credit Agreement incorporated herein or referenced
herein shall be effective hereunder unless a separate approval has been executed
by the Program Agent and the Investor Agents hereunder).
“Credit
Agreement Freeze Date” means the first date to occur on which any Bank which
is now or hereafter a party to this Agreement ceases to be a lender under the
Credit Agreement; provided, however, if at any time, pursuant to
an assignment pursuant to Section 11.03(j), the Credit Agreement Freeze
Date is deemed to no longer exist, the “Credit Agreement Freeze Date” shall mean
the first date to occur after such assignment on which any Bank ceases to be
a
lender under the Credit Agreement.
“Credit
and Collection Policy” means those receivables credit and collection
policies and practices of the Seller and the Originators in effect on the date
of this Agreement and described in Schedule II hereto, as modified in compliance
with this Agreement.
“Debt”
means (i) indebtedness for borrowed money, (ii) obligations evidenced by bonds,
debentures, notes or other similar instruments, (iii) obligations to pay the
deferred purchase price of property or services, (iv) obligations as lessee
under leases which shall have been or should be, in accordance with generally
accepted accounting principles, recorded as capital leases, and (v) obligations
under direct or indirect guaranties in respect of, and obligations (contingent
or otherwise) to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or obligations of others
of
the kinds referred to in clauses (i) through (iv) above.
“Debt
Rating” means, for any Person, the rating by S&P or Moody’s of such
Person’s long-term public senior unsecured non-credit enhanced
debt.
“Default
Ratio” means the ratio (expressed as a percentage) computed as of the last
day of each calendar month by dividing (i) the aggregate Outstanding
Balance of all Originator Receivables that were Defaulted Receivables on such
day or that would have been Defaulted Receivables on such day had they not
been
written off the books of the applicable Originator or the Seller during such
month by (ii) the aggregate Outstanding Balance of all Originator
Receivables on such day.
“Defaulted
Receivable” means an Originator Receivable:
(i) as
to which any payment, or part thereof, remains unpaid (x) for more than 60
days
from the original due date for such payment, if such Originator Receivable
is
not a Winchester Extended Term Receivable, or (y) for more than 30 days from
the
original due date for such payment, if such Receivable is a Winchester Extended
Term Receivable;
(ii) as
to which the Obligor thereof or any other Person obligated thereon or owning
any
Related Security in respect thereof has taken any action, or suffered any event
to occur, of the type described in Section 7.01(g);
(iii) which,
consistent with the Credit and Collection Policy, would be written off the
applicable Originator’s or the Seller’s books as uncollectible; or
(iv) for
which the applicable Originator or the Seller has (or, consistent with the
Credit and Collection Policy, should have) established a reserve specifically
for the Obligor obligated on such Originator Receivable with respect to the
non-payment by such Obligor of its obligations on any Originator
Receivable.
“Deferred
Purchase Price” has the meaning specified in the Originator Purchase
Agreement.
“Delinquency
Ratio” means the ratio (expressed as a percentage) computed as of the last
day of each calendar month by dividing (i) the aggregate Outstanding
Balance of all Originator Receivables that were Delinquent Receivables on such
day by (ii) the aggregate Outstanding Balance of all Originator Receivables
on such day.
“Delinquent
Receivable” means an Originator Receivable that is not a Defaulted
Receivable and:
(i) as
to which any payment, or part thereof, remains unpaid (x) for 31-60 days from
the original due date for such payment, if such Originator Receivable is not
a
Winchester Extended Term Receivable, or (y) for one to 30 days from the original
due date for such payment, if such Receivable is a Winchester Extended Term
Receivable; or
(ii) which,
consistent with the Credit and Collection Policy, would be classified as
delinquent by the applicable Originator or the Seller.
“Deposit
Account” means an account maintained at a Deposit Bank into which
(i) Collections in the form of checks and other items are deposited that
have been sent to one or more Lock-Boxes by Obligors and/or
(ii) Collections in the form of electronic funds transfers and other items
are paid directly by Obligors.
“Deposit
Account Agreement” means an agreement, in substantially the form of Annex
B.
“Deposit
Bank” means any of the banks holding one or more Deposit
Accounts.
“Diluted
Receivable” means that portion (and only that portion) of any Originator
Receivable which is either (a) reduced or canceled as a result of (i) any
defective, rejected or returned merchandise or services or any failure by an
Originator to deliver any merchandise or provide any services or otherwise
to
perform under the underlying Contract, (ii) any change in the terms of or
cancellation of, a Contract or any cash discount, discount for quick payment
or
other adjustment by an Originator which reduces the amount payable by the
Obligor on the related Originator Receivable (except any such change or
cancellation resulting from or relating to the financial inability to pay or
insolvency of the Obligor of such Originator Receivable) or (iii) any
set-off by an Obligor in respect of any claim by such Obligor as to amounts
owed
by it on the related Originator Receivable (whether such claim arises out of
the
same or a related transaction or an unrelated transaction) or (b) subject to
any
specific dispute, offset, counterclaim or defense whatsoever (except the
discharge in bankruptcy of the Obligor thereof); provided that Diluted
Receivables are calculated assuming that all chargebacks are resolved in the
Obligor’s favor.
“Dilution
Horizon Ratio” means, as of any date, a ratio computed by dividing
(i) the aggregate original Outstanding Balance of all Originator
Receivables created by the Originators during the two most recently ended
calendar months by (ii) the Outstanding Balance of all Originator
Receivables (other than Defaulted Receivables) as at the last day of the most
recently ended calendar month minus the aggregate amount of Unapplied
Cash/Credit Memos as at the last day of the most recently ended calendar
month.
“Dilution
Ratio” means, as of any date, the ratio (expressed as a percentage) computed
for the most recently ended calendar month by (a) for the purpose of calculating
the Dilution Ratio in connection with the Event of Termination specified in
Section 7.01(h), dividing (i) the aggregate amount of Originator
Receivables which became Diluted Receivables during such calendar month by
(ii) the aggregate Outstanding Balance (in each case, at the time of
creation) of all Originator Receivables created during the second calendar
month
immediately preceding such calendar month, and (b) for all other purposes,
dividing (i) the excess of the aggregate amount of Originator Receivables which
became Diluted Receivables during such month over the amount of the reduction
in
Net Receivables Pool Balance pursuant to clause (vii) of the definition thereof
as of such date by (ii) the aggregate Outstanding Balance (in each case, at
the
time of creation) of all Originator Receivables created during the second
calendar month immediately preceding such calendar month.
“Dilution
Reserve Floor Percentage” means, as of any date, the product of (a) the
Dilution Horizon Ratio on such date multiplied by (b) the average of the
Dilution Ratios for each of the twelve most recently ended calendar
months.
“Dilution
Volatility Ratio” means, as of any date, a ratio (expressed as a percentage)
equal to the product of (a) the highest two-month rolling average Dilution
Ratio
calculated for each of the twelve most recently ended calendar months minus
the
average of the Dilution Ratios for each of the twelve most recently ended
calendar months, and (b) a ratio calculated by dividing the highest two-month
rolling average Dilution Ratio calculated for each of the twelve most recently
ended calendar months by the average of the Dilution Ratios for each of the
twelve most recently ended calendar months.
“Dollar
Equivalent” means, as of any date, the amount obtained by applying the rate
for converting currency into Dollars at the spot rate of exchange for that
currency as reasonably determined and advised by the Program Agent.
“Dollars”
or “$” means dollars in the lawful currency of the United States.
“Drawing
Date” has the meaning specified in Section 2.18(g).
“Dynamic
Dilution Reserve Percentage” means, as of any date, the product of
(a) the sum of (i) the product of (x) two, multiplied by (y) the
average of the Dilution Ratios for each of the twelve most recently ended
calendar months, plus (ii) the Dilution Volatility Ratio as at the last day
of the most recently ended calendar month, multiplied by (b) the Dilution
Horizon Ratio as of such date.
“Dynamic
Loss Reserve Percentage” means, as of any date, the product of (i) two
multiplied by (ii) the Loss Horizon Ratio as of such date multiplied by (iii)
the highest of the Three-Month Loss Ratios calculated for each of the twelve
most recently ended calendar months.
“E-Mail
Seller Report” has the meaning specified in Section 6.02(g).
“Eligible
Assignee” means (a) with respect to the CAFCO Group, (i) CNAI or
any of its Affiliates, (ii) any Person managed by Citibank, CNAI or any of
their Affiliates or (iii) any financial or other institution acceptable to
the Investor Agent for such Group and approved in writing by the Seller (which
approval by the Seller shall not be required if an Event of Termination has
occurred and is continuing) and (b) with respect to the VFCC Group,
(i) Wachovia or any of its Affiliates, (ii) any Person managed by
Wachovia or any of its Affiliates or (iii) any financial or other
institution acceptable to the Investor Agent for such Group and approved in
writing by the Seller (which approval by the Seller shall not be required if
an
Event of Termination has occurred and is continuing).
“Eligible
Country” means a country other than the United States and Canada that
satisfies each of the following criteria:
(a) it
has a foreign currency sovereign debt rating of at least BBB- by S&P and
Baa3 by Moody’s;
(b) its
government or central bank shall not have (i) prohibited the sale of the
currency of such country in exchange for United States Dollars,
(ii) admitted in writing its inability to pay its debts as the same become
due, (iii) declared a moratorium on the payment of its debts or the debts
of any national governmental authority of such country, or (iv) ceased to
be a member of the International Monetary Fund or ceased to be eligible to
use
the resources of the International Monetary Fund; and
(c) the
United States shall not have imposed economic sanctions on such
country.
“Eligible
Institution” means a depository institution organized under the laws of the
United States of America or any state thereof or the District of Columbia (or
any domestic branch of a foreign bank authorized under any such laws),
(a) whose senior long-term unsecured debt obligations are rated at least A-
or better by S&P and A3 or better by Moody’s, and (b) which is subject
to regulation regarding fiduciary funds on deposit substantially similar to
12
C.F.R. Section 9.10(b), if applicable, and (c) which has a combined capital
and surplus of at least $100,000,000.
“Eligible
Investments” means book-entry securities entered on the books of the
registrar of such securities and held in the name or on behalf of the Program
Agent (in the case of the Collateral Advance Account) or the L/C Bank (in the
case of the L/C Collateral Account), negotiable instruments or securities
represented by instruments in bearer or registered form (registered in the
name
of the Program Agent or its nominee (in the case of the Collateral Advance
Account) or the L/C Bank or its nominee (in the case of the L/C Collateral
Account)) which evidence:
(a) readily
marketable direct obligations of the Government of the United States or any
agency or instrumentality thereof or obligations unconditionally guaranteed
by
the full faith and credit of the United States;
(b) insured
demand deposits, time deposits or certificates of deposit of any commercial
bank
that (i) is a member of the Federal Reserve System, (ii) issues (or the parent
of which issues) commercial paper rated, at the time of the investment or
contractual commitment to invest therein, as described in clause (d), (iii)
is
organized under the laws of the United States or any state thereof and (iv)
has
combined capital and surplus of at least $500,000,000;
(c) repurchase
obligations with a term of not more than ten days for underlying securities
of
the types described in clauses (a) and (b) above entered into with any bank
of
the type described in clause (b) above;
(d) commercial
paper (maturing no later than the Business Day prior to the first Settlement
Date (Yield and Fees) following the date of purchase) having, at the time of
the
investment or contractual commitment to invest therein, the highest short-term
rating from each of S&P and Moody’s;
(e) investments
in no-load money market funds having a rating from each rating agency rating
such fund in its highest investment category (including such funds for which
the
Program Agent or any of its Affiliates is investment manager or advisor);
and
(f) any
other investments agreed upon between the Seller and the Program
Agent.
“Eligible
Receivable” means, at any time, a Receivable:
(i) the
Obligor of which has a billing address in the United States, Canada or any
Eligible Country, and is not an Affiliate of any Originator or the
Seller;
(ii) [intentionally
omitted];
(iii) which
is not a Defaulted Receivable;
(iv) the
Obligor of which is not the Obligor of any Defaulted Receivables which in the
aggregate constitute more than 20% of the aggregate Outstanding Balance of
all
Receivables of such Obligor;
(v) which
has been billed and which, according to the Contract related thereto, is
required to be paid in full within 90 days of the original billing date
therefor; provided that the aggregate Outstanding Balance of all Eligible
Receivables that are required to be paid in full within 61-90 days of the
original billing date therefor according to the Contract related thereto shall
not at any time exceed 3.00% of the aggregate Outstanding Balance of all
Eligible Receivables; provided further that up to 10.00% of the aggregate
Outstanding Balance of all Eligible Receivables may be comprised of Winchester
Extended Term Receivables;
(vi) which
is an obligation representing all or part of the sales price of merchandise,
insurance or services within the meaning of Section 3(c)(5) of the Investment
Company Act of 1940, as amended, and the nature of which is such that its
purchase with the proceeds of notes would constitute a “current transaction”
within the meaning of Section 3(a)(3) of the Securities Act of 1933, as
amended;
(vii) which
is an “account” or “payment intangible” within the meaning of
Article 9 of the UCC of the applicable jurisdictions governing the perfection
of
the interest created by a Receivable Interest;
(viii) which
is denominated in Dollars or Canadian Dollars and is payable in the United
States or Canada;
(ix) which
arises under a Contract which, together with such Receivable, is in full force
and effect and constitutes the legal, valid and binding obligation of the
Obligor of such Receivable and is not subject to any Adverse Claim or any
dispute, offset, counterclaim or defense whatsoever (except the potential
discharge in bankruptcy of such Obligor) and is not settled on a net
basis;
(x) which,
together with the Contract related thereto, does not contravene in any material
respect any laws, rules or regulations applicable thereto (including, without
limitation, laws, rules and regulations relating to usury, consumer protection,
truth in lending, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices and privacy) and with respect to
which none of the Seller, any Originator, the Collection Agent or the Obligor
is
in violation of any such law, rule or regulation in any material
respect;
(xi) which,
if the Obligor thereof has a billing address outside of the United States or
Canada (other than the Province of Quebec and, if the transfer of such
Receivable to the Purchaser under this Agreement occurs prior to August 1,
2007,
the Province of Ontario), arises under a Contract which does not contain a
legally enforceable provision requiring such Obligor to consent to the transfer,
sale or assignment of the rights and duties of the Seller or the applicable
Originator thereunder, unless a written consent of the Obligor has been
obtained;
(xii) which
was generated in the ordinary course of the applicable Originator’s
business;
(xiii) which
has not been extended, rewritten or otherwise modified from the original terms
thereof (except as permitted by Section 6.02(c));
(xiv) the
transfer, sale or assignment of which does not contravene any applicable law,
rule or regulation;
(xv) which
satisfies all applicable requirements of the Credit and Collection
Policy;
(xvi) the
Obligor of which is not the Government of Canada or any agency, department,
instrumentality or political subdivision thereof or any federal or provincial
Crown corporation (other than those listed as exempt under applicable
legislation from restrictions or requirements for consent or notice of the
assignment of Receivables in respect of which they are obligors), or any
provincial or local government or government agency, department, instrumentality
or political subdivision of such provincial or local government if the
enforceability against such government, agency, department, instrumentality
or
political subdivision of an assignment of debts owing thereby is subject to
any
precondition which has not been fulfilled;
(xvii) which,
if it is an obligation of an Obligor that is a government or a governmental
subdivision or agency, shall not cause the aggregate Outstanding Balance of
all
Receivables that are obligations of Obligors that are governments or
governmental subdivisions or agencies to exceed 10% of the aggregate Outstanding
Balance of all Receivables at such time;
(xviii) which
represents a bona fide obligation of the Obligor of such Receivable to pay
the
stated amount thereof;
(xix) as
to which the applicable Originator has satisfied and fully performed all
obligations with respect to such Receivable required to be fulfilled by it
other
than customary warranty obligations, and no further action is required to be
performed by any Person with respect thereto other than payment thereon by
the
applicable Obligor;
(xx) for
which the related invoice has not been prepared or generated manually;
and
(xxi) as
to which, if such Receivable is a Canadian Receivable, (x) none of the services
(if any) giving rise to such Receivable were rendered to the Obligor thereof
in
Canada, and (y) if the Obligor has a billing address in the Province of Quebec,
(A) the Contract with respect to such Canadian Receivable is not governed by
the
laws of the Province of Quebec and (B) pursuant to the express terms of such
Contract, all Collections with respect thereto are payable only to locations
outside of the Province of Quebec.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from
time
to time, and the regulations promulgated and rulings issued
thereunder.
“ERISA
Affiliate” means any Person who for purposes of Title IV of ERISA is a
member of the Parent’s controlled group, or under common control with the
Parent, within the meaning of Section 414 of the Code, and the regulations
promulgated and rulings issued thereunder.
“ERISA
Event” means (i) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, unless the 30-day notice requirement with
respect thereto has been waived by the PBGC; (ii) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan, pursuant
to Section 4041(a) (2) of ERISA (including any such notice with respect to
a plan amendment referred to in Section 4041(e) of ERISA); (iii) the
cessation of operations at a facility in the circumstances described in
Section 4068(f) of ERISA; (iv) the withdrawal by the Parent or an
ERISA Affiliate from a Multiple Employer Plan during a plan year for which
it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(v) the failure by the Parent or any ERISA Affiliate to make a payment to a
Plan required under Section 302(f)(1) of ERISA, which Section imposes a
lien for failure to make required payments; (vi) the adoption of an
amendment to a Plan requiring the provision of security to such Plan, pursuant
to Section 307 of ERISA; or (vii) the institution by the PBGC of
proceedings to terminate a Plan, pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition which would constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, a Plan.
“Eurocurrency
Liabilities” has the meaning assigned to that term in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to
time.
“Eurodollar
Rate” means, for any Fixed Period, an interest rate per annum equal to the
rate per annum at which deposits in Dollars are offered by the principal office
of Citibank in London, England to prime banks in the London interbank market
at
11:00 A.M. (London Time) two Business Days before the first day of such Fixed
Period in an amount substantially equal to the Capital associated with such
Fixed Period on such first day and for a period equal to such Fixed
Period.
“Eurodollar
Rate Reserve Percentage” of any Investor or Bank for any Fixed Period in
respect of which Yield is computed by reference to the Eurodollar Rate means
the
reserve percentage applicable two Business Days before the first day of such
Fixed Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) (or if more than
one
such percentage shall be applicable, the daily average of such percentages
for
those days in such Fixed Period during which any such percentage shall be so
applicable) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for such Investor or Bank 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
Eurocurrency Liabilities is determined) having a term equal to such Fixed
Period.
“Event
of Termination” has the meaning specified in Section 7.01.
“Excess
Interest” means, in respect of Cash Secured Advances at any time, the excess
of (i) the aggregate unpaid accrued interest on the Cash Secured Advances at
such time over (ii) the aggregate interest and dividends received by the Program
Agent in respect of the Term-Out Bank Collateral and available for withdrawal
from the Collateral Advance Account at such time.
“Exchange
Rate Protection Factor” means, with respect to Receivables that are
denominated in Canadian Dollars, an amount, as determined by the Program Agent
in its sole discretion, to protect the Investors and the Banks against adverse
fluctuations in the exchange rate between Dollars and Canadian Dollars.
Initially, the “Exchange Rate Protection Factor” shall
be
6.00%.
“Excluded
Receivable” means (a) all indebtedness or accounts receivable due from The
Xxxxxxx Works Co. to Chase Brass & Copper Company, Inc. (whether or not such
indebtedness or accounts receivable has been sold or transferred by Chase Brass
& Copper Company, Inc.), (b) all indebtedness due to an Originator arising
from the sale of consigned goods by such Originator, (c) all indebtedness or
accounts receivable due from Honeywell International Inc. or a unit or
subsidiary thereof to X.X. Xxxxx Co. (whether or not such indebtedness or
accounts receivable has been sold or transferred by X.X. Xxxxx Co.) and (d)
all
indebtedness or accounts receivable due from Honeywell International Inc. or
a
unit or subsidiary thereof to X.X. Xxxxx West, Inc. (whether or not such
indebtedness or accounts receivable has been sold or transferred by X.X. Xxxxx
West, Inc.); provided, that upon at least thirty (30) days prior written
notice by the Seller and the relevant Originator to each of the Agents (A)
stating that all receivables financing or purchasing arrangements pertaining
to
the indebtedness and accounts receivable described in clause (a), (c) or (d)
above have been terminated and all UCC Financing Statements filed in connection
therewith have been terminated (and attaching acknowledgment copies thereof),
(B) stating that the indebtedness or accounts receivable previously subject
to
such receivables financing or purchasing arrangements are free and clear of
Adverse Claims (and attaching appropriate UCC search results confirming such
statement) and (C) authorizing the Program Agent to file an amendment of the
applicable UCC Financing Statements filed in connection with this Agreement
to
reflect that such indebtedness and accounts receivable are no longer Excluded
Receivables, the indebtedness or accounts receivable due from the Obligor
specified in clause (a), (c) or (d) above, as applicable, shall no longer be
deemed to be Excluded Receivables from and after the filing of such UCC
Financing Statement amendments.
“Facility
Fee Agreement” has the meaning specified in Section 2.05(b).
“Facility
Termination Date” means the earliest of (a) July 18, 2012 or (b) the date
determined pursuant to Section 7.01, (c) the date the Purchase Limit reduces
to
zero pursuant to Section 2.01(b), or (d) the Repurchase Date pursuant to Section
2.20.
“Federal
Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to the weighted average of the rates
on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day (or, if such day
is
not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is
a
Business Day, the average of the quotations for such day on such transactions
received by the Program Agent from three Federal funds brokers of recognized
standing selected by it.
“Fee
Agreements” means, collectively, the Agent Fee Agreement, the Facility Fee
Agreement and the L/C Fee Agreement.
“Fees”
means the fees payable pursuant to the Fee Agreements.
“Finance
Charge” means, with respect to any Receivable, any interest, finance charges
or other similar charges payable at any time by an Obligor in connection with
such Receivable not having been paid on the due date thereof.
“Fixed
Period” means, with respect to any Receivable Interest:
(a) in
the case of any Fixed Period in respect of which Yield is computed by reference
to the Investor Rate, each successive period commencing on each CP Fixed Period
Date for such Receivable Interest and ending on the next succeeding CP Fixed
Period Date for such Receivable Interest; and
(b) in
the case of any Fixed Period in respect of which Yield is computed by reference
to the Assignee Rate, each successive period of from one to and including 29
days, or a period of one month, as the Seller shall select and the Investor
Agent for the relevant Investor or Bank may approve on notice by the Seller
received by such Investor Agent (including notice by telephone, confirmed in
writing) not later than 11:00 A.M. (New York City time) on (A) the day which
occurs three Business Days before the first day of such Fixed Period (in the
case of Fixed Periods in respect of which Yield is computed by reference to
the
Eurodollar Rate) or (B) the first day of such Fixed Period (in the case of
Fixed
Periods in respect of which Yield is computed by reference to the Alternate
Base
Rate), each such Fixed Period for such Receivable Interest to commence on the
last day of the immediately preceding Fixed Period for such Receivable Interest
(or, if there is no such Fixed Period, on the date of purchase of such
Receivable Interest), except that if such Investor Agent shall not have
received such notice, or such Investor Agent and the Seller shall not have
so
mutually agreed, before 11:00 A.M. (New York City time) on such day, such Fixed
Period shall be one day;
provided,
however, that:
(i) any
Fixed Period (other than of one day) which would otherwise end on a day which
is
not a Business Day shall be extended to the next succeeding Business Day
(provided, however, if Yield in respect of such Fixed Period is
computed by reference to the Eurodollar Rate, and such Fixed Period would
otherwise end on a day which is not a Business Day, and there is no subsequent
Business Day in the same calendar month as such day, such Fixed Period shall
end
on the next preceding Business Day);
(ii) in
the case of any Fixed Period of one day, (A) if such Fixed Period is the initial
Fixed Period for a Receivable Interest, such Fixed Period shall be the day
of
the purchase of such Receivable Interest; (B) any subsequently occurring Fixed
Period which is one day shall, if the immediately preceding Fixed Period is
more
than one day, be the last day of such immediately preceding Fixed Period and,
if
the immediately preceding Fixed Period is one day, be the day next following
such immediately preceding Fixed Period; and (C) if such Fixed Period occurs
on
a day immediately preceding a day which is not a Business Day, such Fixed Period
shall be extended to the next succeeding Business Day; and
(iii)
in
the case of any Fixed Period for any Receivable Interest which commences before
the Termination Date for such Receivable Interest and would otherwise end on
a
date occurring after such Termination Date, such Fixed Period shall end on
such
Termination Date and the duration of each Fixed Period which commences on or
after the Termination Date for such Receivable Interest shall be of such
duration (including, without limitation, one day) as shall be selected by the
Program Agent with the consent of the Investor Agents or, in the absence of
any
such selection, each period of thirty days from the last day of the immediately
preceding Fixed Period.
“Funds
Transfer Letter” means a letter in substantially the form of Annex E hereto
executed and delivered by the Seller to the Program Agent and the Investor
Agents, as the same may be amended or restated in accordance with the terms
thereof.
“Group”
means (a) with respect to CAFCO, its Investor Agent, its Related Banks and
CAFCO, and (b) with respect to VFCC, its Investor Agent, its Related Banks
and
VFCC.
“Indemnified
Party” has the meaning specified in Section 10.01.
“Indemnified
Taxes” has the meaning specified in Section 2.10.
“Incipient
Event of Termination” means an event that but for notice or lapse of time or
both would constitute an Event of Termination.
“Investor”
means CAFCO, VFCC and all other owners by assignment of a Receivable Interest
originally purchased by CAFCO or VFCC.
“Investor
Agent” means (a) with respect to CAFCO and its Related Banks, CNAI or
any successor investor agent designated by such parties, and (b) with
respect to VFCC and its Related Banks, Wachovia or any successor investor agent
designated by such parties.
“Investor
Agent’s Account” means (a) with respect to CAFCO and its Related Banks,
the special account (account number 4063-6695) of their Investor Agent
maintained at the office of Citibank at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
(ABA
#021-000-089), or such other account as such Investor Agent shall designate
in
writing to the Seller, the Collection Agent and the Program Agent, and
(b) with respect to VFCC and its Related Banks, the special account
(account number 2000002391825) of their Investor Agent maintained at the office
of Wachovia at 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx (ABA
#053-000-219), or such other account as such Investor Agent shall designate
in
writing to the Seller, the Collection Agent and the Program Agent.
“Investor
Purchase Limit” means (a) with respect to the CAFCO Group,
$125,000,000, and (b) with respect to the VFCC Group, $125,000,000. Any
reduction (or termination) of the Purchase Limit by Seller pursuant to
Section 2.01(b) shall reduce ratably (or terminate) each Group’s Investor
Purchase Limit.
“Investor
Rate” means for any Fixed Period for any Receivable Interest:
(a) with
respect to CAFCO, the per annum rate equivalent to the weighted average of
the
per annum rates paid or payable by such Investor from time to time as interest
on or otherwise (by means of interest rate xxxxxx or otherwise) in respect
of
those Promissory Notes issued by such Investor that are allocated, in whole
or
in part, by such Investor’s Investor Agent (on behalf of such Investor) to fund
the purchase or maintenance of such Receivable Interest during such Fixed Period
as determined by such Investor Agent (on behalf of such Investor) and reported
to the Seller, the Program Agent and, if the Collection Agent is not the Seller,
the Collection Agent, which rates shall reflect and give effect to (i) the
commissions of placement agents and dealers (currently 5 basis points per annum)
in respect of such Promissory Notes, to the extent such commissions are
allocated, in whole or in part, to such Promissory Notes by such Investor Agent
(on behalf of such Investor) and (ii) an administrative fee of 2 basis points
per annum; provided, however, that (a) if any component of such rate is a
discount rate, in calculating the “Investor Rate” for such Fixed Period
such Investor Agent shall for such component use the rate resulting from
converting such discount rate to an interest bearing equivalent rate per annum;
(b) the Investor Rate with respect to Receivable Interests funded by CAFCO’s
Participants shall be the same rate as in effect from time to time on Receivable
Interests or portions thereof that are not funded by one of its Participants;
(c) if all of the Receivable Interests maintained by CAFCO are funded by its
Participants, then the Investor Rate shall be CAFCO’s pool funding rate in
effect from time to time for its largest size pool of transactions which settles
monthly; and (d) the per annum rate determined pursuant hereto shall be
increased by 2% at any time when an Event of Termination shall
exist.
(b) with
respect to VFCC, the sum of (i) the per annum interest rate that, when applied
to the weighted average outstanding Capital of such Receivable Interest funded
by VFCC through the issuance of commercial paper notes for the actual number
of
days elapsed in such Fixed Period, would result in an amount of accrued interest
equivalent to VFCC’s CP Costs for such Fixed Period plus (ii) an administrative
fee of 2 basis points per annum.
“L/C
Bank” has the meaning specified in Section 2.18(a).
“L/C
Collateral Account” has the meaning specified in
Section 2.19.
“L/C
Facility Limit” means 80% of the then applicable Investor Purchase Limit for
the VFCC Group.
“L/C
Fee Agreement” has the meaning specified in
Section 2.18(n).
“L/C
Receivable Interest” has the meaning specified in
Section 2.18(a).
“L/C
Termination Date” means the earliest of (i) five days prior to the date
set forth in clause (a) of the definition of Commitment Termination Date (as
the
same may be extended from time to time), (ii) the Commitment Termination
Date and (iii) the Cash Secured Advance Commencement Date for the VFCC
Group.
