Exhibit 10.10(iv)
$900,000,000
SECOND AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
Dated as of December 19, 2001
Among
G-P RECEIVABLES, INC.
as the Seller
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GEORGIA-PACIFIC CORPORATION
as the Collection Agent
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BLUE RIDGE ASSET FUNDING CORPORATION
CORPORATE RECEIVABLES CORPORATION,
CORPORATE ASSET FUNDING COMPANY, INC.,
FOUR WINDS FUNDING CORPORATION,
AND
VICTORY RECEIVABLES CORPORATION,
as the Purchasers
-----------------
and
CITICORP NORTH AMERICA, INC.
as the Administrative Agent
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TABLE OF CONTENTS
Section Page
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ARTICLE I. DEFINITIONS
SECTION 1.01 Certain Defined Terms.......................................................................1
SECTION 1.02 Other Terms................................................................................19
ARTICLE II. AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01 Purchase Facility..........................................................................19
SECTION 2.02 Making Purchases...........................................................................22
SECTION 2.03 Receivable Interest Percentage.............................................................22
SECTION 2.04 Settlement Procedures......................................................................23
SECTION 2.05 Fees.......................................................................................26
SECTION 2.06 Payments and Computations, Etc.............................................................26
SECTION 2.07 Dividing or Combining Receivable Interests.................................................26
SECTION 2.08 Yield Protection...........................................................................27
SECTION 2.09 Sharing of Payments, Etc...................................................................28
SECTION 2.10 Effect of Early Payments...................................................................28
ARTICLE III. CONDITIONS OF PURCHASES
SECTION 3.01 Conditions Precedent to Initial Purchase...................................................29
SECTION 3.02 Conditions Precedent to All Purchases and Reinvestments....................................30
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Seller and the Collection Agent......................31
ARTICLE V. COVENANTS
SECTION 5.01 Covenants of the Seller and the Collection Agent...........................................35
ARTICLE VI. ADMINISTRATION AND COLLECTION
SECTION 6.01 Designation of Collection Agent............................................................42
SECTION 6.02 Duties of Collection Agent.................................................................42
i
SECTION 6.03 Rights of the Administrative Agent.........................................................44
SECTION 6.04 Responsibilities of the Seller.............................................................45
SECTION 6.05 Further Actions Evidencing Purchases.......................................................45
SECTION 6.06 Collection Agent Fee.......................................................................46
ARTICLE VII. EVENTS OF TERMINATION
SECTION 7.01 Events of Termination......................................................................46
ARTICLE VIII. INDEMNIFICATION
SECTION 8.01 Indemnities by the Seller..................................................................50
SECTION 8.02 Contribution...............................................................................52
ARTICLE IX. THE ADMINISTRATIVE AGENT
SECTION 9.01 Authorization and Action...................................................................53
SECTION 9.02 UCC Filings................................................................................53
SECTION 9.03 Administrative Agent's Reliance, Etc.......................................................53
SECTION 9.04 Citicorp and Affiliates....................................................................54
SECTION 9.05 Purchasers' Purchase Decisions.............................................................54
SECTION 9.06 Successor Administrative Agent.............................................................54
ARTICLE X. ASSIGNMENT OF RECEIVABLE INTERESTS
SECTION 10.01 Assignment.................................................................................55
SECTION 10.02 Effects of Assignment......................................................................55
SECTION 10.03 Additional Purchasers......................................................................56
ARTICLE XI. MISCELLANEOUS
SECTION 11.01 Amendments, Etc............................................................................56
SECTION 11.02 Notices, Etc...............................................................................57
SECTION 11.03 Assignability; Termination.................................................................57
SECTION 11.04 Costs, Expenses and Taxes..................................................................57
SECTION 11.05 No Proceedings.............................................................................58
SECTION 11.06 Confidentiality............................................................................58
SECTION 11.07 No Recourse................................................................................58
ii
SECTION 11.08 Governing Law; Execution in Counterparts...................................................59
SECTION 11.09 Construction of Agreement..................................................................59
iii
SCHEDULES
SCHEDULE I - Lock-Box Banks
SCHEDULE II - Depositary Banks
SCHEDULE III - Credit and Collection Policy
SCHEDULE IV - Originators
SCHEDULE V - Georgia-Pacific's Interests in Originators
SCHEDULE VI - Defaulted Receivables
EXHIBITS
EXHIBIT A - Form of Investor Report
EXHIBIT B - Form of Lock-Box Agreement
EXHIBIT C - Form of Transfer Agreement
EXHIBIT D - Form of Assignment Agreement
EXHIBIT E - Form of Consent and Acknowledgment
EXHIBIT F Addendum to Agreement
iv
SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT dated as of
December 19, 2001 among G-P Receivables, Inc., a Delaware corporation (the
"Seller"), GEORGIA-PACIFIC CORPORATION, a Georgia corporation
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("Georgia-Pacific"), Blue Ridge Asset Funding Corporation ("Blue Ridge"),
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CORPORATE ASSET FUNDING COMPANY, INC. ("CAFCO"), CORPORATE RECEIVABLES
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CORPORATION ("CRC"), FOUR WINDS FUNDING CORPORATION ("Four Winds"), VICTORY
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RECEIVABLES CORPORATION ("Victory") (each of Blue Ridge, CAFCO, CRC, Four Winds
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and Victory and their respective successors and permitted assigns, individually,
a Purchaser, and, collectively, the "Purchasers"), and CITICORP NORTH AMERICA,
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INC. ("Citicorp"), as agent (the "Administrative Agent") for the Purchasers.
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Unless defined elsewhere herein, capitalized terms used in this Agreement shall
have the meanings assigned to such terms in Article I hereof.
ARTICLE I.
DEFINITIONS
SECTION 1.01 Certain Defined Terms. As used in this Agreement, the
---------------------
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Addendum" means an addendum to this Agreement, in substantially the
--------
form of Exhibit F hereto, pursuant to which an Additional Purchaser becomes a
party to this Agreement.
"Additional Purchaser" means each Purchaser as shall become a party to
--------------------
this Agreement by execution of an Addendum pursuant to Section 10.03 hereof.
"Adjusted LIBOR Rate" means, with respect to a Purchaser for any Fixed
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Period, the rate per annum obtained by dividing (a) the arithmetic average
(rounded upwards, if necessary, to the nearest multiple of one-sixteenth of one
percent per annum) of (i) the offered rates for deposits in United States
dollars which appear on the display designated as page "LIBO" (or any successor
page quoting the offered rates for United States dollars in the London interbank
market) on the Xxxxxx Monitor Money Rates Service, or (ii) if such rates are not
obtainable from the Xxxxxx Monitor Money Rates Service, the respective rates
notified to the Purchaser by each of the Reference Banks as the rate at which it
would offer deposits in United States dollars to prime banks in the London
interbank market, in either case for a period equal to such Fixed Period as such
Purchaser shall select and in an amount comparable to the aggregate amount of
Capital of the Receivable Interest to be funded or maintained at or about 11:00
a.m. (London time) on the second Business Day before (and for value on) the
first day of such period by (b) a percentage equal to (i) 100% minus (ii) the
Eurodollar Reserve Percentage for such Fixed Period.
"Administrative Priority" means an administrative priority granted
-----------------------
under Section 364(a) of the Bankruptcy Code.
"Adverse Claim" means a lien, security interest, claim or other charge
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or encumbrance, or any other type of preferential arrangement.
"Affected Party" has the meaning specified in Section 2.08(a) hereof.
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"Affiliate" means, as to any Person, any other Person that, directly
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or indirectly, is in control of, is controlled by or is under common control
with such Person or is a director or officer of such Person.
"Affiliated Obligor" means any Obligor that is an Affiliate of another
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Obligor.
"Aggregate Capital" means, at the time of any determination thereof
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with respect to a Purchaser, the sum of the Capital for all Receivable Interests
of such Purchaser.
"Assignment" has the meaning specified in Section 10.01(a).
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"Average Maturity" means, on any day, that period (expressed in days)
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equal to the weighted average maturity of the Pool Receivables, as calculated by
the Collection Agent and as set forth in the most recent Investor Report;
provided, however, that if any Purchaser shall reasonably disagree with any such
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calculation, the Purchasers may recalculate the Average Maturity with respect to
such day (which calculation shall be conclusive absent demonstrative error).
"Bankruptcy Code" means Title 11 of the United States Code (11
---------------
U.S.C. Sections 101 et seq.), as amended from time to time, or any successor
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statute.
"Bankrupt Receivable" means a Receivable the Obligor of which has
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taken any action, or suffered to occur any event, of the type described in
Section 7.01(i).
"Base Rate" means, for any day, a fluctuating rate per annum equal to
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the rate of interest in effect for such day as publicly announced from time to
time by the Administrative Agent as its "prime rate." Such rate is a rate set by
the Administrative Agent based upon various factors including the Administrative
Agent's costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate. Any change in such rate announced by the
Administrative Agent shall take effect at the opening of business on the day
specified in the public announcement of such change.
"Business Day" means any day on which banks are not authorized or
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required to close in Chicago, Illinois or New York, New York and, if the
applicable Business Day relates to any computation or payment to be made with
respect to the Adjusted LIBOR Rate, any day on which dealings in dollar deposits
are carried on in the London interbank market.
"Capital" of any Receivable Interest owned by a Purchaser means the
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original amount paid by such Purchaser to the Seller for such Receivable
Interest at the time of its purchase by such Purchaser pursuant to this
Agreement, or such amount divided or combined in accordance with Section 2.07,
in each case reduced from time to time by Collections distributed on account of
such Capital pursuant to Section 2.04; provided, that if such Capital shall have
been reduced by any distribution and thereafter all or a portion of such
distribution is rescinded or must otherwise be returned for any reason, such
Capital shall be increased by the amount of such rescinded or returned
distribution, as though it had not been made; provided, further, that such
Capital shall not be reduced for the purposes of this Agreement to the extent
and so long as
2
Collections to be used to effect an Optional Reduction or a Mandatory Reduction
are retained by the Collection Agent (if the Seller or an Affiliate thereof).
"Capital Lease Obligations" of any Person means the obligations of
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such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Code" means the Internal Revenue Code of 1986, as amended from time
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to time.
"Collection Agent" means at any time the Person (which may include the
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Administrative Agent) then authorized pursuant to Article VI to service,
administer and collect Pool Receivables.
"Collection Agent Fee" has the meaning specified in Section 6.06.
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"Collection Agent Fee Reserve" means, on any date, the sum of (i) 1%
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of the Total Aggregate Capital on such date plus (ii) the accrued and unpaid
Collection Agent Fee on such date.
"Collection Delay Period" means 10 days or such other number of days
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as the Administrative Agent may select (acting upon the direction of the
Required Purchasers) upon three Business Days' notice to the Seller.
"Collections" means, with respect to any Pool Receivable, all cash
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collections and other cash proceeds in respect of such Pool Receivable,
including, without limitation, all cash proceeds of Related Security with
respect to such Pool Receivable, and any Collection of such Pool Receivable
deemed to have been received pursuant to Section 2.04(d).
"Concentration Limit" means, at any time, for any Obligor, 3.33% of
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the Total Aggregate Capital outstanding at such time, or such other amount (a
"Special Concentration Limit") for such Obligor designated by the Administrative
Agent in a writing delivered to the Seller at the instruction of all of the
Purchasers; provided, that in the case of an Obligor with any Affiliated
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Obligor, the Concentration Limit shall be calculated as if such Obligor and such
Affiliated Obligor are one Obligor; provided, further, that the Administrative
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Agent (acting upon the instructions of any Purchaser) may, upon not less than
three Business Days' notice to the Seller, cancel any Special Concentration
Limit.
"Consent and Acknowledgment" means the agreement, in substantially the
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form attached hereto as Exhibit E, by each Originator in favor of the
Purchasers, the Secondary Purchasers and the Seller pursuant to which such
Originator consents to and acknowledges the transactions contemplated hereby.
"Contract" means an agreement between an Originator and an Obligor,
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substantially in a form permitted by the Credit and Collection Policy, pursuant
to or under which
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such Obligor shall be obligated to pay for merchandise, goods, insurance or
services from time to time.
"Contractual Dilution" means, with respect to any Receivable, the
--------------------
aggregate amount of Dilutions which have occurred as a result of the application
of credits issued to the related Obligor as cash discounts or other rebates,
refunds or incentives pursuant to contractual terms of sale under which such
Obligor is entitled to a stipulated maximum discount upon satisfaction of one or
more conditions.
"Contractual Dilution Ratio" means, as of any date of determination, a
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fraction, expressed as a percentage, the numerator of which is the aggregate
amount of Contractual Dilution for the most recently completed calendar month
and the denominator of which is the aggregate sales of the Originators for the
prior calendar month.
"Credit and Collection Policy" means those receivables credit and
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collection policies and practices of the Originators in effect on the date
hereof and approved by the Purchasers, summarized on Schedule III hereto, as the
same may be modified in strict compliance with this Agreement.
"Current Default Ratio" means, at the time any determination thereof
---------------------
is to be made, a fraction, expressed as a percentage, the numerator of which is
the aggregate Outstanding Balance of all Pool Receivables that were Defaulted
Receivables at such time and the denominator of which is the aggregate
Outstanding Balance of all Pool Receivables at such time.
"Dealer Fee" means, with respect to a Purchaser, any and all
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commissions of placement agents and commercial paper dealers in respect of Notes
issued by such Purchaser to fund the purchase or maintenance by such Purchaser
of any Receivable Interest.
"Debt" of any Person means, without duplication, (a) all obligations
----
of such Person for borrowed money, (b) all obligations of such Person evidenced
by bonds, debentures, notes or similar instruments, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (d) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding accounts
payable incurred in the ordinary course of business), (e) all Debt of others
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Debt secured thereby has been
assumed, (f) all Guarantees by such Person of Debt of others, (g) all Capital
Lease Obligations of such Person, (h) all obligations, contingent or otherwise,
of such Person as an account party in respect of letters of credit and letters
of guaranty, (i) liabilities in respect of unfunded vested benefits under plans
covered by Title IV or ERISA and (j) all obligations, contingent or otherwise,
of such Person in respect of bankers' acceptances. The Debt of any Person shall
include the Debt of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Debt provide that such Person is
not liable therefor.
4
"Default Ratio" means, at the time any determination thereof is to be
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made, a fraction, expressed as a percentage, the numerator of which is 1/3 of
the aggregate Outstanding Balance of all Pool Receivables that were Defaulted
Receivables on the last Business Day of the month most recently ended and the
last Business Day of each of the immediately preceding two (2) calendar months
or that would have been Defaulted Receivables on such last Business Days had
they not been written off the books of the Seller or an Originator during such
months (such Outstanding Balances of such Defaulted Receivables for the three
(3) calendar months immediately preceding the date hereof as set forth on
Schedule VI hereto), and the denominator of which is 1/3 of the aggregate
Outstanding Balance of all Pool Receivables on the last Business Day of the
month most recently ended and the last Business Day of each of the immediately
preceding two (2) calendar months (such Outstanding Balances for the three (3)
calendar months immediately preceding the date hereof as set forth on Schedule
VI hereto).
"Defaulted Receivable" means a Receivable:
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(i) as to which any payment, or part thereof, remains unpaid for
more than 60 days from the original due date of such Receivable;
(ii) which is a Bankrupt Receivable and (a) is not entitled to the
benefit of an Administrative Priority (regardless of the Outstanding
Balance of such Receivable) or (b) the Outstanding Balance of which,
together with all other Bankrupt Receivables of the same Obligor, is
greater than $500,000 (whether or not one or more of such Bankrupt
Receivables is entitled to an Administrative Priority); or
(iii) which, consistent with the Credit and Collection Policy, would
be written off the Seller's or an Originator's books as uncollectible.
