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EXHIBIT (10)(b)
PURCHASE AND SALE AGREEMENT
DATED AS OF APRIL 24, 2001
BETWEEN
LESCO INC.
AND
LESCO FUNDING, INC.
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TABLE OF CONTENTS
PAGE
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ARTICLE I AGREEMENT TO PURCHASE AND SELL ........................................2
1.1 Agreement To Purchase and Sell ........................................2
1.2 Timing of Purchases ...................................................3
1.3 Consideration for Purchases ...........................................3
1.4 Purchase and Sale Termination Date ....................................3
1.5 Intention of the Parties ..............................................3
ARTICLE II CALCULATION OF PURCHASE PRICE .........................................3
2.1 Calculation of Purchase Price .........................................3
ARTICLE III PAYMENT OF PURCHASE PRICE .............................................5
3.1 Contribution of Receivables and Initial Purchase Price Payment ........5
3.2 Subsequent Purchase Price Payments ....................................5
3.3 Settlement as to Specific Receivables and Dilution ....................6
3.4 Reconveyance of Receivables ...........................................7
ARTICLE IV CONDITIONS OF PURCHASES ...............................................7
4.1 Conditions Precedent to Initial Purchase ..............................7
4.2 Certification as to Representations and Warranties ....................8
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR ......................9
5.1 Organization and Good Standing ........................................9
5.2 Due Qualification .....................................................9
5.3 Power and Authority; Due Authorization ................................9
5.4 Valid Sale; Binding Obligations .......................................9
5.5 No Violation ..........................................................9
5.6 Proceedings ..........................................................10
5.7 Bulk Sales Acts ......................................................10
5.8 Government Approvals .................................................10
5.9 Financial Condition ..................................................10
5.10 Licenses, Contingent Liabilities, and Labor Controversies ............10
5.11 Margin Regulations ...................................................11
5.12 Quality of Title .....................................................11
5.13 Accuracy of Information ..............................................11
5.14 Offices ..............................................................11
5.15 Trade Names ..........................................................11
5.16 Taxes ................................................................12
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5.17 Compliance with Applicable Laws ......................................12
5.18 Reliance on Separate Legal Identity ..................................12
ARTICLE VI COVENANTS OF THE ORIGINATOR ..........................................12
6.1 Affirmative Covenants ................................................12
6.2 Reporting Requirements ...............................................14
6.3 Negative Covenants ...................................................14
6.4 Lock-Box Banks .......................................................15
6.5 Accounting for Purchases .............................................15
6.6 Transaction Documents ................................................15
6.7 Substantive Consolidation ............................................15
ARTICLE VII ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF THE RECEIVABLES ......17
7.1 Rights of the Company ................................................17
7.2 Responsibilities of the Originator ...................................17
7.3 Further Action Evidencing Purchases ..................................18
7.4 Application of Collections ...........................................18
ARTICLE VIII PURCHASE AND SALE TERMINATION EVENTS .................................19
8.1 Purchase and Sale Termination Events .................................19
8.2 Remedies .............................................................19
ARTICLE IX INDEMNIFICATION ......................................................20
9.1 Indemnities by the Originator ........................................20
ARTICLE X MISCELLANEOUS ........................................................21
10.1 Amendments, etc. .....................................................21
10.2 Notices, etc..........................................................22
10.3 No Waiver; Cumulative Remedies .......................................22
10.4 Binding Effect; Assignability ........................................22
10.5 Governing Law ........................................................22
10.6 Costs, Expenses and Taxes ............................................22
10.7 Submission to Jurisdiction ...........................................23
10.8 Waiver of Jury Trial .................................................23
10.9 Captions and Cross References; Incorporation by Reference ............24
10.10 Execution in Counterparts ...........................................24
10.11 Acknowledgment and Agreement ........................................24
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EXHIBIT A - Form of Purchase Report
EXHIBIT B - Form of Company Note
EXHIBIT C - Form of Originator Assignment Certificate
EXHIBIT D - Proceedings
EXHIBIT E - Office Locations
EXHIBIT F - Trade Names
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of April
24, 2001, is between LESCO INC. ("Lesco"), a Ohio corporation, as the Originator
(the "Originator"), Lesco as the initial Servicer, and LESCO FUNDING, INC. a
Delaware corporation (the "Company").
Definitions
Unless otherwise indicated, certain terms that are capitalized and used
throughout this Agreement are defined in Exhibit I to the Receivables Purchase
Agreement of even date herewith (as the same may be amended, supplemented or
otherwise modified from time to time, the "Receivables Purchase Agreement")
among Lesco, the Company, Market Street Funding Corporation, as the Issuer (the
"Issuer"), and PNC Bank, National Association. All references herein to months
are to calendar months unless otherwise expressly indicated.
Background
(a) The Company is a special purpose corporation, all of the
issued and outstanding shares of which are owned by the Originator.
(b) The Originator generates Receivables in the ordinary course
of its businesses.
(c) The Originator, in order to finance its business, wishes to
sell Receivables to the Company, and the Company is willing, on the
terms and subject to the conditions set forth herein, to purchase
Receivables from the Originator.
(d) The Originator and the Company intend this transaction to be
a true sale of Receivables and the Related Rights by the Originator to
the Company, providing the Company with the full benefits of ownership
of the Receivables and the Originator and the Company do not intend the
transactions hereunder to be, or for any purpose to be, characterized as
a loan from the Company to the Originator.
(e) The Company intends to sell the Purchased Interest in the
Receivables to the Issuer pursuant to the Receivables Purchase
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
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ARTICLE I
AGREEMENT TO PURCHASE AND SELL
1.1 Agreement To Purchase and Sell. On the terms and subject to the
conditions set forth in this Agreement (including Article IV), the Originator,
severally and for itself alone, agrees to sell to the Company, and the Company
agrees to purchase from the Originator, from time to time on or after the
Closing Date, but before the Purchase and Sale Termination Date, all of
Originator's right, title and interest in and to:
(a) all legal and equitable interest in each Receivable of the
Originator that existed and was owing to the Originator at the closing
of the Originator's business on March 31, 2001 (the "Cut-off Date")
other than Receivables contributed pursuant to Section 3.1 (the
"Contributed Receivables");
(b) all legal and equitable interest in each Receivable created
by the Originator from and including the Cut-off Date to and including
the Purchase and Sale Termination Date;
(c) all rights to, but not the obligations under, all Related
Security;
(d) all monies due or to become due with respect to any of the
foregoing;
(e) all books and records related to any of the foregoing; and
(f) all collections and other proceeds of any of the foregoing
(as defined in the applicable UCC) that are or were received by the
Originator on or after the Cut-off Date, including, without limitation,
all funds which either are received by the Originator, the Company or
the Servicer from or on behalf of the Obligors in payment of any amounts
owed (including, without limitation, invoice price, finance charges,
interest and all other charges) in respect of Receivables, or are
applied to such amounts owed by the Obligors (including, without
limitation, insurance payments that the Originator or Servicer applies
in the ordinary course of its business to amounts owed in respect of any
Receivable and net proceeds of sale or other disposition of repossessed
goods or other collateral or property of the Obligors or any other
parties directly or indirectly liable for payment of such Receivables).