“Letter
of Credit” means any standby letter of credit issued by Wachovia for the
account of the Seller pursuant to this Agreement.
“Letter
of Credit Application” means the L/C Bank’s form of application agreement
for a standby letter of credit.
“Liquidation
Day” means, for any Receivable Interest, (i) each day during a Fixed Period
for such Receivable Interest on which the conditions set forth in Section 3.02
are not satisfied, and (ii) each day which occurs on or after the Termination
Date for such Receivable Interest.
“Liquidation
Fee” means, for (i) any Fixed Period for which Yield is computed by
reference to the Investor Rate and a reduction of Capital is made for any reason
on any day or (ii) any Fixed Period for which Yield is computed by reference
to
the Eurodollar Rate and a reduction of Capital is made for any reason on any
day
other than the last day of such Fixed Period, the amount, if any, by which
(A)
the additional Yield (calculated without taking into account any Liquidation
Fee
or any shortened duration of such Fixed Period pursuant to clause (iii) of
the
definition thereof) which would have accrued from the date of such repayment
to
the last day of such Fixed Period (or, in the case of clause (i) above, the
maturity of the underlying commercial paper tranches) on the reductions of
Capital of the Receivable Interest relating to such Fixed Period had such
reductions remained as Capital, exceeds (B) the income, if any, received by
the
Investors or the Banks which hold such Receivable Interest from the investment
of the proceeds of such reductions of Capital.
“Location”
means, with respect to any Person, such Person’s location for purposes of
Section 9-307 of the UCC as in effect in the State of New York on any date
of
determination.
“Lock-Box”
means a post office box administered by a Deposit Bank for the purpose of
receiving Collections.
“Loss
Horizon Ratio” means, as of any date, a ratio computed by dividing (i) the
aggregate Outstanding Balance (in each case, at the time of creation) of all
Originator Receivables created by the Originators during the three most recently
ended calendar months by (ii) the Outstanding Balance of Originator Receivables
(other than Defaulted Receivables) minus the aggregate amount of Unapplied
Cash/Credit Memos as at the last day of the most recently ended calendar
month.
“Loss
Ratio” means, for any calendar month, the ratio determined as (a) the sum of
(i) the aggregate Outstanding Balance of Originator Receivables which were
61 -
90 days past due plus (ii) (without duplication) the aggregate amount of
write-offs during such calendar month of Originator Receivables which were
less
than 61 days past due, divided by (b) the aggregate Outstanding Balance (in
each
case, at the time of creation) of Originator Receivables created during the
third preceding calendar month.
“Loss
Reserve Floor Percentage” means, as of any date, four times the Normal
Concentration Limit.
“Loss-to-Liquidation
Ratio” means the ratio (expressed as a percentage) computed as of the last
day of each calendar month by dividing (i) the aggregate Outstanding Balance
of
all Originator Receivables written off by the Originators or the Seller, or
which should have been written off by the Originators or the Seller in
accordance with the Credit and Collection Policy, during the calendar month
ending on such last day by (ii) the aggregate amount of Collections (other
than
deemed Collections paid pursuant to Section 2.04(e)(i)) of Originator
Receivables actually received during such calendar month.
“Majority
Banks” shall mean (i) at any time when there are only two Banks party
hereto, both such Banks, and (ii) at all other times, Banks having Bank
Commitments that aggregate more than 50% of the Purchase Limit or, if the Bank
Commitments have been terminated, Banks either holding Receivable Interests
(or
interests therein) or obligated to purchase interests in Receivable Interests
pursuant to their respective Asset Purchase Agreements which aggregate more
than
50% of all outstanding Receivable Interests.
“Maximum
Percentage Factor” means 94.50% or, if Weekly Reports are required to be
delivered pursuant to Section 6.02(g)(ii), 97.25%.
“Modification”
and “Modify” have the meanings specified in
Section 2.18(c).
“Monthly
Report” means a report in substantially the form of Annex A-1 hereto setting
forth the calculation of the Net Receivables Pool Balance, the calculations
of
each of the Aggregate Loss and Dilution Reserve and the Yield and Fee Reserve,
the Percentage Factor (as of the date of such report) and providing Receivable
performance and program documentation compliance
information for the previous calendar month, and containing such additional
information as any Agent may reasonably request from time to time, furnished
by
the Collection Agent pursuant to Section 6.02(g)(i).
“Moody’s”
means Xxxxx’x Investors Service, Inc.
“Multiemployer
Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which the Parent or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions, such plan being
maintained pursuant to one or more collective bargaining
agreements.
“Multiple
Employer Plan” means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which (i) is maintained for employees of the
Parent or an ERISA Affiliate and at least one Person other than the Parent
and
its ERISA Affiliates or (ii) was so maintained and in respect of which the
Parent or an ERISA Affiliate could have liability under Section 4064 or 4069
of
ERISA in the event such plan has been or were to be terminated.
“Net
Receivables Pool Balance” means at any time the Outstanding Balance of
Eligible Receivables then in the Receivables Pool reduced by the sum of (without
duplication) (i) the aggregate amount by which the Outstanding Balance of
Eligible Receivables of each Obligor then in the Receivables Pool exceeds the
product of (A) the Concentration Limit for such Obligor multiplied by (B) the
Net Receivables Pool Balance, (ii) the aggregate amount by which the
Outstanding Balance of Eligible Receivables of all Obligors with a billing
address in Mexico then in the Receivables Pool exceeds 3.5% of the Net
Receivables Pool Balance, (iii) the aggregate amount by which the
Outstanding Balance of Eligible Receivables of all Obligors with a billing
address in China then in the Receivables Pool exceeds 1% of the Net Receivables
Pool Balance, (iv) the aggregate amount by which the Outstanding Balance of
Eligible Receivables of all Obligors with a billing address in an Eligible
Country (including Mexico and China, if such countries are then Eligible
Countries) then in the Receivables Pool exceeds 7% of the Net Receivables Pool
Balance, (v) the aggregate outstanding amount of deposits received by the
Originators from any Obligors with respect to Receivables then in the
Receivables Pool, (vi) the aggregate amount of Unapplied Cash/Credit Memos
at such time, (vii) the aggregate of all potential set-off amounts representing
amounts owed by any Originator (or its Affiliates) to any Obligor, (viii) the
aggregate of all potential set-off amounts representing amounts not yet owed
but
expected to be owed (based on historical data and otherwise reasonably
determined by the Agents) by any Originator (or its Affiliates) to any Obligor
on account of purchases of scrap metal, determined over a period of time after
the Amortization Date equal to the highest of the Three-Month Receivable
Turnover Ratios calculated for each of the twelve most recently ended calendar
months; provided that the amounts in this clause (viii) shall only be
deducted if (A) Parent’s Debt Rating is lower than BB- by S&P or lower than
Ba3 by Moody’s and (B) the Amortization Date has occurred, (ix) the product
(expressed as a Dollar Equivalent) of (A) the Exchange Rate Protection Factor
multiplied by (B) the Outstanding Balance of Receivables denominated in Canadian
Dollars, (x) the aggregate amount of charge-backs not included in any credit
memo issued by the applicable Originator, (xi) the aggregate amount which the
Originators have agreed to pay to Obligors with respect to returnable “cores”
and packaging and (xii) the aggregate amount of accruals on the books of the
Originators relating to in-transit scrap metal and scrap metal
sales.
“Non-Pro-Rata
Allocation” has the meaning specified in Section 2.01(a).
“Normal
Concentration Limit” has the meaning specified in the definition of
“Concentration Limit”.
“Obligor”
means a Person obligated to make payments pursuant to a Contract.
“Originator”
means the Parent and each of the Subsidiaries of the Parent which from time
to
time is a party to, and is a “seller” under the Originator Purchase Agreement.
At the date of this Agreement, the Originators are those Persons designated
on
Schedule VI.
“Originator
Purchase Agreement” means the Purchase and Contribution Agreement dated as
of the date of this Agreement among the Originators, as sellers, the Parent,
as
collection agent, and the Seller, as purchaser, as the same may be amended,
modified or restated from time to time.
“Originator
Receivable” means the indebtedness of any Obligor resulting from the
provision or sale of merchandise or services by any Originator under a Contract
(whether constituting an account, instrument, chattel paper or general
intangible), and includes, except if the Obligor thereof has a billing address
in Canada, the right to payment of any interest or finance charges and other
obligations of such Obligor with respect thereto; provided,
however, that the term “Originator Receivable” shall not include any
Excluded Receivable.
“Other
Companies” means the Originators and all of their Subsidiaries except the
Seller.
“Outstanding
Balance” of any Receivable at any time means the then outstanding principal
balance thereof; provided, that to the extent that the amount of any
Receivable is, under the terms of the applicable Contract, expressed in Canadian
Dollars, such amount for the purposes of this definition shall be the Dollar
Equivalent thereof at the relevant time. Sales or use tax and any other taxes
and Finance Charges which may be billed in connection with a Receivable are
not
included in the Outstanding Balance.
“Parent”
means Xxxx Corporation, a Virginia corporation.
“Participant”
has the meaning specified in Section 11.03(h).
“PBGC”
means the Pension Benefit Guaranty Corporation or any entity succeeding to
all
or any of its functions under ERISA.
“Percentage”
of any Bank means, (a) with respect to Citibank, the percentage set forth on
the
signature page to this Agreement, or such amount as reduced or increased by
any
Assignment and Acceptance entered into with an Eligible Assignee, (b) with
respect to Wachovia, the percentage set forth on the signature page to this
Agreement, or such amount as reduced by any Assignment and Acceptance entered
into with an Eligible Assignee, or (c) with respect to a Bank that has entered
into an Assignment and Acceptance, the amount set forth therein as such Bank’s
Percentage, or such amount as reduced or increased by an Assignment and
Acceptance entered into between such Bank and an Eligible Assignee.
“Percentage
Factor” means, at any time, a percentage equal to (i) the sum of the
outstanding Capital plus the Aggregate Loss and Dilution Reserve
plus the Yield and Fee Reserve divided by (ii) the Net Receivables
Pool
Balance. For purposes of Section 6.06(ix), the Percentage Factor is to be
computed daily to reflect changes in the Net Receivables Pool Balance and
Capital. Otherwise, the Percentage Factor is to be calculated as of the last
day
of the reporting period covered by each Seller Report and shall be set forth
in
each Seller Report.
“Person”
means an individual, partnership, corporation (including a business trust),
limited liability company, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency thereof.
“Plan”
means a Single Employer Plan or a Multiple Employer Plan.
“Pooled
Commercial Paper” means commercial paper notes of VFCC subject to any
particular pooling arrangement by VFCC, but excluding commercial paper issued
by
VFCC for a tenor and in an amount specifically requested by any Person in
connection with any agreement effected by VFCC.
“Pool
Receivable” means a Receivable in the Receivables Pool.
“Pro
Forma Balance Sheet” has the meaning specified in
Section 3.01(m).
“Program
Agent” has the meaning specified in the introductory paragraph
hereof.
“Promissory
Notes” means, collectively, (i) promissory notes issued by CAFCO and (ii)
participations sold by CAFCO pursuant to Section 11.03(h); provided
that the term “Promissory Notes” shall not include the interests sold by
CAFCO to a Bank or its designee under an Asset Purchase Agreement.
“Purchase
Limit” means $250,000,000, as such amount may be reduced pursuant to
Section 2.01(b). References to the unused portion of the Purchase Limit
shall mean, at any time, the Purchase Limit, as then reduced pursuant to
Section 2.01(b), minus the then outstanding Capital of Receivable Interests
under this Agreement.
“Ratable
Share” means, at any time in respect of any Bank, the percentage obtained by
dividing the amount of such Bank’s Bank Commitment at such time by the aggregate
amount of the Bank Commitments of all the Banks in such Bank’s Group at such
time.
“Receivable”
means any Originator Receivable which has been acquired by the Seller from
an
Originator by purchase or by capital contribution pursuant to the Originator
Purchase Agreement.
“Receivable
Interest” means, at any time, an undivided percentage ownership interest in
(i) all then outstanding Pool Receivables, (ii) all Related Security with
respect to such Pool Receivables, and (iii) all Collections with respect to,
and
other proceeds of, such Pool Receivables. Such undivided percentage interest
shall be computed as:
_C_
AC
where:
|
|
C
|
=
|
the
Capital of such Receivable Interest at the time of
computation.
|
|
|
AC
|
=
|
the
aggregate Capital of all Receivable Interests at the time of
computation.
|
Each
Receivable Interest shall be determined from time to time pursuant to the
provisions of Section 2.03. For the avoidance of doubt, the term “Receivable
Interest” includes an L/C Receivable Interest.
“Receivable
Turnover Ratio” means, for any month, a ratio determined as:
(RPB/CO)
x (30 + CDP)
where:
|
|
RPB
|
=
|
the
aggregate Outstanding Balance of Eligible Receivables in the Receivables
Pool at the end of such month.
|
|
|
CO
|
=
|
Collections
received during such month.
|
|
|
CDP
|
=
|
the
Collection Delay Period.
|
“Receivables
Pool” means at any time the aggregation of each then outstanding
Receivable.
“Register”
has the meaning specified in Section 11.03(c).
“Reimbursement
Obligation” has the meaning specified in Section 2.18(g).
“Related
Bank” means (a) with respect to CAFCO, Citibank, each Bank which has
entered into an Assignment and Acceptance with Citibank, and each assignee
(directly or indirectly) of any such Bank, which assignee has entered into
an
Assignment and Acceptance, and (b) with respect to VFCC, Wachovia, each
Bank which has entered into an Assignment and Acceptance with Wachovia, and
each
assignee (directly or indirectly) of any such Bank, which assignee has entered
into an Assignment and Acceptance.
“Related
Security” means with respect to any Receivable:
(i) all
of the Seller’s interest in any merchandise (including returned merchandise)
relating to any sale giving rise to such Receivable;
(ii) all
security interests, hypothecs or liens and property subject thereto from time
to
time purporting to secure payment of such Receivable, whether pursuant to the
Contract related to such Receivable or otherwise, together with all financing
statements and similar instruments filed against an Obligor describing any
collateral securing such Receivable;
(iii) all
guaranties, insurance and other agreements or arrangements of whatever character
from time to time supporting or securing payment of such Receivable whether
pursuant to the Contract related to such Receivable or otherwise;
and
(iv) the
Contract and all other books, records and other information (including, without
limitation, computer programs, tapes, discs, punch cards, data processing
software and related property and rights) relating to such Receivable and the
related Obligor.
“Repurchase
Date” has the meaning specified in Section 2.20.
“Revolving
Period” means the period beginning on the date of the initial purchase
hereunder and terminating at the close of business on the Business Day
immediately preceding the date on which the Termination Date shall have occurred
for all Receivable Interests.
“S&P”
means Standard and Poor’s, a division of The XxXxxx-Xxxx Companies,
“SEC”
means the Securities and Exchange Commission.
“Seller
Report” means a Monthly Report or a Weekly Report.
“Settlement
Date (Capital)” means the second Business Day following the date on which
each Monthly Report or Weekly Report, as the case may be, is required to be
delivered to the Agent hereunder; provided, however, that if the
Termination Date shall occur with respect to all Receivable Interests, the
Settlement Date (Capital) shall be the date(s) selected by the Agent or, in
the
absence of any such selection, the “Settlement Date (Capital)” shall be each
Business Day.
“Settlement
Date (Yield and Fees)” for any Receivable Interest means the last day of
each Fixed Period for such Receivable Interest; provided, however,
that if Yield with respect to such Receivable Interest is computed by reference
to the Investor Rate and no Liquidation Day exists on the last day of a Fixed
Period for such Receivable Interest, the Settlement Date (Yield and Fees) for
such Receivable Interest for such Fixed Period shall be the second Business
Day
after the last day of such Fixed Period.
“Single-Employer
Plan” means a single employer plan, as defined in Section 4001(a)(15)
of ERISA, which (i) is maintained for employees of the Parent or an ERISA
Affiliate and no Person other than the Parent and its ERISA Affiliates or
(ii) was so maintained and in respect of which the Parent or an ERISA
Affiliate could have liability under Section 4069 of ERISA in the event such
plan has been or were to be terminated.
“Subsidiary”
means any corporation or other entity of which securities having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by the Seller,
the Parent or an Originator, as the case may be, or by one or more Subsidiaries,
or by the Seller, the Parent or an Originator, as the case may be, and one
or
more Subsidiaries.
“Tangible
Net Worth” means at any time the excess of (i) the sum of (a) the
product of (x) 100% minus the Discount (as such term is defined in the
Originator Purchase Agreement) multiplied by (y) the Outstanding Balance of
all
Receivables other than Defaulted Receivables plus (b) cash and cash equivalents
of the Seller, minus (ii) the sum of (a) Capital plus (b) the Deferred
Purchase Price.
“Tax
Act” means the Income Tax Act (Canada) and the Regulations thereunder, as
amended, modified or replaced from time to time.
“Tax
Convention” means a convention for the avoidance of double income taxation
between Canada and another country.
“Term
Period” means, for any Group, the period commencing on the Cash Secured
Advance Commencement Date, if any, for such Group and ending on the first day
on
which the Termination Date for all Receivable Interests held by the members
of
such Group has occurred.
“Termination
Date” for any Receivable Interest means (i) in the case of a Receivable
Interest owned by an Investor, the earlier of (a) the Business Day which the
Seller or the Investor Agent for such Investor so designates by notice to the
other (with a copy to the Program Agent and the other Investor Agents) at least
one Business Day in advance for such Receivable Interest and (b) the Facility
Termination Date and (ii) in the case of a Receivable Interest owned by a Bank,
the earlier of (a) the Business Day which the Seller so designates by notice
to
the Program Agent and the Investor Agents at least one Business Day in advance
for such Receivable Interest and (b) the Commitment Termination
Date.
“Term-Out
Bank” means any Bank which is a member of a Group for which the Term Period
has commenced.
“Term-Out
Bank Collateral” has the meaning specified in Section 2.17(b).
“Term-Out
Bank Purchase Date” means, for any Group, the Commitment Termination Date
for such Group determined pursuant to clause (a) of the definition thereof,
without giving effect to the final proviso at the end of the definition of
Commitment Termination Date.
“Three-Month
Loss Ratio” means, for any calendar month, the average of the Loss Ratios
for such calendar month and the two immediately preceding calendar
months.
“Three-Month
Receivable Turnover Ratio” means, for any calendar month, the average of the
Receivable Turnover Ratio for such calendar month and the two immediately
preceding calendar months.
“Transaction
Document” means any of this Agreement, the Originator Purchase Agreement,
the Deposit Account Agreements, the Fee Agreements, the Undertaking, the
Collateral Advance Account Agreement, all amendments and waivers to any of
the
foregoing and all other agreements and documents delivered and/or related hereto
or thereto.
“Transfer
Event” means the occurrence of any of the following events:
(i) a
Collection Agent Default; or
(ii) an
event that but for notice or lapse of time or both would constitute a Collection
Agent Default of the type described in clause (c) of the definition thereof;
or
(iii) an
Event of Termination; or
(iv) an
Incipient Event of Termination pursuant to Section 7.01(g).
“Treaty
Resident” means a Person that is or is deemed to be a resident of a country
with which Canada has a Tax Convention for purposes of that Convention,
including a resident of the United States for purposes of the Canada-U.S.
Convention, and for greater certainty does not currently include a limited
liability company that is treated as a disregarded entity or a partnership
for
U.S. federal income tax purposes.
“UCC”
means the Uniform Commercial Code as from time to time in effect in the
specified jurisdiction.
“Unapplied
Cash/Credit Memos” means, as at any time, the sum of (i) the aggregate
amount of Collections (expressed as the Dollar Equivalent, if any such amount
is
in Canadian Dollars) on hand at such time for payment on account of any Eligible
Receivables, the Obligor of which has not been identified and (ii) the aggregate
Outstanding Balance of all Receivables in respect of which any credit memo
issued by the applicable Originator or the Seller is outstanding at such time
to
the extent deemed Collections have not been paid pursuant to Section
2.04(e).
“Undertaking”
means the Undertaking Agreement dated as of the date hereof made by the Parent
in favor of the Seller, and assigned to the Program Agent, and relating to
the
obligations of the Originators (other than the Parent), substantially in the
form of Annex F hereto, as the same may be amended, modified or restated from
time to time.
“VFCC”
means Variable Funding Capital Company LLC and any successor or assign of VFCC
that is a receivables investment company which in the ordinary course of its
business issues commercial paper or other securities to fund its acquisition
and
maintenance of receivables.
“VFCC
Group” means the Group in which VFCC is the Investor.
“Wachovia”
means Wachovia Bank, National Association, a national banking
association.
“Weekly
Report” means a report in substantially the form of Annex A-2 hereto setting
forth (i) updated as to the Outstanding Balance of Pool Receivables and
Unapplied Cash/Credit Memos and (ii) the calculation of the Net Receivables
Pool
Balance, the calculation (based on data in the most recent Monthly Report)
of
each of the Aggregate Loss and Dilution Reserve and the Yield and Fee Reserve
and the Percentage Factor and containing such additional information as any
Agent may reasonably request from time to time, furnished by the Collection
Agent pursuant to Section 6.02(g)(ii).
“Weekly
Reporting Period” means any time when both of the following conditions
exist: (i) the Parent’s Debt Rating is below BBB- by S&P (or is withdrawn or
suspended by S&P) and is below Baa3 by Xxxxx’x (or is withdrawn or suspended
by Xxxxx’x) and (ii) the Percentage Factor is greater than 70%.
“Winchester
Extended Term Receivable” means an Originator Receivable (i) the Originator
of which is the Winchester Division of Xxxx Corporation and (ii) which,
according to the Contract related thereto, is required to be paid in full within
more than 90 days (but not more than 180 days) of the original billing date
therefor.
“Yield”
means for each Receivable Interest for each Fixed Period:
(i) for
each day during each Fixed Period to the extent an Investor will be funding
its
portion of such Receivable Interest through the issuance of Promissory Notes,
commercial paper or other promissory notes, as the case may be,
IR
x C
x ED
360
(ii) for
each day during such Fixed Period to the extent (x) an Investor will not be
funding its portion of such Receivable Interest through the issuance of
Promissory Notes, commercial paper or other promissory notes, as the case may
be, or (y) a Bank will be funding its portion of such Receivable
Interest,
AR
x C
x ED
360
where:
|
|
AR
|
=
|
the
Assignee Rate for such portion of such Receivable Interest for such
Fixed
Period
|
|
|
C
|
=
|
the
Capital of such portion of such Receivable Interest during such Fixed
Period
|
|
|
IR
|
=
|
the
Investor Rate for such portion of such Receivable Interest for such
Fixed
Period
|
|
|
ED
|
=
|
the
actual number of days elapsed during such portion of such Fixed
Period
|
provided
that no provision of this Agreement shall require the payment or permit the
collection of Yield in excess of the maximum permitted by applicable law; and
provided further that Yield for any Receivable Interest shall not
be considered paid by any distribution to the extent that at any time all or
a
portion of such distribution is rescinded or must otherwise be returned for
any
reason.
“Yield
and Fee Reserve” means, on any date, an amount equal to
(C
x
YFRP) + (CAFP x OB) + AUYF
where:
|
|
C
|
=
|
the
aggregate Capital of all Receivable Interests at the close of business
of
the Collection Agent on such date.
|
|
|
YFRP
|
=
|
the
Yield and Fee Reserve Percentage on such
date.
|
|
|
CAFP
|
=
|
the
Collection Agent Fee Reserve Percentage on such
date.
|
|
|
OB
|
=
|
the
aggregate Outstanding Balance of all Originator Receivables at the
end of
the most recently ended calendar
month.
|
|
|
AUYF
|
=
|
accrued
and unpaid Yield, Collection Agent Fee and Fees on such date, for
all
Receivable Interests.
|
“Yield
and Fee Reserve Percentage” means, on any date, a percentage equal
to
[(AER
x 1.5) + AM + PF] x RTR
360
where:
|
|
AER
|
=
|
the
one-month Adjusted Eurodollar Rate in effect on such
date.
|
|
|
AM
|
=
|
the
Applicable Margin over the Eurodollar Rate used in the calculation
of the
Assignee Rate in effect on such
date.
|
|
|
PF
|
=
|
the
Program Fee (as defined in the Facility Fee Agreement), in effect
on such
date.
|
|
|
RTR
|
=
|
the
highest of the Three-Month Receivable Turnover Ratios calculated
for each
of the twelve most recently ended calendar
months.
|
SECTION
1.02. Other Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles. All terms used in Article 9 of the UCC in the
State of New York, and not specifically defined herein, are used herein as
defined in such Article 9.
AMOUNTS
AND TERMS OF THE PURCHASES
SECTION
2.01. Purchase Facility. (a) On the terms and
conditions hereinafter set forth, each of CAFCO and VFCC may, in its sole
discretion, ratably in accordance with the Investor Purchase Limit of its
Group,
and, if and to the extent CAFCO or VFCC does not make a purchase, the Related
Banks for such Investor shall, ratably in accordance with their respective
Bank
Commitments, purchase Receivable Interests from the Seller from time to time
during the period from the date hereof to the Facility Termination Date (in
the
case of the Investors) and to the Commitment Termination Date (in the case
of
the Banks); provided, however, that during the Term Period for any
Group, the Investor in such Group shall not purchase any Receivable Interests
hereunder. Under no circumstances shall the Investors make any such purchase,
or
the Banks be obligated to make any such purchase, if after giving effect
to such
purchase the aggregate outstanding Capital of Receivable Interests would
exceed
the Purchase Limit. Notwithstanding the foregoing, at any time when L/C
Receivable Interests are outstanding and a request for an additional purchase
is
made hereunder (which complies with the limitation in the immediately preceding
sentence) but which, if allocated ratably in accordance with the respective
Investor Purchase Limits or Bank Commitments as set forth in the second
preceding sentence, would cause the aggregate Capital of Receivable Interests
(including L/C Receivable Interests) held by the Investors and the Banks
in the
VFCC Group to exceed the Investor Purchase Limit for such Group, then such
excess shall be allocated to, and shall be purchased by, the Investors or
Banks
in the CAFCO Group, subject to the other terms and conditions of this Article
II
and Article III (any purchase pursuant to such allocation being referred
to
herein as a “Non-Pro-Rata Allocation”).
(b) The
Seller may at any time, upon at least five Business Days’ notice to the Program
Agent and the Investor Agents, terminate the facility provided for in this
Agreement in whole or, from time to time, reduce in part the unused portion
of
the Purchase Limit; provided that each partial reduction shall be in the
amount of at least $1,000,000 or an integral multiple thereof.
(c) Until
the Program Agent (or any Investor Agent with respect to its Investor) gives
the
Seller the notice provided in Section 3.02(c)(iii), the Program Agent, on behalf
of the Investors which own Receivable Interests, may have the Collections
attributable to such Receivable Interests automatically reinvested pursuant
to
Section 2.04 in additional undivided percentage interests in the Pool
Receivables by making an appropriate readjustment of such Receivable Interests.
The Program Agent, on behalf of the Banks which own Receivable Interests, shall
have the Collections attributable to such Receivable Interests automatically
reinvested pursuant to Section 2.04 in additional undivided percentage interests
in the Pool Receivables by making an appropriate readjustment of such Receivable
Interests.
(d) At
least three Business Days prior to the Cash Secured Advance Commencement Date
for any Group, the Seller shall notify the Investor Agent for such Group if
the
Seller wishes the Banks in such Group to make the advances described in this
Section 2.01(d). Following such notice, on the Cash Secured Advance Commencement
Date for such Group, each Bank in such Group shall, and severally agrees to,
make an advance to the Seller in Dollars in an amount equal to the excess of
(i)
such Bank’s Bank Commitment over (ii) the outstanding Capital of all Receivable
Interests owned by such Bank (after giving effect to any purchase made by such
Bank on or prior to such Cash Secured Advance Commencement Date pursuant to
this
Agreement or pursuant to the Asset Purchase Agreement to which it is a party)
on
the Term-Out Bank Purchase Date for such Group, and such Bank shall make such
advance by causing an amount equal to such advance to be deposited in same
day
funds into the Collateral Advance Account.
SECTION
2.02. Making Purchases. (a) Each purchase by any of
the Investors or the Banks shall be made on at least one Business Day’s notice
(given no later than 12:00 noon) from the Seller to the Program Agent and each
Investor Agent, provided that no more than 6 purchases shall be made in
any calendar month. Each such notice of a purchase shall be in the form attached
hereto as Annex I, shall be irrevocable and shall specify (i) the amount
requested to be paid to the Seller (such amount, which shall not be less than
$1,000,000, being referred to herein as the initial “Capital” of the Receivable
Interest then being purchased), (ii) the allocation of such amount among each
of
the Groups (which shall be proportional to the Investor Purchase Limit of each
Group), (iii) the date of such purchase (which shall be a Business Day), and
(iv) if the Assignee Rate based on the Eurodollar Rate is to apply to such
Receivable Interest, the duration of the initial Fixed Period for such
Receivable Interest. Each Investor shall promptly notify the Program Agent
whether such Investor has determined to make the requested purchase on the
terms
specified by the Seller. The Program Agent shall promptly thereafter notify
the
Seller whether the Investors have determined to make the requested purchase
and,
if so, whether all of the terms specified by the Seller are acceptable to the
Investors.