"Delinquency Ratio" means, at the time any determination thereof is to
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be made, the ratio, expressed as a percentage, computed by dividing (i) 1/3 of
the aggregate Outstanding Balance of all Pool Receivables that were Delinquent
Receivables on the last Business Day of the month most recently ended and the
last Business Day of each of the immediately preceding two (2) calendar months
by (ii) 1/3 of the aggregate Outstanding Balance of all Pool Receivables on the
last Business Day of the month most recently ended and the last Business Day of
each of the immediately preceding two (2) calendar months.
"Delinquent Receivable" means a Receivable as to which any payment, or
---------------------
part thereof, remains unpaid for 30 days or more from the original due date
thereof.
"Depositary Account" means a depositary account maintained at a
------------------
Depositary Bank, the primary purpose of which is to receive the proceeds of
Collections from the Seller or an Originator.
"Depositary Bank" means, at any time, any of the banks holding one or
---------------
more Depositary Accounts (as of the date hereof being those banks specified on
Schedule II hereof).
"Depositary Notice" means a notice, in substantially the form of
-----------------
Exhibit F, from the Seller or Originator to a Depositary Bank.
5
"Designated Obligor" means, at any time, each Obligor; provided,
------------------ --------
however, that any Obligor shall, upon not less than three Business Days' notice
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given to the Seller by the Administrative Agent at the instruction of any
Purchaser, cease to be a Designated Obligor.
"Dilution Horizon Ratio" means, as of any date of determination, a
----------------------
fraction, expressed as a percentage, the numerator of which is the sum of (i)
the aggregate sales of the Originators for the most recently ended calendar
month, plus (ii) one-half of the aggregate sales of the Originators for the
calendar month prior to such calendar month, and the denominator of which is the
aggregate Outstanding Balance of all Eligible Receivables as of the last day of
the most recently ended calendar month.
"Dilution Ratio" means, as of any date of determination, a fraction,
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expressed as a percentage, the numerator of which is the sum of (i) the
aggregate amount of Contractual Dilution for the most recently completed
calendar month, plus (ii) the aggregate amount of Non-Contractual Dilution for
the most recently completed calendar month, and the denominator of which is the
aggregate sales of the Originators for the prior calendar month.
"Dilution Reserve" means, as of any date, the product of (1) the
----------------
quotient of (x) the Dilution Reserve Percentage on such date and (y) 1 minus
such Dilution Reserve Percentage, and (2) the Total Aggregate Capital on such
date.
"Dilution Reserve Percentage" means, as of any date of determination,
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the amount equal to
[(2.0 x ANCDR + {(HNCDR-ANCDR) x (HNCDR / ANCDR)} + ACDR] x DHR
where:
ANCDR = the average of the Non-Contractual Dilution Ratios for the
preceding 12 months
HNCDR = the highest of the Non-Contractual Dilution Ratios over
the preceding 12 months
DHR = the Dilution Horizon Ratio
ACDR = the average of the Contractual Dilution Ratios for the
preceding 12 months
"Dilutions" means the aggregate amount of any reductions and
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cancellations of Receivables which have been reduced or canceled, respectively,
for any reason other than that (1) the Obligors have made payments thereon or
(2) the Seller has charged-off such Receivables for credit reasons in accordance
with the Credit and Collection Policy.
6
"Eligible Receivable" means, at any time, a Receivable:
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(i) the Obligor of which is not an Affiliate of any of the parties
hereto;
(ii) which, at the time of the initial creation of a Receivable
Interest therein under this Agreement is not a Defaulted Receivable;
(iii) which is an obligation representing all or part of the sales
price of merchandise, insurance and services within the meaning of Section
3(c)(5) of the Investment Company Act of 1940, as amended, and the nature
of which is such that its purchase with the proceeds of notes would
constitute a "current transaction" within the meaning of Section 3(a)(3) of
the Securities Act of 1933, as amended;
(iv) which is an "account" within the meaning of Section 9-106 of
the UCC of the applicable jurisdiction governing the perfection of the
interest in such Receivable created by a Receivable Interest;
(v) which arises in the ordinary course of an Originator's business
under a Contract which, together with such Receivable, is in full force and
effect and constitutes the legal, valid and binding obligation of the
Obligor of such Receivable and is not subject to any known dispute, offset,
counterclaim or defense whatsoever or any Adverse Claim other than those of
the Purchasers, the Secondary Purchasers and the Administrative Agent;
(vi) which, together with the Contract related thereto, does not
contravene or violate in any respect any laws, rules or regulations
applicable thereto (including, without limitation, laws, rules and
regulations relating to usury, truth in lending, fair credit billing, fair
credit reporting, equal credit opportunity, fair debt collection practices
and privacy) (other than any contravention or violation which would not
have a material adverse effect on the collectibility of such Receivable in
the full Outstanding Balance thereof) and with respect to which no party to
the Contract related thereto is in violation of any such law, rule or
regulation in any respect (other than any contravention or violation which
would not have a material adverse effect on the collectibility of such
Receivable in the full Outstanding Balance thereof);
(vii) which satisfies all applicable requirements of the Credit and
Collection Policy;
(viii) as to which, at the time of the initial creation of a
Receivable Interest therein under this Agreement, the Administrative Agent,
at the instruction of any Purchaser, has not notified the Seller that such
Receivable (or class of Receivables) is no longer acceptable for purchase
by the Purchasers hereunder;
(ix) as to which all right, title and interest of an Originator in
such Receivable was transferred to the Seller from such Originator pursuant
to a Transfer Agreement;
(x) which is denominated and payable in United States dollars in
the United States;
7
(xi) the Obligor of which is not the Obligor of any Receivable which
has been referred to the collection department of the Seller or an
Originator;
(xii) as to which the Seller has good and marketable title thereto,
freely assignable by the Seller to the Administrative Agent for the benefit
of the Purchasers;
(xiii) which, if a Bankrupt Receivable, is entitled to the benefit of
an Administrative Priority and the Outstanding Balance of which, together
with all other Bankrupt Receivables of the same Obligor entitled to the
benefit of an Administrative Priority, is equal to or less than $500,000;
(xiv) the Obligor of which is a U.S. resident; and
(xv) which, if the Originator of which is Fort Xxxxx Operating
Company, is not due from a Government Obligor.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) that is treated as a single employer with the Seller under Section
414 of the Code.
"Eurodollar Reserve Percentage" for any Purchaser and for any Fixed
-----------------------------
Period means the reserve percentage applicable to such Purchaser, its Related
Secondary Purchaser or the bank or banks providing liquidity, back-up purchase
or credit support for the Purchaser during such Fixed Period under regulations
issued from time to time by the Board of Governors of the Federal Reserve System
(or any successor) (or, if more than one such percentage shall be so applicable,
the weighted daily averages of such percentages for those days in such Fixed
Period during which any such percentage shall be so applicable) for determining
the maximum reserve requirement of such Purchaser, its Related Secondary
Purchaser or the bank or banks providing liquidity, back-up purchase or credit
support for the Purchaser (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) with respect to liabilities
consisting of or including Eurocurrency liabilities (as that term is defined in
Regulation D of the Board of Governors of the Federal Reserve System as in
effect from time to time) having a term equal to such Fixed Period.
"Event of Termination" has the meaning specified in Article VII.
--------------------
"Excluded Taxes" means, with respect to an Indemnified Party, Taxes
--------------
which are (a) both (i) imposed by the jurisdiction in which such Indemnified
Party is organized or by any other taxing authority of a United States
jurisdiction as a result of such Indemnified Party doing business or maintaining
an office in such jurisdiction (other than any such taxes that the Indemnified
Party establishes would not have been imposed but for (A) such Indemnified
Party's having executed or enforced a Sale Document or (B) any of the
transactions contemplated herein or in the other Sale Documents) and (ii)
imposed on, based on or measured by net pre-tax income, capital or net worth of
such Indemnified Party (other than Taxes that are, or are in the nature of,
sales, use, rental, property or value added or similar taxes) or (b) any Tax,
assignment or other governmental charge attributable to and which would not have
been imposed but for the
8
failure of an Indemnified Party to deliver to the Seller the applicable tax
forms properly completed and duly executed by such Indemnified Party
establishing such party's exemption from, or eligibility for, a reduced rate of
any such tax or assessment.
"Facility Termination Date" has the meaning specified in Section
-------------------------
2.01(j).
"Fee Letter" means that certain letter agreement among the Seller, the
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Purchasers and the Secondary Purchasers dated December 19, 2001, as the same
may, from time to time, be amended, modified or supplemented.
"Fitch" means Fitch Inc., and any successor thereto.
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"Fixed Period" means, with respect to any Receivable Interest in
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respect of which Yield is computed by reference to the Adjusted LIBOR Rate, a
period from one to and including 30 days, as a Purchaser, after consultation
with the Seller, shall select, provided, that (i) any Fixed Period (other than
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of one day) which would otherwise end on a day which is not a Business Day shall
be extended to the next succeeding Business Day, except that if such extension
would cause the last day of such Fixed Period to occur in the next succeeding
month, the last day of such Fixed Period shall occur on the immediately
preceding Business Day; and (ii) in the case of any Fixed Period for any
Receivable Interest which commences before the Facility Termination Date for
such Receivable Interest and would otherwise end on a date occurring after such
Facility Termination Date, such Fixed Period shall end on such Facility
Termination Date.
"GAAP" means generally accepted accounting principles in the United
----
States of America.
"Government Obligor" means any Obligor that is an agency, a
------------------
department, an instrumentality or a political subdivision of the United States
or of any state or local government.
"Government Obligor Concentration Limit" means 5% or such other
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percentage as shall be designated by the Administrative Agent in a writing
delivered to the Seller at the instruction of the Purchasers.
"Guarantee" of or by any Person (the "guarantor") means any
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obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Debt or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
---------------
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such Debt or
other obligation or to purchase (or to advance or supply funds for the purchase
of ) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Debt or
other obligation of the payment thereof or (c) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such Debt or other
obligation; provided, that the term Guarantee shall not include endorsements for
--------
collection or deposit in the ordinary course of business. The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee is made or,
if not stated or determinable, the maximum reasonably anticipated liability
9
in respect thereof determined in good faith by the guarantor (assuming the
guarantor is required to perform thereunder).
"Indemnified Party" has the meaning specified in Section 8.01.
"Investor Rate" for any day in a Settlement Period for any Receivable
-------------
Interest means
(a) in the case of any Purchaser other than Victory or Four Winds,
the weighted average of
(i) the weighted average, determined on such day, of the sum of (a)
the discount rates on all Notes of such Purchaser issued at a discount
outstanding on such day (other than Notes the proceeds of which are used by
such Purchaser to (x) purchase receivables (other than the Receivables), or
extend financing secured thereby, at a fixed interest rate or (y) conduct
any arbitrage activities of such Purchaser) plus (b) the Dealer Fee with
respect to such Purchaser plus (c) other costs associated with funding
small or odd-lot amounts with respect to all receivable purchase or loan
facilities which are funded by Notes of such Purchaser (other then Notes
the proceeds of which are used by such Purchaser for the purposes described
in clauses (x) and (y) above), converted to an annual yield-equivalent rate
on the basis of a 360-day year;
(ii) the weighted average, determined on such day, of the sum of (a)
the annual interest rates payable on all interest-bearing Notes of such
Purchaser outstanding on such day (other than the Notes the proceeds of
which are used by such Purchaser for the purposes described in clauses (x)
and (y) of paragraph (i) above) plus (b) the Dealer Fee with respect to
such Purchaser plus (c) other costs associated with funding small or
odd-lot amounts with respect to all receivable purchase or loan facilities
which are funded by Notes of such Purchaser (other then Notes the proceeds
of which are used by such Purchaser for the purposes described in clauses
(x) and (y) in paragraph (i) above), on the basis of a 360-day year; and
(iii) the weighted average, determined on such day, of the Adjusted
LIBOR Rate on such day, plus the total spread in effect for such day over
the "Offshore Rate" for an "Offshore Rate Loan" (each as defined in the
Revolving Credit Facility) under the Revolving Credit Facility, to the
extent that such Purchaser has any borrowings outstanding under a Liquidity
Facility on such day or such Purchaser is the provider of such Liquidity
Facility, on the basis of a 360-day year;
(b) in the case of Victory or Four Winds, the all-in cost to Victory
or Four Winds, as the case may be, including discount, dealer commissions and
such other amounts as Victory's conduit agent or Four Wind's Conduit Agent, as
applicable, determines to be reasonable of issuing commercial paper notes to
fund Victory's Receivable Interest or Four Wind's Receivable Interest, as the
case may be; provided, that, to the extent Victory or Four Winds shall not issue
commercial paper notes to fund its respective Receivable Interest, the Investor
Rate for Victory or Four Winds, as applicable, shall be (i) with respect to each
day during a Settlement Period which is either the first, second or third day on
which Victory or Four
10
Winds, as applicable, does not so fund its respective Receivable Interest, the
Base Rate in effect for such day and (ii) with respect to any other day during a
Settlement Period, the rate specified in clause (a)(iii) above; and
(c) In addition to the foregoing, if the Seller shall request any
Purchase (other than a reinvestment Purchase) during any period of time
determined by the Administrative Agent in its sole discretion to result in
incrementally higher costs applicable to such Purchase, the Capital associated
with any such Purchase shall, during such period, be deemed to be funded by a
Purchaser in a special pool (which may include capital associated with other
receivable purchase or loan facilities) for purposes of determining such
additional costs.
"Investor Report" means a report, in substantially the form of Exhibit
---------------
A hereto (appropriately completed), furnished by the Collection Agent to each
Purchaser and the Administrative Agent pursuant to Section 6.02(g) hereof.
"Investor Report Date" means, with respect to each Settlement Period,
--------------------
the 23rd day of the month immediately following a Settlement Date (or if such
day is not a Business Day, the next succeeding Business Day) or such other date
or dates as shall be notified to the Seller from time to time by the
Administrative Agent at the direction of the Required Purchasers.
"Liquidation Day" means, for any Receivable Interest, (i) each day
---------------
during a Settlement Period for such Receivable Interest on which the conditions
set forth in Section 3.02 are not satisfied (or expressly waived by the
Purchasers), provided such conditions remain unsatisfied (or are not expressly
--------
waived by the Purchasers) during such Settlement Period, or (ii) each day which
occurs on or after the Reinvestment Termination Date for such Receivable
Interest.
"Liquidity Facilities" means each of the committed loan facilities,
--------------------
lines of credit and other financial accommodations (including, without
limitation, asset purchase agreements) available to a Purchaser to provide
liquidity in support of such Purchaser's Notes and medium-term notes.
"Liquidation Fee" means, for any Purchaser and for any Settlement
---------------
Period during which a Liquidation Day occurs, the amount, if any, by which (i)
the additional Yield (calculated without taking into account any Liquidation Fee
or any shortened duration of a Fixed Period pursuant to clause (ii) of the
definition thereof) which would have accrued during the remainder of such
Settlement Period on all reductions of Capital of the Receivable Interest during
such Settlement Period exceeds (ii) the income received by such Purchaser's
investing the proceeds of such reductions of Capital.
"Liquidation Yield Reserve" means, on any date, an amount equal to the
-------------------------
product of (1) the Total Aggregate Capital on such date, (2) the Adjusted LIBOR
Rate for a 30-day Fixed Period to commence on such date multiplied by 1.5 and
(3) a fraction having the sum of the Average Maturity plus the Collection Delay
Period (each as in effect at such date) as its numerator and 360 as its
denominator.
"Lock-Box Account" means a lock-box account maintained at a Lock-Box
----------------
Bank, the primary purpose of which is to receive Collections.
11
"Lock-Box Agreement" means an agreement, in substantially the form of
------------------
Exhibit B, among an Originator, the Administrative Agent and a Lock-Box Bank.
"Lock-Box Bank" means, at any time, any of the banks holding one or
-------------
more Lock-Box Accounts (as of the date hereof being those specified on Schedule
I hereof).
"Lock-Box Notice" means a notice, in substantially the form of
---------------
Attachment A to Exhibit B, from the Seller or an Originator to any Lock-Box
Bank.