All purchases and contributions hereunder shall be made without recourse, but
shall be made pursuant to, and in reliance upon, the representations, warranties
and covenants of the Originator set forth in this Agreement and each other
Transaction Document. No obligation or liability to any Obligor on any
Receivable is intended to be assumed by the Company hereunder, and any such
assumption is expressly disclaimed. The Company's foregoing commitment to
purchase Receivables and the proceeds and rights described in clauses (c)
through (f) (collectively, the "Related Rights") is herein called the "Purchase
Facility."
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1.2 Timing of Purchases.
(a) Closing Date Purchases. The Originator's entire right, title
and interest (whether legal or equitable in nature) in (i) each
Receivable that existed and was owing to the Originator at the Cut-off
Date (other than Contributed Receivables), (ii) all Receivables created
by the Originator from and including the Cut-off Date, to and including
the Closing Date (other than Contributed Receivables), and (iii) all
Related Rights automatically shall be deemed to have been sold to the
Company on the Closing Date.
(b) Regular Purchases. After the Closing Date, until the Purchase
and Sale Termination Date, each Receivable (and the Related Rights)
created by the Originator shall be deemed to have been sold to the
Company immediately (and without further action) upon the creation of
such Receivable.
1.3 Consideration for Purchases. On the terms and subject to the
conditions set forth in this Agreement, the Company agrees to make Purchase
Price payments to the Originator and to reflect all contributions in accordance
with Article III.
1.4 Purchase and Sale Termination Date. The "Purchase and Sale
Termination Date" shall be the earliest to occur of (a) the date of the
termination of this Agreement pursuant to Section 8.2 and (b) the Payment Date
immediately following the day on which Originator shall have given notice to the
Company at or prior to 10:00 a.m. (New York City time) that the Originator
desires to terminate this Agreement.
1.5 Intention of the Parties. It is the express intent of the parties
hereto that the transfers of the Receivables and Related Rights by the
Originator to the Company, as contemplated by this Agreement be, and be treated
as, sales or contributions, as applicable, and not as loans secured by the
Receivables and Related Rights. If, however, notwithstanding the intent of the
parties, such transactions are deemed to be loans, the Originator hereby grants
to the Company a first priority security interest in all of the Originator's
right, title and interest in and to the Receivables and the Related Rights now
existing and hereafter created by the Originator, all monies due or to become
due and all amounts received with respect thereto, and all proceeds thereof, to
secure all of the Originator's obligations hereunder.
ARTICLE II
CALCULATION OF PURCHASE PRICE
2.1 Calculation of Purchase Price. On the Closing Date and on each
Monthly Settlement Date, the Servicer shall deliver to the Company and the
Originator a report in substantially the form of Exhibit A (each such report
being herein called a "Purchase Report") with respect to the matters set forth
therein and the Company's purchases of Receivables from the Originator:
(a) that are to be made on the Closing Date (in the case of the
Purchase Report to be delivered on the Closing Date), or
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(b) that were made during the period commencing on the Monthly
Settlement Date immediately preceding such Monthly Settlement Date to
(but not including) such Monthly Settlement Date (in the case of each
subsequent Purchase Report).
The "Purchase Price" (to be paid to the Originator in accordance with the terms
of Article III) for the Receivables and the Related Rights that are purchased
hereunder from the Originator shall be determined in accordance with the
following formula:
PP = OB X FMVD
where:
PP = Purchase Price for each Receivable as calculated on the
relevant Payment Date.
OB = The Outstanding Balance of such Receivable on the
relevant Payment Date.
FMVD = Fair Market Value Discount, as measured on such Payment
Date, which is equal to the quotient (expressed as
percentage) of (a) one divided by (b) the sum of (i)
one, plus (ii) the product of (A) the Prime Rate on such
Payment Date plus .25% and (B) a fraction, the numerator
of which is the Days' Sales Outstanding (calculated as
of the last day of the Settlement Period next preceding
such Payment Date) and the denominator of which is 365.
"Payment Date" means (i) the Closing Date and (ii) each Business Day
thereafter that the Originator is open for business.
"Prime Rate" means a per annum rate equal to the "Prime Rate" as
published in the "Money Rates" section of The Wall Street Journal or such other
publication as determined by the Administrator in its sole discretion.
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ARTICLE III
PAYMENT OF PURCHASE PRICE
3.1 Contribution of Receivables and Initial Purchase Price Payment. (a)
On the Closing Date the Originator shall, and hereby does, contribute to the
capital of the Company Receivables and Related Rights with respect thereto
consisting of each Receivable of the Originator that existed and was owing to
the Originator on the Closing Date beginning with the oldest of such Receivables
and continuing chronologically thereafter such that the aggregate Outstanding
Balance of all such Contributed Receivables shall be equal to $ 2,000,000.
(b) On the terms and subject to the conditions set forth in this
Agreement, the Company agrees to pay to the Originator the Purchase Price for
the purchase to be made from the Originator on the Closing Date partially in
cash (in an amount to be agreed between the Company and the Originator and set
forth in the initial Purchase Report) and partially by issuing a promissory note
in the form of Exhibit B to the Originator with an initial principal balance
equal to the remaining Purchase Price (the promissory note, as it may be
amended, supplemented, indorsed or otherwise modified from time to time,
together with all promissory notes issued from time to time in substitution
therefor or renewal thereof in accordance with the Transaction Documents, each
being herein called a "Company Note").
3.2 Subsequent Purchase Price Payments. On each Payment Date subsequent
to the Closing Date, on the terms and subject to the conditions set forth in
this Agreement, the Company shall pay to the Originator the Purchase Price for
the Receivables generated by the Originator on such Payment Date; provided that
such payment may be deferred for the administrative convenience of the
Originator in the ordinary course of its business:
(a) First, the Purchase Price shall be paid in cash to the
extent the Company has cash available therefor; and
(b) Second, to the extent any portion of the Purchase Price
remains unpaid, the principal amount outstanding under the Company Note
issued to the Originator shall be increased by an amount equal to such
remaining Purchase Price.
Servicer shall make all appropriate record keeping entries with respect
to the Company Note or otherwise to reflect the foregoing payments, and
Servicer's books and records shall constitute rebuttable presumptive evidence of
the principal amount of, and accrued interest on, the Company Note at any time.