If
any
Investor has determined not to make the entire amount of a proposed purchase
requested to be made by it, the Investor Agent for such Investor shall promptly
send notice of the proposed purchase to all of the Related Banks for such
Investor concurrently by telecopier specifying the date of such purchase, the
aggregate amount of Capital of Receivable Interest being purchased by such
Related Banks (which amount shall be equal to the portion of the initial Capital
requested to be funded by such Investor, which such Investor determined not
to
fund), each such Related Bank’s portion thereof (determined ratably in
accordance with its respective Bank Commitment), whether the Yield for the
Fixed
Period for such Receivable Interest is calculated based on the Eurodollar Rate
(which may be selected only if such notice is given at least three Business
Days
prior to the purchase date) or the Alternate Base Rate, and the duration of
the
Fixed Period for such Receivable Interest (which shall be one day if the Seller
has not selected another period); provided, however, that during
the Term Period for any Group, each Bank in such Group shall, on the date of
such purchase, instruct the Program Agent to make available to the Seller at
the
account set forth in the Funds Transfer Letter such Bank’s Ratable Share of the
amount of Capital of the interest in the Receivable Interest being acquired
by
such Group out of the funds available therefor in the Collateral Advance
Account.
(b)
On
the date of each such purchase of a Receivable Interest, the applicable
Investors and/or Banks, as the case may be, shall, upon satisfaction of the
applicable conditions set forth in this Article II and Article III, make
available to the Seller in same day funds, at the account set forth in the
Funds
Transfer Letter, an aggregate amount equal to the initial Capital of such
Receivable Interest; provided, however, if such purchase is being
made by the applicable Banks following the designation by the Investor Agent
for
an Investor of a Termination Date for a Receivable Interest owned by such
Investor pursuant to clause (i)(a) of the definition of Termination Date and
any
Capital of such Receivable Interest is outstanding on such date of purchase,
the
Seller hereby directs the applicable Banks to pay the proceeds of such purchase
(to the extent of the outstanding Capital and accrued Yield on such Receivable
Interest of such Investor) to the relevant Investor Agent’s Account, for
application to the reduction of the outstanding Capital and accrued Yield on
such Receivable Interest of such Investor; provided, further,
however, that during the Term Period for any Group, after
receipt by the
Program Agent of the instruction from each Bank in such Group referred to in
the
proviso to the last sentence of Section 2.02(a) and upon fulfillment of the
applicable conditions set forth in Article III, the Program Agent shall make
available to the Seller at the account set forth in the Funds Transfer Letter
such Bank’s Ratable Share of such Group’s amount of such purchase, solely out of
the funds available therefor in the Collateral Advance Account, and upon such
deposit each such Bank will be deemed to have paid to the Seller such Bank’s
Ratable Share of such Group’s amount of the Capital of the interest in the
Receivable Interest being acquired for all purposes of this
Agreement.
(c) Effective
on the date of each purchase pursuant to this Section 2.02 and each reinvestment
pursuant to Section 2.04, the Seller hereby sells and assigns to the Program
Agent, for the benefit of the parties making such purchase, an undivided
percentage ownership interest, to the extent of the Receivable Interest then
being purchased, in each Pool Receivable then existing and in the Related
Security and Collections with respect thereto.
(d) Notwithstanding
the foregoing, (i) CAFCO shall not make purchases under this Section 2.02 at
any
time in an amount which would exceed the Investor Purchase Limit of such
Investor’s Group, (ii) VFCC shall not make purchases under this Section 2.02 at
any time in an amount which would exceed the Investor Purchase Limit of such
Investor’s Group less the aggregate outstanding Capital of L/C Receivable
Interests and (iii) a Bank shall not be obligated to make any purchase under
this Section 2.02 at any time if, after giving effect to such purchase, the
aggregate outstanding Capital of Receivable Interests (including L/C Receivable
Interests) held by such Bank would exceed such Bank’s Bank Commitment less such
Bank’s Ratable Share of the aggregate outstanding portion of Capital held by the
Investor in such Bank’s Group (whether or not any portion thereof has been
assigned under an Asset Purchase Agreement), after giving effect to reductions
of the Capital held by the Investor in such Bank’s Group to be made on the date
of such purchase (whether from the distribution of Collections or from the
proceeds of purchases by such Bank). Each Bank’s obligation shall be several,
such that the failure of any Bank to make available to the Seller any funds
in
connection with any purchase shall not relieve any other Bank of its obligation,
if any, hereunder to make funds available on the date of such purchase, but
no
Bank shall be responsible for the failure of any other Bank to make funds
available in connection with any purchase.
SECTION
2.03. Receivable Interest Computation. Each
Receivable Interest shall be initially computed on its date of purchase.
Thereafter until the Termination Date for such Receivable Interest, such
Receivable Interest shall be automatically recomputed (or deemed to be
recomputed) on each day on which there is an increase or decrease in the amount
of Capital of such Receivable Interest or any other Receivable Interest. Any
Receivable Interest, as computed (or deemed recomputed) as of the day
immediately preceding the Termination Date for such Receivable Interest, shall
thereafter remain constant. Each Receivable Interest (including an L/C
Receivable Interest) shall become zero when Capital thereof and Yield thereon
shall have been paid in full, and all Fees and other amounts owed by the Seller
hereunder to the Investors, the Banks, the Investor Agents or the Program Agent
are paid and the Collection Agent shall have received the accrued Collection
Agent Fee thereon. In addition to the foregoing, an L/C Receivable Interest
may
become zero as provided in Section 2.18(g) or 2.18(l).
SECTION
2.04. Settlement Procedures. (a) Collection of the
Pool Receivables shall be administered by a Collection Agent, in accordance
with
the terms of Article VI of this Agreement. The Seller shall provide to the
Collection Agent (if other than the Seller) on a timely basis all information
needed for such administration, including notice of the occurrence of any
Liquidation Day and current computations of each Receivable
Interest.
(b)
The
Collection Agent shall, on each day on which Collections of Pool Receivables
are
received by it (provided that if the notices of effectiveness attached to the
Deposit Account Agreements have been delivered to the Deposit Banks pursuant
to
Section 6.03(a), the Collection Agent shall not be permitted to access or
withdraw funds in the Deposit Accounts, and the Program Agent shall direct
the
Deposit Banks to remit funds in accordance with the following
clauses):
(i) with
respect to each Receivable Interest, set aside and hold in trust (and, at the
request of the Program Agent, segregate) for the Investors or the Banks that
hold such Receivable Interest and for the Investor Agents, out of the percentage
of such Collections represented by such Receivable Interest, an amount equal
to
the Yield, Fees and Collection Agent Fee (and, during the Term Period, an amount
equal to the Excess Interest in respect of all Cash Secured Advances) accrued
through such day for such Receivable Interest and not previously set
aside;
(ii) with
respect to each Receivable Interest, if such day is not a Liquidation Day for
such Receivable Interest, reinvest with the Seller on behalf of the Investors
or
the Banks that hold such Receivable Interest the percentage of such Collections
represented by such Receivable Interest, to the extent representing a return
of
Capital, by recomputation of such Receivable Interest pursuant to Section
2.03;
(iii) if
such day is a Liquidation Day for any one or more Receivable Interests, set
aside and hold in trust (and, at the request of the Program Agent, segregate)
for the Investors and/or the Banks that hold such Receivable Interests and
for
the Investor Agents (x) if such day is a Liquidation Day for less than all
of
the Receivable Interests, the percentage of such Collections represented by
such
Receivable Interests, and (y) if such day is a Liquidation Day for all of the
Receivable Interests, all of the remaining Collections (but not in excess of
the
Capital of such Receivable Interests and any other amounts payable by the Seller
hereunder); provided that if amounts are set aside and held in trust on
any Liquidation Day occurring prior to the Termination Date, and thereafter
prior to the next occurring Settlement Date (Capital) the conditions set forth
in Section 3.02 are satisfied or waived by the Program Agent and the Investor
Agents, such previously set aside amounts shall, to the extent representing
a
return of Capital, be reinvested in accordance with the preceding subsection
(ii) on the day of such subsequent satisfaction or waiver of conditions;
provided, further, if such day is a Liquidation Day for one or
more Receivable Interests solely by reason of the designation by the Investor
Agent for an Investor of a Termination Date for a Receivable Interest pursuant
to clause (i)(a) of the definition of Termination Date (and no other event
or
condition qualifying as a Liquidation Day has occurred), then the Collection
Agent shall periodically notify such Investor Agent of the amounts set aside
and
held in trust pursuant to this clause (iii) on account of such Receivable
Interests (which notice shall be given at such times as the Collection Agent
and
such Investor Agent may agree, but no less frequently than weekly), the Banks
in
such Investor Agent’s Group shall make periodic purchases of the Receivable
Interests from the Seller having initial Capital equal to the amounts so set
aside and held in trust, the Seller hereby directs such Banks to pay the
proceeds of such purchases to the applicable Investor Agent’s Account, for
application to the reduction of the outstanding Capital on such Receivable
Interests of such Investor, and the amounts so set aside and held in trust
shall
be paid by the Collection Agent to the Seller on account of the purchase price
of the Receivable Interests so purchased by such Banks; and
(iv)
during such times as amounts are required to be reinvested in accordance with
the foregoing subsection (ii) or the provisos to subsection (iii), release
to
the Seller for its own account any Collections in excess both of such amounts
and of the amounts that are required to be set aside pursuant to subsection
(i)
above.
(c)
On
each Settlement Date (Yield and Fees), the Collection Agent shall deposit into
the Investor Agent’s Account of each Investor Agent Collections held for such
Investor Agent and/or the Investors or the Banks in its Group pursuant to
Section 2.04(b) that relate to the Receivable Interests owned by such Investors
and Banks. In addition, during the Revolving Period, on each Settlement Date
(Capital) following delivery of a Seller Report which shows that the Percentage
Factor on the last day of the applicable reporting period was greater than
the
Maximum Percentage Factor, and on each Business Day thereafter until such
condition no longer exists, the Collection Agent shall deposit into the Investor
Agent’s Account of each Investor Agent Collections set aside for such Investor
Agent and/or the Investors or the Banks in its Group pursuant to clause (iii)
of
Section 2.04(b); provided that the aggregate amount deposited pursuant to
this sentence with respect to any Seller Report shall not exceed an amount
such
that, after giving effect to the application of such amount to the reduction
of
Capital with respect to the Receivable Interests shown in that Seller Report,
the Percentage Factor is equal to the Maximum Percentage Factor. Notwithstanding
the preceding sentence, at any time during the Revolving Period when a
Non-Pro-Rata Allocation exists and the Collection Agent is depositing
Collections to the Investor Agent’s Accounts which are to be used to reduce
Capital, the Collection Agent shall remit such Collections first to the Investor
Agent for the CAFCO Group, to the extent necessary to eliminate such
Non-Pro-Rata Allocation, and then ratably to the Investor Agents, in proportion
to the Capital of Receivable Interests (excluding L/C Receivable Interests)
held
by the Investor and the Banks in each Investor Agent’s Group. On each Settlement
Date (Capital) on which Collections are held for the Investors or the Banks
pursuant to clause (iii) of Section 2.04(b), after giving effect to any deposits
to be made on such date pursuant to the two preceding sentences of this Section
2.04(c), the Collection Agent shall deposit into the Investor Agent’s Account of
each Investor Agent Collections held for such Investor Agent and/or the
Investors or the Banks in its Group pursuant to Section 2.04(b) that relate
to
the Receivable Interests owned by such Investors and Banks.
(d)
Upon
receipt of funds deposited into the Investor Agent’s Account, the relevant
Investor Agent shall distribute them as follows:
(i) if
such distribution occurs on a day that is not a Liquidation Day, first to
the
Investors, the Banks and, during the Term Period, the Term-Out Banks in its
Group that hold the relevant Receivable Interest in the ratable payment in
full
of all accrued Yield and Excess Interest in respect of all Cash Secured Advances
(pursuant to the last sentence of Section 2.15) and to such Investor Agent
as
payment in full of all Fees, and then to the Collection Agent in payment
in full
of all accrued Collection Agent Fee payable by the Investors, the Banks and
the
Term-Out Banks in its Group;
(ii) if
such distribution occurs on a Liquidation Day, to the extent such Investor
Agent
is then holding funds deposited pursuant to the second sentence of Section
2.04(c), to the Investors or the Banks in its Group that hold the relevant
Receivable Interest in reduction of Capital and then in accordance with clause
(iii) below, provided, that if any L/C Receivable Interests are then
outstanding and held by any Bank in such Group, such funds shall be applied
first to the reduction of Capital of all Receivable Interests of such Group
other than L/C Receivable Interests for which no unpaid Reimbursement Obligation
is outstanding, and if the Capital of all such Receivable Interests shall be
reduced to zero, any additional funds shall be deposited to the L/C Collateral
Account, to cash collateralize the Seller’s contingent reimbursement obligations
with respect to Letters of Credit;
(iii) if
such distribution occurs on a Liquidation Day, after any payments
required in accordance with clause (ii) above, first to such Investor
Agent in payment of any amounts owed by the Seller to such Investor Agent (or,
in the case of CNAI, the Program Agent) pursuant to Section 11.04(a) in
connection with out-of-pocket costs and expenses incurred by such Investor
Agent
(or, in the case of CNAI, the Program Agent), second to the Collection
Agent (if the Collection Agent is not the Seller or an Affiliate of the Seller)
in payment in full of all accrued Collection Agent Fee, third to the
Investors, the Banks and/or Term-Out Banks in its Group that hold the relevant
Receivable Interest and to such Investor Agent in the ratable payment in full
of
all accrued Yield and Excess Interest in respect of all Cash Secured Advances
and accrued Fees and Liquidation Fee, fourth to such Investors and/or
Banks in reduction to zero of all Capital of all Receivable Interests of such
Group other than L/C Receivable Interests for which no unpaid Reimbursement
Obligation is outstanding, fifth to the L/C Collateral Account, to cash
collateralize the Seller’s contingent reimbursement obligations with respect to
Letters of Credit, until the amount in the L/C Collateral Account equals the
aggregate outstanding Capital of all L/C Receivable Interests, sixth to
the Term-Out Banks in reduction to zero of the principal amount of all Cash
Secured Advances remaining after application of the Term-Out Bank Collateral
in
accordance with Section 2.17(d), seventh to such Investors, Banks or such
Investor Agent in payment of any other amounts owed by the Seller hereunder
or
any other Transaction Document which have not been paid pursuant to clauses
first through sixth above, and eighth to the Collection Agent (if the
Collection Agent is the Seller or an Affiliate of the Seller) in payment in
full
of all accrued Collection Agent Fee.
After
the
Capital, Yield, Fees and Collection Agent Fee with respect to a Receivable
Interest, and any other amounts payable by the Seller to the Investors, the
Banks, the Investor Agents or the Program Agent hereunder or under any other
Transaction Document, have been paid in full and any contingent obligations
of
the Program Agent under any Deposit Account Agreement or Collateral Advance
Account Agreement have been released, and after the aggregate outstanding
Capital of all L/C Receivable Interests has been fully cash collateralized
in
the L/C Collateral Account, all additional Collections with respect to such
Receivable Interest shall be paid to the Seller for its own
account.
(e)
For
the purposes of this Section 2.04:
(i) if
on any day any Pool Receivable becomes (in whole or in part) a Diluted
Receivable, the Seller shall be deemed to have received on such day a Collection
of such Pool Receivable in the amount of such Diluted Receivable;
(ii) if
on any day any of the representations or warranties contained in Section 4.01(h)
is no longer true with respect to any Pool Receivable, the Seller shall be
deemed to have received on such day a Collection of such Pool Receivable in
full;
(iii) except
as provided in subsection (i) or (ii) of this Section 2.04(e), or as otherwise
required by applicable law or the relevant Contract, all Collections received
from an Obligor of any Receivables shall be applied to the Receivables of such
Obligor in the order of the age of such Receivables, starting with the oldest
such Receivable, unless such Obligor designates its payment for application
to
specific Receivables; and
(iv) if
and to the extent the Program Agent or any of the Investor Agents, the Investors
or the Banks shall be required for any reason to pay over to an Obligor any
amount received on its behalf hereunder, such amount shall be deemed not to
have
been so received but rather to have been retained by the Seller and,
accordingly, the Program Agent or such Investor Agent, the Investors or the
Banks, as the case may be, shall have a claim against the Seller for such
amount, payable when and to the extent that any distribution from or on behalf
of such Obligor is made in respect thereof.
(f)
Within one Business Day after the end of each Fixed Period in respect of which
Yield is computed by reference to the Investor Rate, each Investor Agent shall
furnish the Seller with an invoice setting forth the amount of the accrued
and
unpaid Yield and Fees for such Fixed Period with respect to the Receivable
Interests held by the Investors and the Banks in such Investor Agent’s
Group.
(g)
All
amounts payable by the Seller or the Servicer under this Agreement to the
Program Agent for its own account or for the account of the Investors, the
Banks
or the Investor Agents shall be paid in Dollars. The purchase price for
Receivable Interests and all other amounts payable by the Investors or the
Banks
under this Agreement shall be payable in Dollars.
SECTION
2.05. Fees. (a) Each Investor and Bank shall pay to
the Collection Agent a fee (the “Collection Agent Fee”) of l/2 of 1% per
annum on an amount equal to the Receivable Interest of such Investor or Bank
(expressed as a percentage) multiplied by the average daily Outstanding Balance
of all Receivables, from the date of purchase of such Receivable Interest until
the later of the Termination Date for such Receivable Interest or the date
on
which the Capital of such Receivable Interest is reduced to zero, payable on
each Settlement Date (Yield and Fees). Upon three Business Days’ notice to the
Program Agent and each Investor Agent, the Collection Agent (if not the Parent
or an Affiliate of the Parent) may elect to be paid, as such fee, another
percentage per annum on the average daily Outstanding Balance of all
Receivables, but in no event in excess for all Receivable Interests of 110%
of
the reasonable costs and expenses of the Collection Agent in administering
and
collecting the Receivables in the Receivables Pool. The Collection Agent Fee
shall be payable only from Collections pursuant to, and subject to the priority
of payment set forth in, Section 2.04(d). So long as the Parent is acting as
the
Collection Agent hereunder, amounts paid as the Collection Agent Fee pursuant
to
this Section 2.05(a) shall reduce, on a dollar-for-dollar basis, the obligation
of the Seller to pay the “Collection Agent Fee” pursuant to Section 6.03 of the
Originator Purchase Agreement, provided that such obligation of the
Seller shall in no event be reduced below zero.
(b)
The
Seller shall pay to the Investor Agents certain fees in the amounts and on
the
dates set forth in a separate fee agreement of even date among the Seller,
the
Program Agent and the Investor Agents, as the same may be amended or restated
from time to time (the “Facility Fee Agreement”).
SECTION
2.06. Payments and Computations, Etc. (a) All
amounts to be paid or deposited by the Seller or the Collection Agent hereunder
shall be paid or deposited no later than 11:00 A.M. (New York City time) on
the
day when due in same day funds to the applicable Investor Agent’s
Account.
(b)
All
computations of Yield, fees, and other amounts hereunder (including, without
limitation, Excess Interest on Cash Secured Advances during the Term Period)
shall be made on the basis of a year of 360 days for the actual number of days
(including the first but excluding the last day) elapsed. Whenever any payment
or deposit to be made hereunder shall be due on a day other than a Business
Day,
such payment or deposit shall be made on the next succeeding Business Day and
such extension of time shall be included in the computation of such payment
or
deposit.
SECTION
2.07. Dividing or Combining Receivable Interests.
Either the Seller or any Investor Agent may, upon notice to the other party
(with a copy of such notice to the Program Agent) received at least three
Business Days prior to the last day of any Fixed Period in the case of the
Seller giving notice, or up to the last day of such Fixed Period in the case
of
an Investor Agent giving notice, either (i) divide any Receivable Interest
held
by one or more Investors and/or Banks in its Group into two or more Receivable
Interests of such Investors and/or Banks having aggregate Capital equal to
the
Capital of such divided Receivable Interest, or (ii) combine any two or more
Receivable Interests held by one or more Investors and/or Banks in its Group
originating on such last day or having Fixed Periods ending on such last day
into a single Receivable Interest having Capital equal to the aggregate of
the
Capital of such Receivable Interests; provided, however, that no
Receivable Interest owned by an Investor may be combined with a Receivable
Interest owned by any Bank.
SECTION
2.08. Increased Costs. (a) If CNAI, any Investor,
any Investor Agent, any Bank, the L/C Bank, any entity (including any bank
or
other financial institution providing liquidity and/or credit support to any
Investor in connection with such Investor’s commercial paper program) which
purchases or enters into a commitment to purchase Receivable Interests or
interests therein, or any of their respective Affiliates (each an “Affected
Person”) determines that due to any change in any law or regulation or any
guideline or request regarding the capital required or expected to be maintained
by such Affected Person from any central bank or other governmental authority
(whether or not having the force of law), in each case made subsequent to the
date hereof, the amount of capital required or expected to be maintained by
such
Affected Person is increased by or based upon the existence of any commitment
to
make purchases of or otherwise to maintain the investment in Pool Receivables
or
interests therein related to this Agreement or to the funding thereof and other
commitments of the same type, then, upon demand by such Affected Person (with
a
copy to the Program Agent and the Investor Agent for such Affected Person’s
Group), the Seller shall immediately pay to the Investor Agent for such Affected
Person’s Group for the account of such Affected Person (as a third-party
beneficiary), from time to time as specified by such Affected Person, additional
amounts sufficient to compensate such Affected Person in the light of such
circumstances, to the extent that such Affected Person reasonably determines
such increase in capital to be allocable to the existence of any of such
commitments. A certificate as to such amounts submitted to the Seller and the
Program Agent and the Investor Agent for such Affected Person’s Group by such
Affected Person shall specify in reasonable detail the basis for the request
for
compensation of such additional amounts and the basis for the calculation
thereof and shall be conclusive and binding for all purposes, absent manifest
error.
(b)
If,
due to either (i) the introduction of or any change (other than any change
by
way of imposition or increase of reserve requirements referred to in Section
2.09) in or in the interpretation of any law or regulation (other than a law
or
regulation relating to taxes) or (ii) compliance with any guideline or request
from any central bank or other governmental authority (whether or not having
the
force of law) other than compliance with respect to taxes, there shall be any
increase in the cost to any Investor or Bank of agreeing to purchase or
purchasing, or maintaining the ownership of Receivable Interests in respect
of
which Yield is computed by reference to the Eurodollar Rate or of agreeing
to
issue or of issuing or maintaining Letters of Credit, then, upon demand by
such
Investor or Bank (with a copy to the Program Agent and the Investor Agent for
such Investor or such Bank), the Seller shall immediately pay to such Investor
Agent, for the account of such Investor or Bank (as a third-party beneficiary),
from time to time as specified by such Investor or Bank, additional amounts
sufficient to compensate such Investor or Bank for such increased costs. A
certificate as to such amounts submitted to the Seller and the Program Agent
and
the Investor Agent for such Affected Person’s Group by such Investor or Bank
shall specify in reasonable detail the basis for the request for compensation
of
such additional amounts and the basis for the calculation thereof and shall
be
conclusive and binding for all purposes, absent manifest error.
(c) Failure
or delay on the part of any Person to demand compensation pursuant to this
Section 2.08 shall not constitute a waiver of such Person’s right to demand such
compensation; provided that the Seller shall not be required to
compensate any Person pursuant to this Section 2.08 for any increased costs
incurred more than 270 days prior to the date that such Person notifies the
Seller and the Program Agent of any event described in paragraph (a) or (b)
of
this Section (a “Change in Law”) which gives rise to such increased costs
and of such Lender’s intention to claim compensation therefor; provided
further that, if the Change in Law giving rise to such increased
costs is retroactive, then the 270-day period referred to above shall be
extended to include the period of retroactive effect thereof.
(d) If
any Person requests compensation under this Section 2.08, then such Person
shall
use reasonable efforts to designate a different office for funding or booking
its purchases hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Person, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to this Section 2.08 and (ii) would not subject such Person
to
any unreimbursed cost or expense and would not otherwise be disadvantageous
to
such Person. The Seller hereby agrees to pay all reasonable costs and expenses
incurred by any Person in connection with any such designation or
assignment.
SECTION
2.09. Additional Yield on Receivable Interests Bearing
a Eurodollar Rate. The Seller shall pay to any Investor or Bank, so
long as such Investor or Bank shall be required under regulations of the Board
of Governors of the Federal Reserve System to maintain reserves with respect
to
liabilities or assets consisting of or including Eurocurrency Liabilities,
additional Yield on the unpaid Capital of each Receivable Interest of such
Investor or Bank during each Fixed Period relating to any portion of the Capital
of such Investor or Bank in respect of which Yield is computed by reference
to
the Eurodollar Rate, for such Fixed Period, at a rate per annum equal at all
times during such Fixed Period to the remainder obtained by subtracting (i)
the
Eurodollar Rate for such Fixed Period from (ii) the rate obtained by dividing
such Eurodollar Rate referred to in clause (i) above by that percentage equal
to
100% minus the Eurodollar Rate Reserve Percentage of such Investor or Bank
for
such Fixed Period, payable on each date on which Yield is payable on such
Receivable Interest. Such additional Yield shall be determined by such Investor
or Bank and notice thereof given to the Seller through the Investor Agent for
such Investor or Bank (with a copy to the Program Agent) within 30 days after
any Yield payment is made with respect to which such additional Yield is
requested. A certificate as to such additional Yield submitted to the Seller
and
the Program Agent by such Investor or Bank shall specify in reasonable detail
the basis for calculation of such additional Yield and shall be conclusive
and
binding for all purposes, absent manifest error.
SECTION
2.10. Taxes. (a) Any and all payments and deposits
required to be made hereunder or under any other Transaction Document by
the
Collection Agent or the Seller to any Affected Person shall be made free
and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding (i) net income taxes that are imposed by the United
States and franchise taxes and net income taxes that are imposed on an Affected
Person by the state or foreign jurisdiction under the laws of which such
Affected Person is organized or where such Affected Person is doing business,
other than solely as a consequence of the transactions contemplated hereunder,
or has its applicable lending office, or any political subdivision thereof
and
(ii) in the case of an Affected Person which is organized outside the United
States, any United States withholding tax that is imposed on amounts payable
to
such Affected Person at the time such Affected Person becomes a party to
this
Agreement (or changes its lending office), except to the extent such Affected
Person (or its assignor, if any) was entitled at the time of designation
of a
new lending office (or assignment), to receive additional amounts from Seller
with respect to such withholding tax pursuant to this Section 2.10(a) (all
such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as “Indemnified Taxes”). If the
Seller or the Collection Agent shall be required by law to deduct any
Indemnified Taxes from or in respect of any sum payable hereunder to any
Affected Person, (i) the Seller shall make an additional payment to such
Affected Person, in an amount sufficient so that, after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.10), such Affected Person receives an amount equal to the
sum it
would have received had no such deductions been made, (ii) the Seller or
the
Collection Agent, as the case may be, shall make such deductions and (iii)
the
Seller or the Collection Agent, as the case may be, shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law. Within 30 days after the date of any such payment of
Indemnified Taxes, the Seller or the Collection Agent, as the case may be,
will
furnish to such Affected Person the original or a certified copy of a receipt
evidencing payment thereof.
(b) In
addition, the Seller agrees to pay any present or future stamp or other
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under any other
Transaction Document or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Transaction Document
(hereinafter referred to as “Other Taxes”).
(c) The
Seller will indemnify each Affected Person for the full amount of Indemnified
Taxes or Other Taxes (including, without limitation, any Indemnified Taxes
or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.10) paid by such Affected Person and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto whether or
not
such Indemnified Taxes or Other Taxes were correctly or legally asserted.
Without limiting the foregoing, the Seller agrees to indemnify each Affected
Person for the full amount of any withholding taxes that are imposed by Canada
or any political subdivision thereof on any Affected Person in respect of any
Collections or other payments made hereunder or that are withheld from any
Collections or other payments made hereunder, and any taxes that are imposed
on
any Affected Person as a result of such Affected Person, in the case of an
Affected Person that is a Treaty Resident, having a permanent establishment
in
Canada for the purposes of a Tax Convention, or, in the case of an Affected
Person that is not a Treaty Resident, carrying on business in Canada for the
purposes of the Tax Act (unless it acquired such permanent establishment or
carries on business in Canada, as the case may be, otherwise than as a result
of
the transactions contemplated hereby), together in each case with any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, and whether or not such taxes were correctly or legally asserted.
The
foregoing indemnifications shall be made within thirty days from the date the
Affected Person makes written demand therefor (and a copy of such demand shall
be delivered to the Program Agent and the Investor Agent for such Affected
Person’s Group). A certificate as to the amount of such indemnification
submitted to the Seller, the Program Agent and the Investor Agent for such
Affected Person’s Group by such Affected Person, setting forth, in reasonable
detail, the basis for and the calculation thereof, shall be conclusive and
binding for all purposes absent manifest error.