"Loss Reserve" means, on any date, the product of (a) a fraction
------------
expressed as a percentage, the numerator of which will equal 300% of the greater
of (i) the Concentration Limit for any Obligor (other than any Special
Concentration Limit) and (ii) the Default Ratio as of such date and the
denominator of which will equal 1 minus the numerator and (b) the Total
Aggregate Capital on such date.
"Loss-to-Liquidation Ratio" means, at the time of any determination
-------------------------
thereof, a fraction, expressed as a percentage, the numerator of which is equal
to 1/3 of the aggregate Outstanding Balance (net of recoveries) of all
Receivables that were written-off of the books of the Seller or an Originator as
uncollectible in accordance with the Credit and Collection Policy during the
month most recently ended and during the immediately preceding two calendar
months and the denominator of which is equal to 1/3 of the aggregate Collections
received during the month most recently ended and during the immediately
preceding two calendar months less the aggregate amount of Collections deemed to
have been received during such period pursuant to Section 2.04(d).
"Mandatory Reduction" means the required reduction of the Aggregate
-------------------
Capital of a Purchaser as a result of the occurrence of a Mandatory Reduction
Day.
"Mandatory Reduction Amount" means, with respect to the Receivable
--------------------------
Interests of any Purchaser on any Mandatory Reduction Day, the lowest dollar
amount of a reduction in the Aggregate Capital of such Purchaser which is
necessary to cause such Receivable Interests (if greater than the Pro Rata Share
of such Purchaser to reduce to an amount equal to the Pro Rata Share of such
Purchaser.
"Mandatory Reduction Day" means each day during a Settlement Period on
-----------------------
which the Receivable Interests of a Purchaser exceed an amount equal to the Pro
Rata Share of such Purchaser.
"Moody's" means Xxxxx'x Investors Service, Inc., and any successor
-------
thereto.
"Net Receivables Pool Balance" means, at any time with respect to any
----------------------------
Receivables Pool, the Outstanding Balance of Eligible Receivables then in the
Receivables Pool reduced by the sum of (i) the Outstanding Balance of such
Eligible Receivables that have become Defaulted Receivables, (ii) the aggregate
amount by which the Outstanding Balance of Eligible Receivables (other than
Defaulted Receivables) of each Obligor then in the Receivables Pool exceeds the
Concentration Limit or Special Concentration Limit for such Obligor, (iii) the
result of the aggregate amount by which the Outstanding Balance of Eligible
Receivables (other than Defaulted Receivables) of all Government Obligors then
in the Receivables Pool exceeds
12
the product of (A) the Government Obligor Concentration Limit and (B) the
Outstanding Balance of the Eligible Receivables then in the Receivables Pool,
less the amount specified in clause (ii) with respect to any Government Obligor,
(iv) the aggregate amount of any cash Collections received from Obligors but not
yet applied to reduce the aggregate outstanding balance of Receivables (to the
extent that such unapplied cash has not already been considered in the
determination of Eligible Receivables) and (v) amounts representing total
accruals for annual and semi-annual rebates earned by, but not yet paid to,
Obligors, to the extent such amounts have not already been considered in the
determination of Eligible Receivables.
"Non-Contractual Dilution" means, with respect to any Receivable, the
------------------------
aggregate amount of Dilutions, which have occurred for any reason other than as
a result of Contractual Dilution.
"Non-Contractual Dilution Ratio" means, as of any date of
------------------------------
determination, a fraction, expressed as a percentage, the numerator of which is
the aggregate amount of Non-Contractual Dilution for the most recently completed
calendar month and the denominator of which is the aggregate sales of the
Originators for the prior calendar month.
"Notes" means, with respect to a Purchaser, commercial paper notes or
-----
other short-term promissory notes issued by such Purchaser in the United States
commercial paper market from time to time.
"Obligor" means a Person obligated to make payments pursuant to a
-------
Contract.
"Optional Reduction" means the election of the Seller to reduce the
------------------
Total Aggregate Capital by directing the Collection Agent and the Purchasers to
terminate temporarily the reinvestment of Collections.
"Optional Reduction Amount" means the dollar amount specified in a
-------------------------
notice given by the Seller in accordance with Section 2.01(c) hereof as being
the amount by which the Seller would like to reduce temporarily the Total
Aggregate Capital.
"Optional Reduction Day" means for each Receivable Interest, each day
----------------------
during a Settlement Period on which a portion of the Collections which would
ordinarily be reinvested as a return of the Capital thereof are paid to the
Purchaser or held by the Collection Agent for the account of such Purchaser in
order to effect the reduction of the Capital with respect thereto.
"Optional Reduction Effective Date" means the day on which the
---------------------------------
Purchasers and the Collection Agent shall commence the temporary termination of
reinvestments of Collections pursuant to Section 2.01(c) hereof.
"Originator" means Georgia-Pacific and any direct or indirect
----------
Subsidiary of Georgia-Pacific party to a Transfer Agreement and approved by the
Purchasers (as of the date hereof being those subsidiaries specified on Schedule
IV hereof).
"Outstanding Balance" of any Receivable at any time means the then
-------------------
outstanding principal balance thereof.
13
"Paydown Letter" means the agreement among the Seller,
--------------
Georgia-Pacific, CRC, CAFCO and Citibank providing for the repurchase by the
Seller of certain receivable interests held by each of CRC and CAFCO pursuant to
that certain Amended and Restated Receivables Purchase Agreement, dated as of
October 13, 1999, as amended, among the Seller, the Collection Agent, CAFCO,
CRC, Falcon Asset Securitization Corporation and the Administrative Agent.
"Payoff Letter" means the agreement among the Seller, Georgia-Pacific,
-------------
Falcon Asset Securitization Corporation and Bank One, N.A. (Chicago Office)
providing for the repurchase by the Seller of all receivable interests held by
Falcon Asset Securitization Corporation pursuant to that certain Amended and
Restated Receivables Purchase Agreement, dated as of October 13, 1999, as
amended, among the Seller, the Collection Agent, CAFCO, CRC, Falcon Asset
Securitization Corporation and the Administrative Agent.
"Person" means an individual, partnership, corporation (including a
------
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Pool Receivable" means a Receivable in a Receivables Pool.
---------------
"Potential Termination Event" means an event which, with the passage
---------------------------
of time or notice or both, would constitute an Event of Termination.
"Pro Rata Share" means, for each Purchaser, the percentage set forth
--------------
below opposite such Purchaser's name, or such other percentage for such
Purchaser as shall result from any reallocation in accordance with Section
2.01(d):
Blue Ridge 27.777778%
CAFCO 20.000000%
CRC 13.333333%
Four Winds 22.222222%
Victory 16.666667%
"Provisional Liquidation Day" means each day that would be a
---------------------------
Liquidation Day but for the proviso in clause (i) of the definition of
"Liquidation Day."
"Purchase" has the meaning specified in Section 2.01(a).
--------
"Purchase Limit" means, for all Purchasers in the aggregate, an amount
--------------
equal to $900,000,000 initially, or such lesser amount as shall reflect any
reduction pursuant to Section 2.01(b), and for each Purchaser, its Pro Rata
Share of such aggregate amount. References to the unused portion of the Purchase
Limit shall mean, at any time, the Purchase Limit in effect at such time, less
the sum of the Total Aggregate Capital under this Agreement and the "Total
Aggregate Capital" under the Secondary Purchase Agreement. Furthermore, on any
day on which the Seller reduces the unused portion of (or terminates) the
"Commitment" under the Secondary Purchase Agreement, the Purchase Limit
automatically shall reduce by the same amount (or so terminate).
14
"Receivable" means the indebtedness of any Obligor under a Contract
----------
(other than a Contract with respect to the sale by an Originator of gypsum at
the minehead) and includes the right to payment of any interest or finance
charges and other obligations of such Obligor with respect thereto.
"Receivable Interest" means, at any time, an undivided percentage
-------------------
ownership interest of a Purchaser in (i) all then outstanding Pool Receivables
arising prior to the time of the most recent computation or recomputation of
such undivided percentage interest pursuant to Section 2.03, (ii) all Related
Security with respect to such Pool Receivables, and (iii) all Collections with
respect to, and other proceeds of, such Pool Receivables. Such undivided
percentage interest shall be a fraction, expressed as a percentage, the
numerator of which is the sum of (i) the Capital of such Receivable Interest at
the time of computation and (ii) a number equal to the product of (x) the
Reserve and (y) a fraction, expressed as a percentage, the numerator of which is
the Capital of such Receivable Interest, and the denominator of which is the
Total Aggregate Capital, and the denominator of which is the Net Receivables
Pool Balance at the time of computation. Each Receivable Interest shall be
determined from time to time pursuant to the provisions of Section 2.03.
"Receivables Pool" means at any time the aggregation of each then
----------------
outstanding Receivable in respect of which the Obligor is a Designated Obligor
at such time or was a Designated Obligor on the date of the initial creation of
an interest in such Receivable under this Agreement.
"Records" means, with respect to any Receivable, all Contracts and
-------
other documents, books, records and other information (including, without
limitation, computer programs, tapes, disks, punch cards, data processing
software and related property and rights) relating to such Receivable and the
related Obligor.
"Reference Banks" means Citibank, N.A., The Bank of Tokyo-Mitsubishi,
---------------
Ltd. (New York Branch), Commerzbank AG (New York Branch), Wachovia Bank, N.A.,
or such other banks as the Purchasers shall designate with the consent of the
Seller.
"Reinvestment Termination Date" means, with respect to any Receivable
-----------------------------
Interest, that Business Day which the Administrative Agent at the instruction of
any Purchaser so designates by notice to the Seller as being the first day on
which reinvestments will not be made with respect to such Receivable Interest.
"Related Secondary Purchaser" means, with respect to each Purchaser
---------------------------
set forth below, the Person set forth opposite its name, or, in the case of any
Additional Secondary Purchaser under the Secondary Purchase Agreement, the
Person specified as such Additional Secondary Purchaser's Related Purchaser.
Blue Ridge Wachovia Bank, N.A.
CAFCO Citibank, N.A.
CRC Citibank, N.A.
Four Winds Commerzbank AG (New York Branch)
15
Victory The Bank of Tokyo-Mitsubishi, Ltd. (New York
Branch)
"Related Security" means with respect to any Receivable:
----------------
(i) all of the Seller's interest in any merchandise (including
returned merchandise) relating to any sale giving rise to such Receivable;
(ii) all other security interests or liens and property subject
thereto from time to time purporting to secure payment of such Receivable,
whether pursuant to the Contract related to such Receivable or otherwise,
together with all financing statements describing any collateral securing
such Receivable;
(iii) all guaranties, insurance and other agreements or arrangements
of whatever character from time to time supporting or securing payment of
such Receivable whether pursuant to the Contract related to such Receivable
or otherwise; and
(iv) all Records relating to such Receivable.
"Required Purchasers" means, at a particular time, the Purchasers, the
-------------------
aggregate Purchase Limit of which equals at least 66.666666% of the overall
Purchase Limit; provided, that the Purchase Limit for any Purchaser that has
--------
breached a material provision of this Agreement shall be zero for so long as
such breach has not been cured.
"Reserve" means, on any date, the sum of (a) the Loss Reserve on such
-------
date, (b) the Liquidation Yield Reserve on such date, (c) the Collection Agent
Fee Reserve, if any, on such date, and (d) the Dilution Reserve on such date.
"Responsible Officer" means, as to the Seller and the Originators, any
-------------------
officer (including, for the purpose of this Agreement, any assistant secretary
and any assistant treasurer) of such entity or any person designated in writing
by any such officer.
"Restricted Transferee" means any Originator that is a direct or
---------------------
indirect transferee of all or a substantial portion of (i) the assets of
Georgia-Pacific Corporation or Fort Xxxxx Operating Company or (ii) any assets
that were at any time from and after the date hereof assets of Georgia-Pacific
Corporation or Fort Xxxxx Operating Company.
"Revolving Credit Facility" means that certain Credit Agreement
-------------------------
(Multi-Year Revolving Credit Facility) dated as of November 3, 2000, as amended
(as the same may from time to time be amended, supplemented or restated) among
Georgia-Pacific, the lenders named therein, Bank of America, N.A. as agent and
issuing bank, Xxxxxxx Xxxxx Capital Corporation and Xxxxxx Xxxxxxx Senior
Funding Inc. as co-syndication agents and Banc of America Securities LLC,
Xxxxxxx Xxxxx Capital Corporation and Xxxxxx Xxxxxxx Senior Funding Inc. as book
managers and lead arrangers.
"S&P" means Standard & Poor's Rating Services, a division of McGraw
---
Hill Companies, Inc., and any successor thereto.
16
"Sale Documents" means this Agreement, the Secondary Purchase
--------------
Agreement, the Transfer Agreement, the Consent and Acknowledgment, each Lock-Box
Agreement and the other documents delivered in connection herewith or therewith.
"Secondary Purchase Agreement" means the Second Amended and Restated
----------------------------
Receivables Purchase Agreement, dated as of the date hereof, among the Seller,
Georgia-Pacific, the Secondary Purchasers and Citicorp, as administrative agent,
as the same may, from time to time, be amended, modified or supplemented.
"Secondary Purchasers" means collectively Citibank, N.A., The Bank of
--------------------
Tokyo-Mitsubishi, Ltd. (New York Branch), Commerzbank AG (New York Branch),
Wachovia Bank, N.A. and any "Additional Secondary Purchaser" under the Secondary
Purchase Agreement.
"Settlement Date" means, the following:
---------------
(a) with respect to any Settlement Period in which the Investor Rate
is determined in accordance with paragraphs (a)(i), (a)(ii) or (b) of the
definition "Investor Rate", the date which is the second Business Day following
the end of such Settlement Period;
(b) with respect to any Settlement Period in which the Investor Rate
is determined in accordance with paragraph (a)(iii) of the definition "Investor
Rate", the last day of such Settlement Period;
(c) if the Required Purchasers determine, in their sole discretion,
that (i) an Event of Termination or Potential Termination Event has occurred or
(ii) a Purchaser's commercial paper program is being liquidated, each day
designated as a Settlement Date by the Required Purchasers;
(d) each Business Day on which a Purchaser's Investment is reduced in
accordance with Section 2.01(b), (c) or (d); and
(e) any date on which a reduction in the Total Aggregate Capital is
required to prevent the sum of the Total Aggregate Capital and the "Total
Aggregate Capital" under the Secondary Purchase Agreement from exceeding the
Purchase Limit.
"Settlement Period" means a period equal to one calendar month,
-----------------
provided, however, that the first Settlement Period shall commence on the date
hereof and terminate on the last day of the calendar month in which such
Settlement Period commenced.
"Solvent" means, when used with respect to any Person, that, as of any
-------
date of determination, (a) the amount of the "present fair saleable value" of
the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise," as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they
17
mature. For purposes of this definition, (i) "debt" means liability on a
"claim," and (ii) "claim" means any (x) right to payment, whether or not such a
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured
or (y) right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured or unmatured,
disputed, undisputed, secured or unsecured.
"Subsidiary" means, with respect to any Person, any partnership,
----------
corporation (including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity of which more than 50%
of the outstanding equity interests having ordinary voting power to elect a
majority of the board of directors (or others performing a comparable function)
of such entity is at the time directly or indirectly owned by such Person, by
such Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person.
"Taxes" means all license and registration fees and all income, gross
-----
receipts, rental, franchise, excise, occupational, capital, value added, sales,
use, ad valorem (real and personal), property (real and personal) and excise
taxes, fees, levies, imposts, charges or withholdings of any nature whatsoever,
together with any assessments, penalties, fines, additions to tax and interest
thereon, by any federal, state or local government or taxing authority in the
United States or by any foreign government, foreign governmental subdivision or
other foreign or international taxing authority.
"Termination Date" means the earlier of (i) the Reinvestment
----------------
Termination Date and (ii) the Facility Termination Date.
"Total Aggregate Capital" means, at any time of determination, the sum
-----------------------
of the Aggregate Capital for the Purchasers.