Furthermore, Servicer shall hold the Company Note for the benefit of the
Originator. The Originator hereby irrevocably authorizes Servicer to xxxx the
Company Note "CANCELLED" and to return such Company Note to the Company upon the
final payment thereof after the occurrence of the Purchase and Sale Termination
Date.
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3.3 Settlement as to Specific Receivables and Dilution.
(a) If, on the day of purchase or contribution of any Receivable
from the Originator hereunder, any of the representations or warranties
set forth in Sections 5.4 and 5.12 are not true with respect to such
Receivable or as a result of any action or inaction of the Originator,
on any day, any of such representations or warranties set forth in
Sections 5.4, 5.12 is no longer true with respect to such a Receivable,
then the Purchase Price (or in the case of a Contributed Receivable, the
Outstanding Balance of such Receivable (the "Contributed Value")) with
respect to such Receivables shall be reduced by an amount equal to the
Outstanding Balance of such Receivable and shall be accounted to the
Originator as provided in subsection (c) below; provided, that if the
Company thereafter receives payment on account of Collections due with
respect to such Receivable, the Company promptly shall deliver such
funds to the Originator.
(b) If, on any day, the Outstanding Balance of any Receivable
(including any Contributed Receivable) purchased or contributed
hereunder is reduced or adjusted as a result of any defective, rejected,
returned goods or services, or any discount or other adjustment made by
the Originator, the Company or Servicer or any setoff or dispute between
the Originator or the Servicer and an Obligor as indicated on the books
of the Company (or, for periods prior to the Closing Date, the books of
the Originator), then the Purchase Price or Contributed Value, as the
case may be, with respect to such Receivable shall be reduced by the
amount of such net reduction and shall be accounted to the Originator as
provided in subsection (c) below.
(c) Any reduction in the Purchase Price (or Contributed Value)
of any Receivable pursuant to subsection (a) or (b) above shall be
applied as a credit for the account of the Company against the Purchase
Price of Receivables subsequently purchased by the Company from the
Originator hereunder; provided, however if there have been no purchases
of Receivables from the Originator (or insufficiently large purchases of
Receivables) to create a Purchase Price sufficient to so apply such
credit against, the amount of such credit
(i) shall be paid in cash to the Company by the
Originator in the manner and for application as described in the
following proviso, or
(ii) shall be deemed to be a payment under, and shall be
deducted from the principal amount outstanding under, the
Company Note payable to the Originator;
provided, further, that at any time (y) when a Termination Event or Unmatured
Termination Event exists under the Receivables Purchase Agreement or (z) on or
after the Purchase and Sale Termination Date, the amount of any such credit
shall be paid by the Originator to the Company by deposit in immediately
available funds into the relevant Lock-Box Account for application by Servicer
to the same extent as if Collections of the applicable Receivable in such amount
had actually been received on such date.
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(d) Each Purchase Report (other than the Purchase Report
delivered on the Closing Date) shall include, in respect of the
Receivables previously generated by the Originator (including
Contributed Receivables), a calculation of the aggregate reductions
described in subsection (a) or (b) relating to such Receivables since
the last Purchase Report delivered hereunder, as indicated on the books
of the Company (or, for such period prior to the Closing Date, the books
of the Originator).
3.4 Reconveyance of Receivables. In the event that the Originator has
paid to the Company the full Outstanding Balance of any Receivable pursuant to
Section 3.3, the Company shall reconvey such Receivable to the Originator,
without representation or warranty, but free and clear of all liens, security
interests, charges, and encumbrances created by the Company.
ARTICLE IV
CONDITIONS OF PURCHASES
4.1 Conditions Precedent to Initial Purchase. The initial purchase
hereunder is subject to the condition precedent that Servicer (on the Company's
behalf) shall have received, on or before the Closing Date, the following, each
(unless otherwise indicated) dated the Closing Date, and each in form and
substance satisfactory to Servicer (acting on the Company's behalf):
(a) An Originator Assignment Certificate in the form of Exhibit
C from the Originator, duly completed, executed and delivered by the
Originator;
(b) A copy of the resolutions of the Board of Directors of the
Originator approving the Transaction Documents to be delivered by it and
the transactions contemplated hereby and thereby, certified by the
Secretary or Assistant Secretary of the Originator;
(c) Good standing certificates for the Originator issued as of a
recent date acceptable to Servicer by the Secretary of State of the
jurisdiction of the Originator's organization and the jurisdiction where
the Originator's chief executive office is located;
(d) A certificate of the Secretary or Assistant Secretary of the
Originator certifying the names and true signatures of the officers
authorized on such Person's behalf to sign the Transaction Documents to
be delivered by it (on which certificate Servicer and the Company may
conclusively rely until such time as the Servicer shall receive from
such Person a revised certificate meeting the requirements of this
subsection (d));
(e) The certificate of incorporation, bylaws or other
organizational document of the Originator, duly certified by the
Secretary of State of the jurisdiction of Originator's incorporation as
of a recent date acceptable to the Servicer, each duly certified by the
Secretary or an Assistant Secretary of the Originator;
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(f) Originals of the proper financing statements (Form UCC-1)
that have been duly executed and name the Originator as the
debtor/seller and the Company as the secured party/purchaser (and the
Issuer, as assignee of the Company) of the Receivables generated by the
Originator as may be necessary or, in the Servicer's or the
Administrator's opinion, desirable under the UCC of all appropriate
jurisdictions to perfect the Company's ownership interest in all
Receivables and such other rights, accounts, instruments and moneys
(including, without limitation, Related Security) in which an ownership
or security interest may be assigned to it hereunder;
(g) A written search report from a Person satisfactory to the
Servicer listing all effective financing statements that name the
Originator as debtor or seller and that are filed in the jurisdictions
in which filings were made pursuant to the foregoing subsection (f),
together with copies of such financing statements (none of which, except
for those described in the foregoing subsection (f), shall cover any
Receivable or any Related Rights which are to be sold to the Company
hereunder), and tax and judgment lien search reports from a Person
satisfactory to the Servicer showing no evidence of such liens filed
against the Originator;
(h) A favorable opinion of Xxxxx & Xxxxxxxxx LLP counsel to the
Originator, in form and substance satisfactory to the Servicer and the
Administrator;
(i) A Company Note in favor of the Originator, duly executed by
the Company; and
(j) A certificate from an officer of the Originator to the
effect that the Servicer and the Originator have placed on the most
recent, and have taken all steps reasonably necessary to ensure that
there shall be placed on each subsequent, data processing report that it
generates which are of the type that a proposed purchaser or lender
would use to evaluate the Receivables, the following legend (or the
substantive equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE
BEEN SOLD BY LESCO INC. TO LESCO FUNDING CORPORATION PURSUANT TO A
PURCHASE AND SALE AGREEMENT, DATED AS OF APRIL 24, 2001, AS AMENDED,
BETWEEN LESCO INC. AND LESCO FUNDING INC.; AND AN UNDIVIDED, FRACTIONAL
OWNERSHIP INTEREST IN THE RECEIVABLES DESCRIBED HEREIN HAS BEEN SOLD TO
MARKET STREET FUNDING CORPORATION PURSUANT TO A RECEIVABLES PURCHASE
AGREEMENT, DATED AS OF APRIL 24, 2001, AS AMENDED, AMONG LESCO INC., AS
THE SERVICER, LESCO FUNDING INC., MARKET STREET FUNDING CORPORATION AND
PNC BANK, NATIONAL ASSOCIATION."
