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EXHIBIT 10.57
EXECUTION COPY
AMENDED AND RESTATED
RECEIVABLES SALE AGREEMENT
Among
XXXXXX FUNDING INC.,
as Buyer
XXXXXX MICRO INC.,
as Seller
and
XXXXXX MICRO INC.,
as Servicer
Dated as of March 8, 2000
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TABLE OF CONTENTS
Page
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ARTICLE I Definitions.......................................................1
SECTION 1.01. Defined Terms............................................1
SECTION 1.02. Other Definitional Provisions............................5
ARTICLE II Purchase and Sale of Receivables.................................6
SECTION 2.01. Purchase and Sale of Receivables.........................6
SECTION 2.02. Purchase Price...........................................8
SECTION 2.03. Payment of Purchase Price................................8
SECTION 2.04. No Repurchase............................................9
SECTION 2.05. Rebates, Adjustments, Returns, Reductions and
Modifications...........................................10
SECTION 2.06. Payments in Respect of Ineligible Receivables
and Seller Indemnification Payments.....................10
SECTION 2.07. Certain Charges.........................................11
SECTION 2.08. Certain Allocations.....................................12
ARTICLE III Conditions to Purchase and Sale................................12
SECTION 3.01. Conditions Precedent to the Company's Purchase
of Receivables on the Effective Date....................12
SECTION 3.02. Conditions Precedent to All the Company's
Purchases of Receivables................................13
SECTION 3.03. Conditions Precedent to the Initial Seller's
Obligations on the Effective Date.......................14
SECTION 3.04. Conditions Precedent to All of the Seller's
Obligations.............................................14
SECTION 3.05. Condition Precedent to the Addition of a Seller.........15
ARTICLE IV Representations and Warranties..................................17
SECTION 4.01. Representations and Warranties of the Sellers...........17
SECTION 4.02. Representations and Warranties of the Sellers
Relating to the Receivables.............................21
SECTION 4.03. Representations and Warranties of the Company...........21
ARTICLE V Affirmative Covenants............................................23
SECTION 5.01. Certificates; Other Information.........................23
SECTION 5.02. Compliance with Law and Policies........................23
SECTION 5.03. Preservation of Corporate Existence.....................23
SECTION 5.04. Separate Corporate Existence............................23
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SECTION 5.05. Inspection of Property; Books and Records;
Discussions.............................................24
SECTION 5.06. Location of Records.....................................25
SECTION 5.07. Computer Files..........................................25
SECTION 5.08. Obligations.............................................25
SECTION 5.09. Collections.............................................25
SECTION 5.10. Furnishing Copies, Etc..................................26
SECTION 5.11. Responsibilities of the Sellers.........................26
SECTION 5.12. Assessments.............................................26
SECTION 5.13. Further Action..........................................27
SECTION 5.14. Sale of Receivables.....................................27
ARTICLE VI Negative Covenants..............................................27
SECTION 6.01. Limitations on Transfers of Receivables Etc.............28
SECTION 6.02. Extension or Amendment of Receivables...................28
SECTION 6.03. Change in Payment Instructions to Obligors..............28
SECTION 6.04. Change in Name..........................................28
SECTION 6.05. Policies................................................28
SECTION 6.06. Modification of Legend..................................29
SECTION 6.07. Accounting for Purchases................................29
SECTION 6.08. Instruments.............................................29
SECTION 6.09. Ineligible Receivables..................................29
SECTION 6.10. Business of such Seller.................................29
SECTION 6.11. Limitation on Fundamental Changes.......................30
ARTICLE VII Purchase Termination Events....................................30
SECTION 7.01. Purchase Termination Events.............................30
SECTION 7.02. Remedies................................................33
ARTICLE VIII Seller Note...................................................35
SECTION 8.01. Seller Note.............................................35
SECTION 8.02. Restrictions on Transfer of Seller Note.................35
SECTION 8.03. Discretion; Aggregate Amount............................35
ARTICLE IX Miscellaneous...................................................36
SECTION 9.01. Payments................................................36
SECTION 9.02. Costs and Expenses......................................36
SECTION 9.03. Successors and Assigns..................................37
SECTION 9.04. Governing Law...........................................38
SECTION 9.05. No Waiver; Cumulative Remedies..........................38
SECTION 9.06. Amendments and Waivers..................................38
SECTION 9.07. Severability............................................38
SECTION 9.08. Notices.................................................38
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SECTION 9.09. Counterparts............................................39
SECTION 9.10. Waivers of Jury Trial...................................39
SECTION 9.11. Jurisdiction; Consent to Service of Process.............39
SECTION 9.12. Addition of Sellers.....................................40
SECTION 9.13. Termination of Seller...................................40
SECTION 9.14. No Bankruptcy Petition..................................42
SECTION 9.15. Termination.............................................42
EXHIBITS
Exhibit A Form of Seller Note
Exhibit B Form of Additional Seller/Servicer Supplement
SCHEDULE
Schedule 1 Sellers and Servicers
Schedule 2 Intentionally Omitted
Schedule 3 Lockboxes
Schedule 4 Location of Chief Executive Offices; Location of Books and Records
Schedule 5 Names
Schedule 6 Discounted Percentage
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AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT dated as of March 8, 2000 (this
"Agreement"), among the Company and the Sellers and Servicers party hereto from
time to time.
W I T N E S S E T H :
WHEREAS, as of November 6, 1996 the initial parties hereto entered into
Amendment No. 2 to the Asset Purchase and Sale Agreement dated as of February
10, 1993, which had been previously amended by Amendment No. 1 on January 31,
1994 (as so amended, the "Original Agreement") in order for the initial Seller
to sell to the Company, and the Company to purchase from the initial Seller, all
of such Seller's, right, title and interest in, to and under the Receivables
then existing and thereafter created and all other Related Property (as defined
in the Pooling Agreement described below);
WHEREAS, the parties hereto wish to amend and restate the Original
Agreement so as to amend various provisions of the Original Agreement;
WHEREAS, the Original Agreement shall be replaced in whole by this
Agreement; and
WHEREAS, the Master Servicer, the Company and The Chase Manhattan Bank,
as Trustee, have entered into an Amended and Restated Pooling Agreement dated as
of the date hereof (such agreement, as amended and restated on the date hereof
and as it may be amended, supplemented or otherwise modified from time to time
hereafter, being the "Pooling Agreement") in order to create a master trust into
which the Company has transferred, and will continue to transfer, all its right,
title and interest in, to and under the Receivables and certain other assets
then or hereafter owned by the Company.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. Capitalized terms defined or referenced in
the Pooling Agreement shall be used herein as therein defined (unless otherwise
defined or referenced herein), and the following terms shall have the following
meanings:
"Adjustment Amount" shall have the meaning specified in Section 2.06(a)
hereof.
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"Agent" shall mean General Electric Capital Corporation, a New York
corporation.
"Agreement" shall mean this Amended and Restated Receivables Sale
Agreement, as amended and restated on the date hereof and as it may be amended,
supplemented or otherwise modified from time to time.
"Applicable Insolvency Laws" shall have the meaning specified in Section
7.01(d) hereof.
"Collections" shall mean all collections and all amounts received in
respect of the Receivables sold to the Company, including Recoveries, Adjustment
Payments, indemnification payments made by the Master Servicer or any Servicer
or any Seller and payments received in respect of Dilution Adjustments, together
with all collections received in respect of the Related Property in the form of
cash, checks, wire transfers or any other form of cash payment, and all proceeds
of Receivables and collections thereof (including, without limitation,
collections evidenced by an account, note, instrument, letter of credit,
security, contract, security agreement, chattel paper, general intangible or
other evidence of Indebtedness or security, whatever is received upon the sale,
exchange, collection or other disposition of, or any indemnity, warranty or
guaranty payable in respect of, the foregoing and all "proceeds" as defined in
Section 9-306 of the UCC).
"Company" shall mean Xxxxxx Funding Inc., a Delaware corporation, and
any successor thereto.
"Cut-Off Date" shall mean the close of business on February 29, 2000.
"Discounted Percentage" shall have the meaning specified in Schedule 6
hereto.
"Documents" shall have the meaning specified in Section 7.02(b)(iii)
hereof.
"Early Termination" shall have the meaning specified in Article VII
hereof.
"Effective Date" shall mean March 8, 2000.
"ERISA Affiliate" shall mean with respect to any Person, any trade or
business (whether or not incorporated) that is a member of a group of which such
Person is a member and which is treated as a single employer under Section 414
of the Internal Revenue Code.
"Indemnification Event" shall have the meaning specified in Section
2.06(b) hereof.
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"Indemnified Liabilities" shall have the meaning specified in Section
9.02 hereof.
"Ineligibility Event" shall have the meaning specified in Section
2.06(a) hereof.
"Ineligible Receivable" shall have the meaning specified in Section
2.06(a) hereof.
"Initial Seller" shall mean Xxxxxx Micro Inc.
"Insolvency Event", with respect to any Seller, shall mean the
occurrence of any one or more of the Purchase Termination Events specified in
Section 7.01(d) hereof.
"Multiemployer Plan" shall mean with respect to any Person, a
multiemployer plan as defined in Section 4001(a)(3) of ERISA to which such
Person or any ERISA Affiliate of such Person (other than one considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Internal
Revenue Code) is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an obligation to
make contributions.
"One-Month LIBOR" shall mean for any Accrual Period after the initial
Accrual Period, the rate per annum, as determined by the Agent, which is the
arithmetic mean (rounded to the nearest 1/100th of 1%) of the offered rates for
U.S. Dollar deposits having a maturity of one month commencing on the first day
of such Accrual Period that appears on Page 3750 of the Telerate Service (or on
any successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of the Telerate Service, as determined by the
Agent for purposes of providing interest rates applicable to U.S. Dollar
deposits having a maturity of one month in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Accrual Period. In the event that such rate is not so
available at such time for any reason, then "One-Month LIBOR" for such Accrual
Period shall be the rate at which U.S. Dollar deposits in a principal amount of
not less than $1,000,000 maturing in one month are offered to the principal
London office of the Agent in the London interbank market at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such Accrual
Period.
"Original Agreement" shall have the meaning specified in the recitals
hereto.
"Original Principal Amount" of any Receivable shall mean the Principal
Amount of such Receivable as of the date on which such Receivable is sold or
otherwise conveyed to the Company hereunder.
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"Payment Date" shall have the meaning specified in Section 2.03(a)
hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
"Plan" shall mean, with respect to any Person, any pension plan (other
than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Internal Revenue Code which is maintained for employees of
such Person or any ERISA Affiliate of such Person.
"Pooling Agreement" shall have the meaning specified in the recitals
hereto.
"Potential Purchase Termination Event" shall mean any condition or act
that, with the giving of notice or the lapse of time or both, would become a
Purchase Termination Event.
"Prime Rate" shall mean for any day the rate of interest per annum set
forth as the "Prime Rate" in the Money Rates Section of The Wall Street Journal
published on or, if no such rate is published on a particular day, most recently
before such day (or in any case where two or more "Prime Rates" are published on
a particular day, the average of such rates).
"Purchase Price" shall have the meaning specified in Section 2.02
hereof.
"Purchase Termination Event" shall have the meaning specified in Section
7.01 hereof.
"Purchased Receivable" shall mean, at any time, any Receivable sold or
otherwise conveyed to the Company by any Seller pursuant to, and in accordance
with the terms of, this Agreement, including any Receivables sold or otherwise
conveyed to the Company pursuant to the Original Agreement.
"Receivable" shall mean the indebtedness and payment obligations of any
Person to any Seller (including, without limitation, obligations evidenced by an
account, note, instrument, contract, security agreement, chattel paper, general
intangible or other evidence of indebtedness or security) arising from a sale of
merchandise or services by such Seller, including, without limitation, any right
to payment for goods sold or for services rendered, and including the right to
payment of any interest, sales taxes, finance charges, returned check or late
charges and other obligations of such Person with respect thereto, but not
including any Excluded Receivable.
"Receivable Assets" shall have the meaning specified in Section 2.01(a)
hereof.
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"Reportable Event" shall mean any reportable event as defined in Section
4043(b) of ERISA or the regulations issued thereunder with respect to a Plan
(other than a Plan maintained by an ERISA Affiliate which is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Internal
Revenue Code).
"Sale Documents" shall mean this Agreement and the Seller Note.
"Sale Termination Date" shall have the meaning specified in Section
9.13(b) hereof.
"Seller Addition Date" shall have the meaning specified in Section 3.05
hereof.
"Seller Adjustment Payment" shall have the meaning specified in Section
2.06(a) hereof.
"Seller Dilution Adjustment Payment" shall have the meaning specified in
Section 2.05 hereof.
"Seller Indemnification Payment" shall have the meaning specified in
Section 2.06(b) hereof.
"Seller Note" shall have the meaning specified in Section 8.01 hereof.
"Successor Servicer" shall have the meaning specified in Section 6.02 of
the Servicing Agreement.
"Transactions" shall have the meaning specified in Section 4.01(b)
hereof.
SECTION 1.02. Other Definitional Provisions.
(a) The words "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and article, section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto, accounting terms relating to the Sellers and the
Company, unless otherwise defined herein, shall have the respective meanings
given to them under GAAP.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
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(d) Any reference herein to a Schedule or Exhibit to this Agreement
shall be deemed to be a reference to such Schedule or Exhibit as it may be
amended, modified or supplemented from time to time to the extent that such
Schedule or Exhibit may be amended, modified or supplemented (or any term or
provision of any Transaction Document may be amended that would have the effect
of amending, modifying or supplementing information contained in such Schedule
or Exhibit) in compliance with the terms of the Transaction Documents.