(d) Each
Affected Person which is organized outside the United States and which is
entitled to an exemption from, or reduction of, withholding tax under the
laws
of the United States as in effect on the date hereof (or, in the case of
any
Person which becomes an Affected Person after the date hereof, on the date
on
which it so becomes an Affected Person with respect to any payments under
this
Agreement) shall, on or prior to the date hereof (or, in the case of any
Person
who becomes an Affected Person or changes its lending office after the date
hereof, on or prior to the date on which it so becomes an Affected Person
or
changes its lending office), deliver to the Seller such certificates, documents
or other evidence, as required by the Internal Revenue Code of 1986, as amended
or Treasury Regulations issued pursuant thereto, including Internal Revenue
Service Form W-8BEN or Form W-8ECI and any other certificate or statement
of
exemption required by Treasury Regulation Section 1.1441-1(a) or Section
1.1441-6(c) or any subsequent version thereof, properly completed and duly
executed by such Affected Person as will permit all payments under the Agreement
to be made to it without withholding or at a reduced rate. Each Affected
Person
which is organized under the laws of the United States or any State thereof
shall, on or prior to the date hereof (or, in the case of a Person who becomes
an Affected Person after the date hereof, on or prior to the date on which
it so
becomes an Affected Person), deliver to the Seller an IRS Form W-9 (or any
successor form). Each such Affected Person shall from time to time thereafter,
upon written request from the Seller, deliver to the Seller any new
certificates, documents or other evidence as described in the preceding two
sentences, as applicable, as will permit payments under this Agreement to
be
made without withholding or at a reduced rate (but only so long as such Affected
Person is legally able to do so).
(e) The
Seller shall not be required to pay any amounts to any Affected Person in
respect of Indemnified Taxes and Other Taxes pursuant to paragraphs (a), (b)
and
(c) above if the obligation to pay such amounts is attributable to the failure
by such Affected Person to comply with the provisions of paragraph (d) above;
provided, however, that should an Affected Person become subject
to Indemnified Taxes because of its failure to deliver a form required
hereunder, the Seller shall take such steps as such Affected Person shall
reasonably request to assist such Affected Person to recover such Indemnified
Taxes.
SECTION
2.11. Security Interest. As collateral security for
the performance by the Seller of all the terms, covenants and agreements on
the
part of the Seller (whether as Seller or otherwise) to be performed under this
Agreement or any document delivered in connection with this Agreement in
accordance with the terms thereof, including the punctual payment when due
of
all obligations of the Seller hereunder or thereunder, whether for
indemnification payments, principal and Excess Interest on the Cash Secured
Advances, Yield, Capital, Reimbursement Obligations, fees, expenses or
otherwise, the Seller hereby assigns to the Program Agent for its benefit and
the ratable benefit of the Investors, the Banks (including the L/C Bank) and
the
Investor Agents, and hereby grants to the Program Agent for its benefit and
the
ratable benefit of the Investors, the Banks (including the L/C Bank) and the
Investor Agents, a security interest in, all of the Seller’s right, title and
interest in and to the following (collectively, the “Collateral”): (A)
the Originator Purchase Agreement and the Undertaking, including, without
limitation, (i) all rights of the Seller to receive moneys due or to become
due
under or pursuant to the Originator Purchase Agreement or the Undertaking,
(ii)
all security interests and property subject thereto from time to time purporting
to secure payment of monies due or to become due under or pursuant to the
Originator Purchase Agreement or the Undertaking, (iii) all rights of the Seller
to receive proceeds of any insurance, indemnity, warranty or guaranty with
respect to the Originator Purchase Agreement or the Undertaking, (iv) claims
of
the Seller for damages arising out of or for breach of or default under the
Originator Purchase Agreement or the Undertaking, and (v) the right of the
Seller to compel performance and otherwise exercise all remedies thereunder,
(B)
all Receivables, whether now owned and existing or hereafter acquired or
arising, the Related Security with respect thereto and the Collections and
all
other assets, including, without limitation, accounts, chattel paper,
instruments and general intangibles (as those terms are defined in the UCC),
including undivided interests in any of the foregoing, (C) the Lock-Boxes and
Deposit Accounts and the funds deposited in such accounts and (D) to the extent
not included in the foregoing, all proceeds of any and all of the
foregoing.
SECTION
2.12. Sharing of Payments. If any Investor or any
Bank (for purposes of this Section only, referred to as a “Recipient”)
shall obtain payment (whether voluntary, involuntary, through the exercise
of
any right of setoff, or otherwise) on account of the Capital of, or Yield on,
any Receivable Interest or portion thereof owned by it in excess of its ratable
share of payments made on account of the Capital of, or Yield on, all of the
Receivable Interests owned by the Investors and the Banks (other than as set
forth in the third sentence of Section 2.04(c) or as a result of different
methods for calculating Yield), such Recipient shall forthwith purchase from
the
Investors or the Banks which received less than their ratable share
participations in the Receivable Interests owned by such Persons as shall be
necessary to cause such Recipient to share the excess payment ratably with
each
such other Person; provided, however, that if all or any portion
of such excess payment is thereafter recovered from such Recipient, such
purchase from each such other Person shall be rescinded and each such other
Person shall repay to the Recipient the purchase price paid by such Recipient
for such participation to the extent of such recovery, together with an amount
equal to such other Person’s ratable share (according to the proportion of (a)
the amount of such other Person’s required payment to (b) the total amount so
recovered from the Recipient) of any interest or other amount paid or payable
by
the Recipient in respect of the total amount so recovered.
SECTION
2.13. Right of Setoff. Without in any way limiting
the provisions of Section 2.12, each Agent, each Investor and each Bank is
hereby authorized at any time after the occurrence and during the continuance
of
an Event of Termination to set-off, appropriate and apply (without presentment,
demand, protest or other notice which are hereby expressly waived) any and
all
deposits (general or special, time or demand, provisional or final) at any
time
held and any other indebtedness at any time owing by such Agent, such Investor
or such Bank to, or for the account of, the Seller, the Parent, the Collection
Agent or any Originator against any amount owing by the Seller, the Parent,
the
Collection Agent or such Originator, as the case may be, to such Person or
to
such Agent on behalf of such Person (even if contingent or unmatured). Each
Agent, Investor and Bank agrees promptly to notify the Seller, the Parent,
the
Collection Agent or any Originator (as applicable) after any such set-off and
application, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Agent,
Investor and Bank under this Section 2.13 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Agent, Investor or Bank may have. For the avoidance of doubt, the right of
setoff set forth in this Section 2.13 permits setoff of deposits and
indebtedness held by or owing to one Person against amounts owing by such Person
to the owner of such deposits or the borrower/obligor of such indebtedness
(i.e., only mutual setoff between the same parties) and does not permit
non-mutual setoff.
SECTION
2.14. Purchase by Term-Out Banks. At least three
Business Days prior to the Cash Secured Advance Commencement Date for any
Group,
the Seller shall notify the Investor Agent for such Group if the Seller wishes
the purchase described in this Section 2.14 to occur. Following such notice,
on
the Cash Secured Advance Commencement Date for such Group, each Bank in such
Group shall, and severally agrees to, purchase from the Investor in its Group
such Bank’s Ratable Share of all Receivable Interests then owned by such
Investor for a purchase price equal to the sum of such Bank’s Ratable Share of
the Capital of such Receivable Interests plus accrued and unpaid Yield and
Fees
thereon. Such purchase price shall be payable in immediately available funds
on
the Cash Secured Advance Commencement Date for such Group. The assigning
Investor shall notify the Program Agent, its Investor Agent and the Seller
of
any such purchase. No further documentation of such purchase shall be required
for the effectiveness thereof, provided that if requested by any
purchasing Bank, the assigning Investor (or its administrative agent) will
execute and deliver an assignment to such Bank in such form as may be mutually
agreed between such Investor and such Bank.
SECTION
2.15. Interest on Cash Secured Advances. The Seller
shall pay interest to each Term-Out Bank on the unpaid principal amount of
such
Bank’s Cash Secured Advance from the date of such Cash Secured Advance until
such principal amount shall be repaid in full, at a rate per annum equal at
all
times during each Fixed Period to the Assignee Rate for such Fixed Period,
payable in arrears on each Settlement Date (Yield and Fees). On each Settlement
Date (Yield and Fees) after the Cash Secured Advance Commencement Date for
any
Group, the Program Agent shall pay, pursuant to a Collateral Advance Account
Direction from the Investor Agent for the relevant Group, to the Investor Agent
for such Group at such Investor Agent’s Account for the ratable account of the
relevant Banks, on behalf of the Seller, such Group’s ratable portion (based on
the outstanding principal amounts of each Group’s Cash Secured Advances) of the
cash funds that constitute that interest on, and those dividends from, the
Term-Out Bank Collateral which shall then be available to be withdrawn from
the
Collateral Advance Account, and such Investor Agent shall distribute the funds
so paid to such Investor Agent’s Account to the Banks in its Group, ratably
according to the respective outstanding principal amounts of their respective
Cash Secured Advances, for application to the payment of unpaid Excess Interest
on the Cash Secured Advances. Any remaining unpaid accrued Excess Interest
on
the Cash Secured Advances shall be paid from the Collections of the Pool
Receivables pursuant to Sections 2.04 and 2.17(d).
SECTION
2.16. Repayment of Cash Secured Advances. The
Seller shall repay to each Term-Out Bank the aggregate outstanding principal
amount of such Bank’s Cash Secured Advance on the Commitment Termination Date;
provided, however, that recourse for such repayment shall be from,
and shall be limited to, the Term-Out Bank Collateral and the Collections of
the
Pool Receivables in accordance with Section 2.04.
SECTION
2.17. Use of Proceeds; Security Interest in Collateral
Advance Account. (a) The Seller hereby agrees that it shall use
the proceeds of the Cash Secured Advances solely to fund and maintain the
Collateral Advance Account for the purpose of funding purchases of Receivable
Interests from time to time during the Term Period.
(b) The
Seller hereby grants to the Program Agent, for the ratable benefit of the
Term-Out Banks, a security interest in the following (collectively, the
“Term-Out Bank Collateral”):
(i) the
Collateral Advance Account, all funds from time to time credited to the
Collateral Advance Account, all financial assets (including, without limitation,
Eligible Investments) from time to time acquired with any such funds or
otherwise credited to the Collateral Advance Account, all interest, dividends,
cash, instruments and other investment property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all
of such funds or such financial assets, and
(ii) all
proceeds of, collateral for, and supporting obligations relating to any and
all
of the Term-Out Bank Collateral.
(c)
The
grant of a security interest by the Seller to the Program Agent for the ratable
benefit of the Term-Out Banks pursuant to subsection (b) above secures the
payment of the Seller’s obligation to repay the Cash Secured Advances, and to
pay interest thereon, pursuant to Sections 2.15 and 2.16,
respectively.
(d)
On
the Commitment Termination Date for any Group as to which the Term Period has
occurred, the Program Agent shall (i) convert the Term-Out Bank Collateral
that
does not constitute cash into cash proceeds and (ii) pay to the Investor Agent
for each such Group at such Investor Agent’s Account for the ratable account of
the Term-Out Banks in its Group, on behalf of the Seller, such Group’s ratable
portion of the Term-Out Bank Collateral (it being understood that all the
Term-Out Bank Collateral shall then constitute cash or cash proceeds), and
such
Investor Agent shall distribute the funds so paid to its Investor Agent’s
Account to the Banks in its Group, ratably according to the respective
outstanding principal amounts of their respective Cash Secured Advances, for
application, first, to the repayment of the outstanding principal amounts of
the
Cash Secured Advances and, second, to the payment of unpaid accrued interest
on
the Cash Secured Advances (to the extent such funds are available therefor).
Any
remaining outstanding principal amount of, and/or unpaid accrued interest on,
the Cash Secured Advances shall be paid from the Collections of the Pool
Receivables pursuant to Section 2.04.
SECTION
2.18. Letter of Credit Facility. (a) On the terms
and conditions hereinafter set forth, the Seller agrees to sell to Wachovia,
and
Wachovia agrees to purchase, Receivable Interests from time to time during
the
period from the date hereof to the L/C Termination Date, in each case in
consideration of the issuance of a Letter of Credit by Wachovia for the account
of the Seller. Each Receivable Interest purchased pursuant to this Section
is
sometimes referred to as an “L/C Receivable Interest”, and Wachovia in
its capacity as issuer of Letters of Credit is referred to herein as the “L/C
Bank”. No Investor and no Bank other than Wachovia shall have any obligation
to purchase L/C Receivable Interests or to issue any Letter of
Credit.
(b) At
any time when L/C Receivable Interests are outstanding, unless a Liquidation
Day
has occurred with respect to all Receivable Interests, the Program Agent, on
behalf of the L/C Bank, shall have the Collections attributable to such L/C
Receivable Interests automatically reinvested pursuant to Section 2.04 in
additional undivided percentage interests in the Pool Receivables by making
an
appropriate readjustment of such L/C Receivable Interests.
(c) Each
request for the issuance of a Letter of Credit shall be made not later than
12:00 noon on at least three Business Days’ notice from the Seller to the
Program Agent and the L/C Bank and shall be substantially in the form of the
Letter of Credit Request attached hereto as Annex H. Each such request shall
specify (i) the face amount of the Letter of Credit requested to be issued
(such
amount, which shall not be less than $250,000, being referred to herein as
the
initial Capital of the Receivable Interest then being purchased), (ii) the
proposed issuance date and expiry date of such Letter of Credit, and (iii)
the
beneficiary of such Letter of Credit, and shall be accompanied by a Letter
of
Credit Application completed to the reasonable satisfaction of the L/C Bank
and
duly executed by the Seller, and such other information as shall be necessary
to
prepare, amend, renew or extend such Letter of Credit. In addition, the Seller
may from time to time request that the L/C Bank renew, extend, increase,
decrease or otherwise modify any Letter of Credit previously issued hereunder
(“Modify”, and each such action a “Modification”), in each case by
notice to the Program Agent and the L/C Bank, given not later than 12:00 noon
three Business Days prior to the date of the proposed Modification, and
substantially in the form of the Letter of Credit Request attached hereto as
Annex H. All terms of each proposed Letter of Credit and each Modification
thereto must be reasonably acceptable to the L/C Bank. In no event shall the
L/C
Bank issue a Modification if, on the proposed date of such Modification, the
L/C
Bank would not be obligated to issue a new Letter of Credit, if requested,
in
the amount and on the terms of (and in replacement for) the Letter of Credit
being Modified, or if the beneficiary does not consent to the proposed terms
of
the Modification.
(d) Effective
on the date of each purchase of an L/C Receivable Interest pursuant to this
Section 2.18 and each reinvestment pursuant to Section 2.04, the Seller hereby
sells and assigns to the Program Agent, for the benefit of the L/C Bank, an
undivided percentage ownership interest, to the extent of the Receivable
Interest then being purchased, in each Pool Receivable then existing and in
the
Related Security and Collections with respect thereto.
(e) Notwithstanding
the foregoing, (i) the L/C Bank shall not make any purchase of an L/C Receivable
Interest under this Section 2.18 on any date unless all conditions precedent
to
the initial purchase of a Receivable Interest set forth in Section 3.01 shall
have been satisfied on or prior to such date and all conditions precedent to
the
purchase of such Receivable Interest set forth in Section 3.02 shall be
satisfied on such date, (ii) the L/C Bank shall not make purchases of L/C
Receivable Interests under this Section 2.18 at any time if, after giving effect
to such purchase, the aggregate outstanding Capital of L/C Receivable Interests
would exceed the L/C Facility Limit and (iii) the L/C Bank shall not be
obligated to make purchases of L/C Receivable Interests under this Section
2.18
at any time if, after giving effect to such purchase, the sum of (x) the
aggregate outstanding Capital of Receivable Interests (including L/C Receivable
Interests) held by Wachovia plus (y) Wachovia’s Ratable Share of the aggregate
outstanding portion of Capital held by VFCC (whether or not any portion thereof
has been assigned under an Asset Purchase Agreement), in each case after giving
effect to any reductions of the Capital held by Wachovia or VFCC to be made
on
the date of such purchase (whether from the distribution of Collections or
from
the proceeds of purchases of Receivable Interests) would exceed Wachovia’s Bank
Commitment.
(f) Each
Letter of Credit shall, among other things, (i) provide for the payment of
sight
drafts or other written demands for payment when presented for honor thereunder
in accordance with the terms thereof and when accompanied by the documents
described therein and (ii) have an expiry date not later than twelve (12) months
after such Letter of Credit’s date of issuance and in no event later than the
date set forth in clause (a) of the definition of Commitment Termination Date
(as the same may be extended from time to time). Each Letter of Credit shall
be
subject either to the Uniform Customs and Practice for Documentary Credits
(1993
Revision), International Chamber of Commerce Publication No. 500, and any
amendments or revisions thereof or the International Standby Practices
(ISP98-International Chamber of Commerce Publication Number 590), and any
amendments or revisions thereof, as determined by the L/C Bank.
(g) In
the event of any request for a drawing under a Letter of Credit by the
beneficiary thereof, the L/C Bank will promptly notify the Program Agent and
the
Seller of such request. Provided that it shall have received such notice, the
Seller shall reimburse (such obligation to reimburse the L/C Bank shall
sometimes be referred to as a “Reimbursement Obligation”) the L/C
Bank prior to 11:00 A.M., New York time on each date (or, if such notice is
received after 9:00 A.M., the next Business Day following such date) that an
amount is paid by the L/C Bank under any Letter of Credit (each such date,
a
“Drawing Date”) in an amount equal to the amount so paid by the L/C Bank.
Upon the payment in full of such Reimbursement Obligation, the Capital of the
related L/C Receivable Interest shall automatically be reduced by the amount
of
such Reimbursement Obligation. In the event the Seller fails to reimburse the
L/C Bank for the full amount of any drawing under any Letter of Credit by 11:00
A.M., New York time, on the Drawing Date (or, if such notice is received after
9:00 A.M., the next Business Day following such date), the L/C Bank will
promptly notify each Agent thereof, and the Seller shall be deemed to have
requested that a purchase of a Receivable Interest be made by the Investors
or
the Banks pursuant to Section 2.02 in the amount of the unreimbursed drawing
under such Letter of Credit. Any such purchase of a Receivable Interest from
the
Seller shall be subject to all of the terms and provisions for the purchase
of a
Receivable Interest set forth in Articles II and III, except that (i) no notice
of purchase shall be required to be delivered by the Seller, (ii) the limitation
on the number of purchases per month in Section 2.02(a) shall not apply, (iii)
the Seller hereby directs the Investors or Banks funding such purchase to remit
the proceeds of such purchase directly to the L/C Bank to be applied to the
Reimbursement Obligation, thereby reducing the Capital of the related L/C
Receivable Interest by the full amount of such Reimbursement Obligation, and
(iv) for the purpose of determining compliance with Section 7.01(i) pursuant
to
the condition precedent set forth in Section 3.02(a), the Seller shall give
effect to the use of proceeds to repay Capital of the related L/C Receivable
Interest, as described in the preceding clause (iii).
(h) Notwithstanding
any other provision of this Agreement, prior to the Drawing Date of the related
Letter of Credit no Yield shall accrue or be payable on the Capital of the
L/C
Receivable Interest purchased in connection with such Letter of Credit. However,
for the avoidance of doubt, the Capital of each L/C Receivable Interest shall
be
included in the calculation of Yield and Fee Reserve. Following the Drawing
Date
of the related Letter of Credit (and until payment in full of the Reimbursement
Obligation), Yield shall accrue and be payable on the outstanding Capital
of the
L/C Receivable Interest purchased in connection with such Letter of Credit
at
the Assignee Rate. Program Fee (as such term is defined in the Facility Fee
Agreement) shall be payable on the outstanding Capital of any L/C Receivable
Interest, both prior to and after the Drawing Date of the related Letter
of
Credit. For the purpose of calculating the Liquidity Fee (as such term is
defined in the Facility Fee Agreement), the Capital of the L/C Receivable
Interests shall be disregarded, except to the extent of any unpaid Reimbursement
Obligation arising from a drawing with respect to the related Letter of
Credit.
(i) In
the event of a conflict between the Letter of Credit Application and this
Agreement, this Agreement shall govern. It is understood and agreed that, except
in the case of gross negligence or willful misconduct by the L/C Bank, the
L/C
Bank shall not be liable for any error, negligence and/or mistakes, whether
of
omission or commission, in following the Seller’s instructions or those
contained in the Letters of Credit or any modifications, amendments or
supplements thereto.
(j) In
determining whether to honor any request for drawing under any Letter of Credit
by the beneficiary thereof, the L/C Bank shall be responsible only to determine
that the documents and certificates required to be delivered under such Letter
of Credit have been delivered and that they comply on their face with the
requirements of such Letter of Credit and that any other drawing condition
appearing on the face of such Letter of Credit has been satisfied in the manner
so set forth.
(k) The
Seller’s obligations under this Section 2.18 (including, without limitation, the
obligation of the Seller to reimburse the L/C Bank upon a draw under a Letter
of
Credit) shall be absolute and unconditional under any and all circumstances
and
irrespective of:
(i) any
lack of validity or enforceability of any Letter of Credit, this Agreement,
or
any other agreement or instrument relating thereto;
(ii) any
claim of breach of warranty that might be made by the Seller, its Affiliates
or
the L/C Bank against the beneficiary of a Letter of Credit, or the existence
of
any claim, counterclaim, set-off, defense or other right that the Seller or
any
Originator may have at any time against any beneficiary or any transferee of
any
Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the L/C Bank or any other person, whether in
connection with this Agreement, the transactions contemplated hereby or by
any
Letter of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;
(iii) the
lack of power or authority of any signer of, or lack of validity, sufficiency,
accuracy, enforceability or genuineness of, any draft, demand, instrument,
certificate or other document presented under any Letter of Credit, or any
draft, demand, certificate or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
(provided that such draft, demand, certificate or other document presented
pursuant to such Letter of Credit appears on its face to comply with the
terms
thereof) or any statement therein being untrue or inaccurate in any respect;
or
any loss or delay in the transmission or otherwise of any document required
in
order to make a drawing under such Letter of Credit;
(iv) any
payment by the L/C Bank under any Letter of Credit against presentation of
a
draft or certificate that does not strictly comply with the terms of such Letter
of Credit (provided that such draft, demand, certificate or other document
presented pursuant to such Letter of Credit appears on its face to comply with
the terms thereof); or any payment made by the L/C Bank under any Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-inpossession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under the Bankruptcy Code of the United States, or any other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally;
(v)
any exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to the departure from any guarantee, for
all
or any of the obligations of the Seller or any Originator in respect of any
Letter of Credit;
(vi) the
solvency of, or any acts or omissions by, any beneficiary of any Letter of
Credit, or any other Person having a role in any transaction or obligation
relating to a Letter of Credit, or the existence, nature, quality, quantity,
condition, value or other characteristic of any property or services relating
to
a Letter of Credit;
(vii) any
material adverse change in the business, operations, property or financial
or
other condition of the Seller, any Originator or any Affiliates
thereof;
(viii) any
breach of this Agreement or any other Transaction Document by any party
thereto;
(ix)
the occurrence of any event of the type described in Section 7.01(g) with
respect to the Seller, any Originator or any Affiliate thereof;
(x)
the fact that an Event of Termination or an Incipient Event of Termination
shall
have occurred and be continuing;
(xi)
the fact that this Agreement or the obligations of Seller hereunder shall have
been terminated; and
(xii)
any
other circumstance or happening whatsoever, whether or not similar to any of
the
foregoing, including any other circumstance that might otherwise constitute
a
defense available to, or a discharge of, the Seller or the applicable
Originator,
provided
that, the Seller shall not hereby be precluded from asserting any claim for
direct (but not consequential) damages suffered by the Seller to the extent,
but
only to the extent, caused by (i) the willful misconduct or gross negligence
of
the L/C Bank or (ii) the L/C Bank’s failure to pay under any Letter of Credit
issued by it after the presentation to it of a request strictly complying with
the terms and conditions of such Letter of Credit. Seller shall promptly examine
a copy of each Letter of Credit and each amendment thereto that is delivered
to
it, and, in the event of any claim of noncompliance with the Seller’s
instructions or other irregularity, the Seller will immediately (and in any
event within 5 Business Days) notify the L/C Bank. The Seller shall be
conclusively deemed to have waived any such claim against the L/C Bank and
its
correspondents unless such notice is given as aforesaid.
(l) At
such time as any Letter of Credit shall have (i) expired undrawn, (ii) expired
following a partial drawing with respect to which the applicable Reimbursement
Obligation has been paid in full or (iii) been returned to the L/C Bank and
cancelled, the Capital of the related L/C Receivable Interest shall
automatically reduce to zero, and the L/C Bank shall promptly notify the Program
Agent and the Seller thereof.
(m) If
the L/C Termination Date shall occur solely as a result of the occurrence of
the
event described in clause (iii) of the definition thereof and the parties hereto
desire to continue the Letter of Credit facility provided for in this Section
2.18, the terms for continuing such facility shall be subject to the mutual
agreement of the parties at such time.
(n) The
Seller shall pay the L/C Bank certain fees with respect to the Letters of Credit
in the amounts and on the dates set forth in a separate fee agreement of even
date among the Seller, the Program Agent and the L/C Bank, as the same may
be
amended or restated from time to time (the “L/C Fee
Agreement”).
SECTION
2.19. L/C Collateral Account. (a) On or prior to
the date on which the initial L/C Receivable Interest is purchased hereunder,
the L/C Bank shall establish and maintain or cause to be established and
maintained in its name, an account (such account being the “L/C Collateral
Account”), such account bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the L/C Bank and entitled
“L/C Collateral Account for the Xxxx Receivables Purchase Agreement”. The L/C
Collateral Account shall be under the sole dominion and control of the L/C
Bank,
and neither the Seller, nor any Person claiming by, through or under the Seller,
shall have any right, title or interest in, or any right to withdraw any amount
from the L/C Collateral Account. The tax identification number associated with
the L/C Collateral Account shall be that of the Seller.
(b) Funds
on
deposit in the L/C Collateral Account shall, at the written direction and risk
of the Seller, be invested by the L/C Bank in Eligible Investments as instructed
by the Seller in writing (which may be a standing instruction). Such funds
shall
be invested in Eligible Investments that will mature so that funds will be
available in amounts sufficient for the L/C Bank to make each distribution
as
and when required under the terms of this Agreement. All interest and other
investment earnings (net of losses and investment expenses) received on funds
on
deposit in the L/C Collateral Account shall be added to the L/C Collateral
Account.
(c) The
Seller hereby grants to the L/C Bank a security interest in the L/C Collateral
Account, all funds from time to time credited to the L/C Collateral Account,
all
financial assets (including, without limitation, Eligible Investments) from
time
to time acquired with any such funds or otherwise credited to the L/C Collateral
Account, all interest, dividends, cash, instruments and other investment
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such funds or such financial assets,
and all other proceeds thereof.
(d) The
grant of a security interest by the Seller to the L/C Bank pursuant to
subsection (c) above secures the Seller’s obligation to pay Reimbursement
Obligations, and to pay interest thereon, pursuant to Section 2.18. On each
Settlement Date (Yield and Fees) following the funding of the L/C Collateral
Account, the L/C Bank shall, to the extent any fees with respect to the L/C
Receivable Interests that are due and payable are not paid on such date pursuant
to Section 2.04, withdraw from the L/C Collateral Account funds in the amount
of
such unpaid fees from the funds then on deposit in the L/C Collateral Account
that constitute interest and other investment earnings thereon, and apply such
funds to the payment of such unpaid fees. The L/C Bank may at any time following
a drawing on a Letter of Credit apply funds available in the L/C Collateral
Account to the payment of the Reimbursement Obligations and interest thereon.
At
such time as all Letters of Credit shall have been fully drawn, shall have
expired undrawn or shall have been returned to the L/C Bank and cancelled and
all Reimbursement Obligations and interest thereon shall have been paid in full,
the L/C Bank shall pay all remaining funds in the L/C Collateral Account to
the
Seller.
SECTION
2.20. Repurchase Option. The Seller shall have the
right to repurchase all, but not less than all, of the Receivable Interests
held
by the Investors and the Banks and to terminate this Agreement upon not less
than ten Business Days’ prior written notice to the Program Agent. Such notice
shall specify the date that the Seller desires that such repurchase occur (such
date, the “Repurchase Date”) and shall be irrevocable. On the Repurchase
Date, the Seller shall deposit into the Investor Agent’s Account for each
Investor Agent in immediately available funds an amount equal to the sum of
(i)
the aggregate outstanding Capital of the Receivable Interests held by the
Investors and/or the Banks in such Investor Agent’s Group, (ii) all accrued
and unpaid Yield thereon to the Repurchase Date, (iii) all accrued and unpaid
Fees owing to such Investors and Banks and such Investor Agent and (if such
Investor Agent is the Program Agent) the Program Agent, (iv) the Liquidation
Fee
(if any) owing to such Investors and Banks in respect of such repurchase and
(v)
all expenses and other amounts owing to any of such Investors and Banks and
such
Investor Agent and (if such Investor Agent is the Program Agent) the Program
Agent under the Transaction Documents. Any repurchase pursuant to this Section
2.20 shall be made without recourse to or warranty by the Agents, the Investors
or the Banks. Further, on the Repurchase Date, the Bank Commitments for all
the
Banks shall terminate, each of the Commitment Termination Date and Facility
Termination Date shall occur, the Termination Date for all Receivable Interests
shall occur and no further purchases or reinvestments of Collections shall
be
made hereunder; provided, that the provisions of this Agreement
referenced in Section 11.09 shall survive such termination.