4.2 Certification as to Representations and Warranties. The Originator,
by accepting the Purchase Price related to each purchase of Receivables
generated by the Originator, shall be deemed to have certified that the
representations and warranties contained in Article V are true and correct on
and as of such day, with the same effect as though made on and as of such day.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR
In order to induce the Company to enter into this Agreement and to make
purchases and accept contributions hereunder, the Originator hereby makes, with
respect to itself, the representations and warranties set forth in this Article
V.
5.1 Organization and Good Standing. The Originator has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Ohio, with power and authority to own its properties and to
conduct its business as such properties are presently owned and such business is
presently conducted.
5.2 Due Qualification. The Originator is duly licensed and in good
standing in the jurisdiction where its chief executive office is located and is
qualified to do business as a foreign corporation in good standing in all other
jurisdictions in which (a) the ownership or lease of its property or the conduct
of its business requires such licensing or qualification and (b) the failure to
be so licensed or qualified would be reasonably likely to have a Material
Adverse Effect.
5.3 Power and Authority; Due Authorization. The Originator has (a) all
necessary power, authority and legal right (i) to execute and deliver, and
perform its obligations under, each Transaction Document to which it is a party
and (ii) to generate, own, sell, contribute and assign Receivables on the terms
and subject to the conditions herein and therein provided; and (b) duly
authorized such execution and delivery and such sale, contribution and
assignment and the performance of such obligations by all necessary
organizational action.
5.4 Valid Sale; Binding Obligations. Each sale or contribution, as the
case may be, made by the Originator pursuant to this Agreement shall constitute
a valid sale or contribution, as the case may be, transfer, and assignment of
Receivables to the Company, enforceable against creditors of, and purchasers
from, the Originator; and this Agreement constitutes, and each other Transaction
Document to be signed by the Originator, when duly executed and delivered, will
constitute, a legal, valid, and binding obligation of the Originator,
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
5.5 No Violation. The consummation of the transactions contemplated by
this Agreement and the other Transaction Documents and the fulfillment of the
terms hereof or thereof, will not (a) conflict with, result in any breach of any
of the terms and provisions of, or constitute (with or without notice or lapse
of time) a default under (i) the Originator's articles of incorporation, code of
regulations or any other organizational document of the Originator or (ii) any
indenture, loan agreement, mortgage, deed of trust, or other material agreement
or instrument to which it is a party or by which it is bound, (b) result in the
creation or imposition of any Adverse Claim upon any of its properties pursuant
to the terms of any such indenture, loan agreement, mortgage, deed of trust, or
other agreement or instrument, other than the Transaction Documents, or (c)
violate any law or any order, rule or regulation applicable to it of
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any court or of any state or foreign regulatory body, administrative agency, or
other governmental instrumentality having jurisdiction over it or any of its
properties.
5.6 Proceedings. Except as set forth in Exhibit D, there is no action,
suit, proceeding or investigation pending before any court, regulatory body,
arbitrator, administrative agency, or other tribunal or governmental
instrumentality (a) asserting the invalidity of any Transaction Document, (b)
seeking to prevent the issuance of the Originator Assignment Certificate or the
consummation of any of the transactions contemplated by any Transaction Document
or (c) seeking any determination or ruling that is reasonably likely to have a
Material Adverse Effect.
5.7 Bulk Sales Acts. No transaction contemplated hereby requires
compliance with, or will be subject to avoidance under, any bulk sales act or
similar law.
5.8 Government Approvals. Except for the filing of the UCC financing
statements referred to in Article IV, all of which, at the time required in
Article IV, shall have been duly made and shall be in full force and effect, 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 Originator's
due execution, delivery and performance of any Transaction Document to which it
is a party.
5.9 Financial Condition.
(a) Material Adverse Effect. Since December 31, 2000, no event
has occurred that has had, or is reasonably likely to have, a Material
Adverse Effect.
(b) Solvent. On the date hereof, and on the date of each
purchase hereunder (both before and after giving effect to such
purchase) the Originator shall be Solvent.
5.10 Licenses, Contingent Liabilities, and Labor Controversies.
(a) The Originator has not failed to obtain any licenses,
permits, franchises or other governmental authorizations necessary to
the ownership of its properties or to the conduct of its business, which
violation or failure to obtain would be reasonably likely to have a
Material Adverse Effect.
(b) There are no labor controversies pending against the
Originator that have had (or are reasonably likely to have) a Material
Adverse Effect.
5.11 Margin Regulations. No use of any funds acquired by the Originator
under this Agreement will conflict with or contravene any of Regulations T, U
and X promulgated by the Federal Reserve Board from time to time.
5.12 Quality of Title.
(a) Each Receivable of the Originator (together with the Related
Rights with respect to such Receivable) which is to be sold to the
Company hereunder is or shall be owned by the Originator, free and clear
of any Adverse Claim, except as provided herein and in the Receivables
Purchase Agreement. Whenever the Company makes a purchase or accepts a
contribution hereunder, it shall have acquired and shall continue to
have maintained a valid and perfected ownership interest (free and clear
of any Adverse Claim) in all Receivables generated by the Originator and
all Collections related thereto,
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and in the Originator's entire right, title and interest in and to the
Related Rights with respect thereto.
(b) No effective financing statement or other instrument similar
in effect covering any Receivable generated by the Originator or any
Related Rights is on file in any recording office except such as may be
filed in favor of the Company or the Originator, as the case may be, in
accordance with this Agreement or in favor of the Company, in accordance
with the Receivables Purchase Agreement.
(c) Unless otherwise identified to the Company on the date of
the purchase or contribution hereunder, each Receivable purchased
hereunder is on the date of purchase or contribution, an Eligible
Receivable.
5.13 Accuracy of Information. All factual written information heretofore
or contemporaneously furnished (and prepared) by the Originator to the Company
or the Administrator for purposes of or in connection with any Transaction
Document or any transaction contemplated hereby or thereby is, and all other
such factual written information hereafter furnished (and prepared) by the
Originator to the Company or the Administrator pursuant to or in connection with
any Transaction Document will be, true and accurate in every material respect on
the date as of which such information is dated or certified.