(e) Any reference in this Agreement to any representation, warranty or
covenant "deemed" to have been made is intended to encompass only
representations, warranties or covenants that are expressly stated to be
repeated on or as of dates following the execution and delivery of this
Agreement, and no such reference shall be interpreted as a reference to any
implicit, inferred, tacit or otherwise unexpressed representation, warranty or
covenant.
(f) The words "include", "includes" or "including" shall be interpreted
as if followed, in each case, by the phrase "without limitation".
ARTICLE II
Purchase and Sale of Receivables
SECTION 2.01. Purchase and Sale of Receivables.
(a) Subject to the terms and conditions of this Agreement (including,
without limitation, Article III), each Seller hereby sells, transfers, assigns,
and conveys, without recourse (except as expressly provided herein), to the
Company, all its present and future right, title and interest in, to and under:
(i) all Receivables originated by such Seller, including those
transferred under the Original Agreement and those existing at the close
of business on the Effective Date and all such Receivables thereafter
arising from time to time until but not including the date an Early
Termination occurs;
(ii) the Related Property;
(iii) all Collections;
(iv) all rights (including rescission, replevin or reclamation)
relating to any Receivable originated by such Seller or arising
therefrom;
(v) subject to the provisions of Section 9-306 of the UCC as in
effect in the State of New York, all proceeds of or payments in respect
of any and all of the foregoing clauses (i) through (iv) (including
Collections).
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Such property described in the foregoing clauses (i) through (v) shall be
referred to collectively herein as the "Receivable Assets" and shall be
considered to be assets that have been sold, transferred, assigned, set over and
otherwise conveyed to the Company without any further action by such Seller or
any other Person.
(b) The parties to this Agreement intend that, for accounting and
commercial purposes, the transactions contemplated by this Section 2.01 hereby
shall be, and shall be treated as, a purchase by the Company and a sale by each
Seller of the Purchased Receivables and the other Receivable Assets and not a
lending transaction. All sales of Receivables and other Receivable Assets by
each Seller hereunder shall be without recourse to, or representation or
warranty of any kind (express or implied) by, such Seller, except as otherwise
specifically provided herein. The foregoing sale, assignment, transfer and
conveyance does not constitute and is not intended to result in the creation or
assumption by the Company of any obligation of the applicable Seller or any
other Person in connection with the Receivables, the other Receivable Assets or
any agreement or instrument relating thereto, including any obligation to any
Obligor. Although it is the intent of the parties to this Agreement that the
conveyance of each Seller's right, title and interest in, to and under the
Receivables and the other Receivable Assets pursuant to this Agreement shall
constitute purchases and sales and not loans, in the event that any such
conveyance is deemed to be a loan, such Seller hereby grants to the Company a
perfected first priority security interest in all of such Seller's present and
future right, title and interest in, to and under the Receivables and the other
Receivable Assets and that this Agreement shall be deemed to constitute a
security agreement under applicable law in favor of the Company.
(c) In connection with the foregoing conveyances, each Seller agrees to
record and file, or cause to be recorded and filed, at its own expense,
financing statements (and continuation statements with respect to such financing
statements when applicable), (i) with respect to the Purchased Receivables
originated by such Seller and (ii) with respect to any other Receivable Assets
for which a security interest may be perfected under the relevant UCC,
legislation or similar statute by such filing, in each case meeting the
requirements of applicable law in such manner and in such jurisdictions as are
necessary to perfect and maintain perfection of the conveyance of such
Receivables and any other Receivable Assets to the Company, and to deliver to
the Company (x) where available, a file-stamped copy or certified statement of
such financing statement or other evidence of such filing and (y) otherwise, a
photocopy, certified by a Responsible Officer to be a true and correct copy, of
each such financing statement or other filing.
(d) In connection with the foregoing sales, transfers, assignments and
conveyances, each Seller agrees at its own expense, with respect to the
Receivables and any other similar receivables originated by such Seller that it
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will, as agent of the Company, (i) on or prior to the Effective Date and
thereafter, indicate or cause to be indicated on the computer files and other
physical records (but not including individual invoices or individual collection
files) relating to such Receivables (by means of a general legend that will
automatically appear at or near the beginning of any screen, list or print-out
of such Receivables) that, unless otherwise specifically identified on such
screen, list or print-out as a receivable not so sold, transferred, assigned and
conveyed, all Receivables included in such screen, list or print-out and all
other Receivable Assets have been sold, transferred, assigned and conveyed to
the Company in accordance with this Agreement and (ii) deliver or transmit or
cause to be delivered or transmitted to the Company a computer tape, diskette or
data transmission containing at least the information specified in Section
2.01(e) of the Pooling Agreement as to all such Receivables, as of a date no
later than the Cut-Off Date or Subsequent Cut-Off Date, as applicable.
SECTION 2.02. Purchase Price. The aggregate purchase price payable by
the Company to the Sellers (the "Purchase Price") for Receivables and other
Receivable Assets on any Payment Date under this Agreement shall be equal to the
product of (a) the aggregate outstanding Principal Amount of Receivables as set
forth in the applicable Daily Reports and (b) the Discounted Percentage.
SECTION 2.03. Payment of Purchase Price.
(a) The Company shall pay or provide for the Purchase Price for
Receivables and other Receivable Assets (net of the deductions referred to in
Section 2.03(d) below) in the manner provided below on each day for which a
Daily Report is required to be prepared and delivered to the Company (each such
day, a "Payment Date"). Each Seller hereby appoints the related Servicer as its
agent to receive payment of the Purchase Price and hereby authorizes the Company
to make all payments due to such Seller directly to, or as directed by, the
Servicer. The Servicer hereby accepts and agrees to such appointment.
(b) The Purchase Price (net of the deductions referred to in Section
2.03(c) below) shall be paid by the Company to the applicable Seller or to such
accounts or such Persons as such Seller may direct in writing (which direction
may consist of standing instructions provided by such Seller that shall remain
in effect until changed by such Seller in writing), on each Payment Date as
follows:
(i) to the extent available for such purpose, in cash from the net
proceeds of a transfer of such Purchased Receivables by the Company to other
Persons (including the Trustee pursuant to the Pooling Agreement);
(ii) to the extent available for such purpose, in cash from Collections
received by the Company from other Persons (including from
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the Trustee pursuant to the Pooling Agreement and any Supplement
thereto);
(iii) from contributions, including cash, Receivables or
proceeds thereof, made by Xxxxxx Micro Inc., in its sole discretion, to
the capital of the Company in respect of Xxxxxx Micro Inc.'s common
equity interest in the Company; and
(iv) at the option of the Company (subject to the provisions of
Section 8.03 hereof), by incurring Indebtedness to the Sellers evidenced
by the Seller Note. Any increase in the principal amount of the Seller
Note, in payment of any Purchase Price pursuant to this Section 2.03(b),
shall be applied to the Purchase Price in an amount equal to such
increase.
(c) The Company shall deduct from the Purchase Price otherwise payable
to the applicable Seller on any Payment Date, any Seller Dilution Adjustment
Payments, Seller Adjustment Payments or Seller Indemnification Payments pursuant
to Section 2.05, 2.06(a) or 2.06(b), respectively.
(d) All cash payments under this Agreement shall be made not later than
3:30 p.m. (New York City time) on the date specified therefor in same day funds,
and if to the Sellers, to the bank account for each Seller designated in writing
by the related Servicer to the Company and if to the Servicer, to the bank
account designated in writing by the Servicer to the Company.
(e) Whenever any payment to be made under this Agreement shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day. Amounts not paid when due in accordance with the
terms of this Agreement (i) shall bear interest at a rate equal at all times to
the Prime Rate plus 2% per annum and (ii) subject to the subordination
provisions set forth in paragraphs 3 and 6 of the Seller Note, shall be payable
on demand.
SECTION 2.04. No Repurchase. No Seller shall have any right or
obligation under this Agreement, by implication or otherwise, to repurchase from
the Company any Purchased Receivables originated by such Seller or other
Receivable Assets or to rescind or otherwise retroactively effect any purchase
of any such Purchased Receivables or other Receivable Assets after the Payment
Date relating thereto; provided that the foregoing shall not be interpreted to
limit the right of the Company herein to receive a Seller Adjustment Payment or
Seller Indemnification Payment.
SECTION 2.05. Rebates, Adjustments, Returns, Reductions and
Modifications. From time to time each Seller may make Dilution Adjustments to
Receivables in accordance with this Section 2.05 and Section 6.02. Each Seller
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agrees to pay to the Company, on the Payment Date immediately succeeding the
date on which any Dilution Adjustment is granted or made, the amount of any such
Dilution Adjustment (a "Seller Dilution Adjustment Payment"). The amount of any
Dilution Adjustment shall be set forth on the first Daily Report prepared after
the date on which such Dilution Adjustment was granted or made.
SECTION 2.06. Payments in Respect of Ineligible Receivables and Seller
Indemnification Payments.
(a) Seller Adjustment Payments. If (i) any representation or warranty
under Sections 4.02(a) or (b) is not true and correct as of the date specified
therein with respect to any Receivable sold to the Company or any Receivable
encompassed by the representation or warranty under Section 4.02(c) hereof is
determined not to be an Eligible Receivable as of its date of purchase, (ii)
there is a breach of any covenant under Section 6.01 hereof with respect to any
Receivable or (iii) the Company's interest in any Receivable is not a first
priority perfected ownership or security interest at any time as a result of any
action taken by, or the failure to take action by, the applicable Seller (each
event referred to in clause (i), (ii) and (iii) of this Section 2.06(a) shall be
referred to herein as an "Ineligibility Event" and any Receivable as to which an
Ineligibility Event applies shall be referred to herein as an "Ineligible
Receivable"), then the Seller that originated such Receivable agrees to pay to
the Company, upon the request of the Company or the Seller obtaining knowledge
of such Ineligibility Event, an amount (the "Adjustment Amount") equal to the
Original Principal Amount of such Receivable (whether the Company paid the
related Purchase Price in cash or otherwise) less Collections received by the
Company in respect of the principal amount of such Receivable. Such payment
shall be made on or prior to the 30th day after the day the Company requests
such payment or the applicable Seller obtains knowledge that such payment is due
(except that if such day is not a Business Day, then such payment shall be made
on the Business Day immediately succeeding such day); provided that in the event
that (x) a Purchase Termination Event with respect to such Seller has occurred
and is continuing or (y) the Company shall be required to make a payment in
respect of such Receivable pursuant to Section 2.05 of the Pooling Agreement and
the Company has insufficient funds to make such payment, such Seller shall make
such payment immediately upon the Company's request for such payment or such
Seller obtaining knowledge that such payment is due. Any payment by any Seller
pursuant to this Section 2.06(a) is referred to as a "Seller Adjustment
Payment". If, on or prior to such 30th day (or the Business Day immediately
succeeding such 30th day, as applicable), a Seller shall make a Seller
Adjustment Payment in respect of any such Ineligible Receivable, then the
Company shall have no further remedy against such Seller in respect of the
Ineligibility Event with respect to such Receivable. Upon a Seller Adjustment
Payment, the Company shall automatically agree to pay to the applicable Seller
all Collections received with respect to such Ineligible Receivable.
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(b) Special Indemnification. In addition to its obligations under
Section 9.02 hereof, each Seller agrees to pay, indemnify and hold harmless the
Company and its successors and assigns from any loss, liability, expense, damage
or injury which may at any time be imposed on, incurred by or asserted against
the Company in any way relating to or arising out of (i) any Eligible Receivable
originated by such Seller becoming subject to any defense, dispute, offset or
counterclaim of any kind (other than as expressly permitted by this Agreement or
the Pooling Agreement) or (ii) such Seller breaching any covenant applicable to
it contained in Section 5.02, 5.08, 5.09, 5.10, 5.14, 6.01, 6.02, 6.03, 6.04,
6.05, 6.09 or 6.10 with respect to any Receivable originated by it (each of the
foregoing events or circumstances being an "Indemnification Event"), and such
Receivable (or a portion thereof) ceasing to be an Eligible Receivable on the
date on which such Indemnification Event occurs. The amount of such
indemnification shall be equal to the Original Principal Amount of such
Receivable (whether the Company paid the related Purchase Price in cash or
otherwise) less Collections received by the Company in respect of the principal
amount of such Receivable. Such payment shall be made on or prior to the 30th
Business Day after the day the Company requests such payment or the applicable
Seller obtains knowledge that such payment is due unless such Indemnification
Event shall have been cured on or before such 30th Business Day; provided,
however, that in the event that (x) a Purchase Termination Event with respect to
such Seller has occurred and is continuing or (y) the Company shall be required
to make a payment with respect to such Receivable pursuant to Section 2.05 of
the Pooling Agreement and the Company has insufficient funds to make such a
payment, such Seller shall make such payment immediately. If, on or prior to
such 30th Business Day, applicable Seller shall make such payment, then the
Company shall have no further remedy against such Seller in respect of such
Indemnification Event. Any payment by the Seller pursuant to this Section
2.06(b) is referred to as a "Seller Indemnification Payment". Upon a Seller
Indemnification Payment, the Company shall automatically agree to pay to such
Seller all Collections with respect to the Receivable in respect of which a
Seller Indemnification Payment is made.
SECTION 2.07. Certain Charges. Each Seller and the Company agree that
late charge revenue, reversals of discounts, other fees and charges and other
similar items, whenever created, accrued in respect of Purchased Receivables
shall be the property of the Company notwithstanding the occurrence of an Early
Termination and all Collections with respect thereto shall continue to be
allocated and treated as Collections in respect of Purchased Receivables.
