Exhibit 10.10
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RECEIVABLES PURCHASE AGREEMENT
dated as of March 19, 1996
(as amended as of April 25, 1996, June 10, 1996
and September 24, 1996)
among
BIG FLOWER PRESS HOLDINGS, INC.,
as initial Servicer
and
CERTAIN SUBSIDIARIES OF BIG FLOWER
PRESS HOLDINGS, INC.,
as Sellers
and
BFP RECEIVABLES CORPORATION,
as Buyer
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TABLE OF CONTENTS
ARTICLE I
AGREEMENT TO PURCHASE AND SELL
SECTION 1.1 Agreement to Purchase and Sell.................... 1
SECTION 1.2 Timing of Purchases............................... 2
SECTION 1.3 Consideration for Purchases....................... 2
SECTION 1.4 No Recourse....................................... 2
SECTION 1.5 No Assumption of Obligations Relating to
Receivables, Related Assets or Contracts.......... 3
SECTION 1.6 True Sales........................................ 3
SECTION 1.7 Addition of Sellers............................... 3
SECTION 1.8 Termination of Status as a Seller................. 4
SECTION 1.9 Contribution of Receivables....................... 6
ARTICLE II
CALCULATION OF PURCHASE PRICE
SECTION 2.1 Calculation of Purchase Price..................... 6
SECTION 2.2 Definitions and Calculations Related to
Purchase Price Percentage......................... 7
ARTICLE III
PAYMENT OF PURCHASE PRICE; SERVICING, ETC.
SECTION 3.1 ................................................... 9
SECTION 3.2 The Buyer Notes................................... 12
SECTION 3.3 Application of Collections and Other Funds........ 12
SECTION 3.4 Servicing of Receivables and Related Assets....... 13
SECTION 3.5 Adjustments for Noncomplying Receivables,
Dilution and Cash Discounts....................... 13
SECTION 3.6 Payments and Computations, Etc.................... 14
ARTICLE IV
CONDITIONS TO PURCHASES
SECTION 4.1 Conditions Precedent to Initial Purchase.......... 14
SECTION 4.2 Certification as to Representations and
Warranties........................................ 16
SECTION 4.3 Effect of Payment of Purchase Price............... 16
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.1 Representations and Warranties of the Sellers..... 16
SECTION 5.2 Representations and Warranties of Buyer........... 23
ARTICLE VI
GENERAL COVENANTS OF THE SELLERS
SECTION 6.1 Affirmative Covenants............................. 23
SECTION 6.2 Reporting Requirements............................ 27
SECTION 6.3 Negative Covenants................................ 29
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE SPECIFIED ASSETS
SECTION 7.1 Rights of Buyer................................... 32
SECTION 7.2 Responsibilities of the Sellers................... 32
SECTION 7.3 Further Action Evidencing Purchases............... 33
SECTION 7.4 Collection of Receivables; Rights of Buyer and
Its Assignees..................................... 34
ARTICLE VIII
TERMINATION
SECTION 8.1 Termination by the Sellers........................ 35
SECTION 8.2 Automatic Termination............................. 35
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Indemnities by the Sellers........................ 36
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Amendments; Waivers, Etc......................... 38
ii
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SECTION 10.2 Notices, Etc.................................... 39
SECTION 10.3 Cumulative Remedies............................. 39
SECTION 10.4 Binding Effect; Assignability; Survival of
Provisions...................................... 39
SECTION 10.5 Governing Law................................... 40
SECTION 10.6 Costs, Expenses and Taxes....................... 40
SECTION 10.7 Submission to Jurisdiction...................... 40
SECTION 10.8 Waiver of Jury Trial............................ 41
SECTION 10.9 Integration..................................... 41
SECTION 10.10 Counterparts.................................... 41
SECTION 10.11 Acknowledgment and Consent...................... 41
SECTION 10.12 No Partnership or Joint Venture................. 42
SECTION 10.13 No Proceedings.................................. 42
SECTION 10.14 Severability of Provisions...................... 43
SECTION 10.15 Recourse to Buyer............................... 43
EXHIBITS
EXHIBIT A Form of Buyer Note
EXHIBIT B Form of Seller Assignment Certificate
SCHEDULES
SCHEDULE 1 Litigation and Other Proceedings
SCHEDULE 2 Changes in Financial Condition
SCHEDULE 3 Offices of the Sellers where Records are Maintained
SCHEDULE 4 Legal Names, Trade Names and Names Under Which the
Companies Do Business
SCHEDULE 5 Software Programs and Licenses
APPENDIX
APPENDIX A Definitions
iii
This RECEIVABLES PURCHASE AGREEMENT, dated as of March 19, 1996 (this
"Agreement"), is made among BIG FLOWER PRESS HOLDINGS, INC., as initial Servicer
("Big Flower" or "Servicer"), certain direct or indirect domestic subsidiaries
of Big Flower that are listed on the signature pages hereto or that become party
hereto in accordance with the terms hereof (the "Sellers"), and BFP RECEIVABLES
CORPORATION, a Delaware corporation ("Buyer"). Except as otherwise defined
herein, capitalized terms have the meanings that Appendix A assigns to them, and
this Agreement shall be interpreted in accordance with the conventions set forth
in Part B of Appendix A.
WHEREAS, pursuant to the Pooling Agreement, Buyer intends to transfer its
interests in the Receivables sold pursuant hereto, together with Receivables
contributed to Buyer by Treasure Chest from time to time, to the Trust in order
to, among other things, finance its purchases hereunder;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
ARTICLE I
AGREEMENT TO PURCHASE AND SELL
SECTION I.1 Agreement to Purchase and Sell. Each Seller hereby sells,
transfers, assigns, sets over and otherwise conveys to Buyer and Buyer agrees to
purchase from each Seller, at the times set forth in Section 1.2, all of such
Seller's right, title and interest in, to and under:
(a) all Receivables of such Seller (other than Contributed
Receivables) that existed and were owing to such Seller as at the closing
of such Seller's business on the Initial Cut-Off Date,
(b) all Receivables created by such Seller that arise during the
period from and including the closing of such Seller's business on the
Initial Cut-Off Date to but excluding the Purchase Termination Date,
(c) all Related Security with respect to such Receivables
of such Seller,
(d) all proceeds of the foregoing, including all funds received by
any
Person in payment of any amounts owed (including invoice prices, finance
charges, interest and all other charges, if any) in respect of any
Receivable described above or Related Security with respect to any such
Receivable, or otherwise applied to repay or discharge any such Receivable
(including insurance payments that a Seller or Servicer applies in the
ordinary course of its business to amounts owed in respect of any such
Receivable and net proceeds of any sale or other disposition of
repossessed goods that were the subject of any such Receivable) or other
collateral or property of any Obligor or any other party directly or
indirectly liable for payment of such Receivables, and
(e) all checks, wire transfers, monies and other items of any type
whatsoever deposited into the Bank Accounts, whether or not such items
constitute proceeds of Receivables and whether such items are now existing
or hereafter arising or acquired, and
(f) all Records relating to any of the foregoing.
As used herein, (i) "Purchased Receivables" means the items listed above
in clauses (a) and (b), (ii) "Related Purchased Assets" means the items listed
above in clauses (c), (d) and (e), (iii) "Related Assets" means the Related
Purchased Assets and the Related Contributed Assets, (iv) "Purchased Assets"
means the Purchased Receivables and the Related Purchased Assets, and (v)
"Specified Assets" means the Purchased Receivables, the Contributed Receivables
and the Related Assets.
SECTION I.2 Timing of Purchases.
(a) Initial First Issuance Date Purchases. All of the Purchased Assets of
each Seller that existed at the closing of such Seller's business on the Initial
Cut-Off Date shall be sold automatically to Buyer on the First Issuance Date.
(b) Regular Purchases. Except to the extent otherwise provided in Section
8.2 or (with respect to any Seller) Section 1.8, after the closing of a Seller's
business on the Initial Cut-Off Date until the closing of such Seller's business
on the Business Day immediately preceding the Purchase Termination Date, all
Receivables and the Related Assets of each Seller shall be sold automatically to
Buyer pursuant hereto immediately (and without further action by any Person)
upon the creation of the Receivable.
SECTION I.3 Consideration for Purchases. On the terms and subject to the
conditions set forth in this Agreement, Buyer agrees to make Purchase Price
payments to the Sellers in accordance with Article III.
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SECTION I.4 No Recourse. Except as specifically provided in this
Agreement, the sale and purchase of Purchased Assets under this Agreement shall
be without recourse to the Sellers; it being understood that (i) each Seller
shall be liable to Buyer for all representations, warranties, covenants and
indemnities made by such Seller pursuant to the terms of this Agreement, all of
which obligations are limited so as not to constitute recourse to such Seller
for the credit risk of the Obligors, and (ii) Big Flower shall be liable to
Buyer to the extent specified in the Seller Guaranty.
SECTION I.5 No Assumption of Obligations Relating to Receivables, Related
Assets or Contracts. None of Buyer, the Servicer nor the Trustee shall have any
obligation or liability to any Obligor or other customer or client of a Seller
(including any obligation to perform any of the obligations of such Seller under
any Receivable, related Contracts or any other related purchase orders or other
agreements). No such obligation or liability is intended to be assumed by Buyer,
the Servicer or the Trustee hereunder, and any assumption is expressly
disclaimed.
SECTION I.6 True Sales. The Sellers and Buyer intend the transfers of
Receivables hereunder to be true sales by the Sellers to Buyer that are absolute
and irrevocable and that provide Buyer with the full benefits of ownership of
the Receivables, and none of the Sellers nor Buyer intends the transactions
contemplated hereunder to be, or for any purpose to be characterized as, loans
from Buyer to any Seller.
It is, further, not the intention of Buyer or any Seller that the
conveyance of the Specified Assets by such Seller be deemed a grant of a
security interest in the Specified Assets by such Seller to Buyer to secure a
debt or other obligation of such Seller. However, in the event that,
notwithstanding the intent of the parties, any Specified Assets are property of
any Seller's estate, then (i) this Agreement also shall be deemed to be and
hereby is a security agreement within the meaning of the UCC, and (ii) the
conveyance by such Seller provided for in this Agreement shall be deemed to be a
grant by such Seller to Buyer of, and such Seller hereby grants to Buyer, a
security interest in and to all of such Seller's right, title and interest in,
to and under the Specified Assets to secure (1) the rights of Buyer hereunder
and (2) a loan by Buyer to such Seller in the amount of the related Purchase
Price of the Purchased Assets sold by it or the Unpaid Balance of any
Contributed Receivables and the Related Contributed Assets, as the case may be.
Each Seller and Buyer shall, to the extent consistent with this Agreement, take
such actions as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the Specified Assets, such security interest
would be deemed to be a perfected security interest of first priority (subject
to
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Permitted Adverse Claims) in favor of Buyer under applicable law and will be
maintained as such throughout the term of this Agreement.
SECTION I.7 Addition of Sellers. Any Domestic Subsidiary of Big Flower may
become a Seller hereunder and sell its accounts receivable and property of the
types that constitute Related Assets hereunder to Buyer if (x) the last sentence
of this Section applies or (y) the Modification Condition is satisfied with
respect to such addition. Big Flower and such Domestic Subsidiary of Big Flower
that is proposed to be added as a Seller shall give to Buyer, the Trustee and
the Rating Agencies not less than 30 days' (or such shorter number of days as is
acceptable to Trustee) prior written notice of the effective date of the
addition of such Domestic Subsidiary as a Seller. Once the notice has been
given, any addition of a Domestic Subsidiary of Big Flower as a Seller pursuant
to this section shall become effective on the first Business Day following the
expiration of the notice period (or such later date as may be specified in the
notice) on which (i) the Modification Condition has been satisfied, (ii) the
Servicer shall have delivered to the Trustee a supplement to the Monthly Report
then in effect as described in Section 3.5(e) of the Pooling Agreement and shall
have confirmed in writing to the Trustee that the Seller Guaranty covers
Obligations of such Seller, and (iii) such Domestic Subsidiary and the parties
hereto shall have executed and delivered the agreements, instruments and other
documents and the amendments or other modifications to the Transaction
Documents, in form and substance reasonably satisfactory to Buyer and the
Trustee, that Buyer or the Trustee reasonably determines are necessary or
appropriate to effect the addition. The Modification Condition need not be
satisfied as to any new Seller if (x) the new Seller is in the same line of
business as one or more existing Sellers or a related line of business, (y) the
aggregate Unpaid Balance of the new Seller's outstanding Receivables on the last
Cut-Off Date prior to the day that it becomes a Seller is less than 5% of the
aggregate Unpaid Balance of all Receivables on such Cut-Off Date and (z) no more
than two other Persons have become Sellers during the preceding twelve months
without satisfaction of the Modification Condition (or, if no outstanding
Investor Certificates are rated, written approval of the Trustee).
SECTION I.8 Termination of Status as a Seller. (a) At any time when more
than one Person is a Seller, a Seller may terminate its obligation to sell its
Receivables and Related Assets to Buyer if:
(i) the Seller (a "Terminating Seller") shall have given Buyer not
less than 30 days' prior written notice of its intention to terminate the
obligations, which notice shall be given by Buyer to the Trustee and the
Rating Agencies (the date on which such notice is given being the
"Terminating Seller Notice
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Date"),
(ii) an Authorized Officer of the Terminating Seller shall have
certified that the termination by the Terminating Seller of its status as
a Seller will not have a Material Adverse Effect,
(iii) both immediately before and after giving effect to the
termination by the Terminating Seller, no Early Amortization Event or
Unmatured Early Amortization Event shall have occurred and be continuing
or shall reasonably be expected to occur; and
(iv) either the Terminating Seller will cease to be a Domestic
Subsidiary of Big Flower concurrently with the effectiveness of such
termination, or such Terminating Seller is a Permitted Terminating Seller;
provided that this subclause (iv) may be waived by Investor
Certificateholders that evidence more than 50% of the outstanding
principal amount of the Investor Certificates if the Modification
Condition is satisfied.
"Permitted Terminating Seller" means a Terminating Seller that satisfies
the following requirements:
(x) the aggregate Unpaid Balance of such Terminating Seller's
Receivables on the Cut-Off Date immediately preceding the Terminating
Seller Notice Date would not exceed 20% of the aggregate Unpaid Balance of
all Receivables, calculated as of such Cut-Off Date, and (y) the aggregate
Unpaid Balance of such Terminating Seller's Receivables on such Cut-Off
Date, together with the Previously Terminated Seller Amount, would not
exceed 25% of the sum of the Previously Terminated Seller Amount and the
aggregate Unpaid Balance of all Receivables (calculated as of such Cut-Off
Date).