5.14 Offices. The Originator's principal place of business and chief
executive office is located at the address set forth under the Originator's
signature hereto, and the offices where the Originator keeps all its books,
records and documents evidencing its Receivables, the related Contracts and all
other agreements related to such Receivables are located at the addresses
specified in Exhibit E (or at such other locations, notified to the Servicer and
the Administrator in accordance with Section 6.1(f), in jurisdictions where all
action required by Section 7.3 has been taken and completed).
5.15 Trade Names. The Originator does not use any trade name other than
its actual organizational name and the trade names set forth in Exhibit F. From
and after the date that fell five (5) years before the date hereof, except as
set forth in Exhibit F, the Originator has not been known by any legal name
other than its organizational name as of the date hereof, nor has the Originator
been the subject of any merger or other organizational reorganization.
5.16 Taxes. The Originator has filed all tax returns and reports
required by law to have been filed by it and has paid all taxes and governmental
charges thereby shown to be owing, except any such taxes or charges which are
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books.
5.17 Compliance with Applicable Laws. The Originator is in compliance
with the requirements of all applicable laws, rules, regulations and orders of
all governmental authorities, a breach of any of which, individually or in the
aggregate, would be reasonably likely to have a Material Adverse Effect.
5.18 Reliance on Separate Legal Identity. The Originator acknowledges
that the Issuer and the Administrator are entering into the Receivables Purchase
Agreement in reliance upon the Company's identity as a legal entity separate
from the Originator.
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5.19 [Reserved].
5.20 Investment Company. The Originator is not an "investment company,"
or a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. In addition, the Originator is not a
"holding company," a "subsidiary company" of a "holding company" or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
ARTICLE VI
COVENANTS OF THE ORIGINATOR
6.1 Affirmative Covenants. From the date hereof until the first day
following the Purchase and Sale Termination Date, the Originator will, unless
the Administrator and the Company shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply in all material respects
with all applicable laws, rules, regulations and orders with respect to
the Receivables generated by it and the Contracts and other agreements
related thereto except where the failure to so comply would not
materially and adversely affect the collectibility of such Receivables
or the rights of the Company hereunder.
(b) Preservation of Organizational Existence. Preserve and
maintain its existence as a corporation and all rights, franchises and
privileges in the jurisdiction of its formation, and qualify and remain
qualified in good standing as a foreign corporation in each jurisdiction
where the failure to preserve and maintain such existence, rights,
franchises, privileges and qualification would be reasonably likely to
have a Material Adverse Effect.
(c) Receivables Reviews. (i) At any time and from time to time
during regular business hours as reasonably requested in advance, permit
the Company or the Administrator, or their respective agents or
representatives, (A) to examine and make copies of and abstracts from
all books, records and documents (including, without limitation,
computer tapes and disks) in possession or under the control of the
Originator relating to the Receivables, including, without limitation,
the related Contracts and purchase orders and other agreements related
thereto, and (B) to visit the offices and properties of the Originator
for the purpose of examining such materials described in clause (i)(A)
next above and to discuss matters relating to Receivables originated by
it or the performance hereunder with any of the officers or employees of
the Originator having knowledge of such matters, and (ii) without
limiting the foregoing clause (i) above, annually (or from time to time
on request of the Administrator if the Administrator has a good faith
belief that the Pool Receivables may have deteriorated), permit
certified public accountants or other auditors acceptable to the
Originator and Administrator to conduct,
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at the Originator's expense, a review of the Originator's books and
records with respect to such Receivables.
(d) Keeping of Records and Books of Account. Maintain and
implement administrative and operating procedures (including, without
limitation, an ability to re-create records evidencing Receivables it
generates in the event of the destruction of the originals thereof), and
keep and maintain all documents, books, records and other information
reasonably necessary or advisable for the collection of such Receivables
(including, without limitation, records adequate to permit the daily
identification of each new Receivable and all Collections of and
adjustments to each existing Receivable).
(e) Performance and Compliance with Receivables and Contracts.
Timely and fully perform and comply in all material respects with all
provisions, covenants and other promises required to be observed by it
under the Contracts and all other agreements related to the Receivables.
(f) Location of Records. Keep its principal place of business
and chief executive office, and the offices where it keeps its records
concerning or related to Receivables, at the address(es) referred to in
Exhibit E or, upon 30 days' prior written notice to the Company and the
Administrator, at such other locations in jurisdictions where all action
required by Section 7.3 shall have been taken and completed.
(g) Credit and Collection Policies. Comply in all material
respects with its Credit and Collection Policy in connection with the
Receivables that it generates and all Contracts and other agreements
related thereto.
(h) Post Office Boxes. On or prior to the date hereof, deliver
to the Servicer (on behalf of the Company) a certificate from an
authorized officer of the Originator to the effect that (i) the name of
the renter of all post office boxes into which Collections may from time
to time be mailed have been changed to the name of the Company (unless
such post office boxes are in the name of the relevant Lock-Box Banks)
and (ii) all relevant postmasters have been notified that each of the
Servicer and the Administrator are authorized to collect mail delivered
to such post office boxes (unless such post office boxes are in the name
of the relevant Lock-Box Banks).
6.2 Reporting Requirements. From the date hereof until the first day
following the Purchase and Sale Termination Date, the Originator will, unless
the Servicer (on behalf of the Company) shall otherwise consent in writing,
furnish to the Company:
(a) Purchase and Sale Termination Events. As soon as possible
after knowledge of the occurrence of, and in any event within five
Business Days after knowledge of the occurrence of each Purchase and
Sale Termination Event or each Unmatured Purchase and Sale Termination
Event in respect of the Originator, the statement of the chief financial
officer or chief accounting officer of the Originator describing such
Purchase and Sale
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Termination Event or Unmatured Purchase and Sale Termination Event and
the action that the Originator proposes to take with respect thereto, in
each case in reasonable detail;
(b) Proceedings. As soon as possible and in any event within
five Business Days after the Originator otherwise has knowledge thereof,
written notice of (i) litigation, investigation or proceeding of the
type described in Section 5.6 not previously disclosed to the Company
and (ii) all material adverse developments that have occurred with
respect to any previously disclosed litigation, proceedings and
investigations; and
(c) Other. Promptly, from time to time, such other information,
documents, records or reports respecting the Receivables or the
conditions or operations, financial or otherwise, of the Originator as
the Company, the Issuer or the Administrator may from time to time
reasonably request in order to protect the interests of the Company, the
Issuer or the Administrator under or as contemplated by the Transaction
Documents.
6.3 Negative Covenants. From the date hereof until the date following
the Purchase and Sale Termination Date, the Originator agrees that, unless the
Servicer (on behalf of the Company) and the Administrator shall otherwise
consent in writing, it shall not:
(a) Sales, Liens, Etc. Except as otherwise provided herein or in
any other Transaction Document, 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, any Receivable or related
Contract or Related Security, or any interest therein, or any
Collections thereon, or assign any right to receive income in respect
thereof.