SECTION 2.08. Certain Allocations. Each Seller hereby agrees that,
following the occurrence of an Early Termination, all Collections and other
proceeds received in respect of Receivables generated by such Seller shall be
applied, first, to pay the outstanding Principal Amount of Purchased Receivables
(as of the date of such Early Termination) of the Obligor to whom such
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Collections are attributable until such Purchased Receivables are paid in full
and, second, to such Seller to pay Receivables of such Obligor not sold to the
Company, if any; provided, however, that notwithstanding the foregoing, if such
Seller can attribute a Collection to a specific Obligor and a specific
Receivable, then such Collection shall be applied to pay such Receivable of such
Obligor.
ARTICLE III
Conditions to Purchase and Sale
SECTION 3.01. Conditions Precedent to the Company's Purchase of
Receivables on the Effective Date. The obligation of the Company to purchase
from the Initial Seller the Receivables and the other Receivable Assets
hereunder on the Effective Date is subject to the conditions precedent, which
may be waived by the Company, that (a) each of the Sale Documents shall be in
full force and effect and (b) the conditions set forth below shall have been
satisfied on or before the Effective Date:
(i) the Company shall have received copies of duly adopted
resolutions of the Board of Directors of the Initial Seller, as in
effect on such Effective Date, authorizing the transactions contemplated
hereby, certified by the Secretary or Assistant Secretary of the Intial
Seller;
(ii) the Company shall have received duly executed certificates
of the Secretary or an Assistant Secretary of the Initial Seller, dated
the Effective Date, and in form and substance reasonably satisfactory to
the Company, certifying the names and true signatures of the officers
authorized on behalf of such Seller to sign this Agreement and any
instruments or documents in connection with this Agreement;
(iii) the Initial Seller shall have filed, at its own expense,
UCC-1 financing statements with respect to the Receivables originated by
such Seller and other Receivable Assets in such manner and in such
jurisdictions as are necessary to perfect the Company's ownership
interest therein under the UCC and delivered evidence of such filings to
the Company; and all other action necessary, in the reasonable judgment
of the Company, to perfect under the UCC (to the extent applicable) the
Company's ownership of the Receivables originated by such Seller and
other Receivable Assets shall have been duly taken;
(iv) the Initial Seller shall have delivered or transmitted to
the Company, with respect to the Receivables originated by such Seller,
a computer tape, diskette or data transmission reasonably acceptable to
the Company showing, as of a date no later than the Cut-Off Date, at
least the information specified in Schedule 2 hereto as to all
Receivables to be
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transferred by such Seller to the Company on or prior to the Effective
Date;
(v) the Company shall have received reports of UCC-1 and other
searches of the Initial Seller with respect to the Receivables
originated by such Seller and the other Receivable Assets reflecting the
absence of Liens thereon, except for Liens created in connection with
the sale by such Seller to the Company, and by the Company to the Trust,
of such Receivables and other Receivable Assets, other Permitted Liens
and Liens as to which the Company has received UCC termination
statements;
(vi) the Company shall be satisfied that the Initial Seller's
systems, procedures and record keeping relating to the Purchased
Receivables originated by such Seller are sufficient and satisfactory in
order to permit the purchase and administration of such Purchased
Receivables in accordance with the terms and intent of this Agreement;
(vii) a Lockbox Account shall have been established in the name
of the Company and all Obligors with respect to Purchased Receivables
shall have been directed to remit all payments with respect to such
Purchased Receivables to the related Lockbox; and
(viii) the Company shall have received such other approvals,
opinions or documents as the Company may reasonably request.
SECTION 3.02. Conditions Precedent to All the Company's Purchases of
Receivables. The obligation of the Company to purchase any Receivable and the
other related Receivable Assets on each date (including the Effective Date)
shall be subject to the further conditions precedent, which, other than
conditions precedent relating to Purchase Termination Events arising from
Section 7.01(g) or (h), may be waived by the Company, that, on and as of the
related Payment Date, the following statements shall be true (and the acceptance
by each Seller of the Purchase Price for such Receivable on such Payment Date
shall constitute a representation and warranty by such Seller that on such
Payment Date the statements in clauses (i) and (ii) below are true):
(i) the representations and warranties of each Seller contained
in Sections 4.01 and 4.02 shall be true and correct on and as of such
Payment Date as though made on and as of such date, except insofar as
such representations and warranties are expressly made only as of
another date (in which case they shall be true and correct as of such
other date);
(ii) after giving effect to such purchase, no Purchase
Termination Event or Potential Purchase Termination Event (including,
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without limitation, any event set forth in Section 7.01 (d)(ii)(A)) with
respect to the applicable Seller shall have occurred and be continuing;
(iii) after giving effect to such purchase, no Early
Amortization Event or Potential Early Amortization Event with respect to
any Outstanding Series shall have occurred and be continuing; and
(iv) the Company shall have received such other approvals,
opinions or documents as the Company may reasonably request; provided,
however, that the failure of the applicable Seller to satisfy any of the
foregoing conditions shall not prevent such Seller from subsequently
selling Receivables originated by it upon satisfaction of all such
conditions.
SECTION 3.03. Conditions Precedent to the Initial Seller's Obligations
on the Effective Date. The obligations of the Initial Seller on the Effective
Date shall be subject to the conditions precedent, which may be waived by such
Seller, that such Seller shall have received on or before the Effective Date the
following, each dated the Effective Date and in form and substance satisfactory
to such Seller:
(i) a copy of duly adopted resolutions of the Board of Directors
of the Company authorizing the transactions contemplated hereby,
certified by the Secretary or Assistant Secretary of the Company; and
(ii) a duly executed certificate of the Secretary or Assistant
Secretary of the Company certifying the names and true signatures of the
officers or authorized representatives authorized on its behalf to sign
this Agreement and the other documents to be delivered by it hereunder.
SECTION 3.04. Conditions Precedent to All of the Seller's Obligations.
The obligation of each Seller to sell any Receivable on any date (including on
the Effective Date) shall be subject to the further conditions precedent, which
may be waived by such Seller, that, on the related Payment Date, the following
statement shall be true (and the payment by the Company of the Purchase Price
for such Receivable on such date shall constitute a representation and warranty
by the Company on such Payment Date that the statement in clause (ii) below is
true): after giving effect to such purchase, (i) no Purchase Termination Event
set forth in subsection (d) of Section 7.01 hereof, and (ii) no Early
Amortization Event set forth in subsection (a) of Section 7.01 of the Pooling
Agreement (as in effect on the date hereof and without giving effect to any
amendment or supplement to, or modification or waiver of, or departure from,
such paragraph unless, in each case, such Seller shall have consented thereto)
shall have occurred and be continuing.
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SECTION 3.05. Condition Precedent to the Addition of a Seller. No direct
or indirect Subsidiary approved by the Company as an additional Seller pursuant
to Section 9.12 hereof shall be added as a Seller hereunder unless the
conditions set forth below shall have been satisfied on or before the date
designated for the addition of such Seller (the "Seller Addition Date"):
(i) the Company shall have received an Additional Seller
Supplement substantially in the form of Exhibit B hereto, duly executed
and delivered by such Seller;
(ii) each of the conditions precedent set forth in Section
2.08(l) of the Pooling Agreement and in any Supplement shall have been
satisfied;
(iii) the Company shall have received copies of duly adopted
resolutions of the Board of Directors of such Seller, as in effect on
the related Seller Addition Date, authorizing this Agreement, the
documents to be delivered by such Seller hereunder and the transactions
contemplated hereby, certified by the Secretary or Assistant Secretary
of such Seller;
(iv) the Company shall have received duly executed certificates
of the Secretary or an Assistant Secretary of such Seller, dated the
related Seller Addition Date, and in form and substance reasonably
satisfactory to the Company, certifying the names and true signatures of
the officers authorized on behalf of such Seller to sign the Additional
Seller Supplement or any instruments or documents in connection with
this Agreement;
(v) a Lockbox Account with respect to Receivables to be sold by
such Seller shall have been established in the name of the Company, or
such Seller shall have become a party to an agreement governing an
existing Lockbox Account, and all Obligors with respect to such
Receivables shall have been directed to remit payments with respect to
such Receivables to the related Lockbox;
(vi) such Seller shall have filed and recorded, at its own
expense, UCC-1 financing statements (and other similar instruments) with
respect to the Receivables originated by such Seller and the other
Receivable Assets in such manner and in such jurisdictions as are
necessary to perfect the Company's ownership interest thereof under the
UCC and delivered evidence of such filings to the Company on or prior to
the related Seller Addition Date; and all other action necessary, in the
reasonable judgment of the Company, to perfect the Company's ownership
of the Receivables originated by such Seller shall have been duly taken;
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(vii) such Seller shall have delivered or transmitted to the
Company, with respect to the Receivables originated by it, a computer
tape, diskette or data transmission reasonably acceptable to the Company
showing, as of a date no later than five Business Days preceding the
related Seller Addition Date, at least the information specified in
Schedule 2 hereto as to all Receivables to be transferred by such Seller
to the Company on the related Seller Addition Date;
(viii) the Company shall have received reports of UCC-1 and
other searches of such Seller with respect to the Receivables originated
by such Seller and other Receivable Assets reflecting the absence of
Liens thereon, except for (i) Liens created in connection with the sale
by such Seller to the Company, and by the Company to the Trust, of such
Receivables and other Receivable Assets, (ii) Liens as to which the
Company has received UCC termination statements to be filed on or prior
to the related Seller Addition Date and (iii) Permitted Liens;
(ix) the Company shall be satisfied that such Seller's systems,
procedures and record keeping relating to the Purchased Receivables
originated by such Seller are sufficient and satisfactory in order to
permit the purchase and administration of such Purchased Receivables in
accordance with the terms and intent of this Agreement;
(x) the prior written consent of the Agents shall have been
obtained; and
(xi) the Company shall have received such other approvals,
opinions or documents as the Company may reasonably request from such
Seller.
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ARTICLE IV
Representations and Warranties
SECTION 4.01. Representations and Warranties of the Sellers. Xxxxxx
Micro Inc. as to itself and, where provided, its Significant Subsidiaries, and
each other Seller as to itself only, represents and warrants as follows:
(a) Organization; Powers. It (i) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has all requisite power and authority to own its property and
assets and to carry on its business as now conducted and as proposed to be
conducted, (iii) is qualified to do business in, and is in good standing in,
every jurisdiction where the nature of its business so requires, except where
the failure so to qualify could not reasonably be expected to result in a Seller
Material Adverse Effect and (iv) has the corporate power and authority to
execute, deliver and perform its obligations under each of the Transaction
Documents and each other agreement or instrument contemplated hereby or thereby
to which it is or will be a party.
(b) Authorization. The execution, delivery and performance by such
Seller of each of the Transaction Documents to which such Seller is a party and
the performance of the transactions contemplated hereby and thereby
(collectively, the "Transactions") (i) have been duly authorized by all
requisite corporate and, if required, stockholder action and (ii) will not (A)
violate (1) any Requirement of Law of such Seller or (2) any provision of any
Transaction Document or other material Contractual Obligation to which it is a
party or by which any of them or any of their property is or may be bound, (B)
be in conflict with, result in a breach of or constitute (alone or with notice
or lapse of time or both) a default under, or give rise to any right to
accelerate or to require the prepayment, repurchase or redemption of any
obligation under, any Transaction Document or any other material Contractual
Obligation except where any such conflict, violation, breach or default referred
to in clause (A) or (B), individually or in the aggregate, could not reasonably
be expected to have a Seller Material Adverse Effect or (C) result in the
creation or imposition of any Lien upon the Receivables (other than Permitted
Liens and any Lien created hereunder or contemplated or permitted hereby).
(c) Enforceability. This Agreement has been duly executed and delivered
by such Seller and constitutes, and each other Transaction Document to which
such Seller is a party when executed and delivered by such Seller will
constitute, a legal, valid and binding obligation of such Seller enforceable
against such Seller in accordance with its terms, subject (i) to applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors' rights generally, from time to time in
effect, and (ii) to general
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principles of equity (whether enforcement is sought by a proceeding in equity or
at law).
(d) Governmental Approvals. No action, consent or approval of,
registration or filing with, or any other action by, any Governmental Authority
is or will be required in connection with the Transactions, except for (i) the
filing of UCC financing statements, (ii) such as have been made or obtained and
are in full force and effect and (iii) such actions, consents, approvals and
filings the failure of which to obtain or make could not reasonably be expected
to result in a Seller Material Adverse Effect.
(e) Litigation; Compliance with Laws. There are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending or, to the knowledge of such Seller, threatened against such Seller or
any Significant Subsidiary in respect of which there exists a reasonable
possibility of an outcome that would result in a Seller Material Adverse Effect.
(f) Judgments. Neither such Seller nor any Significant Subsidiary is in
default with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Seller Material Adverse Effect.
(g) Agreements. Neither such Seller nor any Significant Subsidiary is a
party to any agreement or instrument or subject to any corporate restriction
that has resulted or could reasonably be expected to result in a Seller Material
Adverse Effect.
(h) Contractual Obligations. Neither such Seller nor any Significant
Subsidiary is in default in any manner under any provision of any Contractual
Obligation to which it is a party or by which it or any of its properties or
assets are bound, where such default could reasonably be expected to result in a
Seller Material Adverse Effect.