"Previously Terminated Seller Amount" means, on any day, the aggregate
Unpaid Balance of Receivables originated by all Sellers previously terminated
pursuant to this subsection 1.8(a), calculated with respect to any Seller as of
the Cut-Off Date immediately preceding its Terminating Seller Notice Date.
(b) Any termination by a Seller shall become effective on the first
Business Day that follows the day on which the requirements of clause (a) shall
have been satisfied (or such later date specified in the notice or certificate
referred to in the clauses). Any termination by a Seller shall terminate its
rights and obligations to sell Receivables and Related Assets hereunder to Buyer
and Buyer's agreement, with
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respect to the Terminating Seller, to purchase the Receivables and Related
Assets; provided, however, that the termination shall not relieve the
Terminating Seller of any of its other Obligations, to the extent the
Obligations relate to Receivables (and Related Assets with respect thereto)
originated by the Terminating Seller prior to the effective date of the
termination.
(c) Notwithstanding the foregoing, a Seller's rights and obligations to
sell its Receivables and Related Assets to Buyer shall terminate immediately if
such Seller ceases to be a Domestic Subsidiary of Big Flower; provided, however,
that the termination shall not relieve such Seller of any of its other
Obligations, to the extent the Obligations relate to Receivables (and Related
Assets with respect thereto) originated by such Seller prior to the effective
date of the termination.
SECTION I.9 Contribution of Receivables. Treasure Chest hereby transfers
to Buyer, as a contribution to the capital of Buyer, all its right, title and
interest in, to and under:
(a) $43,794,245 of Receivables of Treasure Chest having, among the
existing Receivables, the oldest invoiced date as of the closing of
Treasure Chest's business on the Initial Cut-Off Date (the
"Contributed Receivables"),
(b) all Related Security with respect to the Contributed Receivables,
(c) all proceeds of the foregoing, including all funds received by any
Person in payment of any amounts owed (including invoice prices,
finance charges, interest and all other charges, if any) in respect
of any Contributed Receivable or Related Security with respect to
any such Contributed Receivable, or otherwise applied to repay or
discharge any such Contributed Receivable (including insurance
payments that Treasure Chest or Servicer applies in the ordinary
course of its business to amounts owed in respect of any such
Contributed Receivable and net proceeds of any sale or other
disposition or repossessed goods that were the subject of any such
Contributed Receivable) or other collateral or property of any
Obligor or any other party directly or indirectly liable for payment
of such Contributed Receivables, and
(d) all Records relating to any of the foregoing (the items listed above
in clauses (b), (c) and (d) being referred to herein as the "Related
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Contributed Assets."
ARTICLE II
CALCULATION OF PURCHASE PRICE
SECTION II.1 Calculation of Purchase Price. (a) On each Business Day
(including the First Issuance Date), the Servicer shall deliver to Buyer, the
Trustee, Big Flower and Treasure Chest a Daily Report with respect to Buyer's
purchases of Receivables from the Sellers:
(i) that are to be made on the First Issuance Date (in the case of
the Daily Report to be delivered on the First Issuance Date) or
(ii) that were made on the immediately preceding Business Day (in
the case of each subsequent Daily Report).
(b) On each day when Receivables are purchased by Buyer from a Seller
pursuant to Article I, the "Purchase Price" to be paid to such Seller on such
day for the Purchased Receivables and Related Purchased Assets that are to be
sold by such Seller on such day shall be determined in accordance with the
following formula:
PP = AUB x PPP
where:
PP = the aggregate Purchase Price for the Purchased Receivables
and Related Purchased Assets to be purchased from such Seller
on such day.
AUB = the "Aggregate Unpaid Balance" of the Purchased
Receivables that are to be purchased from such Seller
on such day. For purposes of this calculation,
"Aggregate Unpaid Balance" shall mean (i) for
purposes of calculating the Purchase Price to be paid
to such Seller on the First Issuance Date, the sum of
the Unpaid Balance of each Receivable generated by
such Seller, as measured as at the closing of such
Seller's business on the Initial Cut-Off Date, and
(ii) for purposes of calculating the Purchase Price
on each Business Day thereafter, the sum of the
Unpaid Balance of each Receivable to be purchased
from such Seller on
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such day, calculated at the time of the Receivable's sale to
Buyer.
PPP = the Purchase Price Percentage applicable to the Receivables
to be purchased on such day, as determined pursuant to Section
2.2.
SECTION II.2 Definitions and Calculations Related to Purchase
Price Percentage.
(a) "Purchase Price Percentage" for the Receivables to be sold by a Seller
on any day during a Distribution Period shall mean the percentage determined in
accordance with the following formula:
PPP = 100% - (LD + PDRR)
where:
PPP = the Purchase Price Percentage in effect during such
Distribution Period.
LD = the Loss Discount (expressed as a percentage) in effect
during such Distribution Period, as determined pursuant to
subsection (b) below.
PDRR = the Purchase Discount Reserve Ratio (expressed as a
percentage) in effect during such Distribution Period as
determined on such day pursuant to subsection (c) below.
The Purchase Price Percentage, the Loss Discount and the Purchase Discount
Reserve Ratio shall be recomputed by the Servicer on each Report Date, in each
case as of the then most recent Cut-Off Date, and shall become effective on the
next Distribution Date.
(b) "Loss Discount" in effect during such Distribution Period means a
percentage equal to the Loss to Liquidation Ratio as in effect during such
Distribution Period (expressed as a percentage) as in effect on such day (it
being understood that the allocation of certain miscellaneous items will be
required to be estimated for this purpose).
(c) "Purchase Discount Reserve Ratio" for the Receivables to be sold on
any day shall mean a percentage determined in accordance with the following
formula:
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PDRR = (TD/360 x DR) + PD
where:
PDRR = the Purchase Discount Reserve Ratio in effect during such
Distribution Period.
TD = the Turnover Days during the Calculation Period preceding
the first day of such Distribution Period.
DR = the Discount Rate (expressed as a percentage) in effect
during such Distribution Period as determined pursuant to
subsection (d) below.
PD = a profit discount equal to .20%.
(d) "Discount Rate" for the Receivables to be sold on any day during a
Distribution Period shall mean a fraction (expressed as a percentage) having (i)
a numerator equal to 12, multiplied by an amount equal to the accrued Carrying
Costs for the Calculation Period preceding the first day of such Distribution
Period, and (ii) a denominator equal to the aggregate Unpaid Balance of the
Receivables as of the last day of the Calculation Period preceding the first day
of such Distribution Period.
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ARTICLE III
PAYMENT OF PURCHASE PRICE; SERVICING, ETC.
SECTION III.1 Purchase Price Payments. (a) On the First Issuance Date and
on the Business Day following each day on which any Receivables and Related
Assets are purchased by Buyer pursuant to Article I, on the terms and subject to
the conditions of this Agreement, Buyer shall pay to the Sellers the Purchase
Price for the Receivables and Related Assets purchased on such day by Buyer by
(i) making a cash payment to Servicer (for the account of the Sellers) to the
extent that Buyer has cash available to make the payment pursuant to Section 3.3
and (ii) if the Purchase Price to be paid for the Receivables and Related Assets
of any Seller exceeds the amount of any cash payment for the account of such
Seller on such day pursuant to clause (i), by (x) automatically increasing the
principal amount outstanding under the relevant Buyer Notes by the amount of the
excess or (y) at the option of Treasure Chest (as evidenced by notice to
Servicer), only in the case of Treasure Chest as Seller, such excess shall be
considered to have been contributed to Buyer by Treasure Chest as a capital
contribution.
The obligation of Buyer to pay the Purchase Price for Receivables that has
been deferred pursuant to the preceding paragraph shall be evidenced by Buyer
Notes. Each Seller agrees that, prior to the Seller Maturity Date, Buyer shall
be required to make payments in respect of the payment obligations evidenced by
the Buyer Notes only to the extent that it has cash available under Section 3.3.
(b) Except as provided in a Supplement or PI Agreement, on each Business
Day, the "Noncomplying Receivables and Dilution Adjustment" shall be equal to
the difference (whether the difference is positive or negative) between (i) the
sum of (A) the aggregate Seller Dilution Adjustments in respect of all Sellers,
if any, for the immediately preceding Business Day, as shown in the Daily Report
for such day, plus (B) the aggregate Seller Noncomplying Receivables Adjustments
in respect of all Sellers, if any, for the immediately preceding Business Day,
as shown in the Daily Report for such day, in the case of each of clauses (A)
and (B), as the amounts are determined pursuant to Section 3.5, minus (ii) the
amount of the payments (if any) that Buyer shall have received on the
immediately preceding Business Day on account of any Seller Noncomplying
Receivables that had been the subject of an earlier Seller Noncomplying
Receivables Adjustment. If the Noncomplying Receivables and Dilution Adjustment
is positive on any day, Buyer shall reduce the Purchase Price payable on such
day pursuant to subsection (a) above by the amount of the Noncomplying
Receivables and Dilution Adjustment. If instead the Noncomplying
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Receivables and Dilution Adjustment is negative on any day, Buyer shall increase
the Purchase Price payable pursuant to subsection (a) above on such day by the
amount of the Noncomplying Receivables and Dilution Adjustment.
(c) If on any day the sum of the Seller Dilution Adjustments and the
Seller Noncomplying Receivables Adjustments in respect of any Seller (as
determined pursuant to Section 3.5), less any amounts in clause (b)(ii)
allocated to such Seller, exceeds the Purchase Price payable by Buyer to such
Seller pursuant to subsection (a) above on such day, or if such day falls on or
after the Purchase Termination Date, then the principal amount of such Seller's
Buyer Note shall be reduced automatically by the amount of such excess.
(d) If, on any day prior to the Purchase Termination Date, the principal
amount of a Seller's Buyer Note is zero and such Seller is not a Terminating
Seller, then the amount of the excess of the sum of the Seller Dilution
Adjustments and the Seller Noncomplying Receivables Adjustments in respect of
such Seller (as determined pursuant to Section 3.5), less any amounts in clause
(b)(ii) allocated to such Seller, on such day over the Purchase Price payable by
Buyer to Servicer (for the account of such Seller) on such day pursuant to
subsection (a) above (the "Purchase Price Credit") shall be credited against the
Purchase Price payable by Buyer for subsequent Purchases of Receivables and
Related Assets of such Seller by Buyer. If any such Purchase Price Credit has
not been fully applied on or prior to the fifth Business Day (or a mutually
agreed upon earlier day) after the creation of such Purchase Price Credit, then,
on the Business Day that follows the end of the five Business Day (or shorter)
period, such Seller shall pay to Buyer in cash the remaining unapplied amount of
the Purchase Price Credit.
(e) If, on any day on or after the Purchase Termination Date, or, with
respect to any Seller, the date such Seller becomes a Terminating Seller, the
principal amount of any Seller's Buyer Note has been reduced to zero, an amount
equal to the sum of any Seller Dilution Adjustments and the Seller Noncomplying
Receivables Adjustments, if any, in respect of such Seller (as determined
pursuant to Section 3.5), less any amounts in clause (b)(ii) allocated to such
Seller, shall be paid by such Seller to Buyer in cash on the next succeeding
Business Day.
(f) If, on any day, the amounts, if any, allocated to any Seller pursuant
to clause (b)(ii) above exceed the sum of any Seller Dilution Adjustments and
the Seller Noncomplying Receivables Adjustments, if any, in respect of such
Seller (as determined pursuant to Section 3.5) for such day, then Buyer shall
either (i) pay Servicer (for the account of such Seller) in cash the amount of
such excess, or (ii) if
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Buyer does not have sufficient cash to pay such amount in full, increase the
principal amount of such Seller's Buyer Note by the amount of such excess that
is not paid in cash to Servicer.
(g) Amounts received by Servicer pursuant to this Section 3.1 shall be
allocated among the Sellers in accordance with Section 3.3, and the Seller
Dilution Adjustments and the Seller Noncomplying Receivables Adjustments in
respect of each such Seller (as determined pursuant to Section 3.5). Servicer
shall maintain a bookkeeping account (the "Seller Account") for purposes of
tracking:
(i) the Purchase Price payable to each Seller in respect of
Receivables sold by it to Buyer (including the extent to which cash and
non-cash payments made by Buyer should be allocated to each Seller),
(ii) the extent to which such Purchase Price should be reduced on
account of such Seller's Seller Dilution Adjustments and Seller
Noncomplying Receivables Adjustments (including any allocation of a
Purchase Price Credit),
(iii) if a Seller makes cash payments in respect of the Noncomplying
Receivables and Dilution Adjustment (including any payment in respect of a
Purchase Price Credit), the obligation of each other Seller to reimburse
such Seller for its proportionate share thereof,
(iv) if Purchase Price payments attributable to a Seller's
Receivables have been reduced on account of another Seller's Seller
Dilution Adjustment or the Seller Noncomplying Receivables Adjustment, the
obligation of such other Seller to reimburse the
Seller subject to such reduction,
(v) the extent to which payments (whether cash or non-cash) by Buyer
in respect of a negative Noncomplying Receivables and Dilution Adjustment
should be allocated to each Seller, and
(vi) cash payments made to and by each Seller in respect of the
items described above.
Servicer shall maintain sufficient records with respect to the Seller
Account such that, on any day, it would be able to calculate each of the items
set forth above. Intercompany accounts among Sellers resulting from the items
described above will be settled in accordance with the intercompany cash
management system customarily
page 12
employed by Big Flower and its Subsidiaries.
SECTION III.2 The Buyer Notes. (a) On the First Issuance Date, Buyer will
deliver to each Seller a promissory note, substantially in the form of Exhibit
A, payable to the order of such Seller (each such promissory note, as the same
may be amended, supplemented, endorsed or otherwise modified from time to time,
together with any promissory note issued from time to time in substitution
therefor or renewal thereof in accordance with the Transaction Documents, being
herein called a "Buyer Note"), that is subordinated to all Senior Interests now
or hereafter arising under or in connection with the Pooling Agreement. Each
Buyer Note is payable in full on the date that is one year and one day after the
date on which all Investor Certificates and Purchased Interests have been repaid
in full and the Revolving Periods for all Investor Certificates and Purchased
Interests have terminated (the "Seller Maturity Date"). Each Buyer Note bears
interest at a rate per annum equal to the rate publicly announced by the Trustee
from time to time as its "reference" rate, determined as of each Cut-Off Date.
Buyer may prepay all or part of the outstanding balance of any Buyer Note from
time to time without any premium or penalty, unless the prepayment would result
in a default in Buyer's payment of any other amount required to be paid by it
under any Transaction Document.