(b) Extension or Amendment of Receivables. Except as otherwise
permitted in Section 4.2(a) of the Receivables Purchase Agreement,
extend, amend or otherwise modify the terms of any Receivable in any
material respect generated by it, or amend, modify or waive, in any
material respect, any term or condition of any Contract related thereto
(which term or condition relates to payments under, or the enforcement
of, such Contract).
(c) Change in Business or Credit and Collection Policy. Make any
change in the character of its business or materially alter its Credit
and Collection Policy, which change would, in either case, materially
change the credit standing required of particular Obligors or potential
Obligors or impair, in any material respect, the collectibility of the
Receivables generated by it.
(d) Receivables Not to be Evidenced by Promissory Notes or
Chattel Paper. Take any action to cause or permit any Receivable
generated by it to become evidenced by any "instrument" or "chattel
paper" (as defined in the applicable UCC).
(e) Mergers, Acquisitions, Sales, etc. (i) Be a party to any
merger or consolidation, except a merger or consolidation where the
Originator is the surviving entity, or (ii) directly or indirectly sell,
transfer, assign, convey or lease (A) whether in
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one or a series of transactions, all or substantially all of its assets
or (B) any Receivables or any interest therein (other than pursuant to
this Agreement).
6.4 Lock-Box Banks. Make any changes in its instructions to Obligors
regarding Collections or add or terminate any bank as a Lock-Box Bank unless the
requirements of paragraph 2(g) of Exhibit IV to the Receivables Purchase
Agreement have been met.
6.5 Accounting for Purchases. Account for or treat (whether in financial
statements or otherwise) the transactions contemplated hereby in any manner
other than as sales of the Receivables and Related Rights by the Originator to
the Company.
6.6 Transaction Documents. Enter into, execute, deliver or otherwise
become bound by any agreement, instrument, document or other arrangement that
restricts the right of the Originator to amend, supplement, amend and restate or
otherwise modify, or to extend or renew, or to waive any right under, this
Agreement or any other Transaction Documents.
6.7 Substantive Consolidation. The Originator hereby acknowledges that
this Agreement and the other Transaction Documents are being entered into in
reliance upon the Company's identity as a legal entity separate from the
Originator and its Affiliates. Therefore, from and after the date hereof, the
Originator shall take all reasonable steps necessary to make it apparent to
third Persons that the Company is an entity with assets and liabilities distinct
from those of the Originator and any other Person, and is not a division of the
Originator, an Affiliate of the Originator or any other Person. Without limiting
the generality of the foregoing and in addition to and consistent with the other
covenants set forth herein, the Originator shall take such actions as shall be
required in order that:
(a) the Originator shall not be involved in the day to day
management of the Company;
(b) the Originator shall maintain separate organizational
records and books of account from the Company and otherwise will observe
organizational formalities and have a separate area from the Company for
its business;
(c) the financial statements and books and records of the
Originator shall be prepared after the date of creation of the Company
to reflect and shall reflect the separate existence of the Company;
provided, that the Company's assets and liabilities may be included in a
consolidated financial statement issued by an affiliate of the Company;
provided, however, that any such consolidated financial statement shall
make clear that the Company's assets are not available to satisfy the
obligations of such affiliate;
(d) except as permitted by the Receivables Purchase Agreement,
(i) the Originator shall maintain its assets separately from the assets
of the Company, (ii) and the Company's assets, and records relating
thereto, have not been, are not, and shall not be, commingled with those
of the Company;
(e) all of the Company's business correspondence and other
communications shall be conducted in the Company's own name;
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(f) the Originator shall not act as an agent for the Company,
other than Lesco in its capacity as the Servicer, and in connection
therewith, shall present itself to the public as an agent for the
Company and a legal entity separate from the Company;
(g) the Originator shall not conduct any of the business of the
Company in its own name;
(h) the Originator shall not pay any liabilities of the Company
out of its own funds or assets;
(i) the Originator shall maintain an arm's-length relationship
with the Company;
(j) the Originator shall not assume or guarantee or become
obligated for the debts of the Company or hold out its credit as being
available to satisfy the obligations of the Company;
(k) the Originator shall not acquire obligations of the Company;
(l) the Originator shall allocate fairly and reasonably overhead
or other expenses that are properly shared with the Company, including,
without limitation, shared office space;
(m) the Originator shall identify and hold itself out as a
separate and distinct entity from the Company;
(n) the Originator shall correct any known misunderstanding
regarding its separate identity from the Company;
(o) the Originator shall not enter into, or be a party to, any
transaction with the Company, except in the ordinary course of its
business when the transaction has legitimate business purposes for all
parties and on terms which are intrinsically fair and not less favorable
to it than would be obtained in a comparable arm's-length transaction
with an unrelated third party; and
(p) the Originator shall not pay the salaries of the Company's
employees, if any.
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ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
7.1 Rights of the Company. The Originator hereby authorizes the Company,
the Servicer, the Administrator or their respective designees to take any and
all steps in the Originator's name necessary or desirable, in their respective
determination, to collect all amounts due under any and all Receivables,
including, without limitation, indorsing the name of the Originator on checks
and other instruments representing Collections and enforcing such Receivables
and the provisions of the related Contracts that concern payment and/or
enforcement of rights to payment.
7.2 Responsibilities of the Originator. Anything herein to the contrary
notwithstanding:
(a) Collection Procedures. The Originator agrees to direct its
respective Obligors to make payments of Receivables directly to a post
office box related to the relevant Lock-Box Account at a Lock-Box Bank
or to a payment center. The Originator further agrees to transfer any
Collections that it receives directly to the Servicer (for the Company's
account) within one (1) Business Day of receipt thereof, and agrees that
all such Collections shall be deemed to be received in trust for the
Company and shall be maintained and segregated separate and apart from
all other funds and monies of the Originator until transfer of such
Collections to the Servicer.
(b) The Originator shall perform its obligations hereunder, and
the exercise by the Company or its designee of its rights hereunder
shall not relieve the Originator from such obligations.
(c) None of the Company, the Servicer or the Administrator shall
have any obligation or liability to any Obligor or any other third
Person with respect to any Receivables, Contracts related thereto or any
other related agreements, nor shall the Company, the Servicer, the
Issuer or the Administrator be obligated to perform any of the
obligations of the Originator thereunder.
(d) The Originator hereby grants to the Administrator an
irrevocable power of attorney, with full power of substitution, coupled
with an interest, to take in the name of the Originator all steps
necessary or advisable to indorse, negotiate or otherwise realize on any
writing or other right of any kind held or transmitted by the Originator
or transmitted or received by the Company (whether or not from the
Originator) in connection with any Receivable.