(i) Federal Reserve Regulations. Neither such Seller nor any Significant
Subsidiary is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of buying or carrying Margin Stock.
(j) Use of Proceeds. No part of the proceeds from the sale of
Receivables hereunder will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the Regulations of
the Board, including Regulation U or Regulation X.
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(k) Investment Company Act. Such Seller is not an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940 or any successor statute thereto.
(l) Tax Returns. Such Seller and each Significant Subsidiary has filed
or caused to be filed all material tax returns (Federal, State and local) and
has paid or caused to be paid or made adequate provision for all taxes due and
payable by it and all assessments received by it to the extent that such failure
to file or nonpayment (i) is being contested in good faith or (ii) could
reasonably be expected to result in a Seller Material Adverse Effect.
(m) Employee Benefit Plans. Except to the extent failure to comply could
not reasonably be expected to result in a Seller Material Adverse Effect, such
Seller and its ERISA Affiliates are in compliance in all material respects with
the applicable provisions of ERISA and the Internal Revenue Code and the
regulations and published interpretations thereunder. No Reportable Event has
occurred or is reasonably expected to occur that, when taken together with all
other such Reportable Events, could reasonably be expected to result in a Seller
Material Adverse Effect.
(n) Accounting Treatment. Such Seller will not prepare any financial
statements that shall account for the transactions contemplated hereby, nor will
it in any other respect (other than for tax purposes) account for the
transactions contemplated hereby, in a manner that is inconsistent with the
Company's ownership interest in the Receivables.
(o) Indebtedness to Company. Immediately prior to consummation of the
transactions contemplated hereby on the Effective Date, such Seller had no
outstanding Indebtedness to the Company other than amounts permitted by this
Agreement.
(p) Lockboxes. Set forth in Schedule 3 hereto is a complete and accurate
description as of the Effective Date of each Lockbox Account currently
maintained by such Seller. Each of the Lockbox Agreements is the valid and
binding agreement of such Seller, enforceable against such Seller in accordance
with its terms subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforcement of creditors' rights
generally, from time to time in effect and to general principles of equity
(whether enforcement is sought by a proceeding in equity or at law).
(q) Chief Executive Office. The offices at which such Seller keeps its
records concerning the Receivables originated by it either (x) are located as
set forth on Schedule 4 hereto or (y) are in locations as to which such Seller
has notified the Company in accordance with Section 5.06 hereof. The chief
executive office of such Seller is listed opposite its name on Schedule 4 and is
the
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place where such Seller is "located" for the purposes of Section 9-103(3)(d) of
the UCC as in effect in the State of New York. As of the Effective Date, the
state and county where the chief executive office of such Seller is "located"
for the purposes of 9-103(3)(d) of the UCC as in effect in the State of New York
has not changed in the past four months.
(r) Bulk Sales Act. No transaction contemplated hereby with respect to
such Seller requires compliance with, or will be subject to avoidance under, any
bulk sales act or similar law.
(s) Names. The legal name of such Seller is as set forth in this
Agreement. It has no trade names, fictitious names, assumed names or "doing
business as" names except as set forth on Schedule 5.
(t) Solvency. No Insolvency Event with respect to such Seller has
occurred and the sale of the Receivables by it to the Company has not been made
in contemplation of the occurrence thereof. Both prior to and after giving
effect to the transactions occurring on the Effective Date and after giving
effect to each subsequent transaction contemplated hereunder, (i) the fair value
of the assets of such Seller at a fair valuation will exceed the debts and
liabilities, subordinated, contingent or otherwise, of such Seller; (ii) the
present fair salable value of the property of such Seller will be greater than
the amount that will be required to pay the probable liability of such Seller on
its debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (iii) such Seller will
be able to pay its debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured; and (iv) such Seller
will not have unreasonably small capital with which to conduct the business in
which it is engaged as such business is now conducted and is proposed to be
conducted. For all purposes of clauses (i) through (iv) above, the amount of
contingent liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
Such Seller does not intend to, nor does it believe that it will, incur debts
beyond its ability to pay such debts as they mature, taking into account the
timing of and amounts of cash to be received by it and the timing of the amounts
of cash to be payable on or in respect of its Indebtedness.
(u) No Purchase Termination Event. As of the Effective Date, no Purchase
Termination Event or Potential Purchase Termination Event with respect to such
Seller has occurred and is continuing.
(v) No Fraudulent Transfer. Such Seller is not entering into this
Agreement with the intent (whether actual or constructive) to hinder, delay, or
defraud its present or future creditors and is receiving reasonably equivalent
value
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and fair consideration for the Receivables originated by it being transferred
hereunder.
(w) Collection Procedures. Such Seller has in place procedures which are
either necessary or advisable to facilitate the timely collection of Receivables
originated by it.
SECTION 4.02. Representations and Warranties of the Sellers Relating to
the Receivables. Each Seller hereby represents and warrants to the Company on
each Payment Date that with respect to the Receivables originated by it being
paid for as of such date:
(a) Receivables Description. As of the Cut-Off Date or the Subsequent
Cut-Off Date as applicable, the computer tape, diskette or data transmission
delivered or transmitted pursuant to Section 2.01(d) hereof sets forth in all
material respects an accurate and complete listing of all Receivables sold to
the Company as of the Cut-Off Date or the Subsequent Cut-Off Date, as
applicable, and the information contained therein in accordance with Schedule 2
with respect to each such Receivable is true and correct as of the Cut-Off Date
or the Subsequent Cut-Off Date, as applicable. As of the Cut-Off Date or the
Subsequent Cut-Off Date, as applicable, the aggregate amount of Receivables
owned by such Seller is accurately set forth on such computer tape, diskette or
data transmission.
(b) No Liens. Each Receivable existing on the Effective Date or, in the
case of Receivables sold to the Company after the Effective Date, on the date
that each such Receivable shall have been sold to the Company, has been conveyed
to the Company free and clear of any Liens, except for Permitted Liens.
(c) Eligible Receivable. On the Effective Date, each Receivable
identified in the Daily Report as an Eligible Receivable sold to the Company is
an Eligible Receivable on the Effective Date and, in the case of Receivables
sold to the Company after the Effective Date, each such Receivable that is
identified in the Daily Report or Monthly Settlement Statement as an Eligible
Receivable sold to the Company on such later date is an Eligible Receivable on
such later date.
(d) Filings. All filings and other acts necessary (including but not
limited to all filings and other acts necessary or advisable under the UCC)
shall have been made or performed in order to grant the Company a first priority
perfected ownership or security interest in respect of all Receivables.
SECTION 4.03. Representations and Warranties of the Company. The Company
represents and warrants as to itself as follows:
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(a) Organization; Powers. The Company (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and as
proposed to be conducted, (iii) is qualified to do business in, and is in good
standing in, each jurisdiction where the nature of its business so requires,
except where the failure so to qualify would not have a Company Material Adverse
Effect and (iv) has the corporate power and authority to execute, deliver and
perform its obligations under each of the Transaction Documents and each other
agreement or instrument contemplated hereby or thereby to which it is or will be
a party.
(b) Authorization. The execution, delivery and performance by the
Company of each of the Transaction Documents and the performance of the
Transactions (i) have been duly authorized by all requisite corporate and, if
required, stockholder action and (ii) will not (A) violate (1) any Requirement
of Law or (2) any provision of any Transaction Document or any other Contractual
Obligation to which the Company is a party or by which it or any of its property
is or may be bound, (B) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under, or give rise to
any right to accelerate or to require the pre-payment, repurchase or redemption
of any obligation under any Transaction Document or any other Contractual
Obligation or (C) result in the creation or imposition of any Lien upon the
Receivables (other than Permitted Liens and any Lien created hereunder or
contemplated or permitted hereby).
(c) Enforceability. This Agreement has been duly executed and delivered
by the Company and constitutes, and each other Transaction Document to which the
Company is a party when executed and delivered by the Company will constitute, a
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its respective terms, subject (i) to applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors, rights generally, from time to time in
effect and (ii) to general principles of equity whether enforcement is sought by
a proceeding in equity or at law.
(d) Accounting Treatment. The Company will not prepare any financial
statements that shall account for the transactions contemplated hereby, nor will
it in any other respect (other than for tax purposes) account for the
transactions contemplated hereby, in a manner that is inconsistent with the
Company's ownership interest in the Receivables.
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ARTICLE V
Affirmative Covenants
Each Seller hereby agrees that, so long as there are any amounts outstanding
with respect to Purchased Receivables originated by it previously sold to the
Company or until an Early Termination, whichever is later, such Seller shall:
SECTION 5.01. Certificates; Other Information. Furnish to the Company:
(a) not later than 120 days after the end of each fiscal year and not
later than 90 days after the end of each of the first three fiscal quarters of
each fiscal year, a certificate of a Responsible Officer of each Seller stating
that, to the knowledge of such Responsible Officer (after due inquiry), such
Seller during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in the Sale Documents
to which it is a party to be observed, performed or satisfied by it, and that
such Responsible Officer has obtained no knowledge of any Purchase Termination
Event or Potential Purchase Termination Event except as specified in such
certificate; and
(b) promptly, such additional financial and other information as the
Company may from time to time reasonably request.
SECTION 5.02. Compliance with Law and Policies.
(a) Comply with all Requirements of Law and material Contractual
Obligations applicable to it except to the extent that non-compliance would not
reasonably be likely to result in a Seller Material Adverse Effect.
(b) Perform its obligations in accordance with the Policies, as amended
from time to time in accordance with the Transaction Documents, in regard to the
Receivables originated by it and the other Receivable Assets.
SECTION 5.03. Preservation of Corporate Existence. (a) Preserve and
maintain its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation and (b) qualify and remain qualified in good
standing as a foreign corporation in each jurisdiction where the nature of its
business so requires, except where the failure so to qualify would not,
individually or in the aggregate with other such failures, have a Seller
Material Adverse Effect.
SECTION 5.04. Separate Corporate Existence.
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(a) Maintain its deposit account or accounts, separate from those of the
Company and ensure that its funds will not be diverted to the Company, nor will
such funds be commingled with the funds of the Company;
(b) To the extent that it shares any officers or other employees with
the Company, the salaries of and the expenses related to providing benefits to
such officers and other employees shall be fairly allocated among it and the
Company, and it and the Company shall bear their fair shares of the salary and
benefit costs associated with all such common officers and employees;
(c) To the extent that it jointly contracts with the Company to do
business with vendors or service providers or to share overhead expenses, the
costs incurred in so doing shall be allocated fairly between it and the Company
and it and the Company shall bear their fair shares of such costs. To the extent
that it contracts or does business with vendors or service providers where the
goods and services provided are partially for the benefit of the Company, the
costs incurred in so doing shall be fairly allocated between it and the Company
in proportion to the benefit of the goods or services each is provided, and it
and the Company shall bear their fair shares of such costs. All material
transactions between it and the Company, whether currently existing or hereafter
entered into, shall be only on an arm's length basis;
(d) Maintain office space separate from the office space of the Company
(but which may be located at the same address as the Company). To the extent
that it and the Company have offices in the same location, there shall be a fair
and appropriate allocation of overhead costs between them, and each shall bear
its fair share of such expenses;
(e) Issue financial statements separate from any financial statements
issued by the Company;
(f) Not assume or guarantee any of the liabilities of the Company; and
(g) Take, or refrain from taking, as the case may be, all other actions
that are necessary to be taken or not to be taken in order (x) to ensure that
the assumptions and factual recitations set forth in the Specified Bankruptcy
Opinion Provisions remain true and correct with respect to it (and, to the
extent within its control, to ensure that the assumptions and factual
recitations set forth in the Specified Bankruptcy Opinion Provisions remain true
and correct with respect to the Company) and (y) to comply with those procedures
described in such provisions that are applicable to it.
SECTION 5.05. Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which entries in conformity with
GAAP shall be made of all dealings and transactions in relation
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to its business and activities; and permit representatives of the Company upon
reasonable advance notice to visit and inspect any of its properties and examine
and make abstracts from any of its books and records during normal business
hours on any Business Day and as often as may reasonably be requested, subject
to such Seller's security and confidentiality requirements and to discuss the
business, operations, properties and financial condition of such Seller with
officers and employees of such Seller. Any such examination or visit shall be at
the cost and expense of the party or parties making such examination or visit.
SECTION 5.06. Location of Records. Keep its chief place of business and
chief executive office, and the offices where it keeps the records concerning
the Purchased Receivables and the other Related Assets (and all original
documents relating thereto), at the locations referred to for it on Schedule 4
hereto or upon 30 days' prior written notice to the Company, at such other
locations in a jurisdiction where all action required by Section 5.14 shall have
been taken and completed and be in full force and effect; provided, however,
that the Rating Agencies shall be notified of any such changes in location and
such location shall not be changed to a state which is within the Tenth Circuit
unless it delivers an opinion of counsel reasonably acceptable to the Rating
Agencies to the effect that Octagon Gas Systems, Inc. x. Xxxxxx, 995 F.2d 948
(10th Cir. 1993), is no longer controlling precedent in the Tenth Circuit.
SECTION 5.07. Computer Files. At its own cost and expense, retain the
ledger used by it as a master record of the Obligors and retain copies of all
documents relating to each Obligor as custodian and agent for the Company and
other Persons with interests in the Purchased Receivables originated by it.
SECTION 5.08. Obligations. Defend the right, title and interest of the
Company and its assigns in, to and under the Receivables originated by it and
the other Receivable Assets, whether now existing or hereafter created, against
all claims of third parties claiming through any Seller. Each Seller will duly
fulfill all obligations on its part to be fulfilled under or in connection with
each Receivable originated by it and will do nothing to materially impair the
rights of the Company in such Receivable.