CONDITIONS
OF PURCHASES
SECTION
3.01. Conditions Precedent to Initial Purchase. The
initial purchase of a Receivable Interest under this Agreement is subject to
the
conditions precedent that the Program Agent and each Investor Agent shall have
received on or before the date of such purchase the following, each (unless
otherwise indicated) dated such date, in form and substance satisfactory to
the
Program Agent and each Investor Agent:
(a) Certified
copies of the resolutions (or similar authorization, if not a corporation)
of
the Board of Directors (or similar governing body or Persons, if not a
corporation) of the Seller, the Parent and the other Originators approving
this
Agreement, the Originator Purchase Agreement and any other Transaction Documents
to which it is a party and certified copies of all documents evidencing other
necessary corporate, limited liability company or partnership, as the case
may
be, action and governmental approvals, if any, with respect to this Agreement,
the Originator Purchase Agreement and any such Transaction
Documents.
(b) A
certificate of the Secretary or Assistant Secretary of the Seller, the Parent
and the other Originators certifying the names and true signatures of the
officers of the Seller, the Parent and the other Originators authorized to
sign
this Agreement, the Originator Purchase Agreement and the other documents to
be
delivered by it hereunder and thereunder.
(c) Acknowledgment
copies of proper financing statements, duly filed on or before the date of
such
initial purchase under the UCC of all jurisdictions necessary to perfect the
ownership and security interests contemplated by this Agreement and the
Originator Purchase Agreement.
(d) Acknowledgment
copies of proper financing statements, if any, necessary to release all security
interests and other rights of any Person in (i) the Receivables, Contracts
or
Related Security previously granted by the Seller or any Originator and (ii)
the
collateral security referred to in Section 2.11 previously granted by the
Seller.
(e) Completed
requests for information, dated on or before the date of such initial purchase,
listing all effective financing statements filed in the jurisdictions referred
to in subsection (c) above and in any other jurisdictions reasonably requested
by the Program Agent that name the Seller or any Originator as debtor, together
with copies of such other financing statements (none of which shall cover any
Receivables, Contracts, Related Security or the collateral security referred
to
in Section 2.11).
(f) Executed
copies of Deposit Account Agreements with each Deposit Bank.
(g) Favorable
opinions of (i) Cravath, Swaine & Xxxxx LLP, counsel for the Seller, the
Parent and the other Originators, substantially in the form of Annex C-1 hereto,
(ii) Xxxxxxxx, Xxxxxx & Finger, P.A., counsel for the Seller, substantially
in the form of Xxxxx X-0X, X-0X, X-0X or C-2D, as applicable, hereto, (iii)
the
General Counsel of the Parent, substantially in the form of Annex C-3 hereto,
(iv) Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP, substantially in the form of Annex
C-4 hereto, (v) Hunton & Xxxxxxxx LLP, substantially in the form of Annex
C-5 hereto, (vi) Xxxxxxxx, Loop & Xxxxxxxx, LLP, substantially in the form
of Annex C-6 hereto, and (v) Blake, Xxxxxxx & Xxxxxxx LLP, substantially in
the form of Annex C-7 hereto.
(h) The
Fee Agreements.
(i) The
Funds Transfer Letter.
(j) An
executed copy of the Originator Purchase Agreement.
(k) A
copy of the limited liability company agreement, the by-laws or other
organizational documents of the Seller, the Parent and the other Originators,
certified by the Secretary or Assistant Secretary of the Seller, the Parent
or
such other Originators, as the case may be.
(l) A
copy of the certificate of formation or articles of incorporation of each of
the
Seller, the Parent and the other Originators certified as of a recent date
by
the Secretary of State or other appropriate official of the state of its
organization, and a certificate as to the good standing of each of the Seller,
the Parent and the other Originators from such Secretary of State or other
official, dated as of a recent date.
(m) An
opening pro forma balance sheet of the Seller as at the end of the calendar
month preceding the date of the initial purchase under this Agreement, and
giving effect to the initial purchase to be made under this Agreement (the
“Pro Forma Balance Sheet”).
(n) An
executed copy of the Undertaking.
SECTION
3.02. Conditions Precedent to All Purchases and
Reinvestments. Each purchase (including the initial purchase) of a
Receivable Interest from the Seller and each reinvestment shall be subject
to
the further conditions precedent that (a) in the case of each purchase of a
Receivable Interest from the Seller, the Collection Agent shall have delivered
to the Program Agent and each Investor Agent at least one Business Day prior
to
such purchase, in form and substance satisfactory to the Program Agent, a
completed Seller Report containing information covering the most recently ended
reporting period for which information is required pursuant to Section 6.02(g)
and demonstrating that after giving effect to such purchase no Event of
Termination or Incipient Event of Termination under Section 7.01(i) would occur,
(b) in the case of each reinvestment, the Collection Agent shall have delivered
to the Program Agent and each Investor Agent on or prior to the date of such
reinvestment the completed Seller Report required to be delivered on or prior
to
such date pursuant to Section 6.02(g) and (c) on the date of such purchase
or
reinvestment the following statements shall be true, except that the statement
in clause (iii) below is required to be true only if such purchase or
reinvestment is by an Investor (and acceptance of the proceeds of such purchase
or reinvestment shall be deemed a representation and warranty by the Seller,
the
Parent and the Collection Agent (each as to itself) that such statements are
then true):
(i)
The representations and warranties contained in Sections 4.01 and 4.02 are
(A)
if such representation or warranty is not by its terms qualified by materiality,
correct in all material respects on and as of the date of such purchase or
reinvestment or (B) if such representation or warranty is by its terms qualified
by materiality, correct on and as of the date of such purchase or reinvestment,
in each case, as though made on and as of such date (except that (x) the
representation contained in Section 4.01(e) shall be made on and after (but
not
prior to) the date of the initial purchase hereunder, and (y) the representation
contained in the second sentence of Section 4.02(e) shall be made only on the
date of the initial purchase hereunder),
(ii)
No event has occurred and is continuing, or would result from such purchase
or
reinvestment, that constitutes an Event of Termination or, in the case of a
purchase only, an Incipient Event of Termination,
(iii)
The Program Agent shall not have given the Seller at least one Business Day’s
notice that the Investors have terminated the reinvestment of Collections in
Receivable Interests or, in the case of any reinvestment by a particular
Investor, the Investor Agent for such Investor shall not have given the Seller
notice that such Investor has terminated the reinvestment of Collections in
Receivable Interests (unless such notice has been revoked by such Investor
Agent),
(iv) Each
Originator shall have sold or contributed to the Seller, pursuant to the
Originator Purchase Agreement, all Originator Receivables originated by it
and
arising on or prior to such date, and
(v)
No Change of Control Date shall have occurred, and
(d)
The
Program Agent and the Investor Agents shall have received such other approvals,
opinions or documents as the Program Agent or any Investor Agent may reasonably
request as a result of any change in law occurring after the date of this
Agreement.
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations and Warranties of the Seller.
The Seller hereby represents and warrants as follows:
(a)
The
Seller is a limited liability company duly formed, validly existing and in
good
standing under the laws of the jurisdiction set forth in Schedule IV hereto
(as
such Schedule IV may be amended from time to time pursuant to Section 5.01(b)),
and is duly qualified to do business, and is in good standing, in every
jurisdiction where the nature of its business requires it to be so qualified;
provided, that the Seller’s failure to be qualified to do business in the
State of Illinois on the date of this Agreement shall not be a breach of this
Section 4.01(a) so long as the Seller shall have obtained such qualification
prior to the date of the initial purchase under this Agreement.
(b) The
execution, delivery and performance by the Seller of the Transaction Documents
to which it is a party and the other documents to be delivered by it hereunder,
including the Seller’s use of the proceeds of purchases and reinvestments, (i)
are within the Seller’s limited liability company powers, (ii) have been duly
authorized by all necessary limited liability company action, (iii) do not
contravene (1) the Seller’s certificate of formation or limited liability
company agreement, (2) any law, rule or regulation applicable to the Seller,
(3)
any contractual restriction binding on or affecting the Seller or its property
or (4) any order, writ, judgment, award, injunction or decree binding on or
affecting the Seller or its property, and (iv) do not result in or require
the
creation of any lien, security interest or other charge or encumbrance upon
or
with respect to any of its properties (except for the interest created pursuant
to this Agreement). Each of the Transaction Documents to which the Seller is
a
party has been duly executed and delivered by the Seller.
(c) No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the due execution,
delivery and performance by the Seller of the Transaction Documents to which
it
is a party or any other document to be delivered thereunder, except for the
filing of UCC financing statements which are referred to therein.
(d) Each
of the Transaction Documents to which it is a party constitutes the legal,
valid
and binding obligation of the Seller enforceable against the Seller in
accordance with its terms, except as such enforceability may be limited by
(i)
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors’ rights and (ii) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(e) The
Pro Forma Balance Sheet of the Seller fairly presents the financial condition
of
the Seller as at the date specified therein, in accordance with generally
accepted accounting principles in the United States, subject to year end audit
adjustments and the absence of footnotes, and since the date of the initial
purchase made under this Agreement there has been no material adverse change
in
the business, operations, property, prospects or financial or other condition
of
the Seller.
(f) There
is no pending or threatened action, investigation or proceeding affecting the
Seller, the Parent or any of their Subsidiaries before any court, governmental
agency or arbitrator which, if adversely determined, could reasonably be
expected to materially adversely affect the financial condition or operations
of
the Seller, the Parent or any of their Subsidiaries or the ability of the Seller
or the Parent to perform their respective obligations under any Transaction
Document, or which purports to affect the legality, validity or enforceability
of any Transaction Document.
(g) No
proceeds of any purchase or reinvestment will be used (i) to acquire any equity
security of a class which is registered pursuant to Section 12 of the Securities
Exchange Act of 1934 or (ii) for the purpose, whether immediate, incidental
or
ultimate, of buying or carrying any “margin stock” within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System
of
the United States.
(h) Immediately
prior to the purchase by the relevant Investors and/or Banks, as the case may
be, the Seller is the legal and beneficial owner of the Pool Receivables and
Related Security which are the subject of such purchase free and clear of any
Adverse Claim; upon each purchase or reinvestment, the relevant Investors or
the
Banks (including the L/C Bank), as the case may be, shall acquire a valid and
perfected first priority undivided percentage ownership interest to the extent
of the pertinent Receivable Interest in each Pool Receivable then existing
or
thereafter arising and in the Related Security and Collections with respect
thereto. No effective financing statement or other instrument similar in effect
covering any Contract or any Pool Receivable or the Related Security or
Collections with respect thereto is on file in any recording office, except
those filed in favor of the Program Agent relating to this Agreement and in
favor of the Seller pursuant to the Originator Purchase Agreement. Each
Receivable characterized in any Seller Report or other written statement made
by
or on behalf of the Seller as an Eligible Receivable or as included in the
Net
Receivables Pool Balance is, as of the date of such Seller Report or other
statement, an Eligible Receivable as properly included in the Net Receivables
Pool Balance.
(i) Each
Seller Report (if prepared by the Seller or one of its Affiliates, or to the
extent that information contained therein is supplied by the Seller or an
Affiliate), information, exhibit, financial statement, document, book, record
or
report furnished or to be furnished at any time by or on behalf of the Seller
to
the Program Agent, the Investor Agents, the Investors or the Banks in connection
with this Agreement is or will be accurate in all material respects as of its
date or (except as otherwise disclosed to the Program Agent, the Investor
Agents, the Investors or the Banks, as the case may be, at such time) as of
the
date so furnished, and no such document contains or will contain, as of its
date
of delivery or the date so furnished, any untrue statement of a material
fact.
(j) The
principal place of business and chief executive office of the Seller and the
office where the Seller keeps its records concerning the Pool Receivables are
located at the address or addresses referred to in Section 5.01(b) (or, by
notice to the Program Agent and each Investor Agent in accordance with Section
5.01(b), at any other locations within the United States). The Seller is located
in the jurisdiction of organization set forth in Schedule IV hereto for purposes
of Section 9-307 of the UCC as in effect in the State of New York; and the
office in the jurisdiction of organization of the Seller in which a UCC
financing statement is required to be filed in order to perfect the security
interest granted by the Seller hereunder is set forth in Schedule IV hereto
(in
each case as such Schedule IV may be amended from time to time pursuant to
Section 5.01(b)).
(k) The
names and addresses of all the Deposit Banks, together with the post office
boxes and account numbers of the Lock-Boxes and Deposit Accounts of the Seller
at such Deposit Banks, are as specified in Schedule I hereto, as such Schedule
I
may be amended from time to time pursuant to Section 5.01(g). The Seller has
directed or caused each Obligor to be directed to make payment to a Lock-Box
or
Deposit Account. The Seller has delivered to the Program Agent a fully executed
Deposit Account Agreement with respect to each Deposit Account and any
associated Lock-Boxes.
(l) Each
purchase
of a Receivable Interest and each reinvestment of Collections in Pool
Receivables will constitute (i) a “current transaction” within the meaning of
Section
3(a)(3) of the Securities Act of 1933, as amended, and (ii) a purchase or other
acquisition of notes, drafts, acceptances, open accounts receivable or other
obligations representing part or all of the sales price of merchandise,
insurance or services within the meaning of Section 3(c)(5) of the Investment
Company Act of 1940, as amended.
(m) The
Seller is
not known by and does not use any tradename or doing-business-as
name.
(n) The
Seller was formed on July 13, 2007, and the Seller did not engage in any
business activities prior to the date of this Agreement other than business
required or incidental to entering into this Agreement and the other Transaction
Documents. The Seller has no Subsidiaries.
(o) (i)
The fair value of the property of the Seller is greater than the total amount
of
liabilities, including contingent liabilities, of the Seller, (ii) the present
fair salable value of the assets of the Seller is not less than the amount
that
will be required to pay all probable liabilities of the Seller on its debts
as
they become absolute and matured, (iii) the Seller does not intend to, and
does
not believe that it will, incur debts or liabilities beyond the Seller’s
abilities to pay such debts and liabilities as they mature and (iv) the Seller
is not engaged in a business or a transaction, and is not about to engage in
a
business or a transaction, for which the Seller’s property would constitute
unreasonably small capital.
(p) With
respect to each Pool Receivable, the Seller (i) shall have received such Pool
Receivable as a contribution to the capital of the Seller by the Parent or
(ii)
shall have purchased such Pool Receivable from the Originators in exchange
for
payment (made by the Seller to the Originators in accordance with the provisions
of the Originator Purchase Agreement) of cash, Deferred Purchase Price, by
delivery of a Letter of Credit or a combination thereof in an amount which
constitutes fair consideration and reasonably equivalent value. Each such sale
referred to in clause (ii) of the preceding sentence shall not have been made
for or on account of an antecedent debt owed by the Originators to the Seller
and no such sale is or may be voidable or subject to avoidance under any section
of the Federal Bankruptcy Code.
(q) The
Seller has (i) timely filed all federal tax returns required to be filed, (ii)
timely filed all other material state and local tax returns and (iii) paid
or
made adequate provision for the payment of all taxes, assessments and other
governmental charges (other than any tax, assessment or governmental charge
which is being contested in good faith and by proper proceedings, and with
respect to which the obligation to pay such amount is adequately reserved
against in accordance with generally accepted accounting
principles).
(r) No
event has occurred and is continuing that constitutes an Event of Termination
and, if this representation is being made as of the date of any purchase of
a
Receivable Interest, no event has occurred and is continuing that constitutes
an
Incipient Event of Termination.
(s) The
location of the Seller for the purposes of the Personal Property Security Act
(or, in the case of the Province of Quebec, the Civil Code) of any Canadian
province or territory the laws of which are required to be applied in connection
with the issue of perfection of interests in the Canadian Receivables is at
the
address referred to in Section 5.01(b).
(t) The
Seller does not carry on business in Canada for the purposes of the Tax
Act.
(u) None
of the services (if any) rendered to the Obligor which give rise to any Canadian
Receivables are rendered in Canada.
(v) Each
Receivable constitutes an account, general intangible or tangible chattel paper
under the UCC as in effect in the State of New York on the date
hereof.
(w) Each
Canadian Receivable results only from the sale of merchandise by an Originator
at fair market value and the face value of each Canadian Receivable is equal
to
the fair market value of the merchandise provided.
SECTION
4.02. Representations and Warranties of the Collection
Agent. The Collection Agent hereby represents and warrants as
follows:
(a) The
Collection Agent is a corporation duly incorporated, validly existing and in
good standing under the laws of Virginia, and is duly qualified to do business,
and is in good standing, in every jurisdiction where the nature of its business
requires it to be so qualified, unless the failure to so qualify would not
have
a material adverse effect on (i) the interests of the Investors and the Banks
hereunder, (ii) the collectibility of the Receivables Pool, or (iii) the ability
of Collection Agent to perform its obligations hereunder.
(b) The
execution, delivery and performance by the Collection Agent of this Agreement
and any other documents to be delivered by it hereunder (i) are within the
Collection Agent’s corporate powers, (ii) have been duly authorized by all
necessary corporate action, (iii) do not contravene (1) the Collection Agent’s
charter or by-laws, (2) any law, rule or regulation applicable to the Collection
Agent, (3) any material contractual restriction binding on or affecting the
Collection Agent or its property or (4) any order, writ, judgment, award,
injunction or decree binding on or affecting the Collection Agent or its
property, and (iv) do not result in or require the creation of any lien,
security interest or other charge or encumbrance upon or with respect to any
of
its properties. This Agreement has been duly executed and delivered by the
Collection Agent.
(c) No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the due execution,
delivery and performance by the Collection Agent of this Agreement or any other
document to be delivered by it hereunder.
(d) This
Agreement constitutes the legal, valid and binding obligation of the Collection
Agent enforceable against the Collection Agent in accordance with its terms,
except as such enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors’ rights and (ii) the application of general
principles of equity (regardless of whether such enforceability is considered
in
a proceeding in equity or at law).
(e) The
consolidated balance sheets of the Collection Agent and its consolidated
Subsidiaries as at December 31, 2006, and the related consolidated statements
of
income and retained earnings of the Collection Agent and its consolidated
Subsidiaries for the fiscal year then ended, copies of which have been furnished
to the Program Agent and each Investor Agent, fairly present the financial
condition of the Collection Agent and its consolidated Subsidiaries as at such
date and the results of the operations of the Collection Agent and its
consolidated Subsidiaries for the period ended on such date, all in accordance
with generally accepted accounting principles in the United States consistently
applied. Since December 31, 2006 there has been no material adverse change
in
the business, operations, property or financial or other condition of the
Collection Agent.
(f) There
is no pending or threatened action, investigation or proceeding affecting the
Collection Agent or any of its Subsidiaries before any court, governmental
agency or arbitrator which, if adversely determined, could reasonably be
expected to materially adversely affect the ability of the Collection Agent
to
perform its obligations under this Agreement, or which purports to affect the
legality, validity or enforceability of this Agreement.
(g) Each
Receivable characterized in any Seller Report as an Eligible Receivable or
as
included in the Net Receivables Pool Balance is, as of the date of such Seller
Report, an Eligible Receivable or properly included in the Net Receivables
Pool
Balance.
(h) Each
Seller Report (if prepared by the Collection Agent or one of its Affiliates,
or
to the extent that information contained therein is supplied by the Collection
Agent or an Affiliate), information, exhibit, financial statement, document,
book, record or report furnished or to be furnished at any time by the
Collection Agent to the Agents, the Investors or the Banks in connection with
this Agreement is or will be accurate in all material respects as of its date
or
(except as otherwise disclosed to the Agents, Investors or the Banks, as the
case may be, at such time) as of the date so furnished, and no such document
contains or will contain, as of its date of delivery or the date so furnished,
any untrue statement of a material fact.
(i) The
Collection Agent has (i) timely filed all material federal, state and local
tax
returns required to be filed and (ii) paid or made adequate provision for the
payment of all taxes, assessments and other governmental charges (other than
any
tax, assessment or governmental charge which is being contested in good faith
and by proper proceedings, and with respect to which the obligation to pay
such
amount is adequately reserved against in accordance with generally accepted
accounting principles).
(j) The
Collection Agent, in its capacity as such, does not carry on business in Canada
for the purposes of the Tax Act.
(k) All
services rendered by the Collection Agent with respect to the servicing,
administration and collection of the Canadian Receivables are rendered outside
of Canada.
COVENANTS
SECTION
5.01. Covenants of the Seller. Until the latest of
the Facility Termination Date or the date on which no Capital of or Yield on
any
Receivable Interest shall be outstanding or the date all other amounts owed
by
the Seller hereunder to the Investors, the Banks, the Investor Agents or the
Program Agent are paid in full:
(a) Compliance
with Laws, Etc. The Seller will comply in all material respects with all
applicable laws, rules, regulations and orders and preserve and maintain its
limited liability company existence, rights, franchises, qualifications, and
privileges except to the extent that the failure so to comply with such laws,
rules and regulations or the failure so to preserve and maintain such rights,
franchises, qualifications, and privileges would not materially adversely affect
the collectibility of the Receivables Pool or the ability of the Seller to
perform its obligations under the Transaction Documents.
(b) Offices,
Records, Name and Organization. The Seller will keep its principal place of
business and chief executive office and the office where it keeps its records
concerning the Pool Receivables at the address of the Seller set forth on
Schedule III hereto or, upon 30 days’ prior written notice to the Program Agent
and each Investor Agent, at any other locations within the United States. The
Seller will not change its name or its state of organization, unless (i) the
Seller shall have provided the Program Agent and each Investor Agent with at
least 30 days’ prior written notice thereof, together with an updated Schedule
IV, and (ii) no later than the effective date of such change, all actions,
documents and agreements reasonably requested by the Program Agent to protect
and perfect the Program Agent’s interest in the Receivables, the Related
Security and the other assets of the Seller in which a security interest is
granted hereunder have been taken and completed. Upon confirmation by the
Program Agent to the Seller of the Program Agent’s receipt of any such notice
(together with an updated Schedule IV) and the completion or receipt of the
actions, agreements and documents referred to in clause (ii) of the preceding
sentence, Schedule IV hereto shall, without further action by any party, be
deemed to be amended and replaced by the updated Schedule IV accompanying such
notice. The Seller also will (or will cause the Collection Agent to) maintain
and implement administrative and operating procedures (including, without
limitation, an ability to recreate records evidencing Pool Receivables and
related Contracts in the event of the destruction of the originals thereof),
and
keep and maintain (or cause the Collection Agent to keep and maintain) all
documents, books, records and other information reasonably necessary or
advisable for the collection of all Pool Receivables (including, without
limitation, records adequate to permit the daily identification of each Pool
Receivable and all Collections of and adjustments to each existing Pool
Receivable).
(c) Performance
and Compliance with Contracts and Credit and Collection Policy. The
Seller will (or will cause the Collection Agent to), at its expense, timely
and
fully perform and comply with all material provisions, covenants and other
promises required to be observed by it under the Contracts related to the
Pool
Receivables, and timely and fully comply (or cause the Collection Agent to
timely and fully comply) in all material respects with the Credit and Collection
Policy in regard to each Pool Receivable and the related
Contract.
(d) Sales,
Liens, Etc. Except for the ownership and security interests created
hereunder in favor of the Program Agent, the Seller will not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or create or suffer
to
exist any Adverse Claim upon or with respect to, the Seller’s undivided interest
in any Pool Receivable, Related Security, related Contract or Collections,
or
upon or with respect to any account to which any Collections of any Pool
Receivable are sent, or assign any right to receive income in respect
thereof.
(e) Extension
or Amendment of Receivables. Except as provided in Section 6.02(c), the
Seller will not (and will not permit the Collection Agent or any Originator
to)
extend, amend or otherwise modify the terms of any Pool Receivable, or amend,
modify or waive any term or condition of any Contract related
thereto.
(f) Change
in Business or Credit and Collection Policy. The Seller will not make any
change in the character of its business or in the Credit and Collection Policy
(or permit the Collection Agent or any Originator to make any change in the
Credit and Collection Policy) that would, in either case, materially adversely
affect the collectibility of the Receivables Pool or the ability of the Seller
to perform its obligations under this Agreement.
(g) Change
in Payment Instructions to Obligors. The Seller will not add or terminate
any bank, post office box or bank account as a Deposit Bank or Lock-Box or
Deposit Account from those listed in Schedule I to this Agreement, or make
any
change in its instructions to Obligors regarding payments to be made to the
Seller or payments to be made to any Lock-Box or Deposit Account, unless the
Program Agent shall have received notice of such addition, termination or change
(including an updated Schedule I) and a fully executed Deposit Account Agreement
with each new Deposit Bank or with respect to each new Lock-Box or Deposit
Account.
(h) Deposits
to Lock-Boxes and Deposit Accounts. The Seller will (or will cause the
Collection Agent or the Originators to) instruct all Obligors to remit all
their
payments in respect of Receivables to Lock-Boxes or Deposit Accounts. If the
Seller shall receive any Collections directly, it shall immediately (and in
any
event within two Business Days) deposit the same to a Lock-Box or a Deposit
Account. The Seller will not deposit or otherwise credit, or cause or permit
to
be so deposited or credited, to any Lock-Box or Deposit Account cash or cash
proceeds other than Collections of Receivables.
(i) Marking
of Records. At its expense, the Seller will (or will cause the Collection
Agent to) xxxx its master data processing records evidencing Pool Receivables
with a legend evidencing that Receivable Interests related to such Pool
Receivables have been sold in accordance with this Agreement.
(j) Further
Assurances. (i) The Seller agrees from time to time, at its expense,
promptly to execute and deliver all further instruments and documents, and
to
take all further actions, that may be necessary, or that the Program Agent
or
any Investor Agent may reasonably request, to perfect, protect or more fully
evidence the Receivable Interests purchased under this Agreement, or to enable
the Investors, the Banks, the Investor Agents or the Program Agent to exercise
and enforce their respective rights and remedies under this
Agreement.
(ii) The
Seller authorizes the Program Agent to file financing or continuation
statements, and amendments thereto and assignments thereof, relating to the
Pool
Receivables and the Related Security and the Collections with respect thereto,
which financing statements may describe the collateral covered thereby as “all
assets of the Seller,” “all personal property of the Seller” or words of similar
effect.
(k) Reporting
Requirements. The Seller will provide to the Program Agent and the Investor
Agents the following:
(i) as
soon as available and in any event within 45 days after the end of each of
the
first three quarters of each fiscal year of the Parent, balance sheets of the
Parent and its Subsidiaries as of the end of such quarter and statements of
income and retained earnings of the Parent and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end of
such quarter, certified by the chief financial officer of the
Parent;
(ii) as
soon as available and in any event within 90 days after the end of each fiscal
year of the Parent, a copy of the annual report for such year for the Parent
and
its Subsidiaries, containing financial statements for such year audited by
KPMG
LLP or another independent nationally recognized firm of public
accountants;
(iii) as
soon as available and in any event within 45 days after the end of each of
the
first three quarters and within 90 days after the end of the fourth fiscal
quarter of each fiscal year of the Seller, a balance sheet of the Seller as
of
the end of such quarter and a statement of income and retained earnings of
the
Seller for the period commencing at the end of the previous fiscal year and
ending with the end of such quarter, certified by an officer of the
Seller;
(iv) as
soon as possible and in any event within five days after the Seller becomes
aware of the occurrence of each Event of Termination or Incipient Event of
Termination, a statement of an officer of the Seller setting forth details
of
such Event of Termination or Incipient Event of Termination and the action
that
the Seller has taken and proposes to take with respect thereto;
(v) [intentionally
omitted];
(vi) promptly
after the filing or receiving thereof, copies of all reports and notices that
the Seller or any Affiliate files under ERISA with the Internal Revenue Service
or the PBGC or the U.S. Department of Labor or that the Seller or any Affiliate
receives from any of the foregoing or from any multiemployer plan (within the
meaning of Section 4001(a)(3) of ERISA) to which the Seller or any Affiliate
is
or was, within the preceding five years, a contributing employer, in each case
in respect of the assessment of withdrawal liability or an event or condition
which could, in the aggregate, result in the imposition of liability on the
Seller and/or any such Affiliate in excess of $25,000,000;
(vii) at
least 30 days prior to any change in the name, jurisdiction of organization
or
Location of the Parent, any Originator or the Seller, a notice setting forth
the
new name, jurisdiction of organization or Location and the effective date
thereof;
(viii) promptly
after the Seller obtains knowledge thereof, notice of any “Event of Termination”
or “Facility Termination Date” under the Originator Purchase
Agreement;
(ix) so
long as any Capital shall be outstanding, as soon as possible and in any event
no later than the day of occurrence thereof, notice that any Originator has
stopped selling or contributing to the Seller, pursuant to the Originator
Purchase Agreement, all newly arising Originator Receivables;
(x) at
the time of the delivery of the financial statements provided for in clauses
(i)
and (ii) of this paragraph, a certificate of the chief financial officer or
the
treasurer of (A) the Seller to the effect that, to the best of such officer’s
knowledge, no Event of Termination has occurred and is continuing or, if any
Event of Termination has occurred and is continuing, specifying the nature
and
extent thereof and (B) the Parent to the effect that, to the best of such
officer’s knowledge, the Parent was (or was not) in compliance with the
financial covenants contained in the Credit Agreement as of the fiscal quarter
or fiscal year ended for which such financial statements are being provided
and
providing reasonable details of the calculations evidencing the Parent’s
compliance or non-compliance with the financial covenants contained in the
Credit Agreement);
(xi) promptly
after receipt thereof, copies of all notices received by the Seller from any
Originator under the Originator Purchase Agreement;
(xii) promptly
(and in any event within five Business Days) after any amendment or waiver
of,
or addition to or deletion of, any of the financial covenants contained in
the
Credit Agreement (including any of the defined terms used in such financial
covenants), or the replacement of the Credit Agreement with another credit
facility, a copy of such amendment, waiver or replacement credit facility;
and
(xiii) such
other information respecting the Receivables or the condition or operations,
financial or otherwise, of the Seller, the Parent or any other Originator as
the
Program Agent or any Investor Agent may from time to time reasonably
request.