"Transfer Agreement" means each agreement, in substantially the form
------------------
attached hereto as Exhibit C, between the Seller and each Originator pursuant to
which the Seller will purchase Receivables from the Originators.
"UCC" means the Uniform Commercial Code as from time to time in effect
---
in the specified jurisdiction.
"Yield" means for each Receivable Interest for any Settlement Period
-----
IR x C x ED + LF
--
360
where:
C = the daily average (calculated at the close of
business each day) Capital of such Receivable
Interest during such Settlement Period
18
IR = Investor Rate for such Receivable Interest
for such Settlement Period
ED = the actual number of days elapsed during such
Settlement Period
LF = the Liquidation Fee, if any, for such
Receivable Interest for such Settlement
Period;
provided, that no provision of this Agreement shall require the payment or
--------
permit the collection of Yield in excess of the maximum permitted by applicable
law; and provided, further, that Yield for any Receivable Interest shall not be
-------- -------
considered paid by any distribution to the extent that at any time all or a
portion of such distribution is rescinded or must otherwise be returned for any
reason.
SECTION 1.02 Other Terms. All accounting terms not specifically
-----------
defined herein shall be construed in accordance with generally accepted
accounting principles. All terms used in Article 9 of the UCC in the State of
New York, and not specifically defined herein, are used herein as defined in
such Article 9.
ARTICLE II.
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01 Purchase Facility.
-----------------
(a) On the terms and conditions hereinafter set forth, each Purchaser
may, in its sole discretion, purchase Receivable Interests from the Seller from
time to time during the period from the date hereof to the Termination Date and
such Purchase shall be deemed consummated upon payment of the Purchase Price in
accordance with Section 2.02(b). Each purchase (each, a "Purchase") of
Receivable Interests with respect to a Receivables Pool requested by the Seller
shall be made by the Purchasers electing to Purchase at such time simultaneously
and ratably according to their respective Pro Rata Shares. Under no
circumstances shall a Purchaser make any Purchase if after giving effect to such
Purchase, such Purchaser's Aggregate Capital, together with the Related
Secondary Purchaser's "Aggregate Capital" under the Secondary Purchase
Agreement, would exceed such Purchaser's Purchase Limit. Notwithstanding
anything to the contrary contained herein, until such time as the parties
expressly agree, all Purchases of Receivable Interests hereunder and under the
Secondary Purchase Agreement shall be made with respect to a single Receivables
Pool.
(b) The Seller may, upon at least five Business Days' notice to the
Administrative Agent and the Purchasers, terminate in whole or reduce in part
the unused portion of the Purchase Limit; provided, that each partial reduction
--------
shall be in the amount of at least $5,000,000 or an integral multiple thereof
and shall be applied pro rata among the Purchasers according to their Pro Rata
Shares; provided, further, that any partial reduction of the Purchase Limit for
-------- -------
any Purchaser must not result in a remaining Purchase Limit of less than
$25,000,000 or the Purchase Limit for such Purchaser shall be reduced to zero.
Any reductions in the Purchase Limit pursuant to this subsection (b) shall be
permanent.
19
(c) The Seller may, upon at least five Business Days' written notice
to the Administrative Agent and the Purchasers specifying an Optional Reduction
Amount and an Optional Reduction Effective Date, effect an Optional Reduction.
Commencing on the Optional Reduction Effective Date, the Collection Agent shall
cease the reinvestment of Collections for a period of time such that after
giving effect to the amount of Collections which are not reinvested in
accordance with the provisions of Section 2.04(b)(ii), the amount of Total
Aggregate Capital on the day immediately preceding the Optional Reduction
Effective Date is reduced by an amount equal to the Optional Reduction Amount.
Any Optional Reduction under this subsection (c) shall be applied pro rata among
the Purchasers according to their Pro Rata Shares. The Seller shall indemnify
any Purchaser for all losses, expenses and liabilities, if any (including,
without limitation, any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds required by any Purchaser in connection
with such Purchaser's funding or maintenance of the Receivable Interests), which
such Purchaser may sustain as a result of any Optional Reduction pursuant to
this subsection (c).
(d) The Seller may, upon 60 days' prior written notice to the
Purchasers, request the reallocation of the Pro Rata Shares of the Purchasers;
provided, however, that the Seller shall not be able to request such
--------
reallocation after the occurrence of an Event of Termination or a Potential
Termination Event. Any reallocation of a Purchaser's Pro Rata Share as in effect
prior to such reallocation which increases the Purchase Limit of such Purchaser
shall be at the sole discretion of such Purchaser and shall be effective only if
the Related Secondary Purchaser increases its "Commitment" under the Secondary
Purchase Agreement by an amount corresponding to the amount of the increase, if
any, in the Purchaser's Purchase Limit arising from such reallocation. If, as a
result of any reallocation, a Purchaser's Aggregate Capital exceeds its Pro Rata
Share (as proposed to be reallocated) of the Purchase Limit, such Purchaser
shall transfer a Receivable Interest or Receivables Interest computed on the
basis of such excess Capital to the Purchaser or Purchasers whose Pro Rata Share
has increased as a result of such reallocation in exchange for a cash payment in
an amount equal to the aggregate Capital of the Receivable Interests so
transferred.
(e) The Seller may, upon thirty days' prior written notice to the
Administrative Agent and the Purchasers and the written signed consent of the
Administrative Agent and the Purchasers, cease purchasing Receivables from any
Originator, and after the Seller ceases purchasing Receivables from such
Originator, such Originator shall no longer have the obligations of an
Originator for all purposes of this Agreement other than with respect to those
obligations which are expressly intended to survive the termination of this
Agreement, including, without limitation, the indemnities contained in Section
8.01 as incorporated by reference in the Consent and Acknowledgement to which
such Originator is a party. If, as a result of the Seller's decision to cease
purchasing Receivables from any Originator, the Required Purchasers determine,
in their sole discretion, that the Events of Termination in Section 7.01(j) or
the Reserve are no longer reasonable or protective, the Purchasers may modify
the provisions of such Section 7.01(j) or the Reserve with the consent of the
Seller (which consent shall not be unreasonably withheld or delayed).
(f) The Seller may, upon thirty days' prior written notice to the
Administrative Agent and the Purchasers and the written signed consent of the
Administrative Agent and the Purchasers (which consent shall not be unreasonably
withheld or delayed), cease
20
purchasing from any Originator all Receivables generated by any division of such
Originator (an "Originator Division"), and after the Seller ceases purchasing
-------------------
from such Originator all Receivables generated by such Originator Division, any
agreement arising thereafter between such Originator and an Obligor pursuant to
or under which such Obligor shall be obligated to pay for merchandise, insurance
or services provided by such Originator Division, shall not be a "Contract" for
purposes of this Agreement; provided, that any Contract generated by such
--------
Originator Division prior to the date the Seller ceases purchasing such
Originator Division's Receivables shall remain a "Contract" for purposes of this
Agreement. If, as a result of the Seller's decision to cease purchasing from any
Originator all Receivables generated by an Originator Division pursuant to this
Section 2.01(f), the Required Purchasers determine, in their sole discretion,
that the Events of Termination in Section 7.01(j) or the Reserve are no longer
reasonable or protective, the Purchasers may modify the provisions of such
Section 7.01(j) or the Reserve with the consent of the Seller (which consent
shall not be unreasonably withheld or delayed).
(g) The Seller may, upon ninety days' prior written notice to the
Administrative Agent and the Purchasers and the written signed consent of the
Administrative Agent and the Purchasers, commence purchasing from any Originator
all Receivables generated by any Originator Division, and after the Seller
commences purchasing from such Originator all Receivables generated by such
Originator Division, all related agreements between the Originator, and an
Obligor pursuant to or under which such Obligor shall be obligated to pay for
merchandise, insurance or service provided by such Originator Division shall be
"Contracts" for all purposes of this Agreement. If, as a result of the Seller's
decision to commence purchasing from any Originator all Receivables generated by
an Originator Division pursuant to this Section 2.01(g), the Required Purchasers
determine, in their sole discretion, that the Events of Termination in Section
7.01(j) or the Reserve are no longer reasonable or protective, the Purchasers
may modify the provisions of such Section 7.01(j) or the Reserve with the
consent of the Seller (which consent shall not be unreasonably withheld or
delayed).
(h) If Georgia-Pacific sells or otherwise conveys or disposes of the
stock of any Originator, upon the effective date of such sale, such Originator
shall no longer be an Originator under this Agreement; provided, that, if the
--------------
Required Purchasers determine, in their sole discretion, that the Events of
Termination in Section 7.01(j) or the Reserve are no longer reasonable or
protective as a result of such sale, the Purchasers may modify the provisions of
such Section 7.01(j) or the Reserve with the consent of the Seller (which
consent shall not be unreasonably withheld or delayed).
(i) If Georgia-Pacific Corporation, Fort Xxxxx Operating Company or
any Restricted Transferee is an Originator and such Originator sells or
otherwise disposes of all or a substantial portion of its assets to any Person
other than another Originator, the Seller shall deliver to the Purchasers at the
time of such sale a pro forma Investor Report eliminating therefrom the
Receivables of Georgia-Pacific Corporation, Fort Xxxxx Operating Company or such
Restricted Transferee, as applicable. If, based upon such report, the Required
Purchasers determine, in their sole discretion, that the Events of Termination
in Section 7.01(j) or the Reserve are no longer reasonable or protective as a
result of such sale, the Purchasers may modify the provisions of such Section
7.01(j) or the Reserve with the consent of the Seller (which consent shall not
be unreasonably withheld or delayed).
21
(j) The Facility Termination Date shall be 364 days from the date
hereof; provided, that the Facility Termination Date may be extended for an
additional 364-day period at the end of each 364-day period from the date hereof
if the Seller gives each Purchaser written notice no more than 90 days prior to
each such annual anniversary (beginning with the first such period) and each
Purchaser provides the Seller with its written consent to such extension not
later than 60 days after receipt of the Seller's notice.
SECTION 2.02 Making Purchases.
----------------
(a) Each Purchase shall be made on at least three Business Days'
notice from the Seller to each Purchaser. Each such notice shall specify (i) the
amount requested to be paid to the Seller (which shall not be less than
$5,000,000), and (ii) the date of such Purchase (which shall be a Business Day).
Each Purchaser shall notify the Seller whether it has determined to make such
Purchase not later than 10:00 A.M., New York City time, on the second Business
Day prior to the proposed purchase date.
(b) On the date of each Purchase, each Purchaser shall, upon
satisfaction of the applicable conditions set forth in Section 3.01 and Section
3.02, make available to the Seller in same day funds, at the Seller's account
with Bank One, account number 10-31343, an amount equal to the initial Capital
of such Receivable Interest purchased by the Purchaser. Each notice given by the
Seller pursuant to subsection (a) above shall be irrevocable and binding on the
Seller and the Seller shall indemnify each Purchaser against any loss or expense
incurred by such Purchaser as a result of any failure by the Seller to accept
the amount requested to be paid by such Purchaser, including, without
limitation, any loss (including loss of anticipated profits) or expense incurred
by such Purchaser by reason of the liquidation or reemployment of funds acquired
or requested by such Purchaser to fund such requested amount.
SECTION 2.03 Receivable Interest Percentage.
------------------------------
(a) Each Receivable Interest shall be initially computed on its date
of purchase. Thereafter, until the Reinvestment Termination Date for such
Receivable Interest, such Receivable Interest shall be automatically recomputed
(or deemed to be recomputed) on each day other than a Liquidation Day. Any
Receivable Interest as computed (or deemed recomputed) as of the close of
business on the day immediately succeeding the Reinvestment Termination Date for
such Receivable Interest shall remain constant at all times after such
Reinvestment Termination Date. Such Receivable Interest shall become zero when
the Capital thereof, Yield thereon and all other amounts due and payable to the
Purchasers and the Agent under and in connection with this Agreement shall have
been paid in full and the Collection Agent (if not the Seller or an Affiliate
thereof) shall have received the accrued Collection Agent Fee thereon.
(b) If any Receivable Interest would otherwise be reduced on any day
on account of newly arising Pool Receivables, the Purchasers may prevent such
reduction by notifying the Collection Agent on such day that the Receivables
Pool and the Net Receivables Pool Balance for such Receivable Interest will
include, with respect to Receivables arising as Pool Receivables on such day,
only such number or portion of such Receivables as shall cause such Receivable
Interest to remain constant. The remainder of such Receivables or portion
22
thereof shall be treated as Receivables arising on the next succeeding Business
Day (subject to reapplication of this subsection (b)).
(c) If any Investor Report indicates that the last day of the prior
Settlement Period was a Mandatory Reduction Day, the Collection Agent shall
promptly notify the Purchasers and the Seller and shall specify the Mandatory
Reduction Amount. In addition, if on any Business Day the Seller knows such day
to be a Mandatory Reduction Day, it shall promptly notify the Purchasers and the
Collection Agent and shall specify the Mandatory Reduction Amount. On the
Business Day next succeeding the Investor Report Date or such notification to
the Purchasers and the Collection Agent, unless the Seller can demonstrate to
the satisfaction of the Purchasers that such day is not a Mandatory Reduction
Day, the Seller shall pay to each Purchaser its full Mandatory Reduction Amount
to the extent that the Mandatory Reduction Amount represents Collections which
should have been set aside and held in the trust for such Purchaser pursuant to
Section 2.04 hereof but were previously deemed to be reinvested on behalf of
such Purchaser. If the full Mandatory Reduction Amount is not so paid, the
Collection Agent shall continue the suspension of the reinvestment of
Collections on each Mandatory Reduction Day until such time that, after giving
effect to the amount of Collections which are not reinvested in accordance with
the provisions of Section 2.04(b)(ii) and the recomputation of the Receivable
Interests pursuant to Section 2.03, the amount of the Aggregate Capital of such
Purchaser on the day immediately preceding any Mandatory Reduction Day is
reduced by an amount equal to the Mandatory Reduction Amount for such Mandatory
Reduction Day. The Seller shall indemnify any Purchaser for all losses, expenses
and liabilities, if any (including, without limitation, any loss or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Purchaser in connection with such Purchaser's funding or
maintenance of the Receivable Interests), which such Purchaser may sustain as a
result of any Mandatory Reduction.
SECTION 2.04 Settlement Procedures.
---------------------
(a) Collection of the Pool Receivables shall be administered by the
Collection Agent in accordance with the terms of this Agreement. The Seller
shall provide to the Collection Agent on a timely basis all information needed
for such administration, including notice of the occurrence of any Liquidation
Day or Provisional Liquidation Day and current computations of each Receivable
Interest.