SECTION 5.09. Collections. Instruct each Obligor to make payments in
respect of its Receivables to a Lockbox or a Lockbox Account or by wire transfer
to the applicable Collection Account and to comply in all material respects with
procedures with respect to Collections reasonably specified from time to time by
the Company. In the event that any payments in respect of any such Receivables
are made directly to a Seller (including, without limitation, any employees
thereof or independent contractors employed thereby), such Seller shall, within
two Business Days of receipt thereof, deliver (which may be via regular mail) or
deposit such amounts to a Lockbox, a Lockbox Account or the Collection
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Account and, prior to forwarding such amounts, such Seller shall hold such
payments in trust as custodian for the Company and the Trustee.
SECTION 5.10. Furnishing Copies, Etc. Furnish to the Company:
(a) within five Business Days of the Company's request, a certificate of
the chief financial officer of the applicable Seller or of the related Servicer,
on behalf of such Seller, certifying, as of the date thereof, to the knowledge
of such officer, that no Purchase Termination Event has occurred and is
continuing or if one has so occurred, specifying the nature and extent thereof
and any corrective action taken or proposed to be taken with respect thereto;
(b) promptly after a Responsible Officer of a Seller obtains knowledge
of the occurrence of any Purchase Termination Event or Potential Purchase
Termination Event, written notice thereof;
(c) promptly following request therefor, such other information,
documents, records or reports regarding or with respect to the Purchased
Receivables, as the Company may from time to time reasonably request;
(d) promptly upon determining that any Purchased Receivable originated
by it designated as an Eligible Receivable on the applicable Daily Report or
Monthly Settlement Statement was not an Eligible Receivable as of the date
provided therefor, written notice of such determination.
SECTION 5.11. Responsibilities of the Sellers. Notwithstanding anything
herein to the contrary, (i) each Seller shall perform or cause to be performed
all its obligations under the Policies related to the Purchased Receivables to
the same extent as if such Purchased Receivables had not been transferred to the
Company hereunder, (ii) the exercise by the Company of any of its rights
hereunder shall not relieve such Seller of its obligations with respect to such
Purchased Receivables and (iii) except as provided by law, the Company shall not
have any obligation or liability with respect to any Purchased Receivables, nor
shall the Company be obligated to perform any of the obligations or duties of
such Seller thereunder.
SECTION 5.12. Assessments. Pay before the same become delinquent and
discharge all taxes, assessments, levies and other governmental charges imposed
on it except such taxes, assessments, levies and governmental charges which are
being contested in good faith and for which such Seller has set aside on its
books adequate reserves.
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SECTION 5.13. Further Action. In addition to the foregoing:
(a) Each Seller agrees that from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary in such Seller's reasonable judgment or
that the Company may reasonably request, in order to protect the Company's
right, title and interest in the Purchased Receivables, or to enable the Company
to exercise or enforce any of its rights in respect thereof. Without limiting
the generality of the foregoing, each Seller will upon the request of the
Company (i) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be necessary
or, in the opinion of the Company, advisable to protect the Company's security
interest in the Receivables and (ii) obtain the agreement of any Person having a
Lien on any Receivables owned by such Seller (other than any Lien created or
imposed hereunder or under the Pooling Agreement or any Permitted Lien) to
release such Lien upon the purchase of any such Receivables by the Company.
(b) Until the termination of this Agreement, each Seller hereby
irrevocably authorizes the Company to file one or more financing or continuation
statements (and other similar instruments), and amendments thereto, relative to
all or any part of the Purchased Receivables and the other Receivable Assets
sold or to be sold by such Seller without the signature of such Seller to the
extent permitted by applicable law.
(c) If any Seller fails to perform any of its agreements or obligations
under this Agreement, following notice to such Seller detailing such
delinquency, the Company may (but shall not be required to) perform, or cause
performance of, such agreements or obligations, and the expenses of the Company
incurred in connection therewith shall be payable by such Seller as provided in
Section 9.02 hereof. The Company agrees promptly to notify the applicable Seller
after any such performance; provided, however, that the failure to give such
notice shall not affect the validity of any such performance.
SECTION 5.14. Sale of Receivables. Sell Receivables solely in accordance
with the terms of this Agreement.
ARTICLE VI
Negative Covenants
Except as otherwise provided in Section 6.11 hereof, Xxxxxx Micro Inc.
and each other Seller, to the extent applicable to it, hereby agrees that, so
long as there are any amounts outstanding with respect to Purchased Receivables
originated by it previously sold by such Seller to the Company or until an Early
Termination with
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respect to such Seller, whichever is later, such Seller shall not, directly or
indirectly:
SECTION 6.01. Limitations on Transfers of Receivables Etc. At any time
sell, transfer or otherwise dispose of any of the Receivables or other
Receivable Assets except as contemplated by the Transaction Documents or
pursuant to an Investment in the Company.
SECTION 6.02. Extension or Amendment of Receivables. Extend, make any
Dilution Adjustment to, rescind, cancel, amend or otherwise modify, or attempt
or purport to extend, amend or otherwise modify, the terms of any Purchased
Receivables, except (a) in accordance with the terms of the Policies, (b) as
required by any Requirement of Law or (c) in the case of Dilution Adjustments,
upon making a Seller Dilution Adjustment Payment pursuant to Section 2.05.
SECTION 6.03. Change in Payment Instructions to Obligors. Instruct any
Obligor of any Purchased Receivables to make any payments with respect to any
Receivables other than, in accordance with Section 5.09 hereof, to a Lockbox, a
Lockbox Account or by wire transfer to the Collection Account; provided,
however, that it may execute additional Lockbox Agreements or Lockbox Accounts
and instruct Obligors to make payments in respect of any Receivables to such
additional accounts; provided, that the Lockbox Agreements may be amended to add
or delete Servicers in accordance with the Transaction Documents; provided,
further, that upon the satisfaction of the Rating Agency Condition (or, if no
Outstanding Series has been rated by a Rating Agency, with the consent of the
Agent) and subject to the consent of the Agent (which consent shall not be
unreasonably withheld), any Seller may enter into any amendments or
modifications of a Lockbox Agreement that such Seller reasonably deems necessary
to conform such Lockbox Agreement to the cash management system of the Company
or such Seller.
SECTION 6.04. Change in Name. Change its name, use an additional name,
or change its identity or corporate structure in any manner which would or might
make any financing statement or continuation statement (or other similar
instrument) relating to this Agreement seriously misleading within the meaning
of Section 9-402(7) of the UCC, or impair the perfection of the Company's
interest in any Receivable under any other similar law, without 30 days' prior
written notice to the Company.
SECTION 6.05. Policies. Make any change or modification (or permit any
change or modification to be made) in any material respect to the Policies,
except (i) if such changes or modifications are necessary under any Requirement
of Law, or (ii) if the Rating Agency Condition is satisfied with respect thereto
and
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the Agents have consented thereto (which consent shall not be unreasonably
withheld); provided, however, that if any change or modification, other than a
change or modification permitted pursuant to clause (i) above, would reasonably
be expected to have a Material Adverse Effect, a Seller Material Adverse Effect,
a Servicer Material Adverse Effect or a Company Material Adverse Effect with
respect to a Series which is not rated by a Rating Agency, the consent of
Investor Certificateholders representing Investor Certificateholders' Interest
aggregating not less than 50% of the Adjusted Invested Amount of such Series
(or, as otherwise specified in the related Supplement) shall be required to
effect such change or modification.
SECTION 6.06. Modification of Legend. Delete or otherwise modify the
legend referred to in Section 2.01(d).
SECTION 6.07. Accounting for Purchases. Prepare any financial statements
which shall account for the transactions contemplated hereby (other than capital
contributions and the Seller Note contemplated hereby) in any manner other than
as a sale of the Purchased Receivables originated by such Seller to the Company
or in any other respect account for or treat the transactions contemplated
hereby (including for financial accounting purposes, except as required by law)
(other than capital contributions and the Seller Note contemplated hereby) in
any manner other than as sales of the Purchased Receivables originated by such
Seller to the Company; provided, however, that this subsection shall not apply
for any tax or tax accounting purposes.
SECTION 6.08. Instruments. Subject to the delivery requirements set
forth in Section 2.01(b) of the Pooling Agreement, take any action to cause any
Receivable not evidenced by an "instrument" (as defined in the UCC as in effect
in the State of New York or other similar statute or legislation) upon
origination to become evidenced by an instrument, except in connection with the
enforcement or collection of an overdue Receivable.
SECTION 6.09. Ineligible Receivables. Without the prior written approval
of the Company, take any action to cause, or which would permit, a Receivable
that was designated as an Eligible Receivable on the Payment Date relating to
such Receivable to cease to be an Eligible Receivable, except as otherwise
expressly provided by this Agreement.
SECTION 6.10. Business of such Seller. Fail to maintain and operate the
business currently conducted by such Seller and business activities reasonably
incidental or related thereto in substantially the manner in which it is
presently conducted and operated if such failure would materially adversely
affect the interests of the Company under the Transaction Documents.
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SECTION 6.11. Limitation on Fundamental Changes. Xxxxxx Micro Inc. shall
not enter into any merger or consolidate with another Person or sell, lease,
transfer or otherwise dispose of assets constituting all or substantially all of
the assets of Xxxxxx Micro Inc. and its consolidated Subsidiaries (taken as a
whole) other than the assignments and transfers contemplated hereby to another
Person or liquidate or dissolve unless:
(a) either (i) Xxxxxx Micro Inc. is the surviving entity or (ii) the
surviving Person (A) is organized and in good standing under a State of the
United States or the District of Columbia and (B) assumes, upon consummation of
such transaction without execution or filing of any paper or any further act on
the part of any of the parties hereto other than a Seller, the performance of
each of Xxxxxx Micro Inc.'s covenants and obligations hereunder; and
(b) it has delivered to the Trustee an officer's certificate executed by
a Vice President or other senior official of Xxxxxx Micro Inc. addressed to the
Trust and the Trustee (i) stating that such consolidation, merger, conveyance or
transfer complies with this Section 6.11 and (ii) further stating in the
officer's certificate that all conditions precedent herein provided for relating
to such transaction have been complied with.
In the event of any action described in this Section 6.11, Xxxxxx Micro Inc.
agrees to provide notice thereof to each Rating Agency.