Reports
and financial statements required to be delivered pursuant to clauses (i)
and
(ii) of this Section 5.01(k) shall be deemed to have been delivered on the
date
on which the Parent posts such reports, or reports containing such financial
statements, on the Parent’s website on the Internet at xxx.xxxx.xxx or when such
reports, or reports containing such financial statements, are posted on the
SEC’s website at xxx.xxx.xxx; provided that the Parent shall deliver
paper copies of the reports and financial statements referred to in clauses
(i)
and (ii) of this Section 5.01(k) to the Program Agent or any Investor Agent
or Bank who requests the Parent to deliver such paper copies until written
notice to cease delivering paper copies is given by the Program Agent or
such
Investor Agent or Bank, as applicable.
(l)
Separateness. (i) The Seller shall at all times maintain at least one
independent director who is reasonably acceptable to the Program Agent and
(x)
is not currently and has not been during the five years preceding the date
of
this Agreement an officer, director or employee of an Affiliate of the Seller
or
any Other Company, (y) is not a current or former officer or employee of the
Seller and (z) is not a stockholder of any Other Company or any of their
respective Affiliates.
(ii)
The Seller shall not direct or participate in the management of any of the
Other
Companies’ operations or of any other Person’s operations.
(iii)
The Seller shall have stationery and other business forms separate from that
of
the Other Companies and any other Person.
(iv)
The Seller shall at all times be adequately capitalized in light of its
contemplated business.
(v)
The Seller shall at all times provide for its own operating expenses and
liabilities from its own funds.
(vi)
The Seller shall maintain its assets and transactions separately from those
of
the Other Companies and any other Person and reflect such assets and
transactions in financial statements separate and distinct from those of the
Other Companies and any other Person and evidence such assets and transactions
by appropriate entries in books and records separate and distinct from those
of
the Other Companies and any other Person. The Seller shall hold itself out
to
the public under the Seller’s own name as a legal entity separate and distinct
from the Other Companies. The Seller shall not hold itself out as having agreed
to pay, or as being liable, primarily or secondarily, for, any obligations
of
the Other Companies or any other Person.
(vii) The
Seller shall not maintain any joint account with any Other Company or any other
Person or become liable as a guarantor or otherwise with respect to any Debt
or
contractual obligation of any Other Company or any other Person or any other
Person.
(viii) The
Seller shall not make any payment or distribution of assets with respect to
any
obligation of any Other Company or any other Person or grant an Adverse Claim
on
any of its assets to secure any obligation of any Other Company or any other
Person.
(ix) The
Seller shall not make loans, advances or otherwise extend credit to any of
the
Other Companies, except for Letters of Credit arranged by the Seller at the
request of an Originator pursuant to the Originator Purchase Agreement and
this
Agreement.
(x) The
Seller shall hold regular duly noticed meetings of its Board of Directors and
make and retain minutes of such meetings.
(xi) The
Seller shall have bills of sale (or similar instruments of assignment) and,
if
appropriate, UCC-1 financing statements, with respect to all assets purchased
from any of the Other Companies.
(xii) The
Seller shall not engage in any transaction with any of the Other Companies,
except as permitted by this Agreement and as contemplated by the Originator
Purchase Agreement.
(xiii) The
Seller shall comply with (and cause to be true and correct) each of the facts
and assumptions contained in the following sections of the opinion of Cravath,
Swaine & Xxxxx LLP delivered pursuant to Section 3.01(g) and designated as
Annex C to this Agreement: 1. Transactions, 2. Corporate or Limited Liability
Company Procedures and Financial Effect, 3. Fairness of the Transactions, and
4.
Disclosure of the Transactions.
(m) Originator
Purchase Agreement. The Seller will not amend, waive or modify
any provision of the Originator Purchase Agreement or waive the occurrence
of
any “Event of Termination” under the Originator Purchase Agreement, without in
each case the prior written consent of the Program Agent and each Investor
Agent; provided, however, that the Seller may amend the percentage
set forth in the definition of “Discount” in the Originator Purchase Agreement
in accordance with the provisions of the Originator Purchase Agreement without
the consent of the Program Agent and each Investor Agent, provided,
further, that the Seller shall promptly notify the Program Agent and
each
Investor Agent of any such amendment. The Seller will perform all of its
obligations under the Originator Purchase Agreement in all material respects
and
will enforce the Originator Purchase Agreement in accordance with its terms
in
all material respects.
(n) Nature
of Business. The Seller will not engage in any business other than the
purchase or acquisition of Receivables, Related Security and Collections from
the Originators and the transactions contemplated by this Agreement and any
other transactions permitted by Seller’s limited liability company agreement
delivered to the Agents pursuant to Section 3.01. The Seller will not create
or
form any Subsidiary.
(o) Mergers,
Etc. The Seller will not merge with or into or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one transaction
or
in a series of transactions), all or substantially all of its assets (whether
now owned or hereafter acquired) to, or acquire all or substantially all of
the
assets or capital stock or other ownership interest of, or enter into any joint
venture or partnership agreement with, any Person, other than as contemplated
by
this Agreement and the Originator Purchase Agreement.
(p) Distributions,
Etc. The Seller will not declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities
on
account of any membership interests of the Seller, or return any capital to
its
members as such, or purchase, retire, defease, redeem or otherwise acquire
for
value or make any payment in respect of any membership interests of the Seller
or any warrants, rights or options to acquire any such shares, now or hereafter
outstanding; provided, however, that the Seller may declare and
pay cash distributions on its membership interests to its members so long as
(i)
no Event of Termination shall then exist or would occur as a result thereof,
(ii) such distributions are in compliance with all applicable law including
the
limited liability company law of the state of the Seller’s organization, and
(iii) such distributions have been approved by all necessary and appropriate
limited liability company action of the Seller.
(q) Debt.
The Seller will not incur any Debt, other than any Debt incurred pursuant to
this Agreement and the Deferred Purchase Price.
(r) Limited
Liability Company Agreement. The Seller will not amend or delete any of
Sections 5(c), 8, 9, 10, 16, 20, 21, 22, 23, 24, 25, 26 or 31 or Schedule A
of
its limited liability company agreement.
(s) Tangible
Net Worth. The Seller will maintain Tangible Net Worth at all times equal to
at least 10.50% of the Outstanding Balance of the Receivables at such
time.
(t) Business
in Canada. The Seller will not carry on any business in Canada for the
purposes of the Tax Act.
(u) Rendering
of Services. The Seller will not render any services giving rise to Canadian
Receivables to the Obligor thereof in Canada.
(v) Canadian
Contracts. The Seller will ensure that the Contract with respect to each
Canadian Receivable contains provisions to the effect that (i) all Collections
with respect to such Canadian Receivable are payable only to locations in the
United States or Canada (excluding the Province of Quebec), (ii) any services
rendered by or on behalf of the Originator or any of its assignees thereunder
will not be rendered in Canada, and (iii) if the relevant Obligor has a billing
address in the Province of Quebec (A) such Contract is not governed by the
laws
of the Province of Quebec and (B) pursuant to the express terms of such
Contract, all Collections with respect thereto are payable only to locations
outside of the Province of Quebec.
SECTION
5.02. Covenant of the Seller and the Collection
Agent. Until the latest of the Facility Termination Date or the date on
which no Capital of or Yield on any Receivable Interest shall be outstanding
or
the date all other amounts owed by the Seller hereunder to the Investors,
the
Banks, the Investor Agents or the Program Agent are paid in full, each of
the
Seller and the Collection Agent will, at their respective expense, from time
to
time during regular business hours as requested by the Program Agent or any
Investor Agent upon reasonable prior notice, permit the Program Agent, any
Investor Agent or their respective agents or representatives (such as
independent audit and consulting firms specializing in securitization
transactions), (i) to conduct periodic audits of the Receivables, the Related
Security and the related books and records and collections systems of the
Seller, the Collection Agent or any Originator, (ii) to examine and make
copies
of and abstracts from all books, records and documents (including, without
limitation, computer tapes and disks) in the possession or under the control
of
the Seller or the Collection Agent, as the case may be, relating to Pool
Receivables and the Related Security, including, without limitation, the
Contracts, and (iii) to visit the offices and properties of the Seller or
the
Collection Agent, as the case may be, for the purpose of examining such
materials described in clause (ii) above, and to discuss matters relating
to
Pool Receivables and the Related Security or the Seller’s or the Collection
Agent’s performance under the Transaction Documents or under the Contracts with
any of the officers or employees of the Seller or the Collection Agent, as
the
case may be, having knowledge of such matters. In addition, upon the Program
Agent’s request from time to time, the Seller will, at its expense, appoint an
independent audit and consulting firm specialized in securitization transactions
selected by the Program Agent, to prepare and deliver to the Program Agent
and
each Investor Agent a written report with respect to the Receivables and
the
Credit and Collection Policy (including, in each case, the systems, procedures
and records relating thereto) on a scope and in a form reasonably requested
by
the Program Agent and the Investor Agents. Notwithstanding the foregoing,
the
Seller shall only be responsible for the reasonable costs and expenses incurred
in connection with one audit, examination and visit and the related written
report (as described in the two preceding sentences) of the Seller, the
Collection Agent and the Originators during the twelve (12) month period
beginning on the date hereof and on each anniversary of the date hereof,
in each
case so long as (x) no Event of Termination shall have occurred and be
continuing and (y) the results of the previous audits were complete, not
subject
to any audit deficiencies, and were reasonably acceptable to the
Agents.
ADMINISTRATION
AND COLLECTION
OF
POOL
RECEIVABLES
SECTION
6.01. Designation of Collection Agent. The
servicing, administration and collection of the Pool Receivables shall be
conducted by the Collection Agent so designated hereunder from time to time.
Until the Program Agent gives notice to the Seller of the designation of a
new
Collection Agent following the occurrence of a Collection Agent Default, the
Parent is hereby designated as, and hereby agrees to perform the duties and
obligations of, the Collection Agent pursuant to the terms hereof. The Program
Agent may, at any time following the occurrence of a Collection Agent Default,
designate as Collection Agent any Person (including itself) to succeed the
Parent or any successor Collection Agent, if such Person shall consent and
agree
to the terms hereof. The Collection Agent may, with the prior consent of the
Program Agent and each Investor Agent, subcontract with any other Person for
the
servicing, administration or collection of the Pool Receivables. Any such
subcontract shall not affect the Collection Agent’s liability for performance of
its duties and obligations pursuant to the terms hereof, and any such
subcontract shall automatically terminate upon designation of a successor
Collection Agent.
SECTION
6.02. Duties of Collection Agent. (a) The
Collection Agent shall take or cause to be taken all such commercially
reasonable actions as may be necessary or advisable to collect each Pool
Receivable from time to time, all in accordance with applicable laws, rules
and
regulations, with reasonable care and diligence, and in accordance with the
Credit and Collection Policy. The Seller, the Program Agent, the Investor
Agents, the Banks and the Investors hereby appoint the Collection Agent,
from
time to time designated pursuant to Section 6.01, as agent for themselves,
the
Investors and the Banks to enforce their respective rights and interests
in the
Pool Receivables, the Related Security and the Collections with respect thereto.
In performing its duties as Collection Agent, the Collection Agent shall
exercise the same care and apply the same policies as it would exercise and
apply if it owned such Receivables and shall act in the best interests of
the
Seller, the Investors, the Banks, the Investor Agents and the Program
Agent.
(b) The
Collection Agent shall administer the Collections in accordance with the
procedures described in Section 2.04.
(c) If
no Event of Termination or Incipient Event of Termination shall have occurred
and be continuing, the Parent, while it is the Collection Agent, may, in
accordance with the Credit and Collection Policy, extend the maturity or adjust
the Outstanding Balance of any Receivable as the Parent deems appropriate to
maximize Collections thereof, or otherwise amend or modify other terms of any
Receivable, provided that the classification of any such Receivable as a
Delinquent Receivable or Defaulted Receivable shall not be affected by any
such
extension.
(d) The
Collection Agent shall hold in trust for the Seller and each Investor and Bank,
in accordance with their respective interests, all documents, instruments and
records (including, without limitation, computer tapes or disks) which evidence
or relate to Pool Receivables. The Collection Agent shall xxxx the Seller’s
master data processing records evidencing the Pool Receivables with a legend,
acceptable to the Program Agent, evidencing that Receivable Interests therein
have been sold.
(e) The
Collection Agent shall, as soon as practicable following receipt, turn over
to
the Person entitled thereto any cash collections or other cash proceeds received
with respect to Receivables not constituting Pool Receivables.
(f) The
Collection Agent shall, from time to time at the request of the Program Agent
or
any Investor Agent, furnish to the Program Agent and the Investor Agents
(promptly after any such request) a calculation of the amounts set aside for
the
Investors, the Banks and the Investor Agents pursuant to Section
2.04.
(g) (i)
On or prior to the 16th calendar
day of
each month, the Collection Agent shall prepare and forward to the Program Agent
and each Investor Agent a Monthly Report relating to the Receivable Interests
outstanding on the last day of the immediately preceding month.
(ii)
During the Weekly Reporting Period, the Collection Agent shall prepare and
forward to the Agent a Weekly Report which shall contain information related
to
the Receivables Pool and which updates the most recently delivered Monthly
Report. Each such Weekly Report shall be prepared and forwarded to the Agent
on
or prior to the close of business on
the
second Business Day of each calendar week, such Weekly Report to contain
information related to the Receivables Pool as of the close of business on
the
last Business Day of the preceding calendar week.
The
Collection Agent shall transmit Seller Reports to the Program Agent and each
Investor Agent concurrently by facsimile and by electronic mail (each an
“E-Mail Seller Report”). Each E-Mail Seller Report shall be (A)
formatted as the Program Agent may designate from time to time and (B) sent
to
the Program Agent and each Investor Agent at an electronic mail address
designated by each of them.
SECTION
6.03. Certain Rights of the Program Agent. (a) The
Seller hereby transfers to the Program Agent the exclusive control of the
Lock-Boxes and Deposit Accounts to which the Obligors of Pool Receivables shall
make payments. The Program Agent is authorized at any time following the
occurrence and during the continuance of a Transfer Event to date and to deliver
to the Deposit Banks, the notices of effectiveness attached to the Deposit
Account Agreements.
(b)
At
any time following an Event of Termination or a Collection Agent
Default:
(i) The
Program Agent may notify the Obligors of Pool Receivables, at the Seller’s
expense, of the ownership of Receivable Interests under this Agreement and/or
direct the Obligors of Pool Receivables that all payments thereunder be made
directly to the Program Agent or its designee.
(ii) At
the Program Agent’s request and at the Seller’s expense, the Seller shall notify
each Obligor of Pool Receivables of the ownership of Receivable Interests under
this Agreement and/or direct that payments be made directly to the Program
Agent
or its designee.
(iii) At
the Program Agent’s request and at the Seller’s expense, the Seller and the
Collection Agent shall (A) assemble all of the documents, instruments and other
records (including, without limitation, computer tapes and disks) that evidence
or relate to the Pool Receivables and the related Contracts and Related
Security, or that are otherwise necessary or desirable to collect the Pool
Receivables, and shall make the same available to the Program Agent at a place
selected by the Program Agent or its designee, and (B) segregate all cash,
checks and other instruments received by it from time to time constituting
Collections of Pool Receivables in a manner acceptable to the Program Agent
and,
promptly upon receipt, remit all such cash, checks and instruments, duly
indorsed or with duly executed instruments of transfer, to the Program Agent
or
its designee.
(iv) The
Seller authorizes the Program Agent to take any and all steps in the Seller’s
name and on behalf of the Seller that are necessary or desirable, in the
determination of the Program Agent, to collect amounts due under the Pool
Receivables, including, without limitation, endorsing the Seller’s name on
checks and other instruments representing Collections of Pool Receivables and
enforcing the Pool Receivables and the Related Security and related
Contracts.
SECTION
6.04. Rights and Remedies. (a) If the Collection
Agent fails to perform any of its obligations under this Agreement, the Program
Agent may (but shall not be required to) itself perform, or cause performance
of, such obligation; and the Program Agent’s reasonable costs and expenses
incurred in connection therewith shall be payable by the Collection
Agent.
(b) The
Seller shall perform its obligations under the Contracts related to the Pool
Receivables to the same extent as if Receivable Interests had not been sold
and
the exercise by the Program Agent on behalf of the Investors, the Banks and
the
Investor Agents of their rights under this Agreement shall not release the
Collection Agent or the Seller from any of their duties or obligations with
respect to any Pool Receivables or related Contracts. Neither the Program Agent,
the Investors, the Investor Agents nor the Banks shall have any obligation
or
liability with respect to any Pool Receivables or related Contracts, nor shall
any of them be obligated to perform the obligations of the Seller
thereunder.
(c) In
the event of any conflict between the provisions of Article VI of this Agreement
and Article VI of the Originator Purchase Agreement, the provisions of Article
VI of this Agreement shall control.
SECTION
6.05. Covenants of the Collection
Agent.
(a) Change
in Credit and Collection Policy. The Collection Agent will not make any
change in the Credit and Collection Policy that would materially adversely
affect the collectibility of any Pool Receivable or the ability of the Parent
(if it is acting as Collection Agent) to perform its obligations under this
Agreement. In the event that the Collection Agent makes any change to the Credit
and Collection Policy, it shall, contemporaneously with such change, provide
the
Program Agent and each Investor Agent with an updated Credit and Collection
Policy and a summary of all material changes.
(b) Activities
in Canada. The Collection Agent will not itself or through an agent acting
on its behalf conduct any activities in Canada in connection with the servicing,
administration or collection of the Receivables on behalf of any of the Program
Agent, the Investor Agents, the Banks, the Investors or the Seller.
SECTION
6.06. Indemnities by the Collection Agent. Without
limiting any other rights that the Program Agent, any Investor Agent, any
Investor, any Bank, the L/C Bank or any of their respective Affiliates or
members or any of their respective officers, directors, employees or advisors
(each, a “Special Indemnified Party”) may have hereunder or under
applicable law, and in consideration of its appointment as Collection Agent,
the
Collection Agent hereby agrees to indemnify each Special Indemnified Party
from
and against any and all claims, losses and liabilities (including reasonable
attorneys’ fees) (all of the foregoing being collectively referred to as
“Special Indemnified Amounts”) arising out of or resulting from any of
the following (excluding, however, (a) Special Indemnified Amounts to the extent
found in a final non-appealable judgment of a court of competent jurisdiction
to
have resulted from gross negligence or willful misconduct on the part of such
Special Indemnified Party, (b) recourse for Receivables which are not collected,
not paid or uncollectible on account of the insolvency, bankruptcy or financial
inability to pay of the applicable Obligor or (c) any income taxes or any other
tax or fee measured by income incurred by such Special Indemnified Party arising
out of or as a result of this Agreement or the ownership of Receivable Interests
or in respect of any Receivable or any Contract):
(i) any
representation made or deemed made by the Collection Agent pursuant to Section
4.02(g) hereof which shall have been incorrect in any respect when made or
any
other representation or warranty or statement made or deemed made by the
Collection Agent under or in connection with this Agreement which shall have
been incorrect in any material respect when made;
(ii) the
failure by the Collection Agent to comply with any applicable law, rule or
regulation with respect to any Pool Receivable or Contract; or the failure
of
any Pool Receivable or Contract to conform to any such applicable law, rule
or
regulation;
(iii) the
failure to have filed, or any delay in filing, financing statements or other
similar instruments or documents under the UCC of any applicable jurisdiction
or
other applicable laws with respect to any Receivables in, or purporting to
be
in, the Receivables Pool, the Contracts and the Related Security and Collections
in respect thereof, whether at the time of any purchase or reinvestment or
at
any subsequent time;
(iv) any
failure of the Collection Agent to perform its duties or obligations in
accordance with the provisions of this Agreement;
(v) the
commingling of Collections of Pool Receivables at any time by the Collection
Agent with other funds;
(vi) any
action or omission by the Collection Agent reducing or impairing the rights
of
the Program Agent, the Investor Agents, the Investors or the Banks with respect
to any Pool Receivable or the value of any Pool Receivable;
(vii) [intentionally
omitted];
(viii) any
claim brought by any Person other than a Special Indemnified Party arising
from
any activity by the Collection Agent or its Affiliates in servicing,
administering or collecting any Receivable;
(ix) the
occurrence of any purchase or reinvestment under this Agreement on any date
on
which (after giving effect to such purchase or reinvestment) the Percentage
Factor is greater than the Maximum Percentage Factor; or
(x) the
inclusion as a Pool Receivable in any Seller Report or other written statement
made by or on behalf of the Seller of any receivable which is an Excluded
Receivable as of the date of such Seller Report or other statement.
SECTION
6.07. Collateral Advance Account. (a) Prior the
occurrence of the first Cash Secured Advance Commencement Date hereunder, the
Collection Agent, for the benefit of the Banks, shall establish and maintain
or
cause to be established and maintained in the name of the Seller with Citibank
an account (such account being the “Collateral Advance Account”
and Citibank in such capacity being the “Collateral Advance Account
Bank”), such account bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Banks and entitled
“Citicorp North America, Inc., as Program Agent --Collateral Advance Account
for
the Xxxx Receivables Purchase Agreement” and, in connection therewith, the
Collection Agent, the Seller, the Program Agent and the Collateral Advance
Account Bank shall enter into the Collateral Advance Account Agreement. The
Collateral Advance Account shall be under the sole dominion and control of
the
Program Agent for the benefit of the Banks which have made Cash Secured
Advances, and neither the Seller, nor any Person claiming by, through or under
the Seller, shall have any right, title or interest in, or any right to withdraw
any amount from, the Collateral Advance Account. Except as expressly provided
in
this Agreement, Citibank, in its capacity as the Collateral Advance Account
Bank, agrees that it shall have no right of set-off or banker’s lien against,
and no right to otherwise deduct from, any funds held in the Collateral Advance
Account for any amount owed to it by any Bank, any Investor, any Agent, the
Seller or any Originator. The tax identification number associated with the
Collateral Advance Account shall be that of the Seller.
(b) The
Program Agent will comply with (A) all written instructions directing
disposition of the funds in the Collateral Advance Account, (B) all
notifications and entitlement orders that the Program Agent receives directing
it to transfer or redeem any financial asset in the Collateral Advance Account,
and (C) all other directions concerning the Collateral Advance Account,
including, without limitation, directions to distribute to any Investor Agent
at
such Investor Agent’s Account proceeds of any such transfer or redemption or
interest or dividends on property in the Collateral Advance Account (any such
instruction, notification or direction referred to in clause (A), (B) or (C)
above being a “Collateral Advance Account Direction”), in the case
of each of clauses (A), (B) and (C) above originated by the relevant Investor
Agent (except as otherwise specified in subsection (c) of this Section
6.07).
(c) Funds
on deposit in the Collateral Advance Account shall, at the written direction
of
the Seller, be invested by the Program Agent in Eligible Investments as
instructed by the Seller in writing (which may be a standing instruction).
All
such Eligible Investments shall be held in the Collateral Advance Account by
the
Program Agent for the ratable benefit of the Banks which have made Cash Secured
Advances. Such funds shall be invested in Eligible Investments that will mature
so that funds will be available in amounts sufficient for the Program Agent
to
make each distribution as and when required under the terms of this Agreement.
All interest and other investment earnings (net of losses and investment
expenses) received on funds on deposit in the Collateral Advance Account, to
the
extent such investment income is not needed to pay the relevant Investment
Agents for the ratable benefit of the Term-Out Banks under the terms of this
Agreement, shall be added to the Collateral Advance Account.
(d) If,
at any time after the Collection Agent has established the Collateral Advance
Account, the institution with which the Collateral Advance Account is maintained
ceases to be an Eligible Institution, the Seller, upon obtaining actual
knowledge thereof, shall, within five Business Days from obtaining such
knowledge or, if earlier, from notice to such effect by any Agent, (i) establish
a new Collateral Advance Account meeting the conditions specified above with
an
Eligible Institution, and (ii) transfer any cash and/or any financial assets
held in the old Collateral Advance Account to such new Collateral Advance
Account, respectively. From the date such new Collateral Advance Account is
established, it shall be the “Collateral Advance Account” hereunder and
for all purposes hereof.
SECTION
6.08. Collateral Advance Account Agreement; Deposit
AccountAgreements. Without limiting Section 6.06, the Collection
Agent hereby agrees that it will reimburse the Program Agent on demand for
any
payments or obligations that the Program Agent may incur pursuant to any
indemnity provided by the Program Agent under the Collateral Advance Account
Agreement or any Deposit Account Agreement.
EVENTS
OF
TERMINATION
SECTION
7.01. Events of Termination. If any of the
following events (“Events of Termination”) shall occur and be
continuing:
(a) The
Seller (i) shall fail to make when due any payment in respect of Capital (other
than Reimbursement Obligation) required to be made by it under this Agreement
or
(ii) shall fail to make when due any payment of Yield, Fees, Reimbursement
Obligation or any other amount (other than Capital) and such failure under
this
clause (ii) shall remain unremedied for five days after the earlier of the
Seller’s actual knowledge thereof or written notice thereof to the Seller from
the Program Agent or any Investor Agent; or
(b) Any
representation or warranty made or deemed made by the Seller, the Parent or
any
Originator (or any of their respective officers) under or in connection with
this Agreement or any other Transaction Document or any information or report
delivered by the Seller or any Originator pursuant to this Agreement or any
other Transaction Document shall prove to have been incorrect or untrue in
any
material respect when made or deemed made or delivered; or
(c) The
Seller, the Parent or any Originator shall fail to perform or observe (i) any
term, covenant or agreement contained in this Agreement (other than as referred
to in Section 7.01(a) or clauses (ii) and (iii) of this Section 7.01(c)) or
any
other Transaction Document on its part to be performed or observed and any
such
failure shall remain unremedied for 30 days after the earlier of the Seller’s,
the Parent’s or such Originator’s actual knowledge thereof or written notice
thereof to the Seller from the Program Agent or any Investor Agent, (ii) any
covenant applicable to it contained in Sections 5.01(b) (as it pertains to
the
location of its chief executive office only), 5.01(d), 5.01(g), 5.01(h), 5.01(m)
(first sentence only), 5.01(n) through (r) or 5.01(t) through (v), or (iii)
any
covenant or agreement contained in Section 5.02 on its part to be performed
or
observed and any such failure referred to in this clause (iii) shall remain
unremedied for three Business Days; or
(d) The
Seller, the Parent or any Originator shall fail to pay any principal of or
premium or interest on any of its Debt (including, without limitation, Debt
under the Credit Agreement) which is outstanding in a principal amount of at
least $25,000,000 in the aggregate with respect to the Parent or any Originator
and at least $10,000 in the aggregate with respect to the Seller when the same
becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is that the maturity of
such Debt is accelerated; or any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled required
prepayment), redeemed, purchased or defeased, or an offer to repay, redeem,
purchase or defease such Debt shall be required to be made, in each case prior
to the stated maturity thereof; or
(e) Any
purchase or any reinvestment pursuant to this Agreement shall for any reason
(other than pursuant to the terms hereof) cease to create, or any Receivable
Interest shall for any reason cease to be, a valid and perfected first priority
undivided percentage ownership interest to the extent of the pertinent
Receivable Interest in each applicable Pool Receivable and the Related Security
and Collections with respect thereto; or the security interest created pursuant
to Section 2.11 shall for any reason cease to be a valid and perfected first
priority security interest in the collateral security referred to in that
section; or
(f) Any
Collection Agent Default; or
(g) The
Seller, the Parent or any Originator shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors;
or
any proceeding shall be instituted by or against the Seller, the Parent or
any
Originator seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an
order for relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in
the
case of any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a period of
60
days, or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of
a
receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Seller, the Parent or
any
Originator shall take any corporate, limited liability company, partnership
or
other action to authorize any of the actions set forth above in this subsection
(g); or
(h) As
of the last day of any calendar month, (i) the 3-month rolling average Default
Ratio shall exceed 5.00%, (ii) the 3-month rolling average Delinquency Ratio
shall exceed 5.50%, (iii) the 3-month rolling average Dilution Ratio shall
exceed 6.00%, or (iv) the 3-month rolling average Loss-to-Liquidation Ratio
shall exceed 0.50%; or
(i) The
Percentage Factor shall, as of the close of business of any calendar month
or,
if the Collection Agent is then required to deliver Weekly Reports pursuant
to
Section 6.02(g)(ii), as of the close of any calendar week or calendar month,
be
greater than the Maximum Percentage Factor as of such date, unless the
Percentage Factor shall be reduced to an amount less than or equal to the
Maximum Percentage Factor no later than the date of required delivery of the
Seller Report for such calendar month or calendar week, as applicable;
or
(j) There
shall have occurred any event which could reasonably be expected to materially
adversely affect (i) the collectibility of the Receivables Pool (it being
understood and agreed that no such material adverse effect shall arise solely
as
a result of a material adverse change in the financial condition of the
Collection Agent if such material adverse change in the financial condition
of
the Collection Agent does not otherwise trigger this clause (i)), or (ii) the
ability of the Seller, the Parent or any Originator to perform its obligations
under this Agreement and the other Transaction Documents; or
(k) An
“Event of Termination” or “Facility Termination Date” shall occur under the
Originator Purchase Agreement, or any default shall occur under any other
Transaction Document, or the Originator Purchase Agreement or any other
Transaction Document shall cease to be in full force and effect (or the Seller,
the Parent or any Originator shall state in writing that this Agreement, the
Originator Purchase Agreement or any other Transaction Document shall cease
to
be in full force and effect or any provision thereof shall cease to be the
valid
and binding obligation of the Seller, the Parent or any Originator, as the
case
may be); or
(l) All
of the outstanding membership interests of the Seller shall cease to be owned,
directly or indirectly, by the Parent or all of the outstanding capital stock
or
partnership interests (as applicable) of any Originator (other than the Parent)
ceases to be owned, directly or indirectly, by the Parent; or
(m)
One
or more judgments
for the payment of money in an aggregate amount in excess of $25,000,000 (except
to the extent covered by insurance as to which the insurer has acknowledged
such
coverage in writing) shall be rendered against the Seller, the Parent or any
Originator or any of their respective Subsidiaries or any combination thereof,
and the same shall remain undischarged for a period of 60 consecutive days
during which execution shall not be effectively stayed, or any action shall
be
taken by a judgment creditor to attach or levy upon any assets of any Originator
or any of its Subsidiaries to enforce any such judgment; or
(n) The
Seller, the Parent, any Originator or any of their respective ERISA Affiliates
shall incur, or shall be reasonably likely to incur liability in excess of
$25,000,000 in the aggregate as a result of one or more of the following: (i)
the occurrence of any ERISA Event; (ii) the partial or complete withdrawal
of
the Seller, the Parent, such Originator or any of their respective ERISA
Affiliates from a Multiemployer Plan; or (iii) the reorganization or termination
of a Multiemployer Plan; or
(o) The
PBGC or the Internal Revenue Service shall, or shall indicate its intention
to,
file notice of a lien pursuant to Section 4068 of ERISA or Section 6320 of
the
Code with regard to any of the assets of the Seller, the Parent or any
Originator; or
(p) (i)
The Parent shall fail to make any payment required by the Undertaking, or (ii)
the Parent shall fail to perform or observe any other term, covenant or
agreement contained in the Undertaking and any such failure shall remain
unremedied for 10 days after written notice thereof shall have been given to
the
Seller by any Agent, or (iii) the Undertaking shall cease to be in full force
and effect; or
(q)
The
Parent shall fail to perform or observe any financial covenant contained in
the
Credit Agreement (which, as of the date of this Agreement consist of the
consolidated leverage ratio and consolidated interest coverage ratio contained
in Sections 5.01(b) and 5.01(c) of the Credit Agreement);
then,
and
in any such event, any or all of the following actions may be taken by notice
to
the Seller: (x) the Program Agent shall, at the direction of (if at such time
there are only two Banks party hereto) either Investor Agent or (at any other
time) the Investor Agent(s) representing the Majority Bank(s), declare the
Facility Termination Date to have occurred (in which case the Facility
Termination Date shall be deemed to have occurred), (y) the Program Agent shall,
at the direction of (if at such time there are only two Banks party hereto)
either Investor Agent or (at any other time) the Investor Agent(s) representing
the Majority Bank(s), declare the Commitment Termination Date to have occurred
(in which case the Commitment Termination Date shall be deemed to have
occurred), and (z) without limiting any right under this Agreement to replace
the Collection Agent, if a Collection Agent Default has occurred and is
continuing, the Program Agent shall, at the direction of (if at such time there
are only two Banks party hereto) either Investor Agent or (at any other time)
the Investor Agent(s) representing the Majority Bank(s), designate another
Person to succeed the Parent as the Collection Agent; provided, that,
automatically upon the occurrence of any event (without any requirement for
the
passage of time or the giving of notice) described in paragraph (g) of this
Section 7.01, the Facility Termination Date and the Commitment Termination
Date
shall occur, the Parent (if it is then serving as the Collection Agent) shall
cease to be the Collection Agent, and the Program Agent or its designee shall
become the Collection Agent. Upon any such declaration or designation or upon
such automatic termination, the Investors, the Investor Agents, the Banks and
the Program Agent shall have, in addition to the rights and remedies which
they
may have under this Agreement, all other rights and remedies provided after
default under the UCC and under other applicable law, which rights and remedies
shall be cumulative.