7.3 Further Action Evidencing Purchases. The Originator agrees that from
time to time, at its expense, it will promptly execute and deliver all further
instruments and documents, and take all further action that the Servicer may
reasonably request in order to perfect, protect or more fully evidence the
Receivables and Related Rights purchased by or contributed to the
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Company hereunder, or to enable the Company to exercise or enforce any of its
rights hereunder or under any other Transaction Document. Without limiting the
generality of the foregoing, upon the request of the Servicer, the Originator
will:
(a) execute and file such financing or continuation statements,
or amendments thereto or assignments thereof, and such other instruments
or notices, as may be necessary or appropriate; and
(b) xxxx the master data processing records that evidence or
list (i) such Receivables and (ii) related Contracts with the legend set
forth in Section 4.1(j).
The Originator hereby authorizes the Company or its designee to file one or more
financing or continuation statements, and amendments thereto and assignments
thereof, relative to all or any of the Receivables and Related Rights now
existing or hereafter generated by the Originator. If the Originator fails to
perform any of its agreements or obligations under this Agreement, the Company
or its designee may (but shall not be required to) itself perform, or cause
performance of, such agreement or obligation, and the expenses of the Company or
its designee incurred in connection therewith shall be payable by the Originator
as provided in Section 9.1.
7.4 Application of Collections. Any payment by an Obligor in respect of
any account owed by it to the Originator shall, except as otherwise specified by
such Obligor or otherwise required by contract or law and unless otherwise
instructed by the Company or the Administrator, be applied as a Collection of
any Receivable or Receivables of such Obligor to the extent of any amounts then
due and payable thereunder before being applied to any other account of such
Obligor.
ARTICLE VIII
PURCHASE AND SALE TERMINATION EVENTS
8.1 Purchase and Sale Termination Events. Each of the following events
or occurrences described in this Section 8.1 shall constitute a "Purchase and
Sale Termination Event":
(a) A Termination Event (as defined in the Receivables Purchase
Agreement) shall have occurred and, in the case of a Termination Event
(other than one described in paragraph (f) of Exhibit V of the
Receivables Purchase Agreement), the Administrator, shall have declared
the Facility Termination Date to have occurred; or
(b) The Originator shall fail to make any payment or deposit to
be made by it hereunder when due and such failure shall remain
unremedied for one (1) Business Day; or
(c) Any representation or warranty made or deemed to be made by
the Originator (or any of its officers) under or in connection with this
Agreement, any other Transaction Documents, or any other information or
report delivered pursuant hereto or
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thereto shall prove to have been incorrect or untrue in any material
respect when made or deemed made, and shall remain incorrect or untrue
for 10 Business Days after notice to the Originator of such inaccuracy;
or
(d) The Originator shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to
be performed or observed and such failure shall remain unremedied for
five Business Days after written notice thereof shall have been given by
the Servicer to the Originator.
8.2 Remedies.
(a) Optional Termination. Upon the occurrence of a Purchase and
Sale Termination Event, the Company (and not the Servicer) shall have
the option, by notice to the Originator (with a copy to the
Administrator), to declare the Purchase and Sale Termination Date to
have occurred.
(b) Remedies Cumulative. Upon any termination of the Purchase
Facility pursuant to Section 8.2(a), the Company shall have, in addition
to all other rights and remedies under this Agreement, all other rights
and remedies provided under the UCC of each applicable jurisdiction and
other applicable laws, which rights shall be cumulative.
ARTICLE IX
INDEMNIFICATION
9.1 Indemnities by the Originator. Without limiting any other rights
which the Company may have hereunder or under applicable law, the Originator,
severally and for itself alone, hereby agrees to indemnify the Company and each
of its officers, directors, employees and agents (each of the foregoing Persons
being individually called a "Purchase and Sale Indemnified Party"), forthwith on
demand, from and against any and all damages, losses, claims, judgments,
liabilities and related costs and expenses, including reasonable attorneys' fees
and disbursements (all of the foregoing being collectively called "Purchase and
Sale Indemnified Amounts") awarded against or incurred by any of them arising
out of or as a result of the failure of the Originator to perform its
obligations under this Agreement or any other Transaction Document, or arising
out of the claims asserted against a Purchase and Sale Indemnified Party
relating to the transactions contemplated herein or therein or the use of
proceeds thereof or therefrom, excluding, however, (i) Purchase and Sale
Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of such Purchase and Sale Indemnified Party, (ii) any
indemnification which has the effect of recourse for non-payment of the
Receivables to any indemnitor (except as otherwise specifically provided under
this Section 9.1) and (iii) any tax based upon or measured by net income or
gross receipts. Without limiting the foregoing, the Originator, severally for
itself alone, shall indemnify each Purchase and Sale Indemnified Party for
Purchase and Sale Indemnified Amounts relating to or resulting from:
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(a) the transfer by the Originator of an interest in any
Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by the
Originator (or any of its officers) under or in connection with this
Agreement or any other Transaction Document, or any written information
or report delivered by the Originator pursuant hereto or thereto, which
shall have been false or incorrect in any material respect when made or
deemed made;
(c) the failure by the Originator to comply with any applicable
law, rule or regulation with respect to any Receivable generated by the
Originator or the related Contract, or the nonconformity of any
Receivable generated by the Originator or the related Contract with any
such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an
ownership interest in the Receivables generated by the Originator free
and clear of any Adverse Claim, other than an Adverse Claim arising
solely as a result of an act of the Company, whether existing at the
time of the purchase of such Receivables or at any time thereafter;
(e) the failure to file, 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 or purported Receivables generated by the Originator,
whether at the time of any purchase or contribution or at any subsequent
time;
(f) any dispute, claim, offset or defense (other than discharge
in bankruptcy) of the Obligor to the payment of any Receivable or
purported Receivable generated by the Originator (including, without
limitation, a defense based on such Receivable's or the related
Contract's 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 services related to any such Receivable
or the furnishing of or failure to furnish such services;
(g) any product liability claim arising out of or in connection
with services that are the subject of any Receivable generated by the
Originator; and
(h) any tax or governmental fee or charge (other than any tax
excluded pursuant to clause (iii) in the proviso to the preceding
sentence), all interest and penalties thereon or with respect thereto,
and all out-of-pocket costs and expenses, including the reasonable fees
and expenses of counsel in defending against the same, which may arise
by reason of the purchase or ownership of the Receivables generated by
the Originator or any Related Security connected with any such
Receivables.
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If for any reason the indemnification provided above in this Section 9.1
is unavailable to a Purchase and Sale Indemnified Party or is insufficient to
hold such Purchase and Sale Indemnified Party harmless, then the Originator,
severally and for itself, shall contribute to the amount paid or payable by such
Purchase and Sale Indemnified Party to the maximum extent permitted under
applicable law.