ARTICLE VII
Purchase Termination Events
SECTION 7.01. Purchase Termination Events. If any of the following
events (each, a "Purchase Termination Event") shall have occurred and be
continuing with respect to a Seller:
(a) such Seller shall fail to pay (i) any amount due under Article II
hereof hereunder in accordance with the provisions hereof and such failure shall
continue unremedied for a period of five Business Days or (ii) any other amount
due hereunder in accordance with the provisions hereof and such failure shall
continue unremedied for a period of five Business Days from the earlier to occur
of (x) the date upon which a Responsible Officer of such Seller obtains
knowledge of such failure or (y) the date on which written notice of such
failure, requiring the same to be remedied, shall have been given (1) to such
Seller by the Company or the Trustee or (2) to the Company, to the Trustee and
to such Seller by holders of Investor Certificates evidencing 25% or more of the
Aggregate Invested Amount; or
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(b) such Seller shall fail to observe or perform in any material respect
any covenant or agreement applicable to it contained herein (other than as
specified in subsection (a) of this Section 7.01 or Section 5.07(b)); provided
that the failure to observe or perform either (i) the covenant specified in
Section 6.02 or (ii) any other covenant specified herein (other than the
covenants specified in Section 6.01 and Sections 6.03-6.11) shall not constitute
a Purchase Termination Event under this subsection (b) unless such failure shall
continue unremedied for a period of 30 consecutive days from the earlier of (i)
the date on which such Seller has or actual knowledge of such failure and (ii)
the date on which such Seller receives notice of such failure from the Company,
the Servicer or the Trustee; or
(c) (i) any representation, warranty, certification or statement made or
deemed made by such Seller in this Agreement or in any certificate delivered
pursuant to this Agreement (other than the Officer's Certificate to be delivered
pursuant to Section 5.07(b)) shall prove to have been incorrect in any material
respect when made or deemed made; provided that a Purchase Termination Event
shall not be deemed to have occurred under this subsection (c) based upon a
breach of any representation or warranty set forth in Section 4.02 if such
Seller shall have compiled with the provisions of Section 2.06 in respect
thereof; or
(d) (i) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of such Seller in an involuntary case under the
Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect (the Bankruptcy Code and all other such applicable
laws being collectively, "Applicable Insolvency Laws"), which decree or order is
not stayed or any other similar relief shall be granted under any applicable
federal or state law now or hereafter in effect and shall not be stayed; (ii)(A)
an involuntary case is commenced against such Seller under any Applicable
Insolvency Law now or hereafter in effect, a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over
such Seller, or over all or a substantial part of the property of such Seller,
shall have been entered, an interim receiver, trustee or other custodian of such
Seller for all or a substantial part of the property of such Seller is
involuntarily appointed, a warrant of attachment, execution or similar process
is issued against any substantial part of the property of such Seller and (B)
any event referred to in clause (ii)(A) above continues for 60 days unless
dismissed, bonded or discharged; provided, however, that such 60-day period
shall be deemed terminated immediately upon the occurrence of any of the events
referred to in this Section 7.01(d) other than those referred to in clause
(ii)(A) above; (iii) such Seller shall at its request have a decree or an order
for relief entered with respect to it or commence a voluntary case under any
Applicable Insolvency Law now or hereafter in effect, or shall consent to the
entry of a decree or an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such Applicable
Insolvency Law, consent to the appointment of
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or taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; (iv) the making by such Seller of any general
assignment for the benefit of creditors; (v) the inability or failure of such
Seller generally to pay its debts as such debts become due; or (vi) the Board of
Directors of such Seller authorizes action to approve any of the foregoing; or
(e) there shall have occurred and be continuing (i) an Early
Amortization Event set forth in Section 7.01 of the Pooling Agreement or (ii) an
Amortization Period (after which the Revolving Period cannot recommence) with
respect to all Outstanding Series; or
(f) Xxxxxx Micro Inc. has been terminated as Servicer following a
Servicer Default under the Servicing Agreement and a Successor Servicer has not
been appointed within 60 days thereafter; or
(g) a Responsible Officer of such Seller receives notice or is aware
that a notice of Lien shall have been filed by the PBGC against such Seller
under Section 412(n) of the Code or Section 302(f) of ERISA for a failure to
make a required installment or other payment to a plan to which Section 412(n)
of the Code or Section 302(f) of ERISA applies unless there shall have been
delivered to the Trustee and the Rating Agencies proof of release of such Lien;
or
(h) a Responsible Officer of such Seller receives notice or is aware
that a Federal tax notice of Lien shall have been filed against such Seller
unless there shall have been delivered to the Trustee and the Rating Agencies
proof of release of such Lien; or
(i) Xxxxxx Micro Inc. shall fail to deliver the Officer's Certificate
required by the terms of Section 5.07(b); provided that no such failure shall
constitute a Purchase Termination Event under this subsection (i) unless such
failure shall continue unremedied for a period of 30 consecutive days from the
date a Responsible Officer of Xxxxxx Micro Inc. becomes aware of such failure;
or
(j) The core information system on which Xxxxxx Micro Inc. processes the
Receivables, IMpulse, is not Year 2000 compliant, such that, with respect to
such system, the performance of date sensitive functions by such system on or
after the Effective Date, through the term of this Agreement results in a Seller
Material Adverse Effect, a Servicer Material Adverse Effect, a Company Material
Adverse Effect or a Material Adverse Effect that is not corrected for a period
of 30 days;
then, (i) in the case of any Purchase Termination Event described in subsection
(e)(i) above, the obligation of the Company to purchase Receivables from the
Sellers shall thereupon automatically terminate without further notice of any
kind,
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which is hereby waived by each Seller, (ii) in the case of any Purchase
Termination Event described in subsection (d), (g) or (h) above, the obligation
of the Company to purchase Receivables from the Sellers shall thereupon, after
expiration of any applicable cure period, automatically terminate without
further notice of any kind, which is hereby waived by each Seller, (iii) in the
case of any Purchase Termination Event described in subsection (e)(ii) above,
the obligation of the Company to purchase Receivables from the Sellers shall
thereupon terminate without notice of any kind, which is hereby waived by each
Seller unless both the Company and each Seller agree in writing that such event
shall not trigger an Early Termination hereunder and (iv) in the case of any
other Purchase Termination Event, so long as such Purchase Termination Event
shall be continuing and after expiration of any applicable cure period, the
Company may terminate its obligation to purchase Receivables from all of the
Sellers by written notice to each Seller (any termination pursuant to clause
(i), (ii), (iii) or (iv) above is herein called an "Early Termination").
SECTION 7.02. Remedies. (a) If a Purchase Termination Event has occurred
and is continuing, the Company (and its assignees) shall have all of the rights
and remedies provided to a secured creditor or a purchaser of accounts under the
UCC by applicable law in respect thereto.
(b) Each Seller agrees that, upon the occurrence and during the
continuation of a Purchase Termination Event under Section 7.01(d) or (e)(i):
(i) the Company (and its assignees) shall have the right at any
time to notify, or require that such Seller, at such Seller's expense,
notify, the respective Obligors of the Company's ownership of the
Purchased Receivables and other Receivable Assets and may direct that
payment of all amounts due or to become due under the Purchased
Receivables be made directly to the Company or its designee;
(ii) the Company (and its assignees) shall have the right to (A)
xxx for collection on any Purchased Receivables or (B) sell any
Purchased Receivables to any Person for a price that is acceptable to
the Company. If required by the terms of Section 9-504 or 9-505 of the
UCC (or analogous provisions of any other similar law applicable to the
Receivables), the Company (and its assignees) may offer to sell any
Purchased Receivable to any Person, together, at its option, with all
other Receivables created by the same Obligor. Any Purchased Receivable
sold hereunder (other than pursuant to the Pooling Agreement) shall
cease to be a Receivable for all purposes under this Agreement as of the
effective date of such sale;
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(iii) such Seller shall, upon the Company's written request and
at such Seller's expense, (A) assemble all of such Seller's documents,
instruments and other records (including credit files and computer tapes
or disks) that (1) evidence or will evidence or record Receivables sold
by such Seller and (2) are otherwise necessary or desirable to effect
Collections of such Purchased Receivables (collectively, the
"Documents") and (B) deliver the Documents to the Company or its
designee at a place designated by the Company. In recognition of such
Seller's need to have access to any Documents which may be transferred
to the Company hereunder, whether as a result of its continuing business
relationship with any Obligor for Receivables purchased hereunder or as
a result of its responsibilities as Servicer, the Company hereby grants
to such Seller an irrevocable license to access the Documents
transferred by such Seller to the Company and to access any such
transferred computer software in connection with any activity arising in
the ordinary course of such Seller's business or in performance of such
Seller's duties as Servicer; provided that such Seller shall not disrupt
or otherwise interfere with the Company's use of and access to the
Documents and its computer software during such license period;
(iv) such Seller hereby grants to the Company an irrevocable
power of attorney (coupled with an interest) to take any and all steps
in such Seller's name necessary or desirable, in the reasonable opinion
of the Company, to collect all amounts due under the Purchased
Receivables, including, without limitation, endorsing such Seller's name
on checks and other instruments representing Collections, enforcing the
Purchased Receivables and exercising all rights and remedies in respect
thereof; and
(v) upon written request of the Company, such Seller will (A)
deliver to the Company all licenses, rights, computer programs, related
material, computer tapes, disks, cassettes and data necessary for the
immediate collection of the Purchased Receivables by the Company, with
or without the participation of such Seller (excluding software licenses
which by their terms are not permitted to be so delivered; provided that
such Seller shall use reasonable efforts to obtain the consent of the
relevant licensor to such delivery but shall not be required, to the
extent it has an ownership interest in any electronic records, computer
software or licenses, to transfer, assign, set-over or otherwise convey
such ownership interests to the Company) and (B) make such arrangements
with respect to the collection of the Purchased Receivables as may be
reasonably required by the Company.
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ARTICLE VIII
Seller Note
SECTION 8.01. Seller Note. On the Effective Date, the Company shall
issue to the Sellers a subordinated note substantially in the form of Exhibit A
hereto (as amended, supplemented or otherwise modified from time to time, the
"Seller Note"). The Company has incurred Indebtedness evidenced by the Seller
Note and may continue to incur Indebtedness evidenced by the Seller Note on any
date only (i) if such date is a Payment Date; (ii) in payment to each Seller of
all or a portion of the Purchase Price (net of such deductions as provided in
Section 2.03(d) hereof) for Receivables and other Receivable Assets required to
be paid for by the Company to such Seller on such Payment Date in accordance
with Section 2.02 hereof; (iii) to the extent that cash was not available to pay
such Purchase Price (net of such deductions) in accordance with Sections
2.03(b)(i), 2.03(b)(ii) and 2.03(b)(iii) (as applicable); and (iv) subject, in
any event, to Section 8.03 hereof. Interest on the principal amount of the
Seller Note (as such principal amount may have been increased pursuant to the
preceding sentence and the following proviso) shall accrue at One-Month LIBOR
plus 2.00% per annum from and including the Effective Date and shall be paid on
each Distribution Date with respect to amounts accrued and not paid as of the
last day of the preceding Settlement Period and the maturity date thereof;
provided, however, that, to the maximum extent permitted by law, accrued
interest on the Seller Note which is not so paid shall be added, at the request
of the applicable Seller, to the principal amount of the Seller Note. The
principal amount of the Seller Note (as such principal amount may have been
increased pursuant to the proviso to the preceding sentence) shall be payable on
the maturity date of the Seller Note (unless sooner prepaid pursuant to the
terms thereof and of the other Transaction Documents). Each Seller's interest
in, and all payments in respect of, the Seller Note shall be allocated among the
Sellers by the Master Servicer pro rata in accordance with the amount of
Receivables sold by each such Seller to the Company that are paid for by the
incurrence of debt under the Seller Note. Default in the payment of principal or
interest under the Seller Note shall not constitute a default or event of
default or a Purchase Termination Event hereunder, a Servicer Default under the
Servicing Agreement or an Early Amortization Event under the Pooling Agreement
or any Supplement thereto.
SECTION 8.02. Restrictions on Transfer of Seller Note. Neither the
Seller Note, nor any right of the Sellers to receive payments thereunder, shall
be assigned, transferred, exchanged, pledged, hypothecated, participated or
otherwise conveyed.
SECTION 8.03. Discretion; Aggregate Amount. Anything herein to the
contrary notwithstanding, no Seller shall be obligated to accept payment of any
Purchase Price in the form of Indebtedness of the Company under the Seller Note
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unless such Seller shall be satisfied (and, for purposes hereof, in the absence
of notice to the contrary by such Seller to the Company and the Trustee, such
Seller shall be deemed satisfied) that, in the ordinary course of its business,
the Company will pay the principal of, and interest on, such Indebtedness in
accordance with the terms thereof. The principal amount of Indebtedness
evidenced by the Seller Note incurred on any Payment Date shall not, in any
event, be greater than the excess, if any, of (x) the Purchase Price for
Receivables and other Receivable Assets required to be paid for by the Company
on such Payment Date pursuant to Section 2.02 over (y) the portion of such
Purchase Price paid in cash pursuant to Sections 2.03(b)(i), 2.03(b)(ii) and
2.03(b)(iii).
ARTICLE IX
Miscellaneous
SECTION 9.01. Payments. Each cash payment to be made by the Company or
any Seller hereunder shall be made on the required payment date and in
immediately available funds at the office of the payee set forth below its
signature hereto or to such other office as may be specified by either party in
a notice to the other party hereto.
SECTION 9.02. Costs and Expenses. Each Seller agrees (a) to pay or
reimburse the Company for all its out-of-pocket costs and expenses incurred in
connection with the preparation and execution of, and any amendment, supplement
or modification to, this Agreement, the other Transaction Documents and any
other documents prepared in connection herewith and therewith, the consummation
and administration of the transactions contemplated hereby and thereby,
including, without limitation, all reasonable fees and disbursements of counsel,
(b) to pay or reimburse the Company for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement and any of the other Transaction Documents, including, without
limitation, the reasonable fees and disbursements of counsel to the Company, (c)
to pay, indemnify, and hold the Company harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay caused by such Seller in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of, any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement and any such
other documents, and (d) to pay, indemnify, and hold the Company harmless from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (i) which may at any time be imposed on, incurred by
or asserted against the Company in any way relating to or arising out of this
Agreement or
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the other Sale Documents or the transactions contemplated hereby and thereby or
in connection herewith or any action taken or omitted by the Company under or in
connection with any of the foregoing (all such other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements being herein called "Indemnified Liabilities") or (ii) which would
not have been imposed on, incurred by or asserted against the Company but for
its having acquired the Receivables hereunder; provided, however, that such
indemnity shall not be available to the extent that such Indemnified Liabilities
result from the gross negligence or willful misconduct of the Company; provided,
further, that such Seller shall have no obligation under this Section 9.02 to
the Company with respect to Indemnified Liabilities arising from (i) any action
taken or omitted to be taken by the Trustee or the Company at the direction of
the Trustee in collecting from an Obligor or (ii) a default by an Obligor with
respect to any Purchased Receivable (other than arising out of (x) any
discharge, claim, offset or defense (other than discharge in bankruptcy of the
Obligor) of the Obligor to the payment of any Purchased Receivable (including,
without limitation, a defense based on such Purchased Receivable not being a
legal, valid and binding obligation of such Obligor enforceable against it in
accordance with its terms) or any other claim resulting from the sale of the
merchandise or services related to any such Purchased Receivable or the
furnishing or failure to furnish such merchandise or services, (y) a failure by
such Seller to perform its duties or obligations under this Agreement or (z) the
sale of any Purchased Receivable that is designated on the applicable Daily
Report to be an Eligible Receivable and is determined to have been at the date
of such sale an Ineligible Receivable or any Purchased Receivable which
thereafter becomes subject to a Dilution Adjustment). The agreements in this
Section 9.02 shall survive the collection of all Receivables, the termination of
this Agreement and the payment of all amounts payable hereunder.
SECTION 9.03. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Sellers and the Company and their
respective successors (whether by merger, consolidation or otherwise) and
assigns. Each Seller agrees that it will not assign or transfer all or any
portion of its rights or obligations hereunder without the prior written consent
of the Company. Each Seller acknowledges that the Company shall assign all of
its rights hereunder to the Trustee. Each Seller consents to such assignment and
agrees that the Trustee, to the extent provided in the Pooling Agreement, shall
be entitled to enforce the terms of this Agreement and the rights (including,
without limitation, the right to grant or withhold any consent or, waiver) of
the Company directly against such Seller, whether or not a Purchase Termination
Event or a Potential Purchase Termination Event has occurred. Each Seller
further agrees that, in respect of its obligations hereunder, it will act at the
direction of and in accordance with all requests and instructions from the
Trustee until all amounts due to the Investor Certificateholders are paid in
full. The Trustee, on behalf of
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the Investor Certificateholders, shall have the rights of a third-party
beneficiary under this Agreement.