(b) The Collection Agent shall, on each day on which Collections of
Pool Receivables are received by it with respect to any Receivable Interest
owned by a Purchaser:
(i) set aside and hold in trust for such Purchaser, out of the
percentage of such Collections represented by such Receivable Interest, an
amount equal to such Purchaser's Yield and Pro Rata Share of the Collection
Agent Fee and fees payable pursuant to the Fee Letter, if any, accrued
through such day for such Receivable Interest and not previously set aside;
provided, that notwithstanding the preceding clause, unless the
--------
Administrative Agent shall have given notice at the direction of the
Required Purchasers to the contrary, such amounts may be commingled with
the Collection Agent's other funds prior to their payment to the
Purchasers;
23
(ii) if such day is neither a Liquidation Day nor a Provisional
Liquidation Day nor an Optional Reduction Day nor a Mandatory Reduction
Day, reinvest on behalf of such Purchaser (such reinvestment to be deemed a
Purchase of a Receivable Interest by such Purchaser) the remainder of such
percentage of Collections, to the extent representing a return of Capital,
by recomputation of such Receivable Interest pursuant to Section 2.03;
(iii) if such day is a Liquidation Day or a Provisional Liquidation
Day, refrain from making reinvestments and set aside and hold in trust for
such Purchaser the entire remainder of such percentage of Collections;
provided, that amounts set aside and held in trust on any Provisional
--------
Liquidation Day that is subsequently determined not to be a Liquidation Day
thereupon shall, to the extent representing a return of Capital, be
reinvested in accordance with the preceding subsection (ii);
(iv) if such day is an Optional Reduction Day, set aside and hold in
trust for the Purchaser the entire remainder of such percentage of
Collections or, if the remainder of such Collections exceeds the remaining
amount of the Optional Reduction Amount, the portion of the remainder of
such Collections equal to such remaining amount of the Optional Reduction
Amount; provided, that, notwithstanding the preceding clause, unless the
--------
Administrative Agent shall have given notice at the direction of the
Required Purchasers to the contrary, such amounts may be commingled with
the Collection Agent's other funds prior to their payment to the
Purchasers;
(v) if such day is a Mandatory Reduction Day, set aside and hold in
trust for the Purchaser the entire remainder of such percentage of
Collections, or if the remainder of such Collections exceeds the remaining
amount of the Mandatory Reduction Amount for such day, the portion of the
remainder of such Collections equal to such remaining amount of the
Mandatory Reduction Amount; provided, that, notwithstanding the preceding
--------
clause, unless the Administrative Agent shall have given notice at the
direction of the Required Purchasers to the contrary, such amounts may be
commingled with the Collection Agent's other funds prior to their payment
to the Purchasers; and
(vi) release to the Seller for its own account any Collections in
excess of such amounts allocated pursuant to subsections (i) through (v)
above.
(c) The Collection Agent shall deposit into an account designated by
each Purchaser, on each Settlement Date, unless the Required Purchasers, in
their sole discretion, require more frequent deposits, all amounts held by the
Collection Agent for each Purchaser in accordance with Section 2.04(b), unless
deposited earlier as provided in the next succeeding sentence; provided,
--------
however, if Collections have been commingled with the Collection Agent's other
-------
funds prior to their payment to the Purchasers as permitted by the terms of this
Agreement, any deposits made pursuant to the preceding clause shall be made by
the Collection Agent from and to the extent of the Collections with respect to a
Receivable Interest owned by such Purchaser. If a Liquidation Day or a
Provisional Liquidation Day has occurred and is continuing, all amounts held by
the Collection Agent for each Purchaser in accordance with Section 2.04(b) shall
be deposited on the first Business Day following receipt by the Collection Agent
into an account designated by such Purchaser. The aggregate amount so deposited
with
24
respect to a Receivable Interest owned by a Purchaser shall not exceed the sum
of such Purchaser's Capital of, and accrued Yield and Pro Rata Share of the
Collection Agent Fee, if any, on such Receivable Interest plus the aggregate of
any other amounts then owed by the Seller to such Purchaser hereunder. If the
amounts so deposited are insufficient to pay in full all amounts due to such
Purchaser hereunder, such amounts shall be applied in the following order of
priority (whether or not such funds are sufficient to pay in full all such
amounts): first to the Collection Agent (if other than Georgia-Pacific or its
designee) in payment of all accrued and unpaid Collection Agent Fee, if any,
second to such Purchaser in payment in full of all accrued and unpaid Yield,
third to such Purchaser in reduction to zero of the Aggregate Capital of such
Purchaser, fourth to such Purchaser in payment of any other amounts owed by the
Seller to such Purchaser under this Agreement, fifth to the Administrative Agent
in payment of amounts owed by the Seller to the Administrative Agent under this
Agreement and sixth to the Collection Agent (if Georgia-Pacific or its
designee).
After the Capital and Yield with respect to a Receivable Interest, and
any other amounts payable by the Seller to the Purchasers or the Administrative
Agent hereunder, have been paid in full, all additional Collections with respect
to such Receivable Interest shall be paid to the Seller for its own account.
(d) For the purposes of this Section 2.04:
(i) if on any day the Outstanding Balance of any Pool Receivable is
reduced or adjusted as a result of any defective, rejected, returned,
repossessed or foreclosed merchandise or services, or any cash discount or
other adjustment made by the Seller or an Originator, or any right of
setoff is exercised by the Obligor thereunder, the Seller shall be deemed
to have received on such day a Collection of such Pool Receivable in the
amount of such reduction or adjustment;
(ii) if on any day either (w) any of the representations or
warranties contained in Sections 4.01(h) or 4.01(n) are no longer true with
respect to any Pool Receivable, (x) the Seller shall fail to perform or
observe any term, covenant or agreement contained in Section 5.01(d), or
(y) the Seller or any Originator or the Collection Agent (if
Georgia-Pacific or an Affiliate thereof) shall extend, amend or otherwise
modify the terms of any Pool Receivable, or amend, modify or waive the
terms or conditions of the Contract under which such Pool Receivable arises
in a manner which materially and adversely affects the collectibility of
such Pool Receivable, the Seller shall be deemed to have received on such
day a Collection of such Pool Receivable in full;
(iii) except as provided in subsection (i) or (ii) of this Section
2.04(d), or as otherwise required by applicable law or the relevant
Contract, all Collections received from an Obligor of any Receivable shall
be applied to the Receivables of such Obligor in order of the age of such
Receivables, starting with the oldest such Receivable, unless such Obligor
designates its payment for application to specific Receivables; and
(iv) if and to the extent any Purchaser shall be required for any
reason to pay over to an Obligor any amount received on its behalf
hereunder, such amount shall be deemed not to have been so received but
rather to have been retained by the Seller and,
25
accordingly, such Purchaser shall have a claim against the Seller for such
amount, payable when and to the extent that any distribution from or on
behalf of such Obligor is made in respect thereof.
SECTION 2.05 Fees.
----
(a) The Seller shall pay to the Purchasers fees in the amounts and at
the times specified in the Fee Letter.
(b) The Collection Agent shall be paid a Collection Agent Fee as set
forth in Section 6.06 hereof.
(c) The Seller shall pay to the Administrative Agent a fee as
separately agreed between the Seller and the Administrative Agent.
Each Purchaser shall, on the first Business Day of each calendar
month, provide to the Seller and the Collection Agent a statement specifying,
for the most recently completed Settlement Period, the amount and calculation of
such Purchaser's Yield and Pro Rata Share of the fees payable pursuant to the
Fee Letter. The failure of any Purchaser to provide any such statement to the
Seller or the Collection Agent shall not relieve the Seller of its obligations
to pay such Purchaser's Yield or Pro Rata Share of such fees.
SECTION 2.06 Payments and Computations, Etc.
------------------------------
(a) All amounts to be paid or deposited by the Seller or the
Collection Agent hereunder shall be paid or deposited no later than 3:00 P.M.
(New York City time) on the day when due in same day funds to each Purchaser's
account (as designated by each such Purchaser).
(b) The Seller shall, to the extent permitted by law, pay on demand
from time to time interest on any amount not paid or deposited by the Seller or
the Collection Agent when due hereunder at an interest rate per annum equal to
2% per annum above the Base Rate in effect from time to time; provided, however,
-------- -------
that such interest rate shall not at any time exceed the maximum rate permitted
by applicable law.
(c) All computations of interest under subsection (b) above and all
computations of Yield, fees, and other amounts hereunder shall be made on the
basis of a year of 360 days and the actual number of days elapsed. Whenever any
payment or deposit to be made hereunder shall be due on a day other than a
Business Day, such payment or deposit shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
such payment or deposit.
SECTION 2.07 Dividing or Combining Receivable Interests. The Seller
------------------------------------------
may, on notice to and consent by a Purchaser received at least three Business
Days prior to the last day of any Settlement Period, divide any Receivable
Interest of such Purchaser into two or more Receivable Interests having
aggregate Capital equal to the Capital of such divided Receivable Interest. The
Seller may, on notice to and consent by a Purchaser received at least three
Business Days prior to the last day of any Settlement Period either (i) combine
two or more existing Receivable Interests of such Purchaser or (ii) combine an
existing Receivable Interest or existing
26
Receivable Interests and a proposed Receivable Interest, all of such Purchaser,
in each case on such last day into a single Receivable Interest having Capital
equal to the aggregate Capital of such existing Receivable Interest or such
existing Receivable Interests and such proposed Receivable Interest, as the case
may be.
SECTION 2.08 Yield Protection.
----------------
(a) If, after the date hereof, the adoption of any applicable law,
rule or regulation, or any change therein, including Regulation D of the Board
of Governors of the Federal Reserve System, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Purchaser or any Person controlling any thereof, any permitted
assignee under this Agreement or any Person maintaining any liquidity, purchase
or credit enhancement facility for any Purchaser (each of which being an
"Affected Party") with any request or directive (whether or not having the force
--------------
of law) of any such authority, central bank or comparable agency,
(A) shall subject an Affected Party to any tax (except for taxes
on the overall net income of such Affected Party), duty or other charge with
respect to the Receivable Interests or any right to make purchases, or shall
change the basis of taxation of payments to an Affected Party of its Capital or
Yield or any other amounts due under this Agreement in respect of its Capital or
its rights, if any, to make purchases; or
(B) shall impose, modify or deem applicable any reserve
requirement (including, without limitation, any reserve requirement imposed by
the Board of Governors of the Federal Reserve System, but excluding any reserve
requirement, if any, included in the determination of Yield), special deposit or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Affected Party; or
(C) shall impose any other condition affecting the Receivable
Interests or the Purchaser's rights, if any, to make purchases;
and the result of any of the foregoing is (i) to increase the cost to, or, in
the case of Regulation D referred to above, to impose a cost on an Affected
Party funding or making or maintaining any Receivable Interest, or (ii) to
reduce the amount of any sum received or receivable by an Affected Party under
this Agreement with respect thereto, then within ten days after demand by such
Affected Party (which demand shall be accompanied by a statement setting forth
the basis for such demand), the Seller shall pay directly to such Affected Party
such additional amount or amounts as will compensate such Affected Party for
such additional or increased cost incurred or such reduction suffered.
(b) If an Affected Party shall reasonably determine that the adoption
of any applicable law, rule, regulation, directive or guideline regarding
capital adequacy, or any change in or phase-in of any applicable law, rule,
regulation, directive or guideline or in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by an Affected
Party with any request or directive regarding capital adequacy (whether or not
27
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on the
capital of any Affected Party as a consequence of its obligations hereunder or
arising in connection herewith to a level below that which any such Affected
Party could have achieved but for such adoption, change or compliance (taking
into consideration the policies of such Affected Party with respect to capital
adequacy) by an amount deemed by such Affected Party to be material, then from
time to time, within ten days after demand by such Affected Party, the Seller
shall pay to such Affected Party such additional amount or amounts as will
compensate such Affected Party for such reduction.
(c) Each Affected Party will promptly notify the Seller of any event
of which it has knowledge occurring after the date hereof which will entitle
such Affected Party to compensation pursuant to this Section 2.08. If an
Affected Party fails to give such notice within 90 days after it obtains actual
knowledge of such event and such result, such Affected Party shall be entitled
to compensation pursuant to this Section 2.08 only to the extent such additional
amount or reduction accrues on or after the date 90 days prior to the date on
which such Affected Party gives such notice.
(d) In determining any amount provided for in this Section 2.08, the
Affected Party may use any reasonable averaging and attribution methods. Any
Affected Party making a claim under this Section 2.08 shall submit to the Seller
a certificate as to such additional or increased cost or reduction, which
certificate shall be conclusive absent demonstrable error; provided, that the
failure to deliver any such certificate shall not affect the Affected Party's
right to payment hereunder unless notice as required by Section 2.08(c) has not
been given.
SECTION 2.09 Sharing of Payments, Etc. If any Purchaser shall obtain
------------------------
any payment (whether voluntary, involuntary, through the exercise of any right
of setoff, or otherwise) on account of Pool Receivables covered by a Receivable
Interest (other than pursuant to Section 2.08) in excess of payments on account
of Pool Receivables allocable to such Receivable Interest, such Purchaser shall
forthwith purchase from the other Purchasers such participations in the Pool
Receivables as shall be necessary to cause such purchasing Purchaser to share
the excess payment ratably with each of them, provided, however, that if all or
-------- -------
any portion of each excess payment is thereafter recovered from such purchasing
Purchaser, such purchase from each Purchaser shall be rescinded and such
Purchaser shall repay to the purchasing Purchaser the purchase price to the
extent of such recovery together with an amount equal to each Purchaser's Pro
Rata Share of any interest or other amount paid or payable by the purchasing
Purchaser in respect of the total amount so recovered.
SECTION 2.10 Effect of Early Payments. In the event any Purchaser: (i)
------------------------
has the Capital of a Receivable Interest reduced without compliance by the
Seller with the notice requirements hereunder, (ii) does not become subject to a
Mandatory Reduction or an Optional Reduction upon the occurrence of a Mandatory
Reduction Day or an Optional Reduction Day or (iii) in the case of Victory, such
reduction occurs in an amount greater than the face value of Victory's
commercial paper notes issued to fund its Receivable Interest and which mature
on the date of such reduction, then the Seller agrees to pay to the relevant
Purchaser an amount equal to the excess, if any, of:
28
(A) Yield that would have accrued during the remainder of the
Settlement Period or the tranche periods for Notes determined by such Purchaser
to relate to such Receivable Interest (as applicable) subsequent to the date of
such reduction (or in respect of clause (ii) above, the date such Mandatory
Reduction or Optional Reduction took effect pursuant to the occurrence of a
Mandatory Reduction Day or an Optional Reduction Day) on such Capital if such
reduction or such Mandatory Reduction Day or Optional Reduction Day had not
occurred,
over
(B) the income, if any, actually received during the remainder of such
period by such Purchaser from investing the amount received as a reduction of
such Capital, in accordance with such Purchaser's normal investment policies.
All payments made pursuant to this Section 2.10 shall be due and payable
hereunder upon demand. The determinations made by any Purchaser pursuant to this
Section 2.10 shall be binding absent demonstrable error.
ARTICLE III.
CONDITIONS OF PURCHASES
SECTION 3.01 Conditions Precedent to Initial Purchase. The initial
----------------------------------------
Purchase of Receivable Interests under this Agreement is subject to the
conditions precedent that the Purchasers shall have received on or before the
date of such Purchase the following, each (unless otherwise indicated) dated
such date and in form and substance satisfactory to the Purchasers and the
Administrative Agent:
(a) Certificates of the Secretary or Assistant Secretary of the Seller
and each Originator certifying the names and true signatures of their respective
officers authorized to sign this Agreement and the other documents to be
delivered by them hereunder or in connection herewith, evidence of authorization
of the transactions contemplated hereby, the articles of incorporation or
formation (attached and appropriately certified by the Secretary of State of the
Seller's and each Originator's jurisdiction of incorporation or formation) and
the by-laws and all amendments thereto of the Seller and each Originator.
(b) Executed financing statements (including any assignments of and
amendments to financing statements previously filed), to be filed on or before
the date of such initial Purchase under the UCC of all jurisdictions that the
Purchasers or the Administrative Agent may deem necessary or desirable in order
(i) to perfect the ownership interests contemplated by this Agreement and (ii)
to perfect the ownership interests of the Seller in the receivables purchased by
the Seller from the Originators pursuant to the Transfer Agreements.
(c) Executed UCC termination statements, if any, necessary to release
all security interests and other rights of any Person (other than the Purchasers
and the Secondary Purchasers) in the Receivables, Contracts or Related Security
previously granted by the Seller or any Originator.
29
(d) Evidence (including Uniform Commercial Code search reports) that
all Receivables and all proceeds thereof are free and clear of liens, security
interests, claims and encumbrances other than those held by the Purchasers and
the Secondary Purchasers.
(e) An executed Transfer Agreement and Consent and Acknowledgment from
each Originator.
(f) A favorable opinion of counsel for the Seller and for each
Originator as to such matters as the Purchasers or the Administrative Agent may
reasonably request, including, without limitation, bankruptcy opinions with
respect to "true sale" and nonconsolidation.
(g) An executed Payoff Letter and evidence of the payment of all
amounts payable thereunder.
(h) An executed Paydown Letter and evidence of the payment of all
amounts payable thereunder.