THE
PROGRAM AGENT
SECTION
8.01. Authorization and Action. Each Investor and
each Bank hereby appoints and authorizes the Program Agent to take such action
as agent on its behalf and to exercise such powers under this Agreement and
the
other Transaction Documents as are delegated to the Program Agent by the terms
hereof or thereof, together with such powers as are reasonably incidental
thereto. The Program Agent shall not have any duties other than those expressly
set forth in the Transaction Documents, and no implied obligations or
liabilities shall be read into any Transaction Document, or otherwise exist,
against the Program Agent. The Program Agent does not assume, nor shall it
be
deemed to have assumed, any obligation to, or relationship of trust or agency
with, the Seller, the Parent or any other Originator. Notwithstanding any
provision of this Agreement or any other Transaction Document, in no event
shall
the Program Agent ever be required to take any action which exposes the Program
Agent to personal liability or which is contrary to any provision of any
Transaction Document or applicable law.
SECTION
8.02. Program Agent’s Reliance, Etc. Neither the
Program Agent nor any of its directors, officers, agents or employees shall
be
liable for any action taken or omitted to be taken by it or them as Program
Agent under or in connection with this Agreement (including, without limitation,
the Program Agent’s servicing, administering or collecting Pool Receivables as
Collection Agent) or any other Transaction Document, except for its or their
own
gross negligence or willful misconduct. Without limiting the generality of
the
foregoing, the Program Agent: (a) may consult with legal counsel (including
counsel for any Investor Agent, the Seller, the Parent, any other Originator
and
the Collection Agent), independent certified public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (b) makes no warranty or representation to any Investor
Agent, Investor or Bank (whether written or oral) and shall not be responsible
to any Investor Agent, Investor or Bank for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement or any other Transaction Document; (c) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement or any other Transaction Document
on
the part of the Seller, the Parent, any other Originator or the Collection
Agent
or to inspect the property (including the books and records) of the Seller,
the
Parent, any other Originator or the Collection Agent; (d) shall not be
responsible to any Investor Agent, Investor or Bank for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other Transaction Document or any other instrument or document
furnished pursuant hereto or thereto; and (e) shall incur no liability under
or
in respect of this Agreement or any other Transaction Document by acting upon
any notice (including notice by telephone), consent, certificate or other
instrument or writing (which may be by telecopier or telex) believed by it
to be
genuine and signed or sent by the proper party or parties.
SECTION
8.03. CNAI and Affiliates. The obligation of
Citibank to purchase Receivable Interests under this Agreement may be satisfied
by CNAI or any of its Affiliates; provided that no such purchase of
Receivable Interests by CNAI or any of its Affiliates shall release Citibank
from any of its obligations hereunder, or substitute CNAI or any of its
Affiliates for Citibank as a party hereto. With respect to any Receivable
Interest or interest therein owned by it, CNAI shall have the same rights and
powers under this Agreement as any Bank and may exercise the same as though
it
were not the Program Agent. CNAI and any of its Affiliates may generally engage
in any kind of business with the Seller, the Parent, any other Originator,
the
Collection Agent or any Obligor, any of their respective Affiliates and any
Person who may do business with or own securities of the Seller, the Parent,
any
other Originator, the Collection Agent or any Obligor or any of their respective
Affiliates, all as if CNAI were not the Program Agent and without any duty
to
account therefor to the Investor Agents, the Investors or the
Banks.
SECTION
8.04. Indemnification of Program Agent. Each Bank
agrees to indemnify the Program Agent (to the extent not reimbursed by the
Seller, the Parent or any other Originator), ratably according to the respective
Percentage of such Bank, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against the Program Agent in any way relating to or arising
out
of this Agreement or any other Transaction Document or any action taken or
omitted by the Program Agent under this Agreement or any other Transaction
Document, provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Program Agent’s gross
negligence or willful misconduct.
SECTION
8.05. Delegation of Duties. The Program Agent may
execute any of its duties through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Program Agent shall not be responsible for the negligence or misconduct
of
any agents or attorneys-in-fact selected by it with reasonable
care.
SECTION
8.06. Action or Inaction by Program Agent. The
Program Agent shall in all cases be fully justified in failing or refusing
to
take action under any Transaction Document unless it shall first receive such
advice or concurrence of the Investor Agents and assurance of its
indemnification by the Banks, as it deems appropriate. The Program Agent shall
in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or
any
other Transaction Document in accordance with a request or at the direction
of
the Investor Agents and such request or direction and any action taken or
failure to act pursuant thereto shall be binding upon all Investors, Banks,
the
Program Agent and the Investor Agents.
SECTION
8.07. Notice of Events of Termination. The Program
Agent shall not be deemed to have knowledge or notice of the occurrence of
any
Incipient Event of Termination or of any Event of Termination unless the Program
Agent has received notice from any Investor Agent, Investor, Bank, the
Collection Agent, any Originator or the Seller stating that an Incipient Event
of Termination or Event of Termination has occurred hereunder and describing
such Incipient Event of Termination or Event of Termination. If the Program
Agent receives such a notice, it shall promptly give notice thereof to each
Investor Agent whereupon each Investor Agent shall promptly give notice thereof
to its respective Investors and Related Banks. The Program Agent shall take
such
action concerning an Incipient Event of Termination or an Event of Termination
as may be directed by the Investor Agents (subject to the other provisions
of
this Article VIII), but until the Program Agent receives such directions, the
Program Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, as the Program Agent deems advisable and in the best
interests of the Investors and Banks.
SECTION
8.08. Non-Reliance on Program Agent and Other
Parties. Each Investor Agent, Investor and Bank expressly acknowledges that
neither the Program Agent, any of its Affiliates nor any of their respective
directors, officers, agents or employees has made any representations or
warranties to it and that no act by the Program Agent hereafter taken, including
any review of the affairs of the Seller, the Parent or any other Originator,
shall be deemed to constitute any representation or warranty by the Program
Agent. Each Investor and Bank represents and warrants to the Program Agent
that,
independently and without reliance upon the Program Agent, any of its
Affiliates, any Investor Agent (except to the extent otherwise agreed in writing
between such Investor and its Investor Agent) or any other Investor or Bank
and
based on such documents and information as it has deemed appropriate, it has
made and will continue to make its own appraisal of and investigation into
the
business, operations, property, prospects, financial and other conditions and
creditworthiness of the Seller, the Parent and the other Originators, and the
Receivable Interests and its own decision to enter into this Agreement and
to
take, or omit, action under this Agreement or any other Transaction Document.
Except for items expressly required to be delivered under this Agreement or
any
other Transaction Document by the Program Agent to any Investor Agent, Investor
or Bank, the Program Agent shall not have any duty or responsibility to provide
any Investor Agent, Investor or Bank with any information concerning the Seller,
the Parent or any other Originator or any of their Affiliates that comes into
the possession of the Program Agent or any of its directors, officers, agents,
employees, attorneys-in-fact or Affiliates.
SECTION
8.09. Successor Program Agent. The Program Agent
may, upon at least thirty (30) days’ notice to the Seller and each Investor
Agent, resign as Program Agent. Such resignation shall not become effective
until a successor agent is appointed by the Investor Agents (with the approval
of the Seller, which approval shall not be unreasonably withheld and shall
not
be required if an Incipient Event of Termination or an Event of Termination
has
occurred and is continuing) and has accepted such appointment; provided
that no such thirty (30) day notice period shall be required in the event that
the Program Agent seeks to resign its position in connection with the
replacement of a Bank (which is acting as the Program Agent or which is an
Affiliate thereof) by the Seller pursuant to Section 11.03(j) hereof. Upon
such
acceptance of its appointment as Program Agent hereunder by a successor Program
Agent, such successor Program Agent shall succeed to and become vested with
all
the rights and duties of the retiring Program Agent, and the retiring Program
Agent shall be discharged from its duties and obligations under the Transaction
Documents. After any retiring Program Agent’s resignation hereunder, the
provisions of this Article VIII and Section 6.06 and Article X shall inure
to
its benefit as to any actions taken or omitted to be taken by it while it was
the Program Agent.
SECTION
8.10. Reports and Notices. The Program Agent hereby
agrees to provide each Investor Agent with copies of all material notices,
reports and other documents provided to the Program Agent by the Seller or
the
Collection Agent hereunder (other than any notices received by the Program
Agent
referred to in any of the definitions of Assignee Rate, Investor Rate or Fixed
Period) which are not otherwise required to be provided by the Seller or the
Collection Agent directly to the Investor Agents in accordance with the terms
hereof.
THE
INVESTOR AGENTS
SECTION
9.01. Authorization and Action. Each Investor and
each Bank which belongs to the same Group hereby appoints and authorizes the
Investor Agent for such Group to take such action as agent on its behalf and
to
exercise such powers under this Agreement and the other Transaction Documents
as
are delegated to such Investor Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto. No Investor Agent shall
have any duties other than those expressly set forth in the Transaction
Documents, and no implied obligations or liabilities shall be read into any
Transaction Document, or otherwise exist, against any Investor Agent. No
Investor Agent assumes, nor shall it be deemed to have assumed, any obligation
to, or relationship of trust or agency with, the Seller, the Parent or any
other
Originator. Notwithstanding any provision of this Agreement or any other
Transaction Document, in no event shall any Investor Agent ever be required
to
take any action which exposes such Investor Agent to personal liability or
which
is contrary to any provision of any Transaction Document or applicable
law.
SECTION
9.02. Investor Agent’s Reliance, Etc. No Investor
Agent nor any of its directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by it or them as an Investor Agent
under or in connection with this Agreement or the other Transaction Documents
(i) with the consent or at the request or direction of the Investors and Banks
in its Group or (ii) in the absence of its or their own gross negligence or
willful misconduct. Without limiting the generality of the foregoing, an
Investor Agent: (a) may consult with legal counsel (including counsel for the
Program Agent, the Seller, the Parent or any other Originator), independent
certified public accountants and other experts selected by it and shall not
be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (b) makes
no
warranty or representation to any Investor or Bank (whether written or oral)
and
shall not be responsible to any Investor or Bank for any statements, warranties
or representations (whether written or oral) made in or in connection with
this
Agreement or any other Transaction Document; (c) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement or any other Transaction Document
on
the part of the Seller, the Parent, any other Originator or any other Person
or
to inspect the property (including the books and records) of the Seller, the
Parent, any other Originator or the Collection Agent; (d) shall not be
responsible to any Investor or any Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Transaction Documents or any other instrument or document furnished
pursuant hereto; and (e) shall incur no liability under or in respect of this
Agreement or any other Transaction Document by acting upon any notice (including
notice by telephone), consent, certificate or other instrument or writing (which
may be by telecopier or telex) believed by it to be genuine and signed or sent
by the proper party or parties.
SECTION
9.03. Investor Agent and Affiliates. With respect
to any Receivable Interest or interests therein owned by it, each Investor
Agent
shall have the same rights and powers under this Agreement as any Bank and
may
exercise the same as though it were not an Investor Agent; provided that
no such exercise of rights and powers shall release such Investor Agent from
any
of its obligations hereunder, or substitute any Bank for such Investor Agent
as
a party hereto. Each Investor Agent and any of its Affiliates may generally
engage in any kind of business with the Seller, the Parent, any other
Originator, the Collection Agent or any Obligors, any of their respective
Affiliates and any Person who may do business with or own securities of the
Seller, the Parent, any other Originator, the Collection Agent or any Obligor
or
any of their respective Affiliates, all as if such Investor Agent were not
an
Investor Agent and without any duty to account therefor to any Investors or
Banks.
SECTION
9.04. Indemnification of Investor Agents. Each Bank
in any Group agrees to indemnify the Investor Agent for such Group (to the
extent not reimbursed by the Seller, the Parent or any other Originator),
ratably according to the proportion of the Percentage of such Bank to the
aggregate Percentages of all Banks in such Group, from and against any and
all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may
be
imposed on, incurred by, or asserted against such Investor Agent in any way
relating to or arising out of this Agreement or any other Transaction Document
or any action taken or omitted by such Investor Agent under this Agreement
or
any other Transaction Document, provided that no Bank shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
such
Investor Agent’s gross negligence or willful misconduct.
SECTION
9.05. Delegation of Duties. Each Investor Agent may
execute any of its duties through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
No Investor Agent shall be responsible for the negligence or misconduct of
any
agents or attorneys-in-fact selected by it with reasonable care.
SECTION
9.06. Action or Inaction by Investor Agent. Each
Investor Agent shall in all cases be fully justified in failing or refusing
to
take action under any Transaction Document unless it shall first receive such
advice or concurrence of the Investors and Banks in its Group and assurance
of
its indemnification by the Banks in its Group, as it deems appropriate. Each
Investor Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Transaction Document in
accordance with a request or at the direction of the Investors and Banks in
its
Group, and such request or direction and any action taken or failure to act
pursuant thereto shall be binding upon all Investors and Banks in its
Group.
SECTION
9.07. Notice of Events of Termination. No Investor
Agent shall be deemed to have knowledge or notice of the occurrence of any
Incipient Event of Termination or of any Event of Termination unless such
Investor Agent has received notice from the Program Agent, any other Investor
Agent, any Investor or Bank, the Collection Agent, any Originator or the Seller
stating that an Incipient Event of Termination or Event of Termination has
occurred hereunder and describing such Incipient Event of Termination or Event
of Termination. If an Investor Agent receives such a notice, it shall promptly
give notice thereof to the Investors and Banks in its Group and to the Program
Agent (but only if such notice received by such Investor Agent was not sent
by
the Program Agent). The Investor Agent shall take such action concerning an
Incipient Event of Termination or an Event of Termination as may be directed
by
the Investors and Banks in its Group (subject to the other provisions of this
Article IX), but until such Investor Agent receives such directions, such
Investor Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, as such Investor Agent deems advisable and in the
best
interests of the Investors and Banks in its Group.
SECTION
9.08. Non-Reliance on Investor Agent and Other
Parties. Except to the extent otherwise agreed to in writing between an
Investor and its Investor Agent, each Investor and Bank in the same Group
expressly acknowledges that neither the Investor Agent for its Group, any of
its
Affiliates nor any of such Investor Agent’s or Affiliate’s directors, officers,
agents or employees has made any representations or warranties to it and that
no
act by such Investor Agent hereafter taken, including any review of the affairs
of the Seller, the Parent or any other Originator, shall be deemed to constitute
any representation or warranty by such Investor Agent. Except to the extent
otherwise agreed to in writing between an Investor and its Investor Agent,
each
Investor and Bank in the same Group represents and warrants to the Investor
Agent for such Group that, independently and without reliance upon such Investor
Agent, any of its Affiliates, any other Investor Agent, the Program Agent or
any
other Investor or Bank and based on such documents and information as it has
deemed appropriate, it has made and will continue to make its own appraisal
of
and investigation into the business, operations, property, prospects, financial
and other conditions and creditworthiness of the Seller, the Parent, any other
Originator and the Receivable Interests and its own decision to enter into
this
Agreement and to take, or omit, action under this Agreement or any other
Transaction Document. Except for items expressly required to be delivered under
this Agreement or any other Transaction Document by an Investor Agent to any
Investor or Bank in its Group, no Investor Agent shall have any duty or
responsibility to provide any Investor or Bank in its Group with any information
concerning the Seller, the Parent, any other Originator or any of their
Affiliates that comes into the possession of such Investor Agent or any of
its
directors, officers, agents, employees, attorneys-in-fact or
Affiliates.
SECTION
9.09. Successor Investor Agent. Any Investor Agent
may, upon at least thirty (30) days’ notice to the Program Agent, the Seller and
the Investors and Banks in its Group, resign as Investor Agent for its Group;
provided that no such thirty (30) day notice period shall be required in
the event that such Investor Agent seeks to resign its position in connection
with the replacement of a Bank (which is acting as such Investor Agent or which
is an Affiliate thereof) by the Seller pursuant to Section 11.03(j) hereof.
Such
resignation shall not become effective until a successor investor agent is
appointed by the Investors and Banks in such Group and has accepted such
appointment. Upon such acceptance of its appointment as Investor Agent for
such
Group hereunder by a successor Investor Agent, such successor Investor Agent
shall succeed to and become vested with all the rights and duties of the
retiring Investor Agent, and the retiring Investor Agent shall be discharged
from its duties and obligations under the Transaction Documents. After any
retiring Investor Agent’s resignation hereunder, the provisions of this Article
IX and Section 6.06 and Article X shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Investor Agent.
SECTION
9.10. Reliance on Investor Agent. Unless otherwise
advised in writing by an Investor Agent or by any Investor or Bank in such
Investor Agent’s Group, each party to this Agreement may assume that (i) such
Investor Agent is acting for the benefit and on behalf of each of the Investors
and Banks in its Group, as well as for the benefit of each assignee or other
transferee from any such Person, and (ii) each action taken by such Investor
Agent has been duly authorized and approved by all necessary action on the
part
of the Investors and Banks in its Group.
INDEMNIFICATION
SECTION
10.01. Indemnities by the Seller. Without limiting
any other rights that the Program Agent, the Investor Agents, the Investors,
the
Banks, the L/C Bank or any of their respective Affiliates or members or any
of
their respective officers, directors, employees or advisors (each, an
“Indemnified Party”) may have hereunder or under applicable law, the
Seller hereby agrees to indemnify each Indemnified Party from and against any
and all claims, losses and liabilities (including reasonable attorneys’ fees)
(all of the foregoing being collectively referred to as “Indemnified
Amounts”) arising out of or resulting from this Agreement or the other
Transaction Documents or the use of proceeds of purchases or reinvestments
or
the ownership of Receivable Interests or in respect of any Receivable or any
Contract, excluding, however, (a) Indemnified Amounts to the extent found in
a
final non-appealable judgment of a court of competent jurisdiction to have
resulted from gross negligence or willful misconduct on the part of such
Indemnified Party, (b) recourse (except as otherwise specifically provided
in
this Agreement) for Receivables which are not collected, not paid or
uncollectible on account of the insolvency, bankruptcy or financial inability
to
pay of the applicable Obligor (except to the extent the Indemnified Party has
recourse against the Seller with respect to any such Receivable on grounds
(including those specified in clauses (i) through (xii) below) other than the
noncollectability of such Receivable due to the insolvency, bankruptcy or
financial inability to pay of the applicable Obligor) or (c) any income taxes
or
any other tax or fee measured by income incurred by such Indemnified Party
arising out of or as a result of this Agreement or the ownership of Receivable
Interests or in respect of any Receivable or any Contract. Without limiting
or
being limited by the foregoing, but subject to the exclusions in clauses (a),
(b) and (c) above, the Seller shall pay on demand to each Indemnified Party
any
and all amounts necessary to indemnify such Indemnified Party from and against
any and all Indemnified Amounts relating to or resulting from any of the
following:
(i)
the characterization in any Seller Report or other written statement made by
or
on behalf of the Seller of any Receivable as an Eligible Receivable or as
included in the Net Receivables Pool Balance which, as of the date of such
Seller Report or other statement, is not an Eligible Receivable or should not
be
included in the Net Receivables Pool Balance;
(ii) any
representation or warranty or statement made or deemed made by the Seller (or
any of its officers) under or in connection with this Agreement or any of the
other Transaction Documents which shall have been incorrect in any material
respect when made;
(iii) the
failure by the Seller to comply with any applicable law, rule or regulation
with
respect to any Pool Receivable or the related Contract; or the failure of any
Pool Receivable or the related Contract to conform to any such applicable law,
rule or regulation;
(iv) the
failure to vest in the Investors or the Banks (including the L/C Bank), as
the
case may be, (a) a perfected undivided percentage ownership interest, to the
extent of each Receivable Interest, in the Receivables in, or purporting to
be
in, the Receivables Pool and the Related Security and Collections in respect
thereof, or (b) a perfected security interest as provided in Section 2.11,
in
each case free and clear of any Adverse Claim;
(v) the
failure to have filed, or any delay in filing, financing statements or other
similar instruments or documents under the UCC of any applicable jurisdiction
or
other applicable laws with respect to any Receivables in, or purporting to
be
in, the Receivables Pool and the Related Security and Collections in respect
thereof, whether at the time of any purchase or reinvestment or at any
subsequent time;
(vi) any
dispute, claim, offset or defense (other than discharge in bankruptcy of the
Obligor) of the Obligor to the payment of any Receivable in, or purporting
to be
in, the Receivables Pool (including, without limitation, a defense based on
such
Receivable or the related Contract not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its terms),
or any other claim resulting from the sale of the merchandise or services
related to such Receivable or the furnishing or failure to furnish such
merchandise or services or relating to collection activities with respect to
such Receivable (if such collection activities were performed by the Seller
or
any of its Affiliates acting as Collection Agent);
(vii)
any failure of the Seller to perform its duties or obligations in accordance
with the provisions hereof or to perform its duties or obligations under the
Contracts;
(viii) any
products liability or other claim arising out of or in connection with
merchandise, insurance or services which are the subject of any
Contract;
(ix)
the commingling of Collections of Pool Receivables at any time by the Seller
with other funds;
(x)
any investigation, litigation or proceeding related to this Agreement or the
use
of proceeds of purchases or reinvestments or the ownership of Receivable
Interests or in respect of any Receivable or Related Security or Contract
(including, without limitation, in connection with the preparation of a defense
or appearing as a third party witness in connection therewith and regardless
of
whether such investigation, litigation or proceeding is brought by the Seller,
an Indemnified Party or any other Person or an Indemnified Party is otherwise
a
party thereto);
(xi)
any failure of the Seller to comply with its covenants contained in this
Agreement or any other Transaction Document;
(xii) any
claim brought by any Person other than an Indemnified Party arising from any
activity by the Seller or any Affiliate of the Seller in servicing,
administering or collecting any Receivable;
(xiii) any
payment made by the L/C Bank under a Letter of Credit to any Person purporting
to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit
of
creditors, liquidator, receiver or other representative of or successor to
any
beneficiary or any transferee of such Letter of Credit, including any arising
in
connection with any proceeding under the Bankruptcy Code of the United States,
or any other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief laws of the United States or other
applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally; or
(xiv)
the
inclusion as a Pool Receivable in any Seller Report or other written statement
made by or on behalf of the Seller of any receivable which is an Excluded
Receivable as of the date of such Seller Report or other
statement.
MISCELLANEOUS
SECTION
11.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement or consent to any departure by the Seller or
the
Parent (as Collection Agent or otherwise) therefrom shall be effective unless
in
a writing signed by the Program Agent and the Investor Agents representing
the
Majority Banks (and, in the case of any amendment, also signed by the Seller
and
the Parent); provided, however, that (x) no amendment, waiver or
consent shall, unless in writing and signed by the Collection Agent in addition
to the Program Agent and the Investor Agents representing the Majority Banks,
affect the rights or duties of the Collection Agent under this Agreement and
(y)
no amendment, waiver or consent shall affect the rights and duties of any
Investor Agent under this Agreement, unless in writing and signed by such
Investor Agent; and provided, further, that no Investor Agent
shall:
(a)
without the prior written consent of each Bank in its Group:
(i) amend
the definitions of Eligible Receivable, Delinquent Receivable or Defaulted
Receivable or increase the then existing Concentration Limit or any Special
Concentration Limit; or
(ii) amend,
modify or waive any provision of this Agreement in any way which
would:
|
|
a)
|
reduce
the amount of Capital or Yield that is payable on account of any
Receivable Interest or delay any scheduled date for payment thereof;
or
|
|
|
b)
|
impair
any rights expressly granted to an assignee or participant under
this
Agreement; or
|
|
|
c)
|
reduce
fees payable by the Seller to the Investor Agents or Banks or delay
the
dates on which such fees are payable;
or
|
|
|
d)
|
modify
any provisions relating to the Aggregate Loss and Dilution Reserve
or the
Yield and Fee Reserve so as to reduce the amount of such Reserves;
or
|
(iii) agree
to a different Assignee Rate pursuant to the final proviso in the definition
of
Assignee Rate in the Agreement; or
(iv) amend
or waive the Event of Termination relating to the bankruptcy of the Seller,
the
Parent or any Originator or amend or waive the Collection Agent Default relating
to the bankruptcy of the Collection Agent; or
(v) amend
this Agreement to extend the Commitment Termination Date; or
(b)
increase the Bank Commitment of any Bank in its Group without the prior written
consent of such Bank.
Notwithstanding
any other provision of this Section 11.01, Schedules I, IV and VI hereto may
be
amended in accordance with the procedures set forth in Sections 5.01(g), 5.01(b)
and 5.01(m), respectively. No failure on the part of the Investors, the Banks
or
the Agents to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right.
SECTION
11.02. Notices, Etc. All notices and other
communications hereunder shall, unless otherwise stated herein, be in writing
(which shall include facsimile communication) and faxed or delivered, to each
party hereto, at its address set forth on Schedule III hereto or at such other
address as shall be designated by such party in a written notice to the other
parties hereto. Notices and communications by facsimile shall be effective
when
sent (and shall be followed by hard copy sent by regular mail), and notices
and
communications sent by other means shall be effective when
received.