SECTION 9.04. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ANY CONFLICT OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT ISSUES OF
PERFECTION ARE GOVERNED BY THE LAWS OF ANOTHER JURISDICTION.
SECTION 9.05. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Company, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
SECTION 9.06. Amendments and Waivers. Neither this Agreement nor any
terms hereof may be amended, supplemented or modified except in a writing signed
by the Company and each Seller. Any amendment, supplement or modification shall
not be effective until the Rating Agency Condition has been satisfied and the
Agents have given their consent thereto (which consent shall not be unreasonably
withheld).
SECTION 9.07. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 9.08. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Company and each Seller, or to
such other address as may be hereafter notified by the respective parties
hereto:
The Company: Xxxxxx Funding Inc.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
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The Initial Seller: Xxxxxx Micro Inc.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: U.S. Treasurer
Telecopy: (000) 000-0000
with a copy to the general counsel of Xxxxxx Micro Inc. at the above
address
in each case, with a copy to
Trustee: The Chase Manhattan Bank, as Trustee
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Capital Markets Fiduciary Services
Telecopy: (000) 000-0000
SECTION 9.09. Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Company.
SECTION 9.10. Waivers of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER SALE DOCUMENTS.
SECTION 9.11. Jurisdiction; Consent to Service of Process.
(a) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS,
FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK
STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK
CITY, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER SALE DOCUMENTS OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR,
TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES
HERETO
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AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT THE COMPANY MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
THE OTHER SALE DOCUMENTS AGAINST ANY SELLER OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.
(b) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER SALE
DOCUMENTS IN ANY NEW YORK STATE OR FEDERAL COURT. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE
OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT.
(c) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.08. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 9.12. Addition of Sellers. Subject to Section 3.05 hereof,
Section 2.08(l) of the Pooling Agreement, any applicable provisions in any
Supplement, and the terms and conditions of this Section 9.12, from time to time
one or more additional direct or indirect Subsidiaries of Xxxxxx Micro Inc. may
become a Seller hereunder and party hereto. If any such Subsidiary wishes to
become an additional Seller, it shall submit a request to such effect in writing
to the Company. If the Company shall have agreed to any such request, such
Subsidiary shall become an additional Seller hereunder and a party hereto on the
related Seller Addition Date upon satisfaction of the conditions set forth in
Section 3.05.
SECTION 9.13. Termination of Seller.
(a) Any Seller shall be terminated as a Seller hereunder by the Company
on the date such Seller ceases to be a direct or indirect Subsidiary of Xxxxxx
Micro Inc.; provided, that (i) the aggregate outstanding Principal Amount of
Purchased Receivables sold by all Sellers which so cease to be Subsidiaries at
such time (together with the aggregate outstanding Principal Amount of
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Purchased Receivables sold by all Sellers which have been terminated pursuant to
this Section 9.13 within the preceding 90 days) shall not exceed 10% of the
aggregate outstanding Principal Amount of all Purchased Receivables and (ii) no
Purchase Termination Event or Potential Purchase Termination Event (other than
with respect to the Seller so terminated) has occurred and is continuing, or
would result as a result thereof. From and after the date any such Seller ceases
to be a direct or indirect Subsidiary of Xxxxxx Micro Inc., the Company shall
cease buying Receivables and other Receivable Assets from such Seller. Each such
Seller shall be released as a Seller party hereto for all purposes and shall
cease to be a party hereto on the 91st day after the date on which there are no
amounts outstanding with respect to Purchased Receivables previously sold by
such Seller to the Company, whether such amounts have been collected or written
off in accordance with the Policies of such Seller, except to the extent of such
Seller's continuing obligations under Section 9.13(c) below. Prior to such date,
such Seller shall be obligated to perform its servicing and other obligations
hereunder and under the Transaction Documents to which it is a party with
respect to Purchased Receivables previously sold by such Seller to the Company,
including, without limitation, its obligation to direct the deposit of
Collections into the appropriate Lockbox.
(b) From time to time the Sellers, or the Master Servicer on behalf of
the Sellers, may request in writing that the Company designate one or more
Sellers as Sellers that shall cease to be parties to this Agreement; provided
that no Purchase Termination Event or Potential Purchase Termination Event has
occurred and is continuing, or would result as a result thereof. Any such
request shall specify the minimum aggregate Principal Amount of outstanding
Purchased Receivables sold by the Sellers to be so designated and terminated by
the Company. Promptly after receipt of any such designation by the Company, the
Sellers shall either (i) elect not to terminate such designated Sellers or (ii)
select a date, which date shall not be later than 30 days after the date of
receipt of such designation, as the "Sale Termination Date" for such designated
Sellers. From and after such Sale Termination Date, the Company shall cease
buying Receivables and other Receivable Assets from such Sellers. Each such
Seller shall be released as a Seller hereunder and a party hereto for all
purposes and shall cease to be a party hereto on the 91st day after the date on
which there are no amounts outstanding with respect to Purchased Receivables
previously sold by such Seller to the Company, whether such amounts have been
collected or written off in accordance with the Policies of such Seller, except
to the extent of such Seller's continuing obligations under Section 9.13(c)
below. Prior to such date, such Seller shall be obligated to perform its
servicing and other obligations hereunder and under the Transaction Documents to
which it is a party with respect to Purchased Receivables previously sold by
such Seller to the Company, including, without limitation, its obligation to
direct the deposit of Collections into the appropriate Lockbox.
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(c) A terminated Seller shall have no obligation to repurchase any
Purchased Receivables previously sold by it to the Company on and after the 90th
day following the date on which there are no amounts outstanding with respect to
such Purchased Receivables, but will have continuing obligations with respect to
such Receivables (including making any Seller Dilution Adjustment Payments,
Seller Adjustment Payments and Seller Indemnification Payments and with respect
to any Indemnified Liabilities) to the extent such obligations arise hereunder.
SECTION 9.14. No Bankruptcy Petition. Each Seller, by entering into this
Agreement, and any present or future holder of the Seller Note, by its
acceptance thereof, covenants and agrees that, prior to the date which is one
year and one day after the date of termination of this Agreement pursuant to
Section 9.15, it will not institute against, or join any other Person in
instituting against, the Company any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any Applicable
Insolvency Laws.
SECTION 9.15. Termination. This Agreement will terminate at such time as
(i) the commitment of the Company to purchase Receivables from all the Sellers
hereunder shall have terminated, (ii) all Receivables purchased hereunder have
been collected, and the proceeds thereof turned over to the Company and all
other amounts owing to the Company hereunder shall have been paid in full or, if
Receivables sold hereunder have not been collected, such Receivables have become
Defaulted Receivables and the Company shall have completed its collection
efforts in respect thereto and (iii) the Trust Termination Date has occurred;
provided, however, that the indemnities of the Sellers to the Company set forth
in this Agreement shall survive such termination; provided, further, that, to
the extent any amounts remain due and owing to the Company hereunder, the
Company shall remain entitled to receive any Collections on Receivables sold
hereunder which have become Defaulted Receivables after it shall have completed
its collection efforts in respect thereof. Notwithstanding anything to the
contrary contained herein, if at any time, any payment made by any Seller is
rescinded or must be restored or returned by the Company as a result of any
Insolvency Event with respect to such Seller, then such Seller's obligations
with respect to such payment shall be reinstated as though such payment had
never been made.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized, all as of the day and
year first above written.
XXXXXX FUNDING INC., as Buyer
By: /s/ P. Xxxx Xxxxxxxx
------------------------------------------
Title: Attorney-in-Fact
XXXXXX MICRO INC., as a Seller
By: /s/ P. Xxxx Xxxxxxxx
------------------------------------------
Title: Senior Director & Worldwide
Assistant Treasurer
XXXXXX MICRO INC., as Servicer
By: /s/ P. Xxxx Xxxxxxxx
---------------------------------------------
Title: Senior Director & Worldwide
Assistant Treasurer
Signature Page
to
Receivables Sale Agreement
48
Exhibit A
to
Amended and Restated Receivables Sale Agreement
[FORM OF SELLER NOTE]
New York, New York
_______, 20__
XXXXXX FUNDING INC., a Delaware corporation (the "Company"), hereby
promises to pay to the order of Xxxxxx Micro Inc. and any other Seller (each, a
"Seller" pursuant to the Receivables Sale Agreement described below) the
principal amount of this Seller Note, determined as described below, together
with interest thereon at a rate per annum equal to One-Month LIBOR plus 2.00% in
lawful money of the United States of America. Capitalized terms used herein but
not defined herein shall have the meanings assigned to such terms in the Amended
and Restated Receivables Sale Agreement dated as of March 8, 2000 among the
Company and the Sellers and the Servicers party thereto (as amended, restated,
supplemented or otherwise modified from time to time in accordance with its
terms, the "Receivables Sale Agreement") and in the Amended and Restated Pooling
Agreement, dated as of March 8, 2000, among the Company, Xxxxxx Micro Inc., as
Master Servicer, and The Chase Manhattan Bank, a New York banking corporation,
as Trustee (as amended, restated, supplemented or otherwise modified from time
to time in accordance with its terms, the "Pooling Agreement"). This Seller Note
is the Seller Note referred to in the Receivables Sale Agreement and is subject
to the terms and conditions thereof.
1. Principal Amount. The aggregate principal amount of this Seller Note
at any time shall be calculated in accordance with Section 8.01 of the
Receivables Sale Agreement and shall be recorded by the Master Servicer (the
authority to so record such amounts being hereby granted to the Master Servicer)
on the schedule annexed to and constituting a part of this Seller Note.
2. Payments of Principal and Interest. (a) Principal on this Seller Note
may be prepaid at any time. Principal not prepaid shall be due and payable on
the Trust Termination Date (as defined in the Pooling Agreement).
(b) Payments of interest on this Seller Note shall be paid on
each Distribution Date (with respect to interest accrued and not paid as
of the preceding Distribution Date (or, in the case of the first
Distribution Date, as of the date on which this Seller Note is issued)
and on the Trust Termination Date by depositing such payment in such
account of the Sellers as each Seller may designate in writing;
provided, however, that accrued interest on this Seller Note which is
not so paid may (to the
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maximum extent permitted by law) be added to the principal amount of
this Seller Note as indicated on the schedule annexed to and
constituting a part of this Seller Note. Notwithstanding the foregoing,
no payments of interest or principal may be made under this Seller Note
at the times and to the extent prohibited under the Subordination
Provisions and Certain Termination Events described in Sections 3 and 6
respectively, below.
3. Subordination Provisions. The Company covenants and agrees, and the
Sellers, by their acceptance of this Seller Note, likewise covenant and agree,
that the payment of all obligations of the Company to the Sellers under this
Seller Note from or with the proceeds (other than proceeds allocable to, or paid
or payable in respect of, the Exchangeable Company Interest in compliance with
Section 2.08(n) of the Pooling Agreement) (such proceeds being the "Proceeds")
of Receivables or Related Property (and any extensions, renewals, financing,
refundings and replacements of all or any part of such obligations)
(collectively, the "Seller Subordinated Debt") are hereby expressly subordinated
in right of payment to the payment and performance of the obligations of the
Company to the Trustee for the benefit of the Holders, howsoever created,
arising or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due (collectively the "Senior
Obligations") to the extent and in the manner set forth in this paragraph,
including each of the following subparts:
(a) Insolvency Events; Priority of Senior Obligations; Payments
Made Directly to the Trustee. In the event of any bankruptcy,
dissolution, winding up, liquidation, readjustment, reorganization or
other similar event relating to the Company, 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 marshaling of the assets and
liabilities of the Company (each an "Insolvency Event") or any sale of
all or substantially all the assets of the Company (except pursuant to
the Pooling Agreement and any Supplement thereto):
(i) the Senior Obligations shall first be paid and
performed in full and in cash before the Sellers shall be
entitled to receive and to retain any payment or distribution
from or with the Proceeds in respect of the Seller Subordinated
Debt, whether of principal, interest or otherwise; and
(ii) any payment or distribution from or with the
Proceeds of any kind (including cash or property arising from
Proceeds which may be payable or deliverable by reason of the
payment of any other Indebtedness of the Company being
subordinated to the payment of the Seller Subordinated Debt) in
respect of the Seller Subordinated Debt that otherwise would be
payable or deliverable with respect to the
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Seller Subordinated Debt directly or indirectly, by setoff or in
any other manner to the Sellers, shall be paid or delivered by
the Person making such payment or delivery (whether a trustee in
bankruptcy, a receiver, custodian, liquidating trustee or
otherwise) directly to the Trustee on behalf of the Holders for
application to (in the case of cash) or as collateral for (in
the case of non-cash property or securities) the payment of the
Senior Obligations until the Senior Obligations shall have been
paid in full in cash.
(b) Payments Received by the Sellers. In the event that the
Sellers receive any payment or other distribution of any kind or
character arising from Proceeds from the Company or from any other
source whatsoever in respect of the Seller Subordinated Debt after the
commencement of an Insolvency Event, such payment or other distribution
shall be deemed to be property of the Holders and shall be received and
held by the Sellers in trust for the Trustee on behalf of the Holders
and shall be turned over by the Sellers to the Trustee for the benefit
of the Holders forthwith, until all Senior Obligations have been paid
and performed in full and in cash.