SECTION 3.02 Conditions Precedent to All Purchases and Reinvestments.
-------------------------------------------------------
Each Purchase (including the initial Purchase) and each reinvestment shall be
subject to the further conditions precedent that (a) in the case of each
Purchase, the Collection Agent shall have delivered to the Purchasers and the
Administrative Agent on or prior to the date of such Purchase, in form and
substance satisfactory to the Purchasers, all Investor Reports as and when due
under Section 6.02(g) and, on or prior to the date of the initial Purchase, an
Investor Report containing then current information acceptable to the
Purchasers, and (b) on the date of each Purchase or reinvestment, the following
statements shall be true (and acceptance of the proceeds of such Purchase or
reinvestment shall be deemed a representation and warranty by the Seller that
such statements are then true):
(i) the representations and warranties contained in Article IV are
correct on and as of the date of such Purchase or reinvestment as though made on
and as of such date,
(ii) no event has occurred and is continuing, or would result from
such Purchase or reinvestment, that constitutes an Event of Termination or a
Potential Termination Event,
(iii) the Internal Revenue Service shall not have filed a notice of
lien pursuant to Section 6323 of the Code with regard to any assets of the
Seller or any Originator, and the Pension Benefit Guaranty Corporation shall not
have filed a notice of lien pursuant to Section 4068 of ERISA with regard to any
assets of the Seller or any Originator, unless such liens (1) have been
suspended or (2) are being contested in good faith by the Seller or such
Originator and have been bonded in the full amount thereof; provided, however,
-------- -------
that with respect to any Originator, the amount of such lien shall be greater
than $50,000,000, and
(iv) the Facility Termination Date shall not have occurred,
30
and (c) the Purchasers shall have received such other approvals, opinions or
documents as they may reasonably request.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Seller and the
----------------------------------------------------
Collection Agent. Each of the Seller and the Collection Agent makes, with
----------------
respect to itself, the following representations and warranties to each
Purchaser and the Administrative Agent on the date of each Purchase and on the
date of each reinvestment as follows:
(a) It is duly incorporated, validly existing and in good standing
under the laws of its state of incorporation, and is duly qualified to do
business, and is in good standing, in every jurisdiction where the nature of its
business or the ownership of its properties requires it to be so qualified where
the failure to be so qualified could materially adversely affect its ability to
perform its obligations hereunder or under any Transfer Agreement or the
Secondary Purchase Agreement. As of the date hereof, Georgia-Pacific owns
directly or indirectly 100% of the issued and outstanding common stock of the
Seller.
(b) The execution, delivery and performance by the Seller and the
Collection Agent of the Sale Documents to which it is a party, and the Seller's
use of the proceeds of purchases and reinvestments, are within its corporate
powers, have been duly authorized by all necessary corporate action, do not
contravene or violate (i) its certificate of incorporation or articles of
incorporation or by-laws; or (ii) any law, rule or regulation or any contractual
restriction binding on or affecting it the breach of which could reasonably be
expected to have a material adverse effect on the Receivables or the transaction
contemplated hereby, or as may restrict or limit the assignment of Receivables
of Government Obligors, and do not result in or require the creation of any lien
(other than pursuant hereto and pursuant to the Secondary Purchase Agreement)
upon or with respect to any of its properties; and no transaction contemplated
hereby requires compliance with any bulk sales act or similar law. Each Sale
Document to which the Seller or the Collection Agent is a party has been duly
executed, authorized and delivered by the Seller or the Collection Agent, as the
case may be.
(c) Other than the filings of the financing statements under the UCC
of the jurisdictions that the Purchasers or the Administrative Agent deem
necessary, all of which, on or prior to the date of the initial Purchase
hereunder, will have been duly made and be in full force and effect, and other
than such filings, registrations and notices as may be required under applicable
law with respect to the assignment of Receivables of Government Obligors no
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the due execution,
delivery and performance by the Seller or the Collection Agent of this Agreement
or any other Sale Document to which the Seller or the Collection Agent is a
party or for the perfection of or exercise by the Purchaser of its rights and
remedies under this Agreement or any other Sale Document to be delivered
hereunder.
(d) Each of this Agreement and each other Sale Document to which the
Seller or the Collection Agent is a party constitutes the legal, valid and
binding obligation of the Seller and the Collection Agent, respectively,
enforceable against the Seller and the Collection Agent in
31
accordance with their terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws relating
to or limiting creditors' rights generally.
(e) The unaudited consolidated financial statements of the Collection
Agent and its subsidiaries as of September 29, 2001, copies of which have been
furnished to the Purchasers, fairly present the financial condition of the
Collection Agent and its subsidiaries as of such date and the consolidated
results of their operations for the period ended on such date, and have been
prepared in accordance with GAAP consistently applied in all material respects
by the Collection Agent and its subsidiaries throughout the period involved,
except as set forth in the notes thereto and there has been no material adverse
change in such financial position or operations as they existed as of such date.
(f) There is no pending or threatened action or proceeding affecting
the Seller or the Collection Agent or any of their respective subsidiaries or
properties before any court, governmental agency or arbitrator which could
reasonably be expected to materially adversely affect (i) the financial
condition or operations of the Seller or the Collection Agent and its
subsidiaries or (ii) the ability of the Seller or the Collection Agent to
perform their obligations under this Agreement or any other Sale Document to
which it is a party or (iii) the legality, validity or enforceability of this
Agreement or any other Sale Document to which it is a party or (iv) any
Purchaser's interest in the Pool Receivables generally or in any significant
portion of the Pool Receivables, the Related Security or the Collections with
respect thereto, or (v) the collectibility of the Pool Receivables generally or
of any significant portion of the Pool Receivables. Neither the Seller nor the
Collection Agent is in default with respect to any order of any court,
arbitrator or governmental body. No Event of Termination, or event which, with
the passage of time or the giving of notice, or both, would be an Event of
Termination, is continuing.
(g) No proceeds of any purchase or reinvestment will be used (i) for a
purpose which violates, or would be inconsistent with regulations T, U or X
promulgated by the Board of Governors of the Federal Reserve System from time to
time or (ii) to acquire any security in any transaction which is subject to
Section 13 and 14 of the Securities Exchange Act of 1934, as amended.
(h) Immediately prior to a Purchase hereunder, the Seller shall be the
legal and beneficial owner of the Pool Receivables and Related Security with
respect thereto (except with respect to Related Security and with respect to
Receivables of Government Obligors, the transfer of which may be limited by
applicable law), free and clear of any Adverse Claim, except as created by this
Agreement and the Secondary Purchase Agreement and the documents entered into in
connection herewith and therewith. This Agreement is effective to, and shall,
upon each purchase or reinvestment, transfer to each Purchaser (and each
Purchaser shall acquire from the Seller) a valid and perfected first priority
undivided percentage ownership interest to the extent of such Purchaser's
Receivable Interest in each Pool Receivable existing or hereafter arising and in
the Related Security and Collections with respect thereto, except as may be
limited by applicable law with respect to the Related Security and with respect
to Receivables of Government Obligors, free and clear of any Adverse Claim,
except as created by this Agreement and the Secondary Purchase Agreement and the
documents entered into in connection herewith
32
and therewith. No effective financing statement or other instrument similar in
effect covering any Contract or any Pool Receivable or the Related Security or
Collections with respect thereto is on file in any recording office, except
those filed in favor of the Administrative Agent pursuant to this Agreement and
the Secondary Purchase Agreement and those filed in favor of the Seller pursuant
to a Transfer Agreement. Upon the filing of UCC-1 financing statements naming
the Administrative Agent as secured party and the Seller as debtor, the
Administrative Agent, as agent for the Purchasers, shall have a first priority
perfected security interest in the Pool Receivables, Related Security and
Collections, to the extent of each Purchaser's Receivable Interest, to the
extent a security interest in such items of property can be perfected under the
UCC.
(i) Prior to a transfer pursuant to a Transfer Agreement, the related
Originator shall be the legal and beneficial owner of the Receivables and the
Related Security sold to the Seller pursuant to such Transfer Agreement free and
clear of any Adverse Claim. Each Transfer Agreement is effective to, and shall,
upon the creation of a Receivable owing to such Originator party to such
Transfer Agreement, transfer to the Seller (and the Seller shall acquire) from
such Originator all right, title and interest of such Originator in each such
Receivable and in the Related Security and Collections with respect thereto,
except as may be limited by applicable law with respect to the Related Security
and with respect to Receivables of Government Obligors, free and clear of any
Adverse Claim, except as contemplated by this Agreement and the Secondary
Purchase Agreement.
(j) Each Investor Report (if prepared by the Seller, an Originator or
one of their Affiliates, or to the extent that information contained therein is
supplied by the Seller, an Originator or an Affiliate), information, exhibit,
financial statement, document, book, record or report (other than projections
prepared in good faith) furnished or to be furnished at any time by a
Responsible Officer of the Seller or an Originator to the Administrative Agent
or the Purchasers in connection with this Agreement was, is, or will be accurate
in all material respects as of its date or (except as otherwise disclosed to the
Administrative Agent or the Purchasers, as the case may be, at such time) as of
the date so furnished, and no such document contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
(k) As of the date hereof, (i) the Seller's jurisdiction of
incorporation is the State of Delaware, (ii) the jurisdiction of incorporation
or formation of each of the Originators is as stated in the related Transfer
Agreement and (iii) the office where the Seller keeps its records concerning the
Receivables is located at the address referred to in Section 11.02 hereof.
(l) The names and addresses of all Lock-Box Banks and Depositary
Banks, together with the account numbers of the Lock-Box Accounts and the
Depositary Accounts of the Seller and the Originators at such Lock-Box Banks and
such Depositary Banks, are, as of the date hereof, specified in Schedule I
hereto and Schedule II hereto, respectively (or at such other Lock-Box Banks or
Depositary Banks and/or with such other Lock-Box Accounts or Depositary Accounts
as have been notified to the Administrative Agent and the Purchasers in writing
in accordance herewith).
33
(m) Each purchase of a Receivable Interest and each reinvestment of
Collections in Pool Receivables hereunder, and each Purchase by the Seller from
an Originator of a Receivable under the Transfer Agreement to which such
Originator is a party, will constitute (i) a "current transaction" within the
meaning of Section 3(a)(3) of the Securities Act of 1933, as amended, and (ii) a
purchase or other acquisition of notes, drafts, acceptances, open accounts
receivable or other obligations representing part or all of the sales price of
merchandise, insurance or services within the meaning of Section 3(c)(5) of the
Investment Company Act of 1940, as amended.
(n) Each Pool Receivable at the time it first becomes covered by a
Receivable Interest, shall be an Eligible Receivable. Each Pool Receivable used
in computing the Net Receivables Pool Balance shall, at the time of such
computation, be an Eligible Receivable. No event has occurred which materially
and adversely affects the collectibility of the Pool Receivables generally or
the collectibility of a significant portion of the Pool Receivables.
(o) No event has occurred which could reasonably be expected to
materially adversely affect the operations of the Seller or the Collection Agent
and its subsidiaries considered on a consolidated basis as it existed as of
September 29, 2001 or the ability of the Seller or the Collection Agent to
perform its duty to collect the Pool Receivables or the ability of the Seller or
the Collection Agent to perform its obligations under this Agreement or any
other Sale Document to which it is a party.
(p) With respect to each Receivable sold by an Originator to the
Seller and included in a Receivables Pool, the Seller shall have paid or
promised to pay to such Originator at the time of such sale an amount equal to
the Outstanding Balance of such Receivable.
(q) The Seller and each Originator are treating the conveyance of the
Receivables Interest in the Receivables, the Related Security and the
Collections under this Agreement and each sale of a Receivable under the
Transfer Agreements, respectively, as a sale for purposes of GAAP.
(r) Neither the Seller nor the Collection Agent has extended or
modified the terms of any Pool Receivable or the invoice under which any such
Pool Receivable arose except in accordance with the Credit and Collection
Policy.
(s) The obligations of the Seller hereunder to make payment in respect
of fees payable to the Purchasers, deemed Collections under Section 2.04(d) and
indemnities rank at least equally with Debt of the Seller which is not
contractually subordinated.
(t) Neither the Seller nor the Collection Agent has granted any Person
dominion and control of any Lock-Box Account or Depositary Account, or the right
to take dominion and control of any Lock-Box Account or Depositary Account at a
future time or upon the occurrence of a future event.
(u) The transactions under this Agreement and the other Sale Documents
executed and delivered by the Seller do not and will not render the Seller not
Solvent.
34
(v) The Seller and the Collection Agent have filed or caused to be
filed all tax returns which, to their knowledge, are required to be filed or has
filed timely extensions therefor. The Seller and the Collection Agent have paid
all taxes and all assessments made against them or any of its property when due
and payable (other than any amount of tax the validity of which is currently
being contested in good faith by appropriate proceedings and with respect to
which reserves in accordance with GAAP have been provided on the books of the
Seller or the Collection Agent, as the case may be), and no tax lien has been
filed and, to the Seller's or the Collection Agent's knowledge, no claim is
being asserted, with respect to any such tax, fee or other charge, provided,
--------
that, with respect to the Collection Agent (if Georgia-Pacific), the amount of
such claim is at least $75,000,000.
(w) Since September 29, 2001, there have been no changes to the Credit
and Collection Policy which could reasonably be expected to have materially
adversely affect the collectibility of any Receivable.
(x) Neither the Seller nor the Collection Agent is an "investment
company" or a company controlled by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(y) The Seller is treating the conveyance of the Receivable Interests
and the Related Security as indebtedness for purposes of Federal income
taxation.
Upon discovery by the Seller, the Collection Agent, any Purchaser or
the Administrative Agent of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the others.
ARTICLE V.
COVENANTS
SECTION 5.01 Covenants of the Seller and the Collection Agent. Until
------------------------------------------------
the date on which no Capital of any Receivable Interest shall be outstanding and
no further Purchases are to be made under this Agreement:
(a) Compliance with Laws, Etc. Each of the Seller and the Collection
-------------------------
Agent shall comply in all material respects with its certificate of
incorporation and by-laws and all applicable laws, rules, regulations and orders
with respect to it, its properties, and all Receivables in which the Purchasers
have a Receivable Interest, and shall preserve and maintain its corporate
existence, rights, franchises, qualifications, and privileges in the
jurisdiction of its incorporation, and qualify and remain qualified in good
standing as a foreign corporation in each jurisdiction where the failure to be
so qualified could materially adversely affect its ability to perform its
obligations hereunder and under the other Sale Documents to which it is a party.
(b) Offices, Records and Books of Accounts. The Seller shall not
--------------------------------------
change the jurisdiction of its incorporation, except upon 30 days' prior written
notice to the Administrative Agent and the Purchasers to a jurisdiction where
all action required by Section 6.05(a) shall have been taken. The Seller and the
Collection Agent shall maintain and implement administrative and operating
procedures (including, without limitation, an ability to recreate records
evidencing Pool Receivables and related Contracts in the event of the
destruction of the originals thereof),
35
and keep and maintain all documents, books, records and other information
reasonably necessary or advisable for the collection of all Pool Receivables
(including, without limitation, records adequate to permit the daily
identification of each Pool Receivable and all Collections of and adjustments to
each existing Pool Receivable).
(c) Performance and Compliance with Contracts and Credit and
--------------------------------------------------------
Collection Policy. The Seller and the Collection Agent shall, at their own
-----------------
respective expense, timely and fully perform and comply with all material
provisions, covenants and other promises required to be observed by them under
the Contracts related to the Pool Receivables, and timely and fully comply in
all material respects with the Credit and Collection Policy in regard to each
Pool Receivable and the related Contract.
(d) Sales, Liens, Etc. Neither the Seller nor the Collection Agent
-----------------
shall sell, assign (by operation of law or otherwise) or otherwise dispose of,
or create or suffer to exist any Adverse Claim (other than as contemplated
hereunder) upon or with respect to, any Pool Receivable, Related Security
(except returned or reclaimed merchandise), related Contract or Collections, or
upon or with respect to any account to which any Collections of any Pool
Receivable are sent, or assign any right to receive income in respect thereof,
except as contemplated hereunder and under the Secondary Purchase Agreement and
the Transfer Agreements.