(b) Big Flower (or its designee) shall hold all Buyer Notes for the
benefit of the Sellers and shall make all appropriate recordkeeping entries with
respect to the Buyer Notes or otherwise to reflect the payments on and
adjustment of the Buyer Notes. Big Flower's books and records shall constitute
rebuttable presumptive evidence of the principal amount of and accrued interest
on each Buyer Note at any time. Each Seller hereby irrevocably authorizes Big
Flower to xxxx its Buyer Note "CANCELLED" and return it to Buyer upon the final
payment thereof.
SECTION III.3 Application of Collections and Other Funds. If, on any day,
Buyer receives proceeds of transfers pursuant to the Pooling Agreement, Buyer
shall apply the funds as follows:
(a) first, to pay its existing expenses and to set aside funds for
the payment of expenses that are then accrued (in each case to the extent
such expenses are permitted to exist under Section 7.2(l) of the Pooling
Agreement).
(b) second, to pay the Purchase Price pursuant to Section 3.1 for
Receivables and Related Assets purchased by Buyer from the Sellers on such
day (in the case of the First Issuance Date) or the next preceding
Business Day, and
page 13
(c) third, in such order as Buyer may elect, (A) to repay amounts
owed by Buyer to the Sellers under the Buyer Notes, (B) to pay amounts
owed pursuant to Section 3.1(f), or (C) to declare and pay dividends to
Treasure Chest to the extent permitted by law.
SECTION III.4 Servicing of Receivables and Related Assets. Consistent with
Buyer's ownership of the Receivables and the Related Assets, as between the
parties to this Agreement, Buyer shall have the sole right to service,
administer and collect the Receivables, to assign the right and to delegate the
right to others. Without limiting the generality of Section 10.11, each Seller
hereby acknowledges and agrees that Buyer shall assign to the Trustee for the
benefit of the Investor Certificateholders and Purchasers the rights and
interests of Buyer hereunder and agrees to cooperate fully with the Servicer and
the Trustee in the exercise of the rights. As more fully described in Section
7.4(b) and in the Pooling Agreement, the Trustee may exercise the rights in the
place of Buyer (as assignee or otherwise) only after the designation of a
Servicer other than Big Flower pursuant to Section 10.2 of the Pooling
Agreement.
At Trustee's request, each Seller will (A) assemble all of the Records
that are necessary or appropriate to collect the Receivables and Related
Transferred Assets, and shall make the same available to Trustee at one or more
places selected by Trustee or its designee, (B) segregate all cash, checks and
other instruments received by it from time to time constituting Collections in a
manner acceptable to Trustee and shall, promptly upon receipt (and in no event
later than the second Business Day following receipt), remit all such cash,
checks and instruments, duly endorsed or with duly executed instruments of
transfer, to a Bank Account or the Master Collection Account and (C) permit,
upon not less than two Business Days' prior written notice, any Successor
Servicer and its agents, employees and assignees access to their respective
facilities and their respective Records.
page 14
SECTION III.5 Adjustments for Noncomplying Receivables, Dilution and Cash
Discounts. (a) If at any time any of Buyer, Servicer, the Trustee or a Seller
shall determine that (i) any Receivable identified by Servicer as an Eligible
Receivable on the date of Purchase thereof by Buyer or the contribution thereof
to Buyer was in fact a Seller Noncomplying Receivable on such date, (ii) any of
the representations and warranties made by the related Seller in Section 5.1(k)
with respect to such Receivable was not true on such date, or (iii) the
representation and warranty made by the related Seller, in its capacity as
Sub-Servicer, in Section 5.3(b) with respect to such Receivable was not true on
such date, such Seller shall be deemed to have received on the date of such
determination a Collection of the Receivable in an amount equal to the Unpaid
Balance of the Receivable (the sum of all such amounts for such Seller on any
day being called the "Seller Noncomplying Receivables Adjustment" for such
Seller for such day), and such Seller Noncomplying Receivables Adjustment shall
be settled in the manner provided for in Section 3.1.
(b) If on any day the aggregate Unpaid Balance of the Receivables sold or
contributed to Buyer on or before such date by a Seller is reduced in any manner
described in the definition of "Dilution" (the total of the reductions being
called the "Seller Dilution Adjustment" for the Seller for such day), then such
Seller shall be deemed to have received on such day a Collection of Receivables
in the amount of the Seller Dilution Adjustment and such Seller Dilution
Adjustment shall be settled in the manner provided in Section 3.1.
SECTION III.6 Payments and Computations, Etc. (a) All amounts to be paid
by a Seller to Buyer hereunder shall be paid in accordance with the terms hereof
no later than 1:00 p.m., New York City time, on the day when due in Dollars in
immediately available funds to an account that Buyer shall from time to time
specify in writing. Payments received by Buyer after such time shall be deemed
to have been received on the next Business Day. In the event that any payment
becomes due on a day that is not a Business Day, then the payment shall be made
on the next Business Day. Each Seller shall, to the extent permitted by law, pay
to Buyer, on demand, interest on all amounts not paid when due hereunder at 2%
per annum above the interest rate on the applicable Buyer Note in effect on the
date the payment was due; provided, however, that the interest rate shall not at
any time exceed the maximum rate permitted by applicable law. All computations
of interest payable hereunder 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.
(b) All amounts to be paid by Buyer to a Seller hereunder shall be paid to
Servicer (for the account of the applicable Seller) no later than 4:00 p.m., New
York
page 15
City time, on the day when due in Dollars in immediately available funds to an
account that Big Flower shall from time to time specify in writing. Payments
received by Servicer after such time shall be deemed to have been received on
the next Business Day. Servicer shall promptly remit payments received by it in
immediately available funds to such account as the applicable Seller shall from
time to time specify in writing. In the event that any payment becomes due on a
day that is not a Business Day, then such payment shall be made on the next
Business Day in accordance with the terms of the applicable Buyer Note.
ARTICLE IV
CONDITIONS TO PURCHASES
SECTION IV.1 Conditions Precedent to Initial Purchase. The initial
purchase hereunder is subject to the conditions precedent that (i) each of the
conditions precedent to the execution, delivery and effectiveness of each other
Transaction Document (other than a condition precedent in any other Transaction
Document relating to the effectiveness of this Agreement) shall have been
fulfilled to the satisfaction of Buyer, and (ii) Buyer shall have received (or
in the case of subsection (f) below, shall have delivered) each of the
following, on or before the First Issuance Date, each (unless otherwise
indicated) dated the date hereof or the First Issuance Date and each in form and
substance satisfactory to Buyer:
(a) Seller Assignment Certificates. A Seller Assignment Certificate
from each Seller in the form of Exhibit B, duly completed, executed and
delivered by such Seller,
(b) Resolutions. A copy of the resolutions of the Board of Directors
of each Seller approving this Agreement and the other Transaction
Documents to be delivered by it hereunder and the transactions
contemplated hereby and thereby and addressing such other matters as may
be required by Buyer, certified by its Secretary or Assistant Secretary,
each as of a recent date acceptable to Buyer,
(c) Good Standing Certificate of each Seller; Certificates as to
Foreign Qualification of each Seller. A good standing certificate for each
Seller, issued as of a recent date by the Secretary of State of the
jurisdiction of its incorporation and of each state in which such Seller
transacts business, is required to be in good standing and where the
failure to be in good standing would have a substantial likelihood of
having a Material Adverse Effect,
page 16
(d) Incumbency Certificate. A certificate of the Secretary or
Assistant Secretary of each Seller certifying, as of a recent date
reasonably acceptable to Buyer, the names and true signatures of the
officers authorized on such Seller's behalf to sign the Transaction
Documents to be delivered by such Seller (on which certificate Buyer, the
Trustee and the Servicer may conclusively rely until such time as Buyer
shall receive from such Seller (with a copy to the Trustee and the
Servicer), a revised certificate meeting the requirements of this
subsection),
(e) Other Transaction Documents. Original copies, executed by each
of the parties thereto in such reasonable number as shall be specified by
Buyer, of each of the other Transaction Documents to be executed and
delivered in connection herewith,
(f) Buyer Notes. The Buyer Notes, executed by Buyer, and
(g) License Agreements. Duly executed and counterparts of (i)
software license agreements between each Seller or Servicer that uses its
own proprietary software in the origination or servicing of Receivables or
Related Assets and Buyer, and (ii) amendments to any license agreement
between a Seller or Servicer and any third party vendor, adding any
substitute Servicer as a licensee.
SECTION IV.2 Certification as to Representations and Warranties. Each
Seller, by accepting the Purchase Price paid for each Purchase, shall be deemed
to have certified, with respect to the Receivables and Related Assets to be sold
by it on such day, that its representations and warranties contained in Article
V (excluding, with respect to any day after the First Issuance Date, Section
5.1(i)) are true and correct on and as of such day, with the same effect as
though made on and as of such day.
SECTION IV.3 Effect of Payment of Purchase Price. Upon the payment of the
Purchase Price (whether in cash or by an increase in a Buyer Note or, in the
case of Treasure Chest as a Seller, by a capital contribution, in each case
pursuant to Section 3.1) for any Purchase, title to the Receivables and the
Related Assets included in the Purchase shall vest in Buyer, whether or not the
conditions precedent to the Purchase were in fact satisfied; provided, however,
that Buyer shall not be deemed to have waived any claim it may have under this
Agreement for the failure by a Seller in fact to satisfy any such condition
precedent.
page 17
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION V.1 Representations and Warranties of the Sellers. In order to
induce Buyer to enter into this Agreement and to make purchases hereunder, each
Seller hereby makes the representations and warranties set forth in this section
with respect to itself at the times and to the extent set forth in Section 4.2
(it being understood that only Treasure Chest makes the representations and
warranties set forth below with respect to any Contributed Receivables and
Related Assets with respect thereto).
(a) Organization and Good Standing. Such Seller is a corporation
duly organized and validly existing and in good standing under the laws of
the jurisdiction of its incorporation and has full power and authority to
own its properties and to conduct its business as the properties presently
are owned and the business presently is conducted. Such Seller had at all
relevant times, and now has, all necessary power, authority, and legal
right to own, sell and (if applicable) contribute its Receivables and the
Related Assets.
(b) Due Qualification. Such Seller is duly qualified to do business
and is in good standing as a foreign corporation (or is exempt from such
requirements), and has obtained all necessary licenses and approvals, in
all jurisdictions in which the ownership or lease of property or the
conduct of its business requires qualification, licenses or approvals and
where the failure so to qualify, to obtain the licenses and approvals or
to preserve and maintain the qualification, licenses or approvals would
have a substantial likelihood of having a Material Adverse Effect.
(c) Power and Authority; Due Authorization. Such Seller has (i) all
necessary power and authority to (A) execute and deliver this Agreement
and the other Transaction Documents to which it is a party, (B) perform
its obligations under this Agreement and the other Transaction Documents
to which it is a party, and (C) sell, assign and (if applicable)
contribute the Receivables and the Related Assets on the terms and subject
to the conditions herein and therein provided and (ii) duly authorized by
all necessary action such sale, assignment and (if applicable)
contribution and the execution, delivery and performance of this Agreement
and the other Transaction Documents to which it is a party and the
consummation of the transactions provided for in this
page 18
Agreement and the other Transaction Documents to which it is a party.
(d) Valid Sale; Binding Obligations. Each sale of Receivables and
Related Assets made by such Seller pursuant to this Agreement, and each
contribution of Receivables and Related Assets made to Buyer, shall
constitute a valid sale (except in the case of Contributed Receivables and
Related Assets with respect to such Contributed Receivables), transfer,
and assignment of all of such Seller's right, title and interest in, to
and under such Receivables and the Related Assets of such Seller to Buyer
that is perfected and of first priority under the UCC and otherwise,
enforceable against creditors of, and purchasers from, such Seller and
free and clear of any Adverse Claim (other than any Permitted Adverse
Claim, any Adverse Claim arising solely as a result of any action taken by
Buyer hereunder or by the Trustee under the Pooling Agreement or any
Special New Jersey EPA Claim); and this Agreement constitutes, and each
other Transaction Document to which such Seller is a party when duly
executed and delivered will constitute, a legal, valid and binding
obligation of such Seller, enforceable against it 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 enforceability is considered in a proceeding in
equity or at law.
(e) No Conflict or Violation. The execution, delivery and
performance of, and the consummation of the transactions contemplated by,
this Agreement and the other Transaction Documents to be signed by such
Seller and the fulfillment of the terms hereof and thereof will not (i)
conflict with, violate, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time or
both) a default under, (A) its Certificate of Incorporation or Bylaws or
(B) any indenture, loan agreement, mortgage, deed of trust or other
material agreement or instrument to which such Seller is a party or by
which it or any of its properties is bound, (ii) result in the creation or
imposition of any Adverse Claim upon any of the Receivables or Related
Assets other than pursuant to this Agreement and the other Transaction
Documents, or (iii) conflict with or violate any federal, state, local or
foreign law or any decision, decree, order, rule or regulation applicable
to it or any of its properties of any court or of any federal, state,
local or foreign regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over it or any of its
properties, which conflict, violation, breach, default or Adverse Claim,
individually or in the aggregate, would have a substantial likelihood of
having a Material Adverse Effect.
page 19
(f) Litigation and Other Proceedings. Except as described in
Schedule 1, (i) there is no action, suit, proceeding or investigation
pending or, to the best knowledge of such Seller, threatened against it
before any court, regulatory body, arbitrator, administrative agency or
other tribunal or governmental instrumentality and (ii) it is not subject
to any order, judgment, decree, injunction, stipulation or consent order
of or with any court or other government authority that, in the case of
each of clauses (i) and (ii), (A) asserts the invalidity of this Agreement
or any other Transaction Document, (B) seeks to prevent the sale,
assignment or contribution of any Receivables or Related Assets by such
Seller to Buyer, the issuance of the applicable Seller Assignment
Certificate or the consummation of any of the transactions contemplated by
this Agreement or any other Transaction Document, (C) seeks any
determination or ruling that would materially and adversely affect the
performance by such Seller of its obligations under this Agreement or any
other Transaction Document or the validity or enforceability of this
Agreement or any other Transaction Document, (D) seeks to affect adversely
the income tax attributes of the purchases hereunder or the applicable
Seller Assignment Certificate, in the case of each of the foregoing
whether under the United States Federal income tax system or any state
income tax system, or (E) individually or in the aggregate for all such
actions, suits, proceedings and investigations would have a substantial
likelihood of having a Material Adverse Effect.