SECTION
11.03. Assignability. (a) This Agreement and the
Investors’ rights and obligations herein (including ownership of each Receivable
Interest) shall be assignable by the Investors and their successors and assigns
(including, without limitation, pursuant to an Asset Purchase Agreement) with
the Seller’s prior written consent; provided, that the Seller’s consent
shall not be required (i) if the assignment shall be to an Eligible Assignee
pursuant to an Asset Purchase Agreement, (ii) if there shall exist an Event
of
Termination or (iii) if the assignment is by an Investor or a Bank to another
receivables investment company managed and/or sponsored by its Investor Agent
or
any of its Affiliates. Each assignor of a Receivable Interest or any interest
therein shall notify the Program Agent, its Investor Agent and the Seller of
any
such assignment. Each assignor of a Receivable Interest or any interest therein
may, in connection with any such assignment, disclose to the assignee or
potential assignee any information relating to the Seller, the Parent or any
other Originator, including the Receivables, furnished to such assignor by
or on
behalf of the Seller, the Parent, any other Originator or by the Program Agent;
provided that, prior to any such disclosure, the assignee or potential assignee
agrees to preserve the confidentiality of any such information which is
confidential in accordance with the provisions of Section 11.06
hereof.
(b)
Each
Bank may assign to any Eligible Assignee or to any other Bank all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Bank Commitment and any Receivable Interests
or interests therein owned by it); provided, however,
that:
(i)
each such assignment shall be of a constant, and not a varying, percentage
of
all rights and obligations under this Agreement,
(ii) the
amount being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance Agreement with respect to such assignment)
shall in no event be less than the lesser of (x) $10,000,000 and (y) all of
the
assigning Bank’s Bank Commitment,
(iii) the
parties to each such assignment shall execute and deliver to the Program Agent
(with a copy to the assignor’s Investor Agent), for its acceptance and recording
in the Register, an Assignment and Acceptance Agreement, together with a
processing and recordation fee of $2,500, and
(iv) concurrently
with such assignment, such assignor Bank shall assign to such assignee Bank
or
other Eligible Assignee an equal percentage of its rights and obligations under
its Asset Purchase Agreement (or, if such assignor Bank is Citibank, it shall
arrange for such assignee Bank or other Eligible Assignee to become a party
to
the Asset Purchase Agreement for a maximum Capital amount equal to the
assignee’s Bank Commitment).
Upon
such
execution, delivery, acceptance and recording, from and after the effective
date
specified in such Assignment and Acceptance Agreement, (x) the assignee
thereunder shall be a party to this Agreement and, to the extent that rights
and
obligations hereunder have been assigned to it pursuant to such Assignment
and
Acceptance Agreement, have the rights and obligations of a Bank hereunder and
(y) the assigning Bank shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance
Agreement, relinquish such rights and be released from such obligations under
this Agreement (and, in the case of an Assignment and Acceptance Agreement
covering all or the remaining portion of an assigning Bank’s rights and
obligations under this Agreement, such Bank shall cease to be a party
hereto).
(c)
The
Program Agent shall maintain at its address referred to in Section 11.02 of
this
Agreement a copy of each Assignment and Acceptance Agreement delivered to and
accepted by it and a register for the recordation of the names and addresses
of
the Banks and the Bank Commitment of, and aggregate outstanding Capital of
Receivable Interests or interests therein owned by, each Bank from time to
time
(the “Register”). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Seller, the
Originators, the Program Agent, the Investor Agents, the Investors and the
Banks
may treat each person whose name is recorded in the Register as a Bank under
this Agreement for all purposes of this Agreement. The Register shall be
available for inspection by the Seller or any Bank at any reasonable time and
from time to time upon reasonable prior notice. Upon its receipt of an
Assignment and Acceptance Agreement executed by an assigning Bank and an
Eligible Assignee, the Program Agent shall, if such Assignment and Acceptance
Agreement has been completed, (i) accept such Assignment and Acceptance
Agreement, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Seller.
(d)
Notwithstanding any other provision of this Section 11.03, each Bank may at
any
time pledge or grant a security interest in all or any portion of its rights
(including, without limitation, rights to payment of Capital and Yield) under
this Agreement or under the Asset Purchase Agreement to secure obligations
of
such Bank to any Federal Reserve Bank without notice to or consent of the Seller
or the Program Agent; provided, that no such pledge or grant of a
security interest shall release a Bank from any of its obligations hereunder
or
under the Asset Purchase Agreement, as the case may be, or substitute any such
pledgee or grantee for such Bank as a party hereto or to the Asset Purchase
Agreement, as the case may be.
(e)
Each
Bank may sell participations, to one or more banks or other entities, in or
to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Bank Commitment and the Receivable
Interests or interests therein owned by it); provided, however,
that
(i)
such Bank’s obligations under this Agreement (including, without limitation, its
Bank Commitment to the Seller hereunder) shall remain unchanged,
(ii)
such Bank shall remain solely responsible to the other parties to this Agreement
for the performance of such obligations, and
(iii)
concurrently with such participation, the selling Bank shall sell to such bank
or other entity a participation in an equal percentage of its rights and
obligations under the Asset Purchase Agreement.
The
Agents, the other Banks and the Seller shall have the right to continue to
deal
solely and directly with such Bank in connection with such Bank’s rights and
obligations under this Agreement.
(f)
This
Agreement and the rights and obligations of the Program Agent herein shall
be
assignable by the Program Agent and its successors and assigns.
(g)
The
Seller may not assign its rights or obligations hereunder or any interest herein
without the prior written consent of the Program Agent and each Investor
Agent.
(h)
CAFCO
may, without the consent of the Seller, sell participations to one or more
banks
or other entities (each, a “Participant”) in all or a portion of its
rights and obligations hereunder (including the outstanding Receivable
Interests); provided that following the sale of a participation under
this Agreement (i) the obligations of CAFCO shall remain unchanged, (ii) CAFCO
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Seller, the Agents, and the Banks shall
continue to deal solely and directly with CAFCO in connection with CAFCO’s
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which CAFCO sells such a participation shall provide that the
Participant shall not have any right to direct the enforcement of this Agreement
or the other Transaction Documents or to approve any amendment, modification
or
waiver of any provision of this Agreement or the other Transaction Documents;
provided that such agreement or instrument may provide that CAFCO will
not, without the consent of the Participant, agree to any amendment,
modification or waiver that (i) reduces the amount of Capital or Yield that
is
payable on account of any Receivable Interest or delays any scheduled date
for
payment thereof or (ii) reduces any fees payable by the Seller to the Program
Agent or CAFCO’s Investor Agent (to the extent relating to payments to the
Participant) or delays any scheduled date for payment of such fees. The Seller
acknowledges and agrees that CAFCO’s source of funds may derive in part from its
Participants. Accordingly, references in Sections 2.08, 2.09, 2.10, 6.06, 9.01
and 11.04 and the other terms and provisions of this Agreement and the other
Transaction Documents to determinations, reserve and capital adequacy
requirements, expenses, increased costs, reduced receipts and the like as they
pertain to CAFCO shall be deemed also to include those of its Participants;
provided that the Seller shall not be required to pay higher costs,
expenses and indemnification amounts pursuant to this sentence than would be
required to be paid by the Seller in the absence of the sale of any
participation by CAFCO to a Participant as contemplated by this Section
11.03(h). CAFCO or its Investor Agent may, in connection with any such
participation, disclose to Participants and potential Participants any
information relating to the Seller, the Parent or the Originators, including
the
Receivables, furnished to CAFCO or such Investor Agent by or on behalf of the
Seller; provided that, prior to any such disclosure, such Participant or
potential Participant agrees to preserve the confidentiality of any such
information which is confidential in accordance with the provisions of Section
11.06 hereof. Any interest sold by CAFCO to a Bank or its designee under its
Asset Purchase Agreement shall not be considered a participation for the purpose
of this Section 11.03(h) (and the Bank or its designee shall not be considered
a
Participant as a result thereof).
(i) Wachovia
may not assign any of its rights and obligations as L/C Bank under this
Agreement without the prior written consent of the Program Agent (which consent
shall not be unreasonably withheld or delayed).
(j) If
the Credit Agreement Freeze Date shall occur as a result of any Bank ceasing
to
be a lender under the Credit Agreement, the Seller shall have the right,
exercisable by notice to such Bank (with a copy to the Program Agent), to
require such Bank to sell and assign, and upon such notice by the Seller to
such
effect, such Bank shall sell and assign, all of its interests, rights and
obligations under this Agreement to an assignee identified by the Seller and
approved by the relevant Investor Agent, which approval shall not be
unreasonably withheld; provided, however, that (i) such assignment
shall not conflict with any statute, law, rule, regulation, order or decree
of
any governmental authority, (ii) the assigning Bank shall have received from
such assignee full payment in immediately available funds of all amounts payable
to it in respect of Capital, accrued Yield and Fees and other amounts owing
to
it under or in connection with this Agreement, (iii) such assignment shall
be
without recourse to the assigning Bank and shall be at the sole expense of
the
Seller, (iv) the assigning Bank shall continue to have the benefit of all
indemnities and other agreements under this Agreement which survive the
termination of this Agreement and (v) if such Bank or an Affiliate of such
Bank
is the manager or administrator of an Investor, the Seller shall also arrange
for the concurrent assignment of all interests and rights of such Investor
to an
assignee identified by the Seller and approved by relevant Investor Agent,
which
approval shall not be unreasonably withheld (such assignment to comply with
the
provisions of the preceding clauses (i) through (v) as if each reference therein
to “assigning Bank” were a reference to “assigning Investor”). Such assigning
Bank and such assignee shall comply with the provisions of Section 11.03(b),
and
upon the effectiveness of any such assignment (and provided that all of the
Banks hereunder are then lenders under the Credit Agreement), the Credit
Agreement Freeze Date shall be deemed to no longer exist.
(k)
Any
assignee or participant under this Section 11.03 shall be entitled to the
benefits of Section 2.10(a), (b) and (c) only if it complies with Section
2.10(d) on or prior to the date it becomes an assignee or
participant.
SECTION
11.04. Costs and Expenses. (a) In addition to the
rights of indemnification granted under Section 10.01 hereof, the Seller agrees
to pay on demand (i) all reasonable costs and expenses incurred in connection
with the periodic auditing and the other activities contemplated pursuant to
Section 5.02 (subject to the limitations set forth therein), (ii) all costs
and
expenses in connection with the preparation, execution and delivery of this
Agreement, any Asset Purchase Agreement and the other Transaction Documents,
including, without limitation, the reasonable fees and out-of-pocket expenses
of
counsel for the Program Agent, each Investor Agent, each Investor and each
Bank
with respect thereto and with respect to advising the Program Agent, each
Investor Agent, each Investor and each Bank as to their rights and remedies
under this Agreement, (iii) all reasonable pre-closing out-of-pocket due
diligence and audit expenses, and (iv) all reasonable out-of-pocket costs and
expenses, if any (including reasonable counsel fees and expenses), of the
Program Agent, the Investor Agents, the Investors and the Banks, in connection
with the enforcement of this Agreement and the other Transaction
Documents.
(b)
In
addition, the Seller shall pay (i) to the extent not included in the calculation
of Yield, CP Costs and Investor Rate, any and all commissions of placement
agents and dealers in respect of Promissory Notes or commercial paper notes
issued to fund the purchase or maintenance of any Receivable Interest, (ii)
to
the extent not included in the calculation of Yield, CP Costs and Investor
Rate,
any and all costs and expenses of any issuing and paying agent or other Person
responsible for the administration of any Investor’s Promissory Note or
commercial paper program, as the case may be, in connection with the
preparation, completion, issuance, delivery or payment of Promissory Notes
or
commercial paper notes issued to fund the purchase or maintenance of any
Receivable Interest, and (iii) any and all Liquidation Fee.
SECTION
11.05. No Proceedings; Waiver of Consequential
Damages. (a) Each of the Seller, the Program Agent, each Investor Agent, the
Collection Agent, the Parent, each Investor, each Bank, each assignee of a
Receivable Interest or any interest therein and each entity which enters into
a
commitment to purchase Receivable Interests or interests therein hereby agrees
that it will not institute against, or join any other Person in instituting
against, any Investor any proceeding of the type referred to in Section 7.01(g)
so long as any commercial paper or other senior indebtedness issued by such
Investor shall be outstanding or there shall not have elapsed one year plus
one
day since the last day on which any such commercial paper or other senior
indebtedness shall have been outstanding.
(b)
Each
of the Parent, the Collection Agent and the Seller agree that no Indemnified
Party shall have any liability to them or any of their securityholders or
creditors in connection with this Agreement, the other Transaction Documents
or
the transactions contemplated thereby on any theory of liability for any
special, indirect, consequential or punitive damages (including, without
limitation, any loss of profits, business or anticipated savings).
SECTION
11.06. Confidentiality. (a) Each of the Seller,
the Parent and the Collection Agent agrees to maintain the confidentiality
of
the Fee Agreements in communications with third parties and
otherwise.
(b) Each
Investor, each Bank, each Investor Agent and the Program Agent agrees to
maintain the confidentiality of all information with respect to the Seller,
each
Originator, the Parent or the Receivables Pool (including the Seller Reports)
furnished or delivered to it pursuant to this Agreement and the other
Transaction Documents; provided, that such information may be disclosed
(i) to such party’s legal counsel and auditors and to such party’s assignees and
participants and potential assignees and participants and their respective
counsel if they agree to hold it confidential, (ii) to the rating agencies,
(iii) to any actual or potential subordinated investor in any Investor or any
provider of liquidity for any Investor, in each case, together with their
respective employees, officers, directors, accountants, lawyers and advisors,
if
each such subordinated investor or provider of liquidity has agreed to hold
it
confidential, (iv) to credit enhancers and dealers and investors in respect
of
promissory notes of each Investor in accordance with the customary practices
of
said Investor for disclosure to credit enhancers, dealers or investors, as
the
case may be, it being understood that any such disclosure to dealers or
investors will not identify the Seller, the Parent, any Originator or any of
their Affiliates by name, and (v) to the extent required by applicable law
or
regulation or by any court, regulatory body or agency having jurisdiction over
such party or over any of the Persons referred to in the preceding clauses
(i)
through (iv); and provided, further, that such party shall have no
obligation of confidentiality in respect of any information which may be
generally available to the public or becomes available to the public through
no
fault of such party.
(c) Notwithstanding
any other provision herein, or in any other Transaction Document, each Investor,
each Bank, each Investor Agent and the Program Agent hereby confirms that the
Seller, each Originator, the Parent and the Collection Agent (and each employee,
representative or other agent of each such party) may disclose to any and all
Persons, without limitation of any kind, the U.S. tax treatment and U.S. tax
structure of the transaction contemplated by this Agreement and the other
Transaction Documents.
SECTION
11.07. GOVERNING LAW. THIS AGREEMENT SHALL, IN
ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF
NEW YORK, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE
OF NEW YORK WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES THEREOF THAT
WOULD
CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION, EXCEPT TO THE
EXTENT THAT, PURSUANT TO THE UCC OF THE STATE OF NEW YORK, THE PERFECTION AND
THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE INTERESTS OF THE INVESTORS
AND
THE BANKS IN THE RECEIVABLES AND THE ORIGINATOR PURCHASE AGREEMENT ARE GOVERNED
BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
SECTION
11.08. Execution in Counterparts. This Agreement
may be executed in any number of counterparts, each of which when so executed
shall be deemed to be an original and all of which when taken together shall
constitute one and the same agreement.
SECTION
11.09. Survival of Termination. The provisions of
Sections 2.08, 2.09, 6.06, 10.01, 11.04, 11.05 and 11.06 shall survive any
termination of this Agreement.
SECTION
11.10. Consent to Jurisdiction. (a) Each party
hereto hereby irrevocably submits to the non-exclusive jurisdiction of any
New
York State or Federal court sitting in New York City in any action or proceeding
arising out of or relating to this Agreement or the other Transaction Documents,
and each party hereto hereby irrevocably agrees that all claims in respect
of
such action or proceeding may be heard and determined in such New York State
court or, to the extent permitted by law, in such Federal court. The parties
hereto hereby irrevocably waive, to the fullest extent they may effectively
do
so, the defense of an inconvenient forum to the maintenance of such action
or
proceeding. The parties hereto agree that a final judgment in any such action
or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(b)
Each
of the Seller, the Parent, the Collection Agent and the Originators consents
to
the service of any and all process in any such action or proceeding by the
mailing of copies of such process to it at its address specified in Section
11.02. Nothing in this Section
11.10 shall affect the right of the Investors, any Bank or any Agent to serve
legal process in any other manner permitted by law.
SECTION
11.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO
HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY
JURY
IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED OR
DELIVERED PURSUANT HERETO.
SECTION
11.12. Intended Tax Treatment. The parties to this
Agreement are entering into this Agreement with the intent that for United
States Federal, state and local income and franchise tax purposes, a purchase
of
Receivable Interests under this Agreement is intended to be a loan from the
Investors (or the Banks, if applicable) to the Seller secured by the
Receivables, Related Security and Collections. Each such party agrees to file
all tax returns according to this characterization.
SECTION
11.13. Excess Funds. Notwithstanding any
provisions contained in this Agreement to the contrary, no Investor shall,
nor
shall be obligated to, pay any amount pursuant to this Agreement unless (i)
such
Investor has received funds which may be used to make such payment and which
funds are not required to repay its commercial paper notes when due and (ii)
after giving effect to such payment, either (x) such Investor could issue
commercial paper notes to refinance all of its outstanding commercial paper
notes (assuming such outstanding commercial paper notes matured at such time)
in
accordance with the program documents governing such Investor’s securitization
program or (y) all of such Investor’s commercial paper notes are paid in full.
Any amount which an Investor does not pay pursuant to the operation of the
preceding sentence shall not constitute a claim (as defined in §101 of the
United States Bankruptcy Code) against or limited liability company obligation
of such Investor for any such insufficiency unless and until such Investor
satisfies the provisions of clauses (i) and (ii) above. This Section shall
survive the termination of this Agreement.
SECTION
11.14. No Recourse. The obligations of each
Investor, its Investor Agent, its management company, its administrator and
its
referral agents (each a “ProgramAdministrator”) under any
Transaction Document or other document (each, a “ProgramDocument”)
to which a Program Administrator is a party are solely the corporate or limited
liability company obligations of such Program Administrator and no recourse
shall be had for such obligations against any Affiliate, director, officer,
member, manager, employee, attorney or agent of any Program
Administrator.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above
written.
|
SELLER
|
OLIN
FUNDING COMPANY LLC
|
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxx
|
|
| Title: Treasurer | ||
|
|
||
|
INVESTORS:
|
CAFCO,
LLC
|
|
|
By: Citicorp
North America,
Inc.,
as
Attorney-in-Fact
|
||
|
By:
|
/s/ Citicorp | |
|
Vice
President
|
||
|
|
VARIABLE
FUNDING CAPITAL COMPANY LLC
|
|
|
By:
Wachovia
Capital
Markets, LLC
as
Attorney-in-Fact
|
||
|
By:
|
/s/ Xxxxxxx X. Xxxxxx Xx. | |
|
Title:
|
Director
|
|
|
PROGRAM
AGENT:
|
CITICORP
NORTH AMERICA, INC.,
as
Program Agent
|
|
|
|
By:
|
/s/ Citicorp |
|
Vice
President
|
||
|
BANKS:
|
CITIBANK,
N.A.
|
|
|
|
By:
|
/s/ Citibank |
|
Vice
President
Percentage: 50%
|
||
|
WACHOVIA
BANK, NATIONAL ASSOCIATION
|
|
|
By:
|
/s/ Wachovia |
| Title: | Vice President |
|
Percentage: 50%
|
|
|
COLLECTION
AGENT AND PARENT/ORIGINATOR
|
XXXX
CORPORATION
|
|
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxx |
|
Title:
Treasurer
|
||
|
INVESTOR
AGENTS:
|
CITICORP
NORTH AMERICA, INC.,
as
an Investor Agent
|
|
|
|
By:
|
/s/ Citicorp |
|
Vice
President
|
||
|
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
an Investor Agent
|
|
|
By:
|
/s/ Wachovia |
|
Title:
Vice President
|
|
SCHEDULE
I
Lock-Boxes/Deposit
Accounts
|
Name
and Address
of
Deposit Bank
|
Name
of
Accountholder
|
Account
Number
|
Lock-Box
Number
and
Address
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[List
continues on next page]
S-1
|
Name
and Address
of
Deposit Bank
|
Name
of
Accountholder
|
Account
Number
|
Lock-Box
Number
and
Address
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S-2
SCHEDULE
III
Addresses
|
Seller:
|
Olin
Funding Company LLC
000
Xxxxx Xxxxxxxx Xxxxxx,
Xxxx
Xxxxx, Xxxxxxxx, 00000
Attention:
Legal Department
Facsimile
No. 000-000-0000
|
|
Investors:
|
CAFCO,
LLC
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxx,
X.X. 00000
Attention: Global
Securitization
Facsimile
No. 000-000-0000
Variable
Funding Capital Company LLC
c/o
Wachovia Capital Markets, LLC
000
Xxxxx Xxxxxxx Xxxxxx, XX-00
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxx
Facsimile
No. 000-000-0000
|
|
Program
Agent:
|
Citicorp
North America, Inc., as Program Agent
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxx,
X.X. 00000
Attention:
Global Securitization
Facsimile
No. 000-000-0000
|
|
Banks:
|
Citibank,
N.A.
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxx,
X.X. 00000
Attention:
Global Securitization
Facsimile
No. 000-000-0000
Wachovia
Bank, National Association
000
00xx Xx., XX
Mailcode
GA 4524
Xxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxxx X. Xxxxxxxxx
Facsimile
No. 000-000-0000
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S-3
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Collection
Agent:
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Xxxx
Corporation
000
X. Xxxxxxxx Xx.
Xxxx
Xxxxx, XX 00000
Attention:
Legal Department
Facsimile
No. 000-000-0000
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Investor
Agents:
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Citicorp
North America, Inc., as Investor Agent
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxx,
X.X. 00000
Attention:
Global Securitization
Facsimile
No. 000-000-0000
Wachovia
Bank, National Association
000
00xx Xx., XX
Mailcode
GA 4524
Xxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxxx X. Xxxxxxxxx
Facsimile
No. 000-000-0000
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S-4
SCHEDULE
IV
Seller
UCC Information
Name:
Olin Funding Company LLC
Address:
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxx, 00000
Jurisdiction
of Organization: Delaware
UCC
Filing Office: Delaware Secretary of State
S-5
SCHEDULE
V
Special
Concentration Limits
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Obligor’s
Debt Rating
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Concentration
Limit Percentage
|
|
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Level
I
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AA-
or above and Aa3 or
above
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100%
of Loss Reserve Floor Percentage
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Level
II
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BBB-
or above and Baa3 or
above,
but not meeting the
conditions
of Level I above
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50%
of Loss Xxxxxxx Xxxxx Xxxxxxxxxx
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X-0
SCHEDULE
VI
Originators
X.X.
Xxxxx Co.
X.X.
Xxxxx Foils, Inc.
X.X.
Xxxxx West, Inc.
Xxxx
Corporation
Xxxxx
Metals, Inc.
Chase
Brass & Copper Company, Inc.
S-7
ANNEX
E
[Form
of
Funds Transfer Letter]
[Letterhead
of the Seller]
[Date]
Citicorp
North America, Inc.,
as
Program Agent and Investor Agent
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxx 00000
Wachovia
Bank, National Association,
as
Investor Agent
000
00xx
Xx., XX
Mailcode
GA 4524
Xxxxxxx,
Xxxxxxx 00000
Re:
Funds Transfers
Gentlemen:
This
letter is the Funds Transfer Letter referred to in Section 2.02(b) of the
Receivables Purchase Agreement, dated as of July 25, 2007, as modified, amended
or restated from time to time (the “RPA”; terms used in the RPA, unless
otherwise defined herein, having the meaning set forth therein) among the
undersigned, the Investors, the Banks, the Investor Agents, you, as Program
Agent for the Investors and the Banks and the Parent.
You
are
hereby directed to deposit all funds representing amounts paid for Receivable
Interests to [Account Number], at [Name, Address and ABA Number of
Bank].
The
provisions of this Letter may not be changed or amended orally, but only by
a
writing in substantially the form of this letter signed by the undersigned
and
acknowledged by you.
Very
truly
yours,
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XXXX
FUNDING COMPANY LLC
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|
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By:
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|
|
Title
|
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E-1
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Receipt
acknowledged:
CITICORP
NORTH AMERICA, INC.,
as
Program
Agent
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By:
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Vice
President
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E-2
ANNEX
H
FORM
OF LETTER OF CREDIT REQUEST
[Date]
Wachovia
Bank, National Association, as L/C Bank
000
Xxxxx
Xxxxxxx Xxxxxx
6th
Floor, Mail Code NC 0601
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxx XxXxxxxx, Conduit Operations
Ladies
and Gentlemen:
Reference
is hereby made to the Receivables Purchase Agreement, dated as of July 25,
2007
(as amended, restated or otherwise modified from time to time, the
“Receivables Purchase
Agreement”, the
terms defined therein being used herein as therein defined), among the
undersigned, the Investors, Banks and Investor Agents from time to time party
thereto, Citicorp North America, Inc., as Program Agent, and Xxxx Corporation,
as Collection Agent.
Pursuant
to Section 2.18 of the Receivables Purchase Agreement:
[Seller
hereby requests that the L/C Bank issue the Letter of Credit described in the
enclosed Letter of Credit Request received by Seller from [insert applicable
Originator name] under the Originator Purchase Agreement. In connection
therewith, enclosed please find a duly completed Letter of Credit Application
executed by Seller].
[Seller
hereby requests that the L/C Bank Modify standby letter of credit no.
___________ dated ___________ and
issued for the benefit of [insert beneficiary’s name] as follows:
________________].
The
undersigned hereby certifies that the following statements are true on the
date
hereof, and will be true on the date of the requested [issuance/Modification]
(both before and after giving effect thereto):
(A) all
conditions precedent to the purchase of a Receivable Interest set forth in
Section 3.02 of the Receivables Purchase Agreement have been satisfied on and
as
of such date;
(B) the
aggregate outstanding Capital of L/C Receivable Interests does not exceed the
L/C Facility Limit;
(C) the
L/C Termination Date has not occurred; and
H-1
(D) the
sum of (x) the aggregate outstanding Capital of Receivable Interests (including
L/C Receivable Interests) held by Wachovia plus (y) Wachovia’s Ratable Share of
the aggregate outstanding portion of Capital held by VFCC (whether or not any
portion thereof has been assigned under an Asset Purchase Agreement) do not
exceed Wachovia’s Bank Commitment.
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Very
truly yours,
XXXX
FUNDING COMPANY LLC
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|
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By:
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Title:
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[Enclosures]
H-2
ANNEX
I
FORM
OF PURCHASE REQUEST
[DATE]
Citicorp
North America, Inc., as Program
Agent and Investor Agent
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention:
Global Securitization
Facsimile
Number: 000-000-0000
Wachovia
Bank, National Association,
as Investor Agent
000
00xx
Xx., XX
Mailcode
GA 4524
Xxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxxx X. Xxxxxxxxx
Facsimile
Number: 000-000-0000
Re:
Receivables Purchase Agreement dated as of July 25, 2007 among Xxxx Funding
Company LLC, as seller (the “Seller”), CAFCO, LLC, as an investor,
Variable Funding Capital Company LLC, as an investor, Citibank, N.A., as a
bank,
Wachovia Bank, National Association, as a bank, Wachovia Bank, National
Association, as an investor agent, Citicorp North America, Inc., as an investor
agent and as the program agent for the banks and the investors (the “Program
Agent”) and Xxxx Corporation, as the collection agent (“Collection
Agent”) (as amended, restated, supplemented or otherwise modified from time
to time, the “Agreement”)
Ladies
and Gentlemen:
This
Notice is delivered to you pursuant to Section 2.02(a) of the Agreement. Unless
otherwise defined herein, all capitalized terms used herein will have the
respective meanings assigned to them in the Agreement.
The
Seller hereby requests that an incremental purchase (the “Purchase”) of a
Receivable Interest having Capital in the amount of $[___________] be made
on
a
pro
rata basis among the Investors on [_______________] (the “Purchase
Date”). [The
duration of the initial Fixed Period for the Purchase
shall be _______________.]1
_____________________________
1
To
be utilized only
if the Assignee Rate based on the Eurodollar Rate is to apply.
The
Seller hereby certifies and warrants that on the date hereof and as of the
Purchase Date (and the Seller, by accepting the payment of the Capital on the
Purchase Date relating to such Purchase, will be deemed to have certified that),
(i) the representations and warranties of the Seller contained in
Section 4.01 of the Agreement are (A) if such representation or
warranty is not by its terms qualified by materiality, correct in all material
respects on and as of the Purchase Date or (B) if such representation or
warranty is by its terms qualified by materiality, correct on and as of the
Purchase Date, in each case, as if made on and as of such date, (ii) no event
has occurred and is continuing, or would result from such Purchase, that
constitutes an Event of Termination or an Incipient Event of Termination and
(iii) all applicable conditions precedent to the Purchase have been fully
satisfied.
The
Seller agrees that if, prior to the time that the Purchase requested hereby
is
made, any matter certified to herein will not be true and correct at such time
as if then made, it will immediately so notify the Program Agent and each
Investor Agent.
Please
wire transfer the proceeds of the requested Purchase to the account of the
Seller set forth in the Funds Transfer Letter.
[Remainder
of page intentionally blank]
The
Seller has caused this notice to be executed and delivered, and the
certifications and warranties contained herein to be made, by its duly
authorized officer as of the date first above written.
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XXXX
FUNDING COMPANY LLC
|
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By:
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Name:
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|
|
Title:
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