(e) Extension or Amendment of Receivables. Except as provided in
-------------------------------------
Section 6.02(c), neither the Seller nor the Collection Agent shall extend, amend
or otherwise modify the terms of any Pool Receivable, or amend, modify or waive
any term or condition of any Contract related thereto other than in accordance
with the Credit and Collection Policy, except with the prior written consent of
the Required Purchasers.
(f) Change in Business or Credit and Collection Policy. Neither the
--------------------------------------------------
Seller nor the Collection Agent shall make any change in the character of its
business or in the Credit and Collection Policy that could, in either case, have
a material adverse effect on (i) its business or properties, (ii) the ability of
the Seller or the Collection Agent to perform its obligations under this
Agreement or any Sale Document to which it is a party or (iii) the
collectibility of the Pool Receivables generally or of any significant portion
of the Pool Receivables.
(g) Audits. The Seller and the Collection Agent shall, at any
------
reasonable time, permit each Purchaser, or its agents or representatives, (i) to
examine and make copies of and abstracts from all Records in the possession or
under the control of the Seller or the Collection Agent relating to Pool
Receivables and the Related Security, including, without limitation, the related
Contracts, and (ii) to visit and inspect the offices and properties of the
Seller and the Collection Agent for the purpose of examining such materials
described in clause (i) above, and to discuss matters relating to the Seller's
and the Collection Agent's financial condition or the Pool Receivables and the
Related Security or the Seller's or the Collection Agent's performance hereunder
or under the Contracts with any of the officers or employees of the Seller or
the Collection Agent having knowledge of such matters.
(h) Change in Payment Instructions to Obligors. The Seller and the
------------------------------------------
Collection Agent shall not, and shall not permit any Originator to, add or
terminate any bank as a
36
Lock-Box Bank or a Depositary Bank from those listed in Schedule I hereto or
Schedule II hereto, respectively, or make any change in its instructions to
Obligors regarding payments to be made to the Seller, the Collection Agent or an
Originator or payments to be made to any Lock-Box Bank or Depositary Bank,
unless the Administrative Agent and the Purchasers shall have received, at least
10 days before the proposed effective date therefor, written notice of such
addition, termination or change and, with respect to the addition of the
Lock-Box Bank, an executed Lock-Box Agreement from, and undated executed copies
of Lock-Box Notices to, such new Lock-Box Bank, and with respect to a Depositary
Bank, undated executed copies of Depositary Notices; provided, however, that the
-------- -------
Seller, the Collection Agent or an Originator shall be permitted to make changes
in instructions to Obligors regarding payments if such new instructions require
such Obligor to make payments to another existing Lock-Box Account or Depositary
Account.
(i) Deposits to Depositary Accounts. The Seller shall, and shall cause
-------------------------------
each Originator to, deposit, or cause to be deposited, all Collections of Pool
Receivables received by the Seller or an Originator into Lock-Box Accounts or
Depositary Accounts within two (2) Business Days of the receipt thereof.
(j) Reporting Requirements. The Seller will provide to the Purchasers
----------------------
the following:
(i) as soon as available and in any event within 45 days after the end
of the first three quarters of each fiscal year of Georgia-Pacific, balance
sheets of Georgia-Pacific and its subsidiaries as of the end of such
quarter and statements of income and cash flows of Georgia-Pacific and its
subsidiaries for the period commencing at the end of the previous fiscal
year and ending with the end of such quarter, certified by the chief
financial officer of Georgia-Pacific;
(ii) as soon as available and in any event within 90 days after the
end of each fiscal year of Georgia-Pacific, a copy of the annual report for
such year for Georgia-Pacific and its subsidiaries, containing audited
financial statements for such year certified in a manner acceptable to the
Purchasers by Xxxxxx Xxxxxxxx & Co. or other independent public accountants
of recognized national standing acceptable to the Purchasers;
(iii) as soon as possible and in any event within five days after (i)
the occurrence of each Event of Termination or Potential Termination Event
of which the Seller has knowledge, (ii) any material change in the Credit
and Collection Policy or (iii) any action, proceeding or judgment affecting
the Seller or any Originator which could reasonably be expected to
materially adversely affect the Seller's or such Originator's (x) financial
condition or operations or (y) ability to perform their respective
obligations under the Sale Documents, or which could reasonably be expected
to affect the legality, validity or enforceability of any Sale Document or
of the Receivables Interest or the interest of the Seller in Receivables
purchased from any Originator under the Transfer Agreement, a statement of
a Responsible Officer of the Seller or his designee setting forth details
thereof and the action that the Originator has taken and proposes to take
with respect thereto, it being understood that the Originator shall
implement such reasonable
37
procedures as shall be designed to ensure that the Treasurer shall promptly
become aware of any Event of Termination or Potential Termination Event;
(iv) promptly after the sending or filing thereof, copies of all
reports that Georgia-Pacific sends to any of its security holders or its
creditors and copies of all reports and registration statements that
Georgia-Pacific or any subsidiary files with the Securities and Exchange
Commission or any national securities exchange;
(v) promptly after the filing or receipt thereof, copies of all
material reports and notices which the Seller, Georgia-Pacific or any ERISA
Affiliate files with or receives from the Internal Revenue Service under
ERISA or files with or receives from the Pension Benefit Guaranty
Corporation or the United States Department of Labor;
(vi) promptly after the receipt thereof, copies of any notice of a tax
lien against any property of the Seller or any Originator which the Seller
or such Originator receives from the Internal Revenue Service;
(vii) at least 45 Business Days prior to any change in the Seller's or
an Originator's name, a notice setting forth the proposed name and the
effective date thereof;
(viii) on or prior to each Investor Report Date, a certificate signed
by a Responsible Officer of the Seller or his designee showing the
calculations necessary to determine compliance with this Agreement and
stating that, unless a statement required by clause (iii) above has been
furnished, to the best of his knowledge, after due inquiry, no Event of
Termination or Potential Termination Event has occurred; and
(ix) such other information documents, records or reports in respect
of the Receivables or the condition or operations, financial or otherwise,
of the Seller, Georgia-Pacific or any of its subsidiaries as the Purchasers
or the Administrative Agent may from time to time reasonably request.
(k) Purchase of Receivables from an Originator. With respect to any
------------------------------------------
Receivable sold by an Originator to the Seller and included in the Receivables
Pool, the Seller has paid or will have promised to pay such Originator an amount
equal to the Outstanding Balance of such Receivable.
(l) Collections Received by an Originator. Upon notification from the
-------------------------------------
Administrative Agent, acting at the instruction of the Required Purchasers, the
Seller will cause each Originator to hold in trust and promptly turn over to the
Collection Agent any Collections received by such Originator on the Seller's
behalf.
(m) Change in Transfer Agreements. The Seller shall not, and shall not
-----------------------------
permit any Originator to, amend, modify or waive any term or condition of this
Agreement or any Transfer Agreement or replace the "Servicer" under any Transfer
Agreement without the consent of all of the Purchasers.
38
(n) UCC Filings. The Seller shall, and shall cause each Originator to,
-----------
file and maintain in effect all filings, and take all such other actions, as may
be necessary to protect the validity and perfection of the Receivable Interest
and the Seller's interest in the Receivables purchased from such Originator
pursuant to a Transfer Agreement.
(o) Compliance with GAAP. The Seller shall treat the conveyance of the
--------------------
Receivable Interests in the Receivables and the Collections under this Agreement
as a sale for purposes of GAAP.
(p) Deposit of Collections. The Seller shall not, and shall not permit
----------------------
any Originator to, deposit or otherwise credit, or cause or permit to be so
deposited or credited, to any Lock-Box Accounts or Depositary Accounts cash or
cash proceeds other than Collections.
(q) No Modification. The Seller shall not amend or modify Articles
---------------
Third, Sixth, Seventh, Eighth, Eleventh or Twelfth of the Seller's certificate
of incorporation or Sections 1 and 2 of Article III or Article VIII of the
Seller's by-laws.
(r) Debt. The Seller shall not create, incur, assume or suffer to
----
exist any Debt or other liability whatsoever, except (i) obligations incurred
under or expressly contemplated by this Agreement, the Secondary Purchase
Agreement or the Transfer Agreements, (ii) liabilities incident to the
maintenance of its existence in good standing or (iii) operating expenses
arising in the ordinary course of business.
(s) Loans. The Seller shall not make or suffer to exist any loans or
-----
advances to, or extend any credit to, or make any investments (by way of
transfer of property, contributions to capital, purchase of stock or securities
or evidences of Debt, acquisition of the business or assets, or otherwise) in,
any Person.
(t) Dissolution. The Seller shall not enter into any transaction of
-----------
merger or consolidation, or liquidate or dissolve itself (or suffer any
liquidation or dissolution), or acquire or be acquired by any Person, or convey,
sell, lease or otherwise dispose of all or substantially all of its property or
business, or cause or consent to an involuntary petition of bankruptcy to be
filed against it, except as provided for in this Agreement and the Secondary
Purchase Agreement.
(u) Indentures, Mortgages, etc. The Seller shall not become a party
--------------------------
to, or permit any of its properties to be bound by, any indenture, mortgage,
instrument, contract, agreement, lease or other undertaking, except this
Agreement, the Secondary Purchase Agreement and the other agreements executed
and delivered by the Seller in connection herewith and therewith.
(v) Restriction of Contract. The Seller shall not enter into, or be a
-----------------------
party to, any transaction with any of its Affiliates, except (i) the
transactions permitted or contemplated by this Agreement, the Secondary Purchase
Agreement and the Transfer Agreement, and (ii) other transactions (including,
without limitation, the lease of office space or computer equipment or software
by the Seller to or from an Affiliate) (A) in the ordinary course of business,
(B) pursuant to the reasonable requirements of the Seller's business, and (C)
upon fair and reasonable terms that are no less favorable to the Seller than
could be obtained in a comparable arm's-length transaction with a Person not an
Affiliate of the Seller.
39
(w) Agreed Procedures. On or before 12 months from the execution date
-----------------
of this Agreement and annually thereafter, a firm of nationally recognized
independent certified public accountants (who may render other services to the
Collection Agent or the Seller) shall furnish a report (which report shall
cover, initially, the period from the date of this Agreement to June 30, 2002,
and thereafter the 12-month period ending on June 30 of each subsequent year) to
each Purchaser to the effect that they have applied such procedures as the
Purchasers may reasonably request and examined certain documents and records
relating to the servicing of the Pool Receivables under this Agreement and that,
based upon such procedures, nothing has come to the attention of such
accountants that caused them to believe that the servicing (including, without
limitation, the allocation of the Collections) has not been conducted in
compliance with the terms of this agreement, except for such exceptions as they
believe to be immaterial and such other exceptions as shall be set forth in such
statement, and in addition, each report shall set forth the procedures
performed. Any reasonable costs incurred by such accountants in connection with
the preparation and furnishing of such report shall be paid by the Seller
promptly upon receipt by the Seller of an invoice therefor.
(x) Separate Entity. The Seller hereby acknowledges that the
---------------
Purchasers are entering into the transactions contemplated by this Agreement in
reliance upon the Seller's identity as a separate legal entity from
Georgia-Pacific or any affiliate of Georgia-Pacific (a "GP Entity"). Therefore,
from and after the date of execution and delivery of this Agreement, the Seller
shall take all reasonable steps, including, without limitation, all steps that
the Purchasers may from time to time reasonably request, to maintain the
Seller's identity as a separate legal entity with assets and liabilities
distinct from those of any other GP Entity and not just a division of any GP
Entity. Without limiting the generality of the foregoing and in addition to and
consistent with the covenant set forth above, the Seller shall:
(i) require that all full-time employees of the Seller identify
themselves as such and not as employees of any GP Entity (including,
without limitation, by means of providing appropriate employees with
business identification cards identifying such employees as the Seller's
employees);
(ii) compensate all employees, consultants and agents directly, from
the Seller's bank accounts, for services provided to the Seller by such
employees, consultants and agents and, to the extent any employee,
consultant or agent of the Seller is also an employee, consultant or agent
of any GP Entity, allocate the compensation of such employee, consultant or
agent between the Seller and such GP Entity on a basis which reflects the
services rendered to the Seller and such GP Entity;
(iii) allocate all overhead expenses (including, without limitation,
telephone and other utility charges) for items shared between the Seller
and any GP Entity on the basis of actual use to the extent practicable and,
to the extent such allocation is not practicable, on a basis reasonably
related to actual use;
(iv) at all times have at least one member of its Board of Directors
who is not (A) a director, officer, employee or affiliate of any GP Entity,
(B) a direct or indirect legal or beneficial owner of more than one percent
(1%) of the capital stock of any GP Entity, (C) a creditor, supplier,
employee, officer, director, member of the immediate
40
family, manager or contractor of any GP Entity, or (D) a person who
controls (whether directly, indirectly or otherwise) any GP Entity or any
creditor, supplier, employee, officer, director, manager or contractor of
any GP Entity (such member, an "Independent Director"); provided, however,
-------- -------
that a member of the Board of Directors who otherwise meets the description
of an Independent Director shall not be disqualified from serving as an
Independent Director if he or she is also an independent director of
another corporation that is a GP Entity with a certificate or articles of
incorporation substantially similar to the certificate of incorporation of
the Seller;
(v) ensure that the following corporate actions are duly authorized by
unanimous vote of its Board of Directors: (i) dissolve or liquidate, in
whole or in part, or institute proceedings to be adjudicated bankrupt or
insolvent, (ii) consent to the institution of bankruptcy or insolvency
proceedings against the Corporation, (iii) file a petition seeking or
consenting to reorganization or relief under any applicable federal or
state law relating to bankruptcy or insolvency, (iv) consent to the
appointment of a receiver, trustee, liquidator, sequestrator or assignee or
other similar official for it or a substantial part of its property, (v)
make a general assignment for the benefit of creditors, (vi) admit in
writing to the inability to pay its debts generally as they become due,
(vii) merge or consolidate with any other entity, or otherwise acquire
substantially all of the assets of any other entity, (viii) take any
corporate action in furtherance of the actions set forth in clauses (i)
through (vii) of this paragraph, (ix) any amendment to Article THIRD,
Article SIXTH, Article EIGHTH or Article TWELFTH of the Seller's
certificate of incorporation, or (x) any amendment to the its certificate
of incorporation which would add corporate purposes in addition to or in
conflict with article THIRD of its certificate of incorporation;
(vi) maintain the Seller's books and records separate from those of
any GP Entity;
(vii) prepare its financial statements separately from those of other
GP Entities and insure that any consolidated financial statements of any GP
Entity that include the Seller have detailed notes clearly stating that the
Seller is a separate corporate entity and that its assets will be available
first and foremost to satisfy the claims of its creditors;
(viii) not commingle funds or other assets of the Seller with those of
any other GP Entity and not maintain bank accounts or other depository
accounts to which any GP Entity is an account party, into which any GP
Entity makes deposits or from which any GP Entity has the power to make
withdrawals;
(ix) not permit any GP Entity to pay any of the Seller's operating
expenses (except pursuant to allocation arrangements that comply with the
requirements of subparagraph (iii) of this Section 5.01(x)); and
(x) not permit the Seller to be named as an insured on the insurance
policy covering the property of any GP Entity, or enter into an agreement
with the holder of such policy whereby in the event of a loss in connection
with such property, proceeds are paid to the Seller.
41
(y) Coverage Ratio. The Seller shall not permit at any time the
--------------
Receivable Interests of any Purchaser to exceed such Purchaser's Pro Rata Share
or the aggregate Receivable Interest of all of the Purchasers to exceed 100%.
(z) Name Change. The Seller shall not change its name, except upon 45
-----------
Business Days' prior written notice to the Administrative Agent and the
Purchaser and the taking of all action required by Section 6.05(a).