(g) Government Approvals. All authorizations, consents, orders and
approvals of, or other action by, any Governmental Authority that are
required to be obtained by such Seller, and all notices to and filings
(except, in respect of enforceability against a federal Governmental
Authority, any filings under the Assignment of Claims Act and any consents
required by states with respect to any Receivables arising from state and
local Governmental Authorities so long as such Receivables are not
reported as Eligible Receivables), with any Governmental Authority that
are required to be made by it, in the case of each of the foregoing in
connection with the conveyance of Receivables and Related Assets or the
due execution, delivery and performance by such Seller of this Agreement,
such Seller's Seller Assignment Certificate or any other Transaction
Document to which it is a party and the consummation of the transactions
contemplated by this Agreement, have been obtained or made and are in full
force and effect, except where the failure to obtain or make any such
authorization, consent, order, approval, notice or filing, individually or
in the aggregate for all such failures, would not reasonably be expected
to have a Material Adverse Effect.
page 20
(h) Bulk Sales Act. No transaction contemplated by this Agreement or
any other Transaction Document requires compliance with, or will be
subject to avoidance under, any bulk sales act or similar law.
(i) Financial Condition. The representations and warranties
contained in Section 7.05 of the Big Flower Credit Agreement are true and
correct as of the date hereof, and such representations and warranties are
incorporated herein by reference; provided that references therein to the
"Banks" shall be deemed to include the Purchasers.
(j) Margin Regulations. No use of any funds obtained by such Seller
under this Agreement will conflict with or contravene any of Regulations
G, T, U and X promulgated by the Federal Reserve Board from time to time.
(k) Quality of Title.
(i) Immediately before each purchase to be made by Buyer
hereunder and (in the case of Treasure Chest) each contribution to
be made hereunder to Buyer, each Receivable and Related Asset of
such Seller that is then to be transferred to Buyer thereunder, and
the related Contracts, shall be owned by such Seller free and clear
of any Adverse Claim (other than any Permitted Adverse Claim, any
Adverse Claim arising solely as the result of any action taken by
Buyer hereunder or by the Trustee under the Pooling Agreement or any
Special New Jersey EPA Claim); provided that the existence of an
Adverse Claim that is released on the First Issuance Date (upon
application of the proceeds of the issuance of Certificates on that
date) shall not constitute a breach of this representation and
warranty; and such Seller shall have made all filings and shall have
taken all other action under applicable law in each relevant
jurisdiction in order to protect and perfect the ownership interest
of Buyer and its successors in the Receivables and Related Assets
against all creditors of, and purchasers from, such Seller.
(ii) Whenever Buyer makes a purchase hereunder from such
Seller or (in the case of Treasure Chest) accepts a contribution
hereunder from such Seller, it shall have acquired a valid and
perfected first priority ownership interest in each Transferred
Asset, free and clear of any Adverse Claim (other than any Permitted
Adverse Claim, any Adverse Claim arising solely as the result of any
action taken by Buyer
page 21
hereunder or by the Trustee under the Pooling Agreement or any
Special New Jersey EPA Claim).
(iii) No effective financing statement or other instrument
similar in effect that covers all or part of any Receivable
originated by such Seller, any interest therein or any Related Asset
with respect thereto is on file in any recording office except
financing statements as to termination statements or releases that
are filed on the First Issuance Date or first Business Day after the
First Issuance Date and (x) such as may be filed (A) in favor of
such Seller in accordance with the Contracts, (B) in favor of Buyer
pursuant to this Agreement and (C) in favor of the Trustee, for the
benefit of the Investor Certificateholders and Purchasers, in
accordance with the Pooling Agreement and (y) such as may have been
identified to Buyer prior to the First Issuance Date and termination
statements relating to which have been placed with LEXIS Document
Services (or a similar service acceptable to the Trustee) for filing
within two Business Days of the First Issuance Date. No effective
financing statement or instrument similar in effect relating to
perfection that covers any inventory of such Seller that might give
rise to Receivables is on file in any recording office except for
(so long as an Intercreditor Agreement is in effect) financing
statements or instruments in favor of creditors of such Seller bound
by such Intercreditor Agreement.
(iv) No Purchase by Buyer from such Seller (and, in the case
of Treasure Chest, no capital contribution to Buyer whether or not
made in connection with a Purchase) constitutes a fraudulent
transfer or fraudulent conveyance under the United States Bankruptcy
Code or applicable state bankruptcy or insolvency laws or is
otherwise void or voidable or subject to subordination under similar
laws or principles or for any other reason.
(v) Each Purchase by Buyer from such Seller constitutes a true
and valid sale of the Receivables and Related Assets under
applicable state law and true and valid assignments and transfers
for consideration (and not merely a pledge of the Receivables and
Related Assets for security purposes), enforceable against the
creditors of such Seller, and no Receivables or Related Assets
transferred to Buyer hereunder shall constitute property of such
Seller.
page 22
(l) Eligible Receivables. On the date of each purchase of
Receivables hereunder from such Seller (or, in the case of Treasure Chest)
contribution from such Seller, each such Receivable, unless otherwise
identified to Buyer and the Trustee by the Servicer in the Daily Report
for such date, is an Eligible Receivable.
(m) Accuracy of Information. All written information furnished by or
on behalf of such Seller to Buyer, Servicer or the Trustee pursuant to or
in connection with any Transaction Document or any transaction
contemplated herein or therein shall not contain any untrue statement of a
material fact or omit to state material facts necessary to make the
statements made not misleading, in each case on the date the statement was
made and in light of the circumstances under which the statements were
made or the information was furnished.
(n) Offices. The principal place of business and chief executive
office of such Seller is located at the address set forth under such
Seller's signature hereto, and any other location which has been such
Seller's principal place of business or chief executive office during the
past four months or in which such Seller keeps (or has kept during the
past four months) Records, Contracts, purchase orders and agreements
related to the Receivables or Related Assets (and all original documents
relating thereto) is specified in Schedule 3 (or at such other locations,
notified to the Servicer and the Trustee in accordance with Section
6.1(f), in jurisdictions where all action required pursuant to Section 7.3
has been taken and completed).
(o) Account Banks and Payment Instructions. The names and addresses
of all the banks, together with the account numbers of the accounts at the
banks, into which Collections are paid as of the First Issuance Date have
been accurately identified to Buyer in a letter from such Seller to Buyer
dated the First Issuance Date or have been specified in the notices as
shall have been delivered thereafter pursuant to Section 6.3(c). Each
Account Bank has executed and delivered an Account Agreement to Buyer and
the Trustee. Such Seller has instructed all Obligors to submit all
payments on the Receivables and Related Assets directly to one of the
Lockbox Accounts, subject to such exceptions as are permitted under
Section 3.3 of the Pooling Agreement. Any payments not made directly to
the Account Banks will be forwarded to the Account Banks within two
Business Days.
(p) [intentionally omitted].
page 23
(q) Compliance with Applicable Laws. Such Seller is in compliance
with the requirements of all applicable laws, rules, regulations and
orders of all Governmental Authorities (federal, state, local or foreign,
and including environmental laws), a violation of any of which,
individually or in the aggregate for all such violations, would have a
substantial likelihood of having a Material Adverse Effect.
(r) Legal Names. Except as set forth in Schedule 4, since January 1,
1990 such Seller has not been known by any legal name other than its
corporate name as of the date hereof, except to the extent permitted
otherwise pursuant to Section 6.3(e), nor has such Seller been the subject
of any merger or other corporate reorganization since January 1, 1990 that
resulted in a change of name, identity or corporate structure. Such Seller
uses no trade names other than its actual corporate name and the trade
names set forth in Schedule 4.
(s) Investment Company Act. Such Seller is not, and is not
controlled by, an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as amended.
(t) Taxes. Such Seller has filed or caused to be filed all tax
returns and reports required by law to have been filed by it and has paid
all taxes, assessments and governmental charges thereby shown to be owing,
except any such taxes, assessments or charges (i) that are being
diligently contested in good faith by appropriate proceedings, (ii) for
which adequate reserves in accordance with GAAP shall have been set aside
on its books and (iii) with respect to which no Adverse Claim, except
Permitted Adverse Claims, has been imposed upon any Receivables or Related
Assets.
(u) Software Programs. Each software program, and any license or
other agreement relating to such program, used in the origination or
servicing of Receivables and Related Assets is described in Schedule 5.
SECTION V.2 Representations and Warranties of Buyer. From the date hereof
until the Purchase Termination Date, Buyer hereby represents and warrants that
(a)(i) this Agreement has been duly authorized, executed and delivered by Buyer
and (ii) constitutes the legal, valid and binding obligation of Buyer,
enforceable against it 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
page 24
enforceability is considered in a proceeding in equity or at law, and (b) the
execution, delivery and performance of this Agreement does not violate any
applicable law or any agreement to which Buyer is a party or by which its
properties are bound.
SECTION V.3 Representations and Warranties of Servicer. In order to induce
Buyer to enter into this Agreement and to make purchases hereunder:
(a) Servicer and each Seller, in its capacity as a Sub-Servicer,
hereby represents and warrants as to itself that all information furnished
by or on behalf of such Person to Buyer, Servicer or the Trustee pursuant
to or in connection with any Transaction Document or any transaction
contemplated herein or therein shall not contain any untrue statement of a
material fact or omit to state material facts necessary to make the
statements made not misleading in each case on the date the statement was
made and in light of the circumstances under which the statements were
made or the information was furnished; and
(b) without limiting the foregoing, each Seller, in its capacity as
a Sub-Servicer, hereby represents and warrants as to itself that on the
date of each Daily Report or Monthly Report that identifies a Receivable
originated by such Seller as an Eligible Receivable, such Receivable is an
Eligible Receivable.
ARTICLE VI
GENERAL COVENANTS OF THE SELLERS
SECTION VI.1 Affirmative Covenants. From the First Issuance Date until the
first day following the Purchase Termination Date on which all Obligations of
the Sellers shall have been finally and fully paid and performed and the
Invested Amount for each Series or Purchased Interest shall have been reduced to
zero, unless Buyer shall otherwise give its prior written consent, each Seller
hereby agrees that it will perform the covenants and agreements set forth in
this section.
(a) Compliance with Laws, Etc. Such Seller will comply in all
material respects with all applicable laws, rules, regulations, judgments,
decrees and orders (including those relating to the Receivables, the
Related Assets, the related Contracts of such Seller and any other
agreements related thereto), in each case to the extent the failure to
comply, individually or in the aggregate for all such failures, would have
a substantial likelihood of having a Material Adverse Effect.
page 25
(b) Preservation of Corporate Existence. Such Seller will preserve
and maintain its corporate existence, rights, franchises and privileges in
the jurisdiction of its incorporation, 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 qualifications would have a substantial likelihood of
having a Material Adverse Effect.
(c) Receivables Reviews. Such Seller shall, during regular business
hours upon not less than five Business Days' prior notice, permit Buyer
and its agents or representatives, at the expense of such Seller, (i) to
examine and make copies of and abstracts from, and to conduct accounting
reviews of, all Records in the possession or under the control of such
Seller relating to the Receivables or Related Assets generated by such
Seller, and (ii) to visit the offices and properties of such Seller for
the purpose of examining the materials described in clause (i) above, and
to discuss matters relating to any Receivables or any Related Assets of
such Seller or such Seller's performance hereunder with any of the
Authorized Officers of such Seller or, with the prior consent of an
Authorized Officer of such Seller, with employees of such Seller having
knowledge of such matters (the examinations set forth in the foregoing
clauses (i) and (ii) being herein called a "Seller Receivables Review").
Buyer and its agents or representatives shall be entitled to conduct
Seller Receivables Reviews whenever Buyer, in its reasonable judgment,
deems it appropriate; provided, that prior to the occurrence and
continuance of an Early Amortization Event, Buyer (or its agent or
representative) shall give such Seller at least five Business Days' prior
notice of any Seller Receivables Review, and Buyer shall have the right to
request a Seller Receivables Review not more than once in any calendar
year.
(d) Keeping of Records and Books of Account. Such Seller shall
maintain and implement administrative and operating procedures (including
an ability to recreate records evidencing its Receivables and Related
Assets in the event of the destruction of the originals thereof), and
shall keep and maintain all documents, books, records and other
information that, in the reasonable determination of Buyer and the
Trustee, are necessary or advisable in accordance with prudent industry
practice and custom for transactions of this type for the collection of
all Receivables and the Related Assets. Upon the reasonable request of
Buyer made at any time after the occurrence and continuance of a Servicer
Default, such Seller will deliver copies of all books
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and records maintained pursuant to this subsection to the Trustee. Such
Seller shall maintain at all times accurate and complete books, records
and accounts relating to the Receivables, Related Assets and Contracts and
all Collections thereon in which timely entries shall be made. Such books
and records shall be marked to indicate the sales of all Receivables and
Related Assets hereunder and shall include (i) all payments received and
all credits and extensions granted with respect to the Receivables and
(ii) the return, rejection, repossession, or stoppage in transit of any
merchandise, the sale of which has given rise to a Receivable that has
been purchased by or contributed to Buyer.
(e) Performance and Compliance with Receivables and Contracts. Such
Seller will, at its expense, timely and fully perform and comply with all
provisions, covenants and other promises required to be observed by it
under the Contracts of such Seller related to the Receivables and Related
Assets, in each case to the extent failure to perform or comply would have
a substantial likelihood of having a Material Adverse Effect.
(f) Location of Records and Offices. Such Seller will keep its
principal place of business and chief executive office, and the offices
where it keeps all Records related to the Receivables and the Related
Assets (and all original documents relating thereto), at the addresses
referred to in Schedule 3 or, upon not less than 30 days' prior written
notice given by such Seller to Buyer, the Trustee and the Rating Agencies,
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. Such Seller will comply in all
material respects with its Credit and Collection Policy in regard to each
Receivable of such Seller and the Related Assets and the Contracts related
to each such Receivable, where the failure so to comply, individually or
in the aggregate for all such failures, would have a substantial
likelihood of having a Material Adverse Effect.
(h) Separate Corporate Existence of Buyer. Such Seller hereby
acknowledges that the Trustee, on behalf of the Trust, is entering into
the transactions contemplated by the Transaction Documents in reliance
upon Buyer's identity as a legal entity separate from such Seller and the
other Big Flower Persons. Therefore, from and after the date hereof until
the first day following the Purchase Termination Date on which all
Obligations shall have been fully paid and performed and the Invested
Amount for each Series or Purchased Interest shall have been reduced to
zero, such Seller will, and xxxx
xxxx 27
cause each other Big Flower Person to, take all reasonable steps to
continue their respective identities as separate legal entities and to
make it apparent to third Persons that each is an entity with assets and
liabilities distinct from those of Buyer and that Buyer is not a division
of the Servicer, such Seller, Big Flower or any other Person. Without
limiting the foregoing, Big Flower and each Seller will, and will cause
each other Big Flower Person to, operate, conduct their respective
businesses and otherwise act in a manner which is consistent with the
factual assumptions in each of the opinions of Skadden, Arps, Slate,
Xxxxxxx & Xxxx dated the date hereof regarding certain substantive
consolidation and true sale issues.