(c) Application of Payments. All payments and distributions
arising from Proceeds received by the Trustee in respect of the Seller
Subordinated Debt, to the extent received in or converted into cash, may
be applied by the Trustee for the benefit of the Holders (i) first to
the payment of any and all reasonable expenses (including reasonable
attorneys' fees and legal expenses) paid or incurred by the Trustee or
any Holder in enforcing these Subordination Provisions, or in
endeavoring to collect or realize upon the Seller Subordinated Debt, and
(ii) any balance remaining therefrom shall be applied by the Trustee
toward the payment of the Senior Obligations in a manner determined by
the Trustee to be in accordance with the Pooling Agreement.
(d) Sellers' Rights of Subrogation. The Sellers agree that no
payment or distribution to Holders pursuant to these Subordination
Provisions shall entitle the Sellers to exercise any right of
subrogation in respect thereof until the Senior Obligations shall have
been paid in full in cash. The Sellers agree that these Subordination
Provisions herein shall not be affected by any action, or failure to
act, by any holder of Senior Obligations which results, or may result,
in affecting, impairing or extinguishing any right of reimbursement or
subrogation or other right or remedy of the Sellers.
(e) Company's Obligations Absolute. The provisions of this
paragraph are intended solely for the purpose of defining the relative
rights with respect to Proceeds of the Sellers, on the one hand, and the
Holders on the other hand. Nothing contained in these provisions or
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elsewhere in this Seller Note is intended to or shall impair, as between
the Company, its creditors (other than the Holders) and the Sellers, the
Company's obligation, which is unconditional and absolute, to pay the
Seller Subordinated Debt as and when the same shall become due and
payable in accordance with the terms hereof and of the Receivables Sale
Agreement or to affect the relative rights of the Sellers and creditors
of the Company (other than the Holders); provided that any payments made
by the Company pursuant to this subsection shall be made solely from
funds available to the Company which are not otherwise needed to be
applied to the payment of any amounts pursuant to any Pooling and
Servicing Agreements, shall be non-recourse other than with respect to
proceeds in excess of the proceeds to make such payment, and shall not
constitute a claim against the Company to the extent that insufficient
proceeds exist to make such payment.
(f) Avoided Payments. If, at any time, any payment (in whole or
in part) made with respect to any Senior Obligations is rescinded or
must be restored or returned by a Holder or the Trustee on behalf of the
Holders, the provisions of this paragraph shall continue to be effective
or shall be reinstated, as the case may be, as though such payment had
not been made.
(g) Subordination Not Affected by Certain Actions of Holders or
the Trustee. As between the Sellers, on the one hand, and the Holders
and the Trustee, on the other hand, each of the Holders or the Trustee
may, from time to time, at its sole discretion, without notice to the
Sellers, 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
Obligations; (ii) extend or renew for one or more periods (whether or
not longer than the original period), alter, increase or exchange any of
the Senior Obligations, or release or compromise any obligation of any
nature with respect to any of the Senior Obligations; (iii) amend,
supplement, restate, or otherwise modify any Transaction Document; and
(iv) 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 Obligations.
(h) Waiver of Notice. By its acceptance hereof, each Seller
hereby waives: (i) notice of acceptance of the provisions of this
paragraph by any of the Holders or the Trustee; (ii) notice of the
existence, creation, non-payment or non-performance of all or any of the
Senior Obligations; and (iii) all diligence in enforcement, collection
or protection of, or realization upon, the Senior Obligations or any
security therefor.
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4. Restrictions on Assignment. Neither this Seller Note, nor any right
of the Sellers to receive payments hereunder, shall be assigned, transferred,
exchanged, pledged, hypothecated, participated or otherwise conveyed.
5. No Bankruptcy Petition. Each Seller covenants and agrees that, prior
to the date which is one year and one day after the date of termination of the
Receivables Sale Agreement pursuant to Section 9.15 thereof, it will not
institute against, or join any other Person in instituting against, the Company
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy or
similar law.
6. Certain Termination Events. During the continuance of any Early
Amortization Event:
(a) the Company shall cease making any payments to the Sellers
under this Seller Note;
(b) the Trustee (on behalf of the Holders) may demand, xxx for,
collect and receive every payment or distribution of any kind made in
respect of the Seller Subordinated Debt and file claims and proofs of
claim and take such other action (including enforcing any security
interest or other lien securing payment of the Seller Subordinated Debt)
as the Trustee (on behalf of the Holders) may deem necessary for the
exercise or enforcement of any of the rights or interests of Holders;
provided that in the event the Trustee takes such action, it shall apply
all proceeds first to the payment of costs under this Seller Note, then
to the payment of the Senior Obligations and any surplus proceeds
remaining thereafter to be paid over to whosoever may be lawfully
entitled thereto; and
(c) each Seller shall promptly take such action as the Trustee
(on behalf of the Holders) may request (i) to file appropriate claims or
proofs of claim in respect of the Seller Subordinated Debt; (ii) to
execute and deliver to the Trustee (on behalf of the Holders) such
powers of attorney, assignments, or other instruments as the Trustee may
request in order to enable it to enforce any and all claims with respect
to, and any security interests and other liens securing payment of, the
Seller Subordinated Debt, and (iii) to collect and receive any and all
payments or distributions which may be payable or deliverable upon or
with respect to the Seller Subordinated Debt for account of the Trustee
(on behalf of the Holders).
A-5
53
THIS SELLER NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ANY CONFLICT OF LAW
PRINCIPLES.
XXXXXX FUNDING INC.
By:
---------------------------------
Name:
Title:
A-6
54
Schedule 1 to
Seller Note
Subordinated Loans and Payments of Principal
Amount of Unpaid
Amount of Principal Principal Notation
Date Loans Repaid Balance Made By
---- --------- --------- --------- --------
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A-7
55
Exhibit B
to
Amended and Restated Receivables Sale Agreement
[FORM OF ADDITIONAL SELLER/SERVICER SUPPLEMENT]
SUPPLEMENT, dated [ ], to (i) the Amended and Restated Receivables Sale
Agreement, dated as of March 8, 2000 (as amended, restated, supplemented or
otherwise modified from time to time in accordance with its terms, the
"Receivables Sale Agreement"), among Xxxxxx Funding Inc., the Seller named
therein and the Servicer named therein and (ii) the Amended and Restated
Servicing Agreement, dated as of March 8, 2000 (as amended, restated,
supplemented or otherwise modified from time to time in accordance with its
terms, the "Servicing Agreement"), among Xxxxxx Funding Inc., Xxxxxx Micro Inc.,
as Master Servicer and Servicer and The Chase Manhattan Bank, as Trustee.
Capitalized terms used herein and not defined herein shall have the respective
meanings set forth in the Receivables Sale Agreement.
W I T N E S S E T H:
WHEREAS, the Receivables Sale Agreement provides that any direct or
indirect, Subsidiary of Xxxxxx Micro Inc., although not originally a Seller
thereunder, may become a Seller under the Receivables Sale Agreement upon the
satisfaction of each of the conditions precedent set forth in Sections 3.05 and
9.12 of the Receivables Sale Agreement, Section 2.08(l) of the Pooling Agreement
and any applicable provisions of any Supplement;
WHEREAS, the Servicing Agreement provides that any direct or indirect,
Subsidiary of Xxxxxx Micro Inc., although not originally a Servicer thereunder,
may become a Servicer under the Servicing Agreement upon (i) the delivery to the
Company of a supplement in substantially the form of this Supplement and (ii)
the satisfaction of each of the conditions precedent set forth in Sections 3.05
of the Receivables Sale Agreement; and
WHEREAS, the undersigned was not an original Seller under the
Receivables Sale Agreement and the Seller Note or an original Servicer under the
Servicing Agreement but now desires to become a Seller and a Servicer,
respectively, thereunder.
NOW, THEREFORE, the undersigned hereby agrees as follows:
The undersigned agrees to be bound by all of the provisions of each of
the Receivables Sale Agreement, the Servicing Agreement and the other
Transaction Documents applicable to a Seller and a Servicer (other than the
Master Servicer), respectively, thereunder and agrees that it shall, on the date
this Supplement is
B-1
56
accepted by the Company and the Trustee, on behalf of the Holders, become (a) in
the case of the Receivables Sale Agreement, a Seller, and (b) in the case of the
Servicing Agreement, a Servicer, for all purposes of the Receivables Sale
Agreement and the Servicing Agreement, respectively, to the same extent as if
originally a party thereto.
B-2
57
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
[Insert name of Seller/Servicer]
By:
---------------------------------
Name:
Title:
Accepted as of the date first above written:
XXXXXX FUNDING INC.
By:--------------------------------
Name:
Title:
Acknowledged as of the date first above written:
[_____________], as Trustee, on
behalf of the Holders,
By:
--------------------------------
Name:
Title:
B-3
58
Schedule 1
to
Amended and Restated Receivables Sale Agreement
Sellers: Xxxxxx Micro Inc.
Servicers: Xxxxxx Micro Inc.
59
SCHEDULE 3 TO
RECEIVABLES SALE
AGREEMENT
Lockbox No. 72452
Bank of America San Francisco
Acct. # 1233307263
Xxxxxx Micro Inc.
X.X. Xxx 0000,
Xxx Xxxxxxxxx, XX 00000-0000
Lockbox No. 651266
Xxxxxx Micro Inc.
Remittance Center # 651266
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Lockbox No. 31135
Bank of America,
Acct. # 1233307263
Dept. 5195
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Lockbox No. 651702
Xxxxxx Micro Inc.
Remittance Center #651702
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Lockbox No. 31135
Bank of America
Acct. # 1233307263
Xxxxxx Micro
Xxx Xxxxxxx, XX 00000-0000
Lockbox No. 651755
Xxxxxx Micro Inc.
Remittance Center # 651755
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
60
Lockbox No. 98874
Bank of America Illinois
Acct. # 81881 01460
Xxxxxx Micro Inc.
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
Lockbox No. 842219
Xxxxxx Micro Inc.
Xxxxxxxxxx Xxxxxx # 000000
0000 Xxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000-0000
Lockbox No. 98415
Xxxxxx Funding Inc.
X/X XXX Xxxxxxxx
X.X. Xxx 00000
000 Xxxxx Xxxxx Xx., 0xx Xxxxx
Xxxxxxx, XX 00000-0000
Lockbox No. 841381
Xxxxxx Micro Inc.
X.X. Xxx 000000
Xxxxxx, XX 00000-0000
Lockbox No. 65219
Xxxxxx Micro Inc.
Remittance Center # 65219
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Lockbox No. 841972
Xxxxxx Micro Inc.
X.X. Xxx 000000
Xxxxxx, XX 00000-0000
Lockbox No. 65610
Xxxxxx Micro Inc.
X.X. Xxx 00000
Xxxxxxxxx, XX 00000-0000
2
61
Schedule 4
to
Amended and Restated Receivables Sale Agreement
Location of Chief Location of
Seller Executive Office Books and Records
----------------- --------------------- -----------------------------
Xxxxxx Micro Inc. 0000 Xx. Xxxxxx Xxxxx 0000 Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000 Xxxxx Xxx, XX 00000
0000 Xxxxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000-0000
62
SCHEDULE 5 TO
RECEIVABLES SALE AGREEMENT
Names
Xxxxxx Micro Inc.
Xxxxxx Micro
IMpulse
Partnership America
Leading the Way in Worldwide Distribution
Frameworks Total Integration Services
Affiniti
eSolutions
ISG
VentureTech Network
Partners in Excellence
the Xxxxxx Micro logo
Everest Series
63
Schedule 6
to
Amended and Restated Receivables Sale Agreement
Discounted Percentage
All terms defined or referenced in the Receivables Sale Agreement, the
Pooling Agreement or Supplement and not otherwise defined or referenced herein
are used herein as therein defined or referenced.
The Discounted Percentage applicable to all the Receivables purchased on
any date from any Seller shall equal (a) until the date which is 90 days after
the initial Effective Date, ____% and (b) thereafter, the percentage obtained
from the following formula:
100% - (A + B + C + D)
all determined by the Company as of the related Distribution Date,
Where
A = Adjusted Loss Reserve Percentage, which as of such Payment Date will
equal the ratio obtained by dividing (a) Charged-Off Receivables (net
of recoveries in respect of Charged-Off Receivables) with respect to
such Seller during the six-fiscal-month period immediately preceding
the Settlement Report Date most recently preceding such Payment Date
by (b) two times the aggregate amount of Collections during the
three-fiscal-month period immediately preceding the Settlement Report
Date most recent to such Payment Date with respect to Receivables
originated by such Seller.
B = Adjusted Carrying Cost Reserve Percentage, which as of such Payment
Date will equal the amount obtained by dividing (a) the product of (i)
1.5, (ii) Days Sales Outstanding and (iii) the One-Month LIBOR plus 2%
by (b) 360.
C = The Servicing Fee Percentage divided by 360.
D = Processing Expense Reserve Percentage, which will equal 1/2% and
reflects the cost of the Company's overhead, including costs of
processing the purchase of Receivables and other normal operating costs
and a reasonable profit margin.
None of the elements of the above-referenced formula, in respect of any purchase
of Receivables, will be adjusted following the related Payment Date. With
64
respect to each calculation set forth above with respect to a Settlement Report
Date, such calculation as calculated on such Settlement Report Date and included
in the applicable Monthly Settlement Statement shall remain in effect from and
including the related Settlement Report Date to but excluding the following
Settlement Report Date.