ARTICLE X
MISCELLANEOUS
10.1 Amendments, etc.
(a) The provisions of this Agreement may from time to time be
amended, modified or waived, if such amendment, modification or waiver
is in writing and consented to by the Company, the Administrator and the
Originator (with respect to an amendment) or by the Company and the
Administrator (with respect to a waiver or consent by it).
(b) No failure or delay on the part of the Company, the
Servicer, the Originator or any third party beneficiary in exercising
any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude
any other or further exercise thereof or the exercise of any other power
or right. No notice to or demand on the Company, the Servicer or the
Originator in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by the Company or
the Servicer under this Agreement shall, except as may otherwise be
stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval under this Agreement shall require
any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
(c) The Transaction Documents contain a final and complete
integration of all prior expressions by the parties hereto with respect
to the subject matter thereof and shall constitute the entire agreement
among the parties hereto with respect to the subject matter thereof,
superseding all prior oral or written understandings.
10.2 Notices, etc. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including
facsimile communication) and shall be personally delivered or sent by certified
mail, postage prepaid, or by facsimile, to the intended party at the address or
facsimile number of such party set forth under its name on the signature pages
hereof or at such other address or facsimile number as shall be designated by
such party in a written notice to the other parties hereto. All such notices and
communications shall be effective (i) if personally delivered, when received,
(ii) if sent by certified mail three (3) Business Days after having been
deposited in the mail, postage prepaid, and (iii) if transmitted by facsimile,
when sent, receipt confirmed by telephone or electronic means.
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10.3 No Waiver; Cumulative Remedies. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law. Without limiting
the foregoing, the Originator hereby authorizes the Company, at any time and
from time to time, to the fullest extent permitted by law, to set off, against
any obligations of the Originator to the Company arising in connection with the
Transaction Documents (including, without limitation, amounts payable pursuant
to Section 9.1) that are then due and payable or that are not then due and
payable but are accruing in respect of the then current Settlement Period, any
and all indebtedness at any time owing by the Company to or for the credit or
the account of the Originator.
10.4 Binding Effect; Assignability. This Agreement shall be binding upon
and inure to the benefit of the Company and the Originator and their respective
successors and permitted assigns. The Originator may not assign any of its
rights hereunder or any interest herein without the prior written consent of the
Company, except as otherwise herein specifically provided. This Agreement shall
create and constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and effect until such
time as the parties hereto shall agree. The rights and remedies with respect to
any breach of any representation and warranty made by the Originator pursuant to
Article V and the indemnification and payment provisions of Article IX and
Section 10.6 shall be continuing and shall survive any termination of this
Agreement.
10.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
10.6 Costs, Expenses and Taxes. In addition to the obligations of the
Originator under Article IX, the Originator, severally and for itself alone,
agrees to pay on demand:
(a) all reasonable costs and expenses in connection with the
enforcement of this Agreement, the Originator Assignment Certificate and
the other Transaction Documents; and
(b) all stamp and other taxes and fees payable or determined to
be payable in connection with the execution, delivery, filing and
recording of this Agreement or the other Transaction Documents to be
delivered hereunder, and agrees to indemnify each Purchase and Sale
Indemnified Party against any liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes and fees.
10.7 Submission to Jurisdiction. EACH PARTY HERETO HEREBY IRREVOCABLY
(a) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF NEW YORK OR UNITED STATES
FEDERAL COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT; (b) AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE OR UNITED STATES FEDERAL COURT; (c) WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OR PROCEEDING; (d) IRREVOCABLY CONSENTS TO THE
SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES OF SUCH PROCESS
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TO SUCH PERSON AT ITS ADDRESS SPECIFIED IN SECTION 10.2; AND (e) AGREES 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. NOTHING IN THIS SECTION 10.7 SHALL AFFECT THE COMPANY'S RIGHT
TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY
ACTION OR PROCEEDING AGAINST THE ORIGINATOR OR ITS PROPERTY IN THE COURTS OF ANY
OTHER JURISDICTIONS.
10.8 Waiver of Jury Trial. EACH PARTY HERETO WAIVES ANY RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR
RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND AGREES
THAT (a) ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY AND (b) ANY PARTY HERETO (OR ANY ASSIGNEE OR THIRD PARTY
BENEFICIARY OF THIS AGREEMENT) MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF ANY OTHER
PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
10.9 Captions and Cross References; Incorporation by Reference. The
various captions (including, without limitation, the table of contents) in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to any underscored Section or Exhibit are to such Section or Exhibit of this
Agreement, as the case may be. The Exhibits hereto are hereby incorporated by
reference into and made a part of this Agreement.
10.10 Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same Agreement.
10.11 Acknowledgment and Agreement. By execution below, the Originator
expressly acknowledges and agrees that all of the Company's rights, title, and
interests in, to, and under this Agreement (but not its obligations), shall be
assigned by the Company pursuant to the Receivables Purchase Agreement, and the
Originator consents to such assignment. Each of the parties hereto acknowledges
and agrees that the Administrator and the Issuer are third party beneficiaries
of the rights of the Company arising hereunder and under the other Transaction
Documents to which the Originator is a party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
23
28
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.
24
29
LESCO FUNDING, INC.
By:
Name:_______________________________
Title:______________________________
Address: 00000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LESCO, INC.
as initial Servicer and Originator
By:
Name:____________________________
Title:___________________________
Address: 00000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
25
30
EXHIBIT A
TO PURCHASE AND SALE AGREEMENT
FORM OF PURCHASE REPORT
ORIGINATOR: LESCO INC.
PURCHASER: LESCO FUNDING INC.
DATE: ___________________________
I. OUTSTANDING BALANCE OF RECEIVABLES
PURCHASED:__________________
II. FAIR MARKET VALUE DISCOUNT:
1/[1 + ((Prime Rate + .25%) X Days' Sales Outstanding)]
------------------------
365
Prime Rate = __________________
Days' Sales Outstanding = __________________
III. PURCHASE PRICE (I X II) = $__________________
X-0
00
XXXXXXX X
TO PURCHASE AND SALE AGREEMENT
FORM OF COMPANY NOTE
B-1
32
EXHIBIT C
TO PURCHASE AND SALE AGREEMENT
FORM OF ORIGINATOR ASSIGNMENT CERTIFICATE
C-1
33
EXHIBIT D
TO PURCHASE AND SALE AGREEMENT
PROCEEDINGS
D-1
34
EXHIBIT E
TO PURCHASE AND SALE AGREEMENT
OFFICE LOCATIONS
X-0
00
XXXXXXX X
TO PURCHASE AND SALE AGREEMENT
TRADE NAMES
Legal Name Trade Names/Fictitious Names
---------- ----------------------------
F-1