(i) Payment Instructions to Obligors. Such Seller will instruct all
Obligors to submit all payments either (i) to one of the lockboxes
maintained at the Lockbox Banks for deposit in a Lockbox Account or to a
Concentration Account or (ii) directly to one of the Lockbox Accounts,
subject in each case to such exceptions as are permitted under Section 3.3
of the Pooling Agreement.
(j) Segregation of Collections. Such Seller shall use reasonable
efforts to minimize the deposit of any funds other than Collections into
any of the Lockbox Accounts and, to the extent that any such funds
nevertheless are deposited into any of the Lockbox Accounts, shall
promptly identify any such funds, or shall cause the funds to be so
identified, to Buyer, the Servicer and the Trustee (following which
notice, Buyer shall cause the Servicer to return all the funds to such
Seller).
(k) Identification of Eligible Receivables. Such Seller will (i)
establish and maintain such procedures as are necessary for determining no
less frequently than each Business Day whether each Receivable qualifies
as an Eligible Receivable, and for identifying, on any Business Day, all
Receivables to be sold on that date that are not Eligible Receivables, and
(ii) except as permitted in Section 3.5(c) of the Pooling Agreement,
notify Buyer prior to the occurrence of a Purchase if a Receivable to be
sold hereunder will, to such Seller's knowledge, not be an Eligible
Receivable as of the date of Purchase.
(l) Accuracy of Information. All written information furnished on
and after the First Issuance Date by or on behalf of such Seller to Buyer,
the Servicer or the Trustee pursuant to or in connection with any
Transaction Document or any transaction contemplated herein or therein
shall not contain any untrue statement of a material fact or omit to state
material facts necessary to make the statements made not misleading, in
each case on the date the
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statement was made and in light of the circumstances under which the
statements were made or the information was furnished.
(m) Taxes. File or cause to be filed, and cause each Person with
whom it shares consolidated tax liability to file, all Federal, state and
local tax returns that are required to be filed by it (except where the
failure to file such returns does not have a substantial likelihood of
having a Material Adverse Effect) and pay or cause to be paid all taxes
shown to be due and payable on taxes or assessments (except only such
taxes or assessments the validity of which are being contested in good
faith by appropriate proceedings and with respect to which such Seller
shall have set aside adequate reserves on its books in accordance with
GAAP and which proceedings do not have a substantial likelihood of having
a Material Adverse Effect).
(n) Software Licenses. Cause all software licenses or similar
agreements used by the Sellers or Servicer in the origination or servicing
of Receivables to expressly permit use by any substitute Servicer of the
materials subject to such licenses or agreements.
(o) Webcraft Account Agreements. By no later than 5:00 p.m., New
York City time, on Friday, March 22, 1996, cause (i) a Lockbox Agreement
to be executed with a Lockbox Bank for payments by Obligors in respect of
all Receivables originated by Webcraft Technologies, Inc. and (ii) a
Blocked Account Agreement to be executed with a Blocked Account Bank for
the remittance of payments by Webcraft Chemicals, Inc. and by Obligors in
respect of all Receivables originated by Webcraft Chemicals, Inc.
SECTION VI.2 Reporting Requirements. From the First Issuance Date until
the first day following the Purchase Termination Date on which all Obligations
of the Sellers shall have been finally and fully paid and performed and the
Invested Amount for each Series or Purchased Interest shall have been reduced to
zero, such Seller agrees that it will, unless Buyer and the Trustee shall
otherwise give prior written consent, and (with respect to the notices described
below in subsections (c) and (d)) unless the Modification Condition has been
satisfied), furnish to Buyer and the Trustee (and in the case of the notices
described below in subsections (c), (d) and (f), to the Rating Agencies):
(a) Quarterly Financial Statements. Within 50 days after the end of
each of the first three fiscal quarters of each fiscal year of Big Flower,
copies of
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the unaudited consolidated balance sheets of Big Flower and its
consolidated Subsidiaries as at the end of the fiscal quarter and the
related unaudited statements of earnings and cash flows, in each case for
the fiscal quarter and for the period from the beginning of the fiscal
year through the end of such fiscal quarter, prepared in accordance with
GAAP consistently applied throughout the periods reflected therein and
certified (subject to year end adjustments and the omission of footnotes)
by the chief financial officer or chief accounting officer of Big Flower,
(b) Annual Financial Statements. As soon as possible and in any
event within 95 days after the end of each fiscal year of Big Flower, a
copy of the audited consolidated balance sheet of Big Flower and its
consolidated Subsidiaries as at the end of the fiscal year and the related
statements of earnings, stockholders' equity and cash flows of Big Flower
and its consolidated Subsidiaries for the fiscal year, setting forth in
each case in comparative form the corresponding figures for the preceding
fiscal year and prepared in accordance with GAAP consistently applied
throughout the periods reflected therein, certified, without Impermissible
Qualification, by Deloitte & Touche (or such other independent certified
public accountants of a nationally recognized standing in the United
States of America as shall be selected by Big Flower),
(c) Early Amortization Events. As soon as possible, and in any event
within five Business Days after an Authorized Officer of such Seller has
obtained knowledge of the occurrence of any Early Amortization Event or
any Unmatured Early Amortization Event, a written statement of an
Authorized Officer of such Seller describing the event and the action that
such Seller proposes to take with respect thereto, in each case in
reasonable detail,
(d) Material Adverse Effect. As soon as possible and in any event
within five Business Days after an Authorized Officer of such Seller has
knowledge thereof, written notice that describes in reasonable detail any
event or occurrence that, individually or in the aggregate for all such
events or occurrences, has had, or that would have a substantial
likelihood of having, a Material Adverse Effect,
(e) Proceedings. As soon as possible and in any event within five
Business Days after an Authorized Officer of such Seller has knowledge
thereof, written notice of (i) any litigation, investigation or proceeding
of the type described in Section 5.1(f) not previously disclosed to Buyer
and (ii) any
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judgment, settlement or other final disposition with respect to any such
previously disclosed litigation, investigation or proceeding, and
(f) Other. Promptly, from time to time, (i) such other information,
documents, records or reports respecting the Receivables or the Related
Assets or (ii) such other publicly available information respecting the
condition or operations, financial or otherwise, of such Seller, in each
case as Buyer may from time to time reasonably request in order to protect
the interests of Buyer, the Trustee or the Certificateholders under or as
contemplated by this Agreement.
SECTION VI.3 Negative Covenants. From the First Issuance Date until the
first day following the Purchase Termination Date on which all Obligations of
the Sellers shall have been finally and fully paid and performed and the
Invested Amount for each Series or Purchased Interest shall have been reduced to
zero, unless Buyer shall otherwise give its prior written consent, each Seller
hereby agrees that it will perform the covenants and agreements set forth in
this section.
(a) Sales, Liens, Etc. Except as otherwise provided herein or in the
Pooling Agreement, such Seller will not (i)(A) sell, assign (by operation
of law or otherwise) or otherwise transfer to any Person, (B) pledge any
interest in, (C) grant, create, incur, assume or permit to exist any
Adverse Claim (other than Permitted Adverse Claims or Special New Jersey
EPA Claims) to or in favor of any Person upon or with respect to, or (D)
cause to be filed any financing statement or equivalent document relating
to perfection with respect to any Transferred Asset or any Contract
related to any Receivable, or upon or with respect to any lockbox or
account to which any Collections of any such Receivable or any Related
Assets are sent or any interest therein, or (ii) assign to any Person any
right to receive income from or in respect of any of the foregoing.
In the event that such Seller fails to keep any Specified Assets
free and clear of any Adverse Claim (other than a Permitted Adverse Claim,
any Adverse Claims arising hereunder, and other Adverse Claims permitted
by any other Transaction Document), Buyer may (without limiting its other
rights with respect to such Seller's breach of its obligations hereunder)
make reasonable expenditures necessary to release the Adverse Claim. Buyer
shall be entitled to indemnification for any such expenditures pursuant to
the indemnification provisions of Article IX. Alternatively, Buyer may
deduct such expenditures as an offset to the Purchase Price owed to such
Seller hereunder.
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Such Seller will not pledge or grant any security interest in its
inventory, the Buyer Note or the capital stock of Buyer unless prior to
any pledge or grant such Seller, Buyer, the Trustee and the Person for
whose benefits the pledge or grant is being made have entered into an
Intercreditor Agreement; provided, however, that any Buyer Note and/or the
capital stock of Buyer may be pledged pursuant to the Big Flower Credit
Agreement.
(b) Extension or Amendment of Receivables; Change in Credit and
Collection Policy or Contracts. Such Seller will not, (i) without the
prior written consent of Buyer and the Trustee, which consent will not be
unreasonably withheld, extend, amend or otherwise modify the terms of any
Receivable or Contract in a manner that would have a substantial
likelihood of having a Material Adverse Effect or (ii) change the terms
and provisions of the Credit and Collection Policy in any material respect
unless (x) with respect to collection policies, the change is made with
the prior written approval of the Trustee, Buyer and each Agent for any
Purchaser and the Modification Condition is satisfied with respect
thereto, (y) with respect to collection procedures, the change is made
with prior written notice to the Trustee, Buyer and each Purchaser Agent
and no Material Adverse Effect would result and (z) with respect to
accounting policies relating to Receivables that have become Write-Offs,
the change is made in accordance with GAAP.
(c) Change in Payment Instructions to Obligors. Such Seller will not
(i) add or terminate any bank as an Account Bank from those listed in the
letter referred to in Section 5.1(o) unless, prior to any such addition or
termination, Buyer, the Trustee and the Rating Agencies shall have
received not less than ten Business Days' prior written notice of the
addition or termination and, not less than ten Business Days prior to the
effective date of any such proposed addition or termination, Buyer and the
Trustee shall have received (A) counterparts of the applicable type of
Account Agreement with each new Account Bank, duly executed by such new
Account Bank and all other parties thereto and (B) copies of all other
agreements and documents signed by the Account Bank and such other parties
with respect to any new Bank Account, all of which agreements and
documents shall be reasonably satisfactory in form and substance to Buyer
and the Trustee, or (ii) make any change in its instructions to Obligors,
given in accordance with Section 5.1(o), regarding payments to be made to
such Seller or payments to be made to any Account Bank, other than changes
in the instructions that direct Obligors to make payments to another Bank
Account at such Account Bank or another Account Bank or to the Master
Collection
page 32
Account.
(d) Mergers, Acquisitions, Sales, etc. Except for (i) mergers or
consolidations in which such Seller is the surviving Person, (ii) mergers
or consolidations of a Subsidiary of Big Flower into such Seller or (iii)
mergers or consolidations in which the surviving Person expressly assumes
the performance of this Agreement and the Modification Condition shall
have been satisfied with respect to the consolidation or merger, the
Seller will not be a constituent corporation to any merger or
consolidation. Such Seller will give the Rating Agencies and the Trustee
notice of any such permitted merger or consolidation promptly following
completion thereof. Unless the Modification Condition is satisfied, such
Seller will not, directly or indirectly, transfer, assign, convey or
lease, whether in one transaction or in a series of transactions, all or
substantially all of its assets or sell or assign, with or without
recourse, any Receivables or Related Assets, in each case other than
pursuant to this Agreement.
(e) Change in Name. Such Seller will not (i) change its corporate
name or (ii) change the name under or by which it does business in any
manner that would or may make any financing statement filed by such Seller
in accordance herewith seriously misleading within the meaning of Section
9-402(7) of an applicable enactment of the UCC, in each case unless such
Seller shall have given Buyer, the Servicer, the Trustee and the Rating
Agencies 30 days' prior written notice thereof and unless, prior to any
change in name, such Seller shall have taken and completed all action
required by Section 7.3.
(f) Certificate of Incorporation. Such Seller will not cause Buyer
to amend Articles III, IV, XII(g), XII(h) or XIV, of its Certificate of
Incorporation without the Trustee's prior written consent, which consent
will not be unreasonably withheld or delayed.
(g) Amendments to Transaction Documents. Such Seller will not amend
or otherwise modify or supplement any Transaction Document to which it is
a party unless (i) Buyer shall have given its prior written consent to
each amendment, modification or supplement and (ii) the Modification
Condition shall have been satisfied.
(h) Accounting for Purchases. Such Seller shall prepare its
financial statements in accordance with GAAP, and any financial statements
that are made publicly available and which are consolidated to include
Buyer xxxx
xxxx 33
contain footnotes stating that such Seller has sold or contributed its
Receivables to Buyer and that the assets of Buyer will not be available to
Big Flower and its subsidiaries unless Buyer's liabilities have been paid
in full. Such Seller shall not prepare any financial statements that
account for the transactions contemplated in this Agreement in any manner
other than as a sale of the Purchased Assets by such Seller to Buyer, or
in any other respect account for or treat the transactions contemplated in
this Agreement (including but not limited to accounting and, where taxes
are not consolidated, for tax reporting purposes) in any manner other than
as a sale of the Purchased Assets by such Seller to Buyer.
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE SPECIFIED ASSETS
SECTION VII.1 Rights of Buyer. (a) Subject to Section 7.4(b), each Seller
hereby authorizes Buyer, the Servicer and/or their respective designees to take
any and all steps in such Seller's name and on behalf of such Seller that Buyer,
the Servicer and/or their respective designees determine are reasonably
necessary or appropriate to collect all amounts due under any and all Specified
Assets, including endorsing the name of such Seller on checks and other
instruments representing Collections and enforcing such Seller's rights under
such Specified Assets.
(b) Except as set forth in Section 3.1 with respect to Seller Noncomplying
Receivables, Buyer shall have no obligation to account for any Specified Asset
to any Seller. Buyer shall have no obligation to account for, or to return
Collections, or any interest or other finance charge collected pursuant thereto,
to any Seller, irrespective of whether such Collections and charges are in
excess of the Purchase Price for the Purchased Assets.
(c) Buyer shall have the unrestricted right to further assign, transfer,
deliver, hypothecate, subdivide or otherwise deal with the Specified Assets, and
all of Buyer's right, title and interest in, to and under this Agreement, on
whatever terms Buyer shall determine, pursuant to the Pooling Agreement or
otherwise.
(d) Buyer shall have the sole right to retain any gains or profits created
by buying, selling or holding the Specified Assets and shall have the sole risk
of and responsibility for losses or damages created by such buying, selling or
holding.
page 34
SECTION VII.2 Responsibilities of the Sellers. Anything herein to the
contrary notwithstanding, each Seller hereby agrees:
(a) to deliver directly to the Servicer (for Buyer's account),
within two Business Days after receipt thereof, any Collections that it
receives, in the form so received, and agrees that all such Collections
shall be deemed to be received in trust for Buyer and shall be maintained
and segregated separate and apart from all other funds and moneys of such
Seller until delivery of such Collections to the Servicer; provided,
however, that until the Trust is terminated pursuant to Section 12.1 of
the Pooling Agreement, Buyer hereby directs each Seller and each Seller
hereby agrees, to make any delivery of Collections pursuant to this
Section 7.2(a) directly to the Trustee by deposit to one of the Bank
Accounts or the Master Collection Account,
(b) to perform all of its obligations hereunder and under the
Contracts related to the Receivables and Related Assets to the same extent
as if the Receivables had not been sold hereunder, and the exercise by
Buyer or its designee or assignee of Buyer's rights hereunder or in
connection herewith shall not relieve such Seller from any of its
obligations under the Contracts or Related Assets related to the
Receivables,
(c) that it hereby grants to Buyer an irrevocable power of attorney,
with full power of substitution, coupled with an interest, to take in the
name of such Seller all steps necessary or advisable to endorse, negotiate
or otherwise realize on any writing or other right of any kind held or
transmitted by such Seller or transmitted or received by Buyer (whether or
not from such Seller) in connection with any Transferred Asset, and
(d) to the extent that such Seller does not own the computer
software that such Seller uses to account for Receivables, such Seller
shall provide Buyer and the Trustee with such licenses, sublicenses and/or
assignments of contracts as Buyer or the Trustee shall require with regard
to all services and computer hardware or software used by such Seller that
relate to the servicing of the Specified Assets.
page 35
SECTION VII.3 Further Action Evidencing Purchases. Each Seller agrees that
from time to time, at its expense, it will promptly, upon reasonable request by
Buyer, Servicer or Trustee, execute and deliver all further instruments and
documents, and take all further action, in order to perfect, protect or more
fully evidence the purchase by Buyer or contribution to Buyer of the Receivables
and the Related Assets under this Agreement, or to enable Buyer to exercise or
enforce any of its rights under any Transaction Document. Each Seller further
agrees that from time to time, at its expense, it will promptly, upon request,
take all action that Buyer, the Servicer or the Trustee may reasonably request
in order to perfect, protect or more fully evidence the purchase or contribution
of the Receivables and the Related Assets or to enable Buyer or the Trustee (as
the assignee of Buyer) 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 Buyer, each Seller will:
(a) execute and file such financing or continuation statements, or
amendments thereto or assignments thereof, and such other instruments or
notices, as Buyer or the Trustee may reasonably determine to be necessary
or appropriate, and
(b) xxxx the master data processing records evidencing the
Receivables with the following legend:
"THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO BFP RECEIVABLES
CORPORATION ("BFP") PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT,
DATED AS OF MARCH 19, 1996, AMONG TREASURE CHEST ADVERTISING
COMPANY, INC., CERTAIN OTHER SUBSIDIARIES OF BIG FLOWER PRESS
HOLDINGS, INC. ("BIG FLOWER") AND BFP; AND SUCH RECEIVABLES HAVE
BEEN TRANSFERRED TO THE BIG FLOWER MASTER TRUST PURSUANT TO A
POOLING AND SERVICING AGREEMENT, DATED AS OF MARCH 19, 1996, AMONG
BFP, AS TRANSFEROR, BIG FLOWER, AS THE INITIAL SERVICER, AND
MANUFACTURERS AND TRADERS TRUST COMPANY, AS TRUSTEE."
Each Seller hereby authorizes Buyer 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 Assets of such
Seller, in each case whether now existing or hereafter generated by such Seller.
Except for material
page 36
performance obligations of such Seller to any Obligor hereunder or under any of
the Contracts, if (i) such Seller fails to perform any of its agreements or
obligations under this Agreement and does not remedy the failure within the
applicable cure period, if any, and (ii) Buyer in good faith reasonably believes
that the performance of such agreements and obligations is necessary or
appropriate to protect its interests under this Agreement, then Buyer or its
designee may (but shall not be required to) perform, or cause performance of,
such agreement or obligation and the reasonable expenses of Buyer or its
designee or assignee incurred in connection with such performance shall be
payable by such Seller as provided in Section 9.1.
SECTION VII.4 Collection of Receivables; Rights of Buyer and Its
Assignees. (a) Each Seller hereby transfers to the Trustee (as transferee of
Buyer's interest in the Specified Assets) the ownership of, and the exclusive
dominion and control over, each of the Bank Accounts and all related lockboxes
owned by such Seller, and such Seller hereby agrees to take any further action
that Buyer or the Trustee may reasonably request in order to effect or complete
the transfer. Each Seller further agrees to use reasonable efforts to prevent
funds other than proceeds of the Specified Assets from being deposited in any
Bank Account.
(b) Buyer may, at any time after an Early Amortization Event or Servicer
Default, direct the Obligors of Receivables, or any of them, to pay all amounts
payable under any Transferred Asset directly to the Trustee or its designees.
Furthermore, each Seller shall, at the request of Buyer and at such Seller's
expense, promptly give notice of the Trust's interest in the Receivables of the
Obligor and the Related Assets to each such Obligor and direct that payments be
made directly to the Trustee or its designee, which notice shall be acceptable
in form and substance to Buyer. In addition, each Seller hereby authorizes Buyer
to take any and all steps in such Seller's name and on its behalf that are
necessary or desirable, in the reasonable determination of Buyer, to collect all
amounts due under any and all Specified Assets, including endorsing such
Seller's name on checks and other instruments representing Collections and
enforcing the Specified Assets and the Contracts related to the Receivables. The
Trustee may exercise any of the foregoing rights in the place of Buyer (as
assignee or otherwise) at any time following the designation of a Servicer other
than Big Flower pursuant to Section 10.2 of the Pooling Agreement.
(c) At any time when (i) an Early Amortization Event shall have occurred
and remain continuing or (ii) a Servicer other than Big Flower has been
designated pursuant to Section 10.2 of the Pooling Agreement, each Seller shall,
at Buyer's request, assemble all of the Records that evidence the Receivables
and Related Assets originated by such Seller and the Contracts related to the
Receivables, or that are otherwise
page 37
necessary or desirable to collect the Receivables or Related Assets, and make
the same available to Buyer or the Trustee at a place selected by the Trustee or
its designee.
ARTICLE VIII
TERMINATION
SECTION VIII.1 Termination by the Sellers. Prior to the commencement of an
Amortization Period or Early Amortization Period in respect of any Series or
Purchased Interest, the Sellers may terminate all of their agreements to sell
Receivables hereunder to Buyer by giving Buyer and the Trustee not less than
thirty days' prior written notice of their election not to continue to sell
Receivables to Buyer; provided that such notice must be given as to all Sellers
and provided further, that such notice shall specify the effective date of
termination. The Trustee shall notify the Certificateholders of all Series
within five Business Days of receiving any such termination notice.
SECTION VIII.2 Automatic Termination. (a) The agreement of each Seller to
sell Receivables hereunder, and the agreement of Buyer to purchase Receivables
from such Seller hereunder, shall terminate automatically upon the first date on
which all Series and Purchased Interests are in accumulation, amortization or
early amortization periods; provided, however, that if, at any time prior to
such date, an event specified in the definition of Bankruptcy Event occurs
(without regard to the 60 day grace period specified in paragraph (a) of that
definition) as a result of a bankruptcy proceeding being filed against a Seller,
then on and after the date on which such bankruptcy proceeding is filed until
the dismissal of the proceeding Buyer shall not purchase Receivables and Related
Assets from such Seller.
(b) If the Internal Revenue Service or the PBGC files one or more Tax or
ERISA Liens against the assets of any Seller or Transferor (including
Receivables), then Buyer shall not purchase any Receivables or Related Assets
from such Seller (or from any Seller if such Lien is filed against Transferor).
page 38
ARTICLE IX
INDEMNIFICATION
SECTION IX.1 Indemnities by the Sellers. Without limiting any other rights
that any RPA Indemnified Party (as defined below) may have hereunder or under
applicable law, each Seller agrees to indemnify Buyer, each of its successors,
permitted transferees and assigns, and all officers, directors, shareholders,
controlling Persons, employees and agents of any of the foregoing (each of the
foregoing Persons being individually called a "RPA Indemnified Party"),
forthwith on demand, from and against any and all damages, losses, claims
(whether on account of settlements or otherwise), judgments, liabilities and
related reasonable costs and expenses (including reasonable attorneys' fees and
disbursements) awarded against or incurred by any of them arising out of or as a
result of any of the following (all of the foregoing being collectively called
"RPA Indemnified Losses"):
(a) any representation or warranty made in writing by such Seller
(or any of its Authorized Officers) under any of the Transaction
Documents, any Monthly Report, any Daily Report or any other information
or report delivered by or on behalf of such Seller or the Servicer with
respect to such Seller or the Receivables or Related Assets originated by
such Seller (including without limitation any representation, warranty,
information or report relied upon by Buyer in connection with the offering
or sale of any Certificate or Purchased Interest), that contained any
untrue statement of a material fact or omitted to state material facts
necessary to make the statements not misleading when made,
(b) the failure by such Seller to comply with any applicable law,
rule or regulation with respect to any Receivable or any Related Asset or
to comply with any Contract related thereto, or the nonconformity of any
Receivable, the related Contract or any Related Assets with any such
applicable law, rule or regulation,
(c) the failure to vest and maintain vested in Buyer a first
priority perfected ownership interest in the Receivables originated by
such Seller, the Related Assets, the related Collections and the proceeds
of each of the foregoing, free and clear of any Adverse Claim (other than
an Adverse Claim created in favor of Buyer pursuant to this Agreement or
in favor of the Trustee pursuant to the Pooling Agreement), whether
existing at the time of the sale of such Receivable or at any time
thereafter and without regard to whether such Adverse Claim was a
Permitted Adverse Claim or a Special New Jersey EPA
page 39
Claim,
(d) any failure of such Seller to perform its duties or obligations
in accordance with the provisions of the Transaction Documents,
(e) any products liability claim, personal injury or property damage
suit, environmental liability claim or any other claim or action by a
party other than Buyer of whatever sort, whether sounding in tort,
contract or any other legal theory, arising out of or in connection with
the goods or services that are the subject of any Specified Assets with
respect thereto or Collections thereof,
(f) 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
Specified Assets or Collections, whether at the time of any sale or at any
subsequent time,
(g) any dispute, claim, offset or defense (other than the discharge
in bankruptcy) of an Obligor to the payment of any Receivable originated
by such Seller or Related Asset, or purported Receivable or Related Asset,
including a defense based on such Receivable's or the related Contract's
not being a legal, valid and binding obligation of the Obligor enforceable
against it in accordance with its terms, and
(h) any tax or governmental fee or charge (other than franchise
taxes and taxes on or measured by the net income of Buyer or any of its
assignees), all interest and penalties thereon or with respect thereto,
and all reasonable out-of-pocket costs and expenses, including the
reasonable fees and expenses of counsel in defending against the same,
that may arise by reason of the purchase or ownership of the Receivables
originated by such Seller or any Related Asset connected with any such
Receivables.
Notwithstanding the foregoing (and with respect to clause (ii) below, without
prejudice to the rights that Buyer may have pursuant to the other provisions of
this Agreement or the provisions of any of the other Transaction Documents), in
no event shall any RPA Indemnified Party be indemnified for any RPA Indemnified
Losses (i) resulting from gross negligence or willful misconduct on the part of
the RPA Indemnified Party, (ii) to the extent the same includes losses in
respect of Receivables and reimbursement therefor that would constitute credit
recourse to such Seller for the amount of any Receivable or Related Asset not
paid by the related Obligor, (iii) resulting from the action or omission of the
Servicer (unless the Servicer is a Big Flower Person), (iv) to
page 40
the extent the same are or result from lost profits, (v) to the extent the same
are or result from taxes on or measured by the net income of the RPA Indemnified
Party and (vi) to the extent the same constitute consequential, special or
punitive damages.
If for any reason the indemnification provided above in this section is
unavailable to a RPA Indemnified Party or is insufficient to hold a RPA
Indemnified Party harmless, then such Seller shall contribute to the maximum
amount payable or paid to the RPA Indemnified Party as a result of the loss,
claim, damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by the RPA Indemnified Party on the one hand
and such Seller on the other hand, but also the relative fault of the RPA
Indemnified Party (if any) and such Seller and any other relevant equitable
considerations.
ARTICLE X
MISCELLANEOUS
SECTION X.1 Amendments; Waivers, 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 signed by Buyer and each Seller (with
respect to an amendment) or by Buyer (with respect to a waiver or consent by it)
and, in the case of any amendment, modification or waiver, to the extent
provided in Section 7.2(j) of the Pooling Agreement, by the Trustee, and then
any such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given. If any outstanding Investor
Certificates or Purchased Interests have been rated, this Agreement shall not be
amended unless Buyer shall have delivered the proposed amendment to the Rating
Agencies at least ten Business Days (or such shorter period as shall be
acceptable to each of them) prior to the execution and delivery thereof and the
Modification Condition has been satisfied with respect to such amendment.
(b) No failure or delay on the part of Buyer, any RPA Indemnified Party,
or the Trustee or any other third party beneficiary referred to in Section
10.11(a) 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 any Seller in any case shall entitle
it to any notice or demand in similar or other circumstances. No waiver or
approval by Buyer or the Trustee under this Agreement shall, except as may
otherwise be stated in the waiver or approval, be applicable to
page 41
subsequent transactions. No waiver or approval under this Agreement shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
SECTION X.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, by facsimile or by overnight courier, 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 the party in a written notice to the other parties hereto
given in accordance with this section. Copies of all notices and other
communications provided for hereunder shall be delivered to the Trustee and the
Rating Agencies at their respective addresses for notices set forth in the
Pooling Agreement. All notices and communications provided for hereunder shall
be effective, (a) if personally delivered, when received, (b) if sent by
certified mail, four Business Days after having been deposited in the mail,
postage prepaid and properly addressed, (c) if transmitted by facsimile, when
sent, receipt confirmed by telephone or electronic means and (d) if sent by
overnight courier, two Business Days after having been given to the courier
unless sooner received by the addressee.
SECTION X.3 Cumulative Remedies. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law. Without limiting
the foregoing, each Seller hereby authorizes Buyer, at any time and from time to
time, to the fullest extent permitted by law, to set-off, against any
Obligations of any Seller to Buyer that are then due and payable or that are not
then due and payable from a Seller to Buyer but have then accrued, any and all
indebtedness or other obligations at any time owing to any Seller by Buyer to or
for the credit or the account of any Seller or that are not then due and payable
from Buyer to a Seller but have then accrued.
SECTION X.4 Binding Effect; Assignability; Survival of Provisions. This
Agreement shall be binding upon and inure to the benefit of Buyer and the
Sellers and their respective successors and permitted assigns. No Seller may
assign any of its rights hereunder or any interest herein without (i) the prior
written consent of Buyer and the Trustee and (ii) the satisfaction of the
Modification Condition. This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms, and
shall remain in full force and effect until the first date following the
Purchase Termination Date, but not later than the date on which the Trust is
terminated pursuant to Section 12.1 of the Pooling Agreement, on which all
Obligations shall have been finally and fully paid and performed or such other
time as the parties hereto shall agree and as to which the Trustee (at the
direction of the Majority Investors) shall have given its prior written consent,
which consent shall not be unreasonably withheld or
page 42
delayed. The rights and remedies with respect to any breach of any
representation and warranty made by a Seller 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.
SECTION X.5 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES, EXCEPT TO THE EXTENT THAT THE PERFECTION OF THE INTERESTS OF BUYER
IN THE RECEIVABLES AND THE RELATED ASSETS ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK.
SECTION X.6 Costs, Expenses and Taxes. In addition to the obligations of
the Sellers under Article IX, the Sellers agree jointly and severally to pay on
demand:
(a) all reasonable out-of-pocket and other costs and expenses in
connection with the enforcement of this Agreement, the Seller Assignment
Certificates or the other Transaction Documents by Buyer or any successor
in interest to Buyer, and
(b) all stamp and other taxes and fees payable or determined to be
payable in connection with the execution and delivery, and the filing and
recording, of this Agreement or the other Transaction Documents, and
agrees to indemnify each RPA Indemnified Party against any liabilities
with respect to or resulting from any delay in paying or omission to pay
the taxes and fees.
SECTION X.7 Submission to Jurisdiction. Each party hereto hereby
irrevocably submits to the non-exclusive jurisdiction of any New York State or
Federal Court sitting in the Borough of Manhattan in the City of New York, New
York over any action or proceeding arising out of or relating to the Transaction
Documents, and hereby (A) irrevocably agrees that all claims in respect of the
action or proceeding may be heard and determined in the State or Federal Court,
(B) irrevocably waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of the action or proceeding,
and (C) Buyer, irrevocably appoints LEXIS Document Services, Inc. (the "Process
Agent"), with an office on the date hereof at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, as its agent to receive on behalf of it and its property service
of copies of the summons and complaint and any other process that may be served
in any action or proceeding. The service may be made by mailing or delivering a
copy of
page 43
the process to Buyer or the applicable Seller in care of the Process Agent at
the Process Agent's above address, and Buyer and each Seller hereby irrevocably
authorizes and directs the Process Agent to accept the service on its behalf.
As an alternative method of service, each of Buyer and the Sellers also
irrevocably consents to the service of any and all process in any action or
proceeding by the mailing of copies of the process to Buyer or a Seller (as
applicable) at its address specified herein. Nothing in this section shall
affect the right of any party hereto to serve legal process in any other manner
permitted by law or affect the right of any party hereto to bring any action or
proceeding against the other party or any of its properties in the courts of any
other jurisdiction.
SECTION X.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 the Transaction Documents or any amendment, instrument, document
or agreement delivered or that may in the future be delivered in connection
therewith or arising from any course of conduct, course of dealing, statements
(whether verbal or written), actions of either of the parties hereto or any
other relationship existing in connection with the Transaction Documents, and
agrees that any such action or proceeding shall be tried before a court and not
before a jury.
SECTION X.9 Integration. This Agreement and the other Transaction
Documents contain a final and complete integration of all prior expressions by
the parties hereto with respect to the subject matter hereof and thereof and
shall together constitute the entire agreement between the parties hereto with
respect to the subject matter hereof and thereof, superseding all prior oral or
written understandings.
SECTION X.10 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
together shall constitute one and the same agreement.
page 44
SECTION X.11 Acknowledgment and Consent. (a) The Sellers acknowledge that,
contemporaneously herewith, Buyer is selling, transferring, assigning, setting
over and otherwise conveying to the Trust all of Buyer's right, title and
interest in, to and under the Specified Assets, this Agreement and all of the
other Transaction Documents pursuant to Sections 2.1 and 2.4 of the Pooling
Agreement. The Sellers hereby consent to the sale, transfer, assignment, set
over and conveyance to the Trust by Buyer of all right, title and interest of
Buyer in, to and under the Specified Assets, this Agreement and the other
Transaction Documents, and all of Buyer's rights, remedies, powers and
privileges, and all claims of Buyer against the Sellers, under or with respect
to this Agreement and the other Transaction Documents (whether arising pursuant
to the terms of this Agreement or otherwise available at law or in equity),
including (i) the right of Buyer, at any time, to enforce this Agreement against
the Sellers and the obligations of the Sellers hereunder, (ii) the right to
consent to or direct the appointment of a successor to the Servicer at the times
and upon the conditions set forth in the Pooling Agreement, and (iii) the right,
at any time, to give or withhold any and all consents, requests, notices,
directions, approvals, demands, extensions or waivers under or with respect to
this Agreement, any other Transaction Document or the obligations in respect of
the Sellers thereunder to the same extent as Buyer may do. Each of the parties
hereto acknowledges and agrees that the Trustee and the Trust are third party
beneficiaries of the rights of Buyer arising hereunder and under the other
Transaction Documents to which any Seller is a party. Each Seller hereby
acknowledges and agrees that it has no claim to or interest in any of the Bank
Accounts or the Trust Accounts.
(b) The Sellers hereby agree to execute all agreements, instruments and
documents, and to take all other action, that Buyer or the Trustee reasonably
determines is necessary or appropriate to evidence its consent described in
subsection (a) above. To the extent that Buyer, individually or through the
Servicer, has granted or grants powers of attorney to the Trustee under the
Pooling Agreement, the Sellers hereby grant a corresponding power of attorney on
the same terms to Buyer. The Sellers hereby acknowledge and agree that Buyer, in
all of its capacities, shall assign to the Trustee for the benefit of the
Certificateholders the powers of attorney and other rights and interests granted
by the Sellers to Buyer hereunder and agrees to cooperate fully with the Trustee
in the exercise of the rights.
SECTION X.12 No Partnership or Joint Venture. Nothing contained in this
Agreement shall be deemed or construed by the parties hereto or by any third
person to create the relationship of principal and agent or of partnership or of
joint venture.
SECTION X.13 No Proceedings. Each Seller hereby agrees that it will not
page 45
institute against Buyer or the Trust, or join any other Person in instituting
against Buyer or the Trust, any insolvency proceeding (namely, any proceeding of
the type referred to in the definition of Event of Bankruptcy) so long as any
Investor Certificates issued by the Trust shall be outstanding or there shall
not have elapsed one year plus one day since the last day on which any such
Investor Certificates shall have been outstanding. The foregoing shall not limit
the right of a Seller to file any claim in or otherwise take any action with
respect to any insolvency proceeding that was instituted against Buyer or the
Trust by any Person other than a Seller or any other Big Flower Person (provided
that no such action may be taken by a Seller until such proceeding has continued
undismissed, unstayed and in effect for a period of 10 days).
SECTION X.14 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement or any of the other
Transaction Documents shall for any reason whatsoever be held invalid, then the
unenforceable covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement or the other Transaction Documents (as applicable) and shall in no way
affect the validity or enforceability of the other provisions of this Agreement
or any of the other Transaction Documents.
SECTION X.15 Recourse to Buyer. Except to the extent expressly provided
otherwise in the Transaction Documents, the obligations of Buyer under the
Transaction Documents to which it is a party are solely the obligations of
Buyer. No recourse shall be had for payment of any fee payable by or other
obligation of or claim against Buyer that arises out of any Transaction Document
to which Buyer is a party against any director, officer or employee of Buyer.
The provisions of this section shall survive the termination of this Agreement.
[Remainder of page intentionally left blank.]
page 46
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.
TREASURE CHEST ADVERTISING COMPANY, INC.,
as Seller
By: /s/ Xxxx Xxxxx
Title: Vice President
Address: 000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
WEBCRAFT TECHNOLOGIES, INC., as Seller
By: /s/ Xxxxxx Xxxxxxx
Title: Vice President
Address: Xxxxx 0 & Xxxxx Xxxxxxx
Xxxxx Xxxxxxxxx, Xxx Xxxxxx
00000
Attention: Xxx XxXxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
WEBCRAFT CHEMICALS, INC., as Seller
By: /s/ Xxxxxx Xxxxxxx
Title: Vice President
Address: 00 Xxxxxxx Xxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxx XxXxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
LASER TECH COLOR, INC., as Seller
By: /s/ Xxxxx X. Xxxxxxx
Title: Chief Financial
Officer/Treasurer
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
BFP RECEIVABLES CORPORATION,
as the Buyer
By: /s/ Xxxx Xxxxx
Title: Vice President
Address: 000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
BIG FLOWER PRESS HOLDINGS, INC.
as initial Servicer
By: /s/ Xxxxx Xxxx
Title: Vice President
Address: 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Telephone: 000-000-0000
Facsimile: 212-223-4074
STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
On the 18th day of March, 1996 before me personally came Xxxx Xxxxx to me
known, who, being by me duly sworn, did depose and say that he resides at
Ellicott City, Maryland; that he is a Vice President-Treasurer of Treasure Chest
Advertising Company, Inc., a Delaware corporation, the corporation described in
and that executed the foregoing instrument; and that he signed his name thereto
by order of the board of directors of the corporation.
Given under my hand and notarial seal, this 18th day of March, 1996.
/s/ Xxxxxxx Xxxxxxx
--------------------------
Notary Public
Type or
Print Name: Xxxxxxx Xxxxxxx
My commission expires:
August 1, 0000
XXXXX XX XXX XXXX )
) SS.
COUNTY OF NEW YORK )
On the 18th day of March, 1996 before me personally came Xxxxxx Xxxxxxx to
me known, who, being by me duly sworn, did depose and say that he resides at
Haverford, Pennsylvania; that he is a Vice President of Webcraft Technologies,
Inc., a Delaware corporation, the corporation described in and that executed the
foregoing instrument; and that he signed his name thereto by order of the board
of directors of the corporation.
Given under my hand and notarial seal, this 18th day of March, 1996.
/s/ Xxxxxxx Xxxxxxx
------------------------------
Notary Public
Type or
Print Name: Xxxxxxx Xxxxxxx
My commission expires:
August 1, 0000
XXXXX XX XXX XXXX )
) SS.
COUNTY OF NEW YORK )
On the 18th day of March, 1996 before me personally came Xxxxxx Xxxxxxx to
me known, who, being by me duly sworn, did depose and say that he resides at
Haverford, Pennsylvania; that he is a Vice President of Webcraft Chemicals,
Inc., a New Jersey corporation, the corporation described in and that executed
the foregoing instrument; and that he signed his name thereto by order of the
board of directors of the corporation.
Given under my hand and notarial seal, this 18th day of March, 1996.
/s/ Xxxxxxx Xxxxxxx
----------------------------
Notary Public
Type or
Print Name: Xxxxxxx Xxxxxxx
My commission expires:
August 1, 0000
XXXXX XX XXXXX )
) SS.
COUNTY OF DALLAS )
On the 13th day of March, 1996 before me personally came Xxxxx Xxxxxxx to
me known, who, being by me duly sworn, did depose and say that she resides at
DeSoto, Texas; that she is a Chief Financial Officer/Treasurer of Laser Tech
Color, Inc., a Delaware corporation, the corporation described in and that
executed the foregoing instrument; and that he signed his name thereto by order
of the board of directors of the corporation.
Given under my hand and notarial seal, this 13th day of March, 1996.
/s/ Xxxxxx Xxxxx
-----------------------------
Notary Public
Type or
Print Name: Xxxxxx Xxxxx
My commission expires:
December 22, 0000
XXXXX XX XXX XXXX )
) SS.
COUNTY OF NEW YORK )
On the 18th day of March, 1996 before me personally came Xxxx Xxxxx to me
known, who, being by me duly sworn, did depose and say that he resides at
Ellicott City, Maryland; that he is the Vice President of BFP RECEIVABLES
CORPORATION, a Delaware corporation, the corporation described in and that
executed the foregoing instrument; and that he signed his name thereto by order
of the board of directors of the corporation.
Given under my hand and notarial seal, this 18th day of March, 1996.
/s/ Xxxxxxx Xxxxxxx
---------------------------------
Notary Public
Type or
Print Name: Xxxxxxx Xxxxxxx
My commission expires:
August 1, 0000
XXXXX XX XXX XXXX )
) SS.
COUNTY OF NEW YORK )
On the 18th day of March, 1996 before me personally came Xxxxx Xxxx to me
known, who, being by me duly sworn, did depose and say that he resides at
Wyckoff, New Jersey; that he is the Vice President of BIG FLOWER PRESS HOLDINGS,
INC., a Delaware corporation, the corporation described in and that executed the
foregoing instrument; and that he signed his name thereto by order of the board
of directors of the corporation.
Given under my hand and notarial seal, this 18th day of March, 1996.
/s/ Xxxxxxx X. Xxxxxx
--------------------------------
Notary Public
Type or
Print Name: Xxxxxxx X. Xxxxxx
My commission expires:
October 23, 1997
EXHIBIT A
FORM OF BUYER NOTE
____________, 1996
FOR VALUE RECEIVED, the undersigned, BFP RECEIVABLES CORPORATION, a
Delaware corporation ("Buyer"), promises to pay to _________________________, a
____________ corporation (the "Seller" and together with its successors and
assigns, the "Holder"), on the terms and subject to the conditions set forth in
this promissory note (this "Note") and in the Receivables Purchase Agreement of
even date herewith (the "Agreement") among Buyer, BIG FLOWER PRESS HOLDINGS,
INC. ("Big Flower"), as Servicer and certain Subsidiaries of Big Flower, as
Sellers, an amount equal to the aggregate deferred Purchase Price owed by Buyer
to the Seller pursuant to Article III of the Agreement. Such amount, as shown in
the records of the Servicer, will be rebuttable presumptive evidence of the
principal amount and interest owing under this Note.
I Purchase Agreement. This Note is a Buyer Note described in, and is
subject to the terms and conditions set forth in, the Agreement. Reference is
hereby made to the Agreement for a statement of certain other rights and
obligations of Buyer and the Seller.
2. Rules of Construction; Definitions. Certain rules of construction
governing the interpretation of this Note are set forth in Appendix A to the
Agreement and, except as otherwise specifically provided herein, capitalized
terms used but not defined herein have the meanings ascribed to them in Appendix
A to the Agreement. In addition, as used herein, the following terms have the
following meanings:
"Bankruptcy Proceedings" means any dissolution, winding up,
liquidation, readjustment, reorganization or other similar event relating
to Buyer, whether voluntary or involuntary, partial or complete, and
whether in bankruptcy, insolvency, receivership or other similar
proceedings, or upon an assignment for the benefit of creditors, or any
other marshalling of the assets and liabilities of Buyer or any sale of
all or substantially all of the assets of Buyer; provided, however, that
none of the following shall constitute a "Bankruptcy Proceeding" so long
as no bankruptcy, insolvency, receivership or other similar proceedings
shall have been commenced by or against Buyer and is continuing: (i) the
commencement of an amortization period, accumulation
period or early amortization period, (ii) the allocation and distribution
of Collections and other amounts during an amortization period,
accumulation period or early amortization period in accordance with the
terms of the Pooling Agreement and (iii) the liquidation, dissolution and
winding up of Buyer during an amortization period, accumulation period or
early amortization period in accordance with the Pooling Agreement after
the termination of the Pooling Agreement in accordance with Section 12.1
thereof.
"Final Maturity Date" means the date occurring one year and one day
after the Final Scheduled Payment Date of the latest maturing Series or
Purchased Interest from time to time outstanding.
"Highest Lawful Rate" has the meaning set forth in paragraph 9.
"Junior Liabilities" means all obligations of Buyer to the Holder
under this Note.
"Reference Rate" means, with respect to any day occurring in a
Calculation Period, the rate of interest publicly announced from time to
time by the Manufacturers and Traders Trust Company as its "reference
rate" and in effect on the first day of such Calculation Period, as
determined by the Servicer.
"Senior Interests" means all obligations of Buyer to the Trustee or
the Investor Certificateholders under or in connection with the
Transaction Documents, whether direct or indirect, absolute or contingent,
now or hereafter existing, or due or to become due, including without
limitation interest or other amounts due or to become due after an Event
of Bankruptcy.
"Subordination Provisions" means, collectively, the provisions of
paragraph 7.
3. Interest. Subject to the Subordination Provisions, Buyer promises to
pay interest on the aggregate unpaid principal amount of this Note outstanding
on each day at an adjustable rate per annum equal to the Reference Rate in
effect on such day.
4. Interest Payment Dates. (a) Subject to the Subordination Provisions,
Buyer shall pay accrued interest on this Note on each Distribution Date and on
the Final Maturity Date. Buyer also shall pay accrued interest on the principal
amount of each prepayment hereof on the date of such prepayment.
page 2
(b) Notwithstanding the provisions of paragraph 4(a), in the event that on
the date an interest payment is due hereunder the amount of funds available
therefor pursuant to Section 3.3 of the Agreement is insufficient to pay any
amount due pursuant to paragraph 4(a), then interest shall be payable only to
the extent that funds are available therefor in accordance with Section 3.3 of
the Agreement, and any amount not paid because funds are not available in
accordance with said Section 3.3 shall not constitute a claim (as defined in
ss.101 of the Bankruptcy Code) against or corporate obligation of Buyer for any
such insufficiency. All interest on this Note that is not paid when due pursuant
to this paragraph shall be payable on the next date on which an interest payment
on this Note is due and on which funds are available therefor pursuant to
Section 3.3 of the Agreement, and all such unpaid interest shall accrue interest
at the Reference Rate until paid in full.
5. Basis of Computation. Interest accrued hereunder shall be computed for
the actual number of days elapsed on the basis of a 360-day year.
6. Principal Payment Dates. Subject to the Subordination Provisions, any
unpaid principal of this Note shall only become due and payable on the Final
Maturity Date. Subject to the Subordination Provisions, the principal amount of
and accrued interest on this Note may be prepaid on any Business Day without
premium or penalty; provided, that no prepayment shall be made by Buyer to the
extent that such prepayment would result in a default in the payment of any
other amount required to be paid by Buyer under any Transaction Document.
7. Subordination Provisions. Buyer covenants and agrees, and the Holder,
by its acceptance of this Note, likewise covenants and agrees, that the payment
of all Junior Liabilities is hereby expressly subordinated in right of payment
to the payment and performance of the Senior Interests to the extent and in the
manner set forth in this paragraph:
(a) In the event of any Bankruptcy Proceeding, the Senior Interests
shall first be paid and performed in full and in cash before the Holder
shall be entitled to receive and to retain any payment or distribution in
respect of the Junior Liabilities. In order to implement the foregoing:
(i) all payments and distributions of any kind or character in respect of
the Junior Liabilities to which the Holder would be entitled except for
this clause (a) shall be made directly to the Trustee (for the benefit of
itself and the Investor Certificateholders), and (ii) if a Bankruptcy
Proceeding has been commenced, the Holder shall promptly file a claim or
claims, in the form required in any
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Bankruptcy Proceedings, for the full outstanding amount of the Junior
Liabilities, and shall use commercially reasonable efforts to cause said
claim or claims to be approved and all payments and other distributions in
respect thereof to be made directly to the Trustee (for the benefit of
itself and the Investor Certificateholders) until the Senior Interests
shall have been paid and performed in full and in cash.
(b) In the event that the Holder receives any payment or other
distribution of any kind or character from Buyer or from any other source
whatsoever, in payment of the Junior Liabilities, after the commencement
of any Bankruptcy Proceeding, such payment or other distribution shall be
received in trust for the Trustee and the Investor Certificateholders and
shall be turned over by the Holder to the Trustee forthwith.
(c) Upon the final indefeasible payment in full and in cash of all
Senior Interests, the Holder shall be subrogated to the rights of the
Trustee and the Investor Certificateholders to receive payments or
distributions from Buyer that are applicable to the Senior Interests until
the Junior Liabilities are paid in full.
(d) These Subordination Provisions are intended solely for the
purpose of defining the relative rights of the Holder, on the one hand,
and the Trustee and the Investor Certificateholders on the other hand.
Nothing contained in these Subordination Provisions or elsewhere in this
Note is intended to or shall impair, as between Buyer, its creditors
(other than the Trustee and the Investor Certificateholders) and the
Holder, Buyer's obligation, which is unconditional and absolute, to pay
the Junior Liabilities as and when the same shall become due and payable
in accordance with the terms hereof and of the Agreement or to affect the
relative rights of the Holder and creditors of Buyer (other than the
Trustee and the Investor Certificateholders).
(e) The Holder shall not, until the Senior Interests have been
finally paid and performed in full and in cash, (i) cancel, waive,
forgive, transfer or assign, or commence legal proceedings to enforce or
collect, or subordinate to any obligation of Buyer (other than to the
Senior Interests), howsoever created, arising or evidenced, whether direct
or indirect, absolute or contingent, or now or hereafter existing, or due
or to become due, the Junior Liabilities or any rights in respect hereof
or (ii) convert the Junior Liabilities into an equity interest in Buyer,
unless, in the case of each of clauses (i) and (ii), the Holder shall have
received the prior written consent of the Trustee in each case.
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(f) The Holder shall not, without the advance written consent of the
Trustee, commence, or join with any other Person in commencing, any
Bankruptcy Proceedings with respect to Buyer until at least one year and
one day shall have passed after the Senior Interests shall have been
finally paid and performed in full and in cash; provided, however, that
the Holder shall at all times have the right to file any claim in or
otherwise take any action with respect to any insolvency proceeding
instituted against Buyer by any Person other than the Holder or any other
Big Flower Person (provided that no such action may be taken by the Holder
until such proceeding has continued undismissed, unstayed and in effect
for a period of 10 days).
(g) If, at any time, any payment (in whole or in part) made with
respect to any Senior Interest is rescinded or must be restored or
returned by a Certificateholder (whether in connection with any Bankruptcy
Proceedings or otherwise), these Subordination Provisions shall continue
to be effective or shall be reinstated, as the case may be, as though such
payment had not been made.
(h) Each of the Trustee and the Investor Certificateholders may,
from time to time, in its sole discretion, without notice to the Holder,
and without waiving any of its rights under these Subordination
Provisions, take any or all of the following actions: (i) retain or obtain
an interest in any property to secure any of the Senior Interests, (ii)
retain or obtain the primary or secondary obligations of any other obligor
or obligors with respect to any of the Senior Interests, (iii) extend or
renew for one or more periods (whether or not longer than the original
period), alter, increase or exchange any of the Senior Interests, or
release or compromise any obligation of any nature with respect to any of
the Senior Interests, (iv) amend, supplement, amend and restate, or
otherwise modify any Transaction Document to which it is a party, and (v)
release its security interest in, or surrender, release or permit any
substitution or exchange for all or any part of any rights or property
securing any of the Senior Interests, or extend or renew for one or more
periods (whether or not longer than the original period), or release,
compromise, alter or exchange any obligations of any nature of any obligor
with respect to any such rights or property.
(i) The Holder hereby waives: (i) notice of acceptance of these
Subordination Provisions by the Trustee or any of the Investor
Certificateholders, (ii) notice of the existence, creation, non-payment or
non-performance of all or any of the Senior Interests, and (iii) all
diligence in enforcement, collection or protection of, or realization
upon, the Senior Interests, or any thereof, or any security therefor.
page 5
(j) These Subordination Provisions constitute a continuing offer
from Buyer to all Persons who become the holders of, or who continue to
hold, Senior Interests, and these Subordination Provisions are made for
the benefit of the Trustee and the Investor Certificateholders, and the
Trustee may proceed to enforce such provisions on behalf of each of such
Persons.
8. General. No failure or delay on the part of the Holder 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
amendment, modification or waiver of, or consent with respect to, any provision
of this Note shall in any event be effective unless (a) the same shall be in
writing and signed and delivered by Buyer and the Seller, and (b) all consents
required for such actions under the Transaction Documents shall have been
received by the appropriate Persons.
9. Limitation on Interest. Notwithstanding anything in this Note to the
contrary, Buyer shall never be required to pay unearned interest on any amount
outstanding hereunder, and shall never be required to pay interest on the
principal amount outstanding hereunder, at a rate in excess of the maximum
nonusurious interest rate that may be contracted for, charged or received under
applicable federal or state law (such maximum rate being herein called the
"Highest Lawful Rate"). If the effective rate of interest that would otherwise
be payable under this Note would exceed the Highest Lawful Rate, or the Holder
shall receive any unearned interest or shall receive monies that are deemed to
constitute interest that would increase the effective rate of interest payable
by Buyer under this Note to a rate in excess of the Highest Lawful Rate, then
(a) the amount of interest that would otherwise be payable by Buyer under this
Note shall be reduced to the amount allowed by applicable law, and (b) any
unearned interest paid by Buyer or any interest paid by Buyer in excess of the
Highest Lawful Rate shall be refunded to Buyer. Without limitation of the
foregoing, all calculations of the rate of interest contracted for, charged or
received by the Holder under this Note that are made for the purpose of
determining whether such rate exceeds the Highest Lawful Rate shall be made, to
the extent permitted by applicable usury laws (now or hereafter enacted), by
amortizing, prorating and spreading in equal parts during the actual period
during which any amount has been outstanding hereunder all interest at any time
contracted for, charged or received by the Holder in connection herewith. If at
any time and from time to time (i) the amount of interest payable to the Holder
on any date shall be computed at the Highest Lawful Rate pursuant to the
provisions of the foregoing sentence, and (ii) in respect of any subsequent
interest computation period the amount of interest otherwise payable to the
Holder would be
page 6
less than the amount of interest payable to the Holder computed at the Highest
Lawful Rate, then the amount of interest payable to the Holder in respect of
such subsequent interest computation period shall continue to be computed at the
Highest Lawful Rate until the total amount of interest payable to the Holder
shall equal the total amount of interest that would have been payable to the
Holder if the total amount of interest had been computed without giving effect
to the provisions of the foregoing sentence.
10. No Negotiation. This Note is not negotiable.
11. Governing Law. THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
12. Security Interest. The Seller may grant a security interest in or
otherwise pledge this Note as security, and any Person to whom such security
interest is granted or to whom this Note is pledged shall be bound by, and for
all purposes takes this Note subject to, the restrictions and other provisions
(including the Subordination Provisions) set forth herein.
13. Captions. Paragraph captions used in this Note are provided solely for
convenience of reference and shall not affect the meaning or interpretation of
any provision of this Note.
BFP RECEIVABLES CORPORATION
By: ____________________________________
Title:___________________________________
EXHIBIT B
FORM OF
SELLER ASSIGNMENT CERTIFICATE
Reference is made to the Receivables Purchase Agreement of even date
herewith (as the same may be amended, supplemented, amended and restated or
otherwise modified from time to time, the "Agreement") between
__________________, ___________________ and BFP RECEIVABLES CORPORATION
("Buyer"). Unless otherwise defined herein, capitalized terms used herein have
the meanings provided in Appendix A to the Agreement.
The undersigned (the "Seller") hereby sells, transfers, assigns, sets over
and conveys unto Buyer and its successors and assigns all right, title and
interest of the Seller in, to and under:
(a) each Receivable of the Seller (other than Contributed
Receivables) that existed and was owing to the Seller as at the closing of
the Seller's business on the Initial Cut-Off Date,
(b) each Receivable created by the Seller (other than Contributed
Receivables) that arises during the period from and including the closing
of the Seller's business on the Initial Cut-Off Date to but excluding the
Purchase Termination Date,
(c) all Related Security with respect to all Receivables (other than
Contributed Receivables) of the Seller,
(d) all proceeds of the foregoing, including all funds received by
any Person in payment of any amounts owed (including invoice prices,
finance charges, interest and all other charges, if any) in respect of any
Receivable described above (other than a Contributed Receivable) or
Related Security with respect to any such Receivable, or otherwise applied
to repay or discharge any such Receivable (including insurance payments
that the Seller or the Servicer applies in the ordinary course of its
business to amounts owed in respect of any such Receivable (it being
understood that property insurance covering inventory is not so applied
and is not included in this grant) and net proceeds of any sale or other
disposition of repossessed goods that were the subject of any such
Receivable) or other collateral or property of any Obligor or any other
party
page 1
directly or indirectly liable for payment of such Receivables), and
(e) all Records relating to any of the foregoing.
This Seller Assignment Certificate is made without recourse but on the
terms and subject to the conditions set forth in the Transaction Documents to
which the Seller is a party. The Seller acknowledges and agrees that Buyer is
accepting this Seller Assignment Certificate in reliance on the representations,
warranties and covenants of the Seller contained in the Transaction Documents to
which the Seller is a party.
THIS SELLER ASSIGNMENT CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE AGREEMENT AND THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES.
IN WITNESS WHEREOF, the undersigned has caused this Seller Assignment
Certificate to be duly executed and delivered by its duly Authorized Officer
this _____ day of _______________, 1996.
[SELLER FULL NAME]
By: ____________________________________
Title:_________________________________
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APPENDIX A
[Same as Appendix A to Pooling Agreement]