(aa) Modification of Terms. The Seller agrees that, if within 30 days
---------------------
of the delivery of the Investor Report in March 2002, the Required Purchasers
determine, in their sole discretion, that the Events of Termination in Section
7.01(j) or the Reserve are no longer reasonable or protective and so notify the
Seller in writing before the expiration of such 30-day period, the Purchasers
may modify the provisions of such Section 7.01(j) or the Reserve with the
consent of the Seller (which consent shall not be unreasonably withheld or
delayed).
ARTICLE VI.
ADMINISTRATION AND COLLECTION
SECTION 6.01 Designation of Collection Agent. The administration and
-------------------------------
collection of the Pool Receivables shall be conducted by such Person (the
"Collection Agent") so designated from time to time in accordance with this
Section 6.01. Georgia-Pacific is hereby designated as, and hereby agrees to
perform the duties and obligations of, the Collection Agent pursuant to the
terms of this Agreement. The Purchasers may at any time designate as Collection
Agent any Person (including a Purchaser or a Secondary Purchaser) to succeed
Georgia-Pacific or any successor Collection Agent, if such Person shall consent
and agree to the terms hereof. Unless the Required Purchasers determine in their
sole discretion that it would be impractical or inadvisable to do so, the
Purchasers shall give the Seller and the Collection Agent at least five Business
Days' notice of any such designation. The Collection Agent may, with the prior
consent of the Purchasers, subcontract with any other Person for the
administration and collection of all or a significant portion of the Pool
Receivables; provided, that the Collection Agent may, so long as it is
--------
Georgia-Pacific, subcontract with an Originator for the administration and
collection of the Pool Receivables without the consent of the Purchasers;
provided, further, that Georgia-Pacific may, without the consent of the
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Purchasers, subcontract with any other Person for the administration and
collection of Pool Receivables as authorized by the Credit and Collection
Policy. Any such subcontract shall not affect the Collection Agent's liability
for performance of its duties and obligations pursuant to the terms hereof.
SECTION 6.02 Duties of Collection Agent.
--------------------------
(a) The Collection Agent shall take or cause to be taken all such
actions as may be necessary or advisable to collect each Pool Receivable from
time to time, all in accordance with applicable laws, rules and regulations,
with reasonable care and diligence, and in accordance with the Credit and
Collection Policy. Each of the Seller, each Purchaser and the Administrative
Agent hereby appoints the Collection Agent, from time to time designated
pursuant to Section 6.01 hereof, as agent for itself and for the owners of
Receivable Interests to enforce their respective rights and interests in the
Pool Receivables, the Related Security and the related Contracts.
42
(b) The Collection Agent shall administer the Collections in
accordance with the procedures described herein and in Section 2.04. The
Collection Agent shall set aside and hold in trust for the account of the Seller
and each Purchaser, their respective shares of the Collections of Pool
Receivables in accordance with Section 2.04 but shall not be required, except
either upon the request of the Administrative Agent acting at the direction of
the Required Purchasers or upon the occurrence and during the continuance of an
Event of Termination or a Potential Termination Event, to segregate the funds
constituting each Purchaser's share of such Collections from the general funds
of the Collection Agent or the Seller prior to the remittance thereof in
accordance with Section 2.04. If the Collection Agent shall be required to
segregate Collections pursuant to the proceeding sentence, the Collection Agent
shall segregate and deposit with a bank (which may be Citibank, N.A., The Bank
of Tokyo-Mitsubishi, Ltd. (New York Branch), Commerzbank AG (New York Branch) or
Wachovia Bank, N.A.) designated by each Purchaser such allocable share of
Collections of Pool Receivables set aside for such Purchaser on the first
Business Day following receipt by the Collection Agent of such Collections.
(c) If no Event of Termination or Potential Termination Event shall
have occurred, the Collection Agent, may, in accordance with the Credit and
Collection Policy, extend the maturity or adjust the Outstanding Balance of any
Receivable as the Collection Agent deems appropriate to maximize Collections in
respect thereof; provided, that the extension or adjustment by the Collection
--------
Agent of a Receivable which is a Defaulted Receivable or a Delinquent Receivable
shall not change the status of such Receivable for purposes of this Agreement.
(d) The Collection Agent shall hold in trust for the Seller and the
Purchasers, in accordance with their respective interests, all Records that
evidence or relate to Pool Receivables and shall, as soon as practicable upon
demand of the Administrative Agent acting at the direction of the Required
Purchasers, deliver or make available to the Administrative Agent all Records in
its possession which evidence or relate to Pool Receivables.
(e) The Collection Agent, shall as soon as practicable following
receipt thereof, turn over to the Seller (i) that portion of Collections of Pool
Receivables representing the Seller's undivided fractional ownership interest
therein, less all reasonable out-of-pocket costs and expenses of the Collection
Agent of servicing, administering and collecting the Pool Receivables to the
extent not covered by the Collection Agent Fee received by it, and (ii) any cash
collections or other cash proceeds received with respect to Receivables not
constituting Pool Receivables.
(f) The Collection Agent shall, from time to time at the request of a
Purchaser, furnish to such Purchaser (promptly after any such request) a
calculation of the amounts set aside for such Purchaser pursuant to Section 2.04
hereof.
(g) On or prior to each Investor Report Date, the Collection Agent
shall prepare and forward to each Purchaser and the Administrative Agent (i) an
Investor Report relating to each Receivable Interest outstanding on the
immediately preceding Settlement Date, and (ii) if requested by a Purchaser, a
listing by Obligor of all Pool Receivables outstanding on such Settlement Date,
together with an analysis of the aging of such Pool Receivables by Obligor and
such additional information as may be reasonably requested by such Purchaser.
Prior to the
43
occurrence of an Event of Termination or a Potential Termination Event, the
Collection Agent will use its best efforts to provide the Purchasers and the
Administrative Agent with the information in clauses (i) and (ii) above on a
more frequent basis if requested by any of the Purchasers. Following an Event of
Termination or a Potential Termination Event, the Collection Agent will provide
the Purchasers and the Administrative Agent with the information in clauses (i)
and (ii) above on a more frequent basis if required by the Required Purchasers.
(h) The Collection Agent will, to the extent permitted by applicable
law and with respect to any amount not paid by the Collection Agent when
required to be paid hereunder, pay on demand interest to each Purchaser at a
rate per annum equal to 2% above the Base Rate, provided, however, that such
-------- -------
interest rate will not at any time exceed the maximum rate permitted by
applicable law.
(i) The Collection Agent's authorization under this Agreement will
terminate after the Facility Termination Date, upon payment in full of all
amounts payable to the Purchasers and the Collection Agent under this Agreement.
SECTION 6.03 Rights of the Administrative Agent.
----------------------------------
(a) Upon five days notice to the Seller, unless the Required
Purchasers determine in their sole discretion that it would be impracticable or
inadvisable to give such notice, the Administrative Agent at the direction of
the Required Purchasers is authorized at any time to date and to deliver to the
Lock-Box Banks, the Lock-Box Notices and to the Depositary Banks, the Depositary
Notices delivered hereunder. The Seller hereby transfers to the Administrative
Agent, effective when the Administrative Agent delivers such Lock-Box Notices or
such Depositary Notices, as the case may be, the exclusive ownership and control
of such Lock-Box Accounts or such Depositary Accounts. The Seller shall, and
shall cause each Originator to, take any actions reasonably requested by the
Administrative Agent to effect such transfer. In case any authorized signatory
of the Seller or any Originator whose signature appears on a Lock-Box Notice or
a Depositary Notice shall cease to have such authority before the delivery of
such Lock-Box Notice or such Depositary Notice, such signature shall
nevertheless be valid as if such authority had remained in force. The
Administrative Agent at the direction of the Required Purchasers may notify the
Obligors of Pool Receivables, at any time and at the Seller's expense, of the
ownership of Receivable Interests under this Agreement and may also direct that
payments of all amounts due or that become due under any or all Receivables be
made directly to the Administrative Agent or its designee. In furtherance of the
foregoing, the Administrative Agent shall, upon the direction of the Required
Purchasers, be entitled to take all such actions as it deems necessary or
advisable to exercise dominion and control over the collection and servicing of
the Pool Receivables including such action as shall be necessary or desirable to
cause all cash, checks and other instruments constituting Collections of Pool
Receivables to come into the possession of the Administrative Agent rather than
the Seller. Unless the Required Purchasers determine in their sole discretion
that it would be impractical or inadvisable to do so, the Purchasers must give
the Seller five days prior notice of any such action.
(b) At any time following the designation of a Collection Agent other
than Georgia-Pacific pursuant to Section 6.01:
44
(i) The Administrative Agent may, and at the direction of the Required
Purchasers shall, direct the Obligors of Pool Receivables that all payments
thereunder be made directly to the Administrative Agent or its designee.
(ii) The Seller shall, and shall cause each Originator to, at the
Administrative Agent's request and at the expense of the Seller and the
Originators, notify each Obligor of Pool Receivables of the ownership of
Receivable Interests under this Agreement and direct that payments be made
directly to the Administrative Agent or a designee of the Administrative
Agent approved by the Required Purchasers.
(iii) The Seller shall, and shall cause each Originator to, at the
Administrative Agent's request (which shall be at the direction of the
Required Purchasers) and at the expense of the Seller and the Originators,
(A) assemble all of the Records that evidence or relate to the Pool
Receivables, and the related Contracts and Related Security, or that are
otherwise necessary or desirable to collect the Pool Receivables, and shall
make the same available to the Administrative Agent or its designee, at a
place selected by the Administrative Agent, and (B) segregate all cash,
checks and other instruments received by it from time to time constituting
Collections of Pool Receivables in a manner acceptable to the
Administrative Agent and the Required Purchasers and, promptly upon
receipt, remit all such cash, checks and instruments, duly endorsed or with
duly executed instruments of transfer, to the Administrative Agent or its
designee.
(iv) The Seller hereby authorizes the Administrative Agent to take any
and all steps in the Seller's name and on behalf of the Seller that are
necessary or desirable, in the determination of the Administrative Agent
and the Required Purchasers, to collect amounts due under the Pool
Receivables, including, without limitation, endorsing the Seller's name on
checks and other instruments representing Collections of Pool Receivables
and enforcing the Pool Receivables and the Related Security and related
Contracts.
SECTION 6.04 Responsibilities of the Seller. Anything herein to the
------------------------------
contrary notwithstanding:
(a) The Seller shall, and shall cause each Originator to, perform its
obligations under the Contracts related to the Pool Receivables to the same
extent as if Receivable Interests and Receivables had not been sold and the
exercise by the Administrative Agent and by the Purchasers of their rights
hereunder shall not release the Collection Agent, the Seller or any Originator
from any of their duties or obligations with respect to any Pool Receivables or
under the related Contracts; and
(b) Neither the Administrative Agent nor the Purchasers shall have any
obligation or liability with respect to any Pool Receivables or related
Contracts, nor shall any of them be obligated to perform the obligations of the
Seller or any Originator thereunder.
SECTION 6.05 Further Actions Evidencing Purchases.
------------------------------------
(a) The Seller shall, and shall cause each Originator to, from time to
time, at their expense, promptly execute and deliver all further instruments and
documents, and take all
45
further actions, that may be necessary or desirable, or that the Administrative
Agent or any Purchaser may reasonably request, to perfect, protect or more fully
evidence the Receivable Interests purchased hereunder, or to enable any
Purchaser or the Administrative Agent to exercise and enforce their respective
rights and remedies hereunder. Without limiting the foregoing, the Seller and
each Originator will upon the request of any Purchaser or the Administrative
Agent (i) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments and documents, that may be
necessary or desirable, or that any Purchaser or the Administrative Agent may
reasonably request, to perfect, protect or evidence such Receivable Interests;
(ii) xxxx conspicuously each invoice evidencing each Pool Receivable and the
related Contract with a legend, acceptable to the Purchasers, evidencing that
Receivable Interests therein have been sold; and (iii) xxxx its master data
processing records evidencing such Pool Receivables and related Contracts with a
legend, acceptable to the Purchasers, evidencing that Receivable Interests
therein have been sold; provided that the actions specified in clauses (ii) and
--------
(iii) may be directed by the Required Purchasers or the Administrative Agent
only upon the occurrence of an Event of Termination or a Potential Termination
Event.
(b) The Seller authorizes the Administrative Agent to file financing
or continuation statements, and amendments thereto, relating to the Pool
Receivables and the Related Security, the related Contracts and the Collections
with respect thereto without the signature of the Seller where permitted by law.
A photocopy or other reproduction of this Agreement shall be sufficient as a
financing statement where permitted by law.
(c) If the Collection Agent fails to perform any of its obligations
hereunder, any Purchaser or the Administrative Agent may (but shall not be
required to) perform, or cause performance of, such obligation; and such
Purchaser's or the Administrative Agent's costs and expenses incurred in
connection therewith shall be payable by the Seller (if the Collection Agent
that fails to so perform is Georgia-Pacific or an Affiliate thereof) as provided
in Section 8.01 or Section 9.04, as applicable.
SECTION 6.06 Collection Agent Fee. The Collection Agent shall be paid
--------------------
a collection fee (the "Collection Agent Fee") of 1% per annum on the average
daily amount of the Total Aggregate Capital payable monthly in arrears on each
Settlement Date. The Collection Agent Fee shall be payable only from Collections
pursuant to, and subject to the priority of payment set forth in, Section 2.04.
ARTICLE VII.
EVENTS OF TERMINATION
SECTION 7.01 Events of Termination. If any of the following events
---------------------
("Events of Termination") shall occur and be continuing:
(a) The Seller or the Collection Agent (if Georgia-Pacific or an
Affiliate thereof) shall fail (i) to perform or observe any term, covenant or
agreement hereunder (other than as referred to in clause (ii) and (iii) of this
subsection (a) or in Sections 5.01(c), 5.01(j) or 5.01(m)) and such failure
shall remain unremedied for three Business Days or (ii) to make any payment or
deposit required hereunder on the first Business Day after the due date thereof
or (iii)
46
to perform or observe any term, covenant or agreement contained in Section
5.01(y) hereof and such failure shall remain unremedied for two Business Days;
or
(b) The Seller or the Collection Agent (if Georgia-Pacific or an
Affiliate thereof) shall fail to transfer to the Purchasers when requested any
rights pursuant hereto which the Seller or such Collection Agent then has; or
(c) Any representation or warranty made or deemed made by the Seller
or the Collection Agent (if Georgia-Pacific or an Affiliate thereof) (or any of
its Responsible Officers) in this Agreement or by any Originator (or any of its
Responsible Officers) in the Transfer Agreement or the Consent and
Acknowledgement to which it is a party or in any information or report delivered
by a Responsible Officer of the Seller or any Originator or the Collection Agent
(if Georgia-Pacific or an Affiliate thereof) pursuant hereto shall prove to have
been incorrect or untrue when made or deemed made or delivered; or
(d) The Seller or the Collection Agent (if Georgia-Pacific or an
Affiliate thereof) shall fail to perform or observe any term, covenant or
agreement contained in Sections 5.01(c), 5.01(j) or 5.01(m) hereof or any term,
covenant or agreement contained in any Transfer Agreement; or
(e) An Originator shall fail to perform or observe any term, covenant
or agreement contained in the Consent and Acknowledgment or the Transfer
Agreement to which such Originator is a party (other than a term, covenant or
agreement the breach of which would give rise to an Event of Termination
described in subsection (h) below), on its part to be performed or observed and
any such failure shall remain unremedied for 15 days after the earlier of (i)
the time the Seller or such Originator becomes aware or should have become aware
of such failure and (ii) the date written notice thereof shall have been given
to the Seller or such Originator, as the case may be, by any Purchaser or the
Administrative Agent; or
(f) The Seller or any Originator shall fail to pay when due any amount
in respect of any Debt and such failure shall continue after any applicable
grace period, or any other event shall occur or condition shall exist in respect
of such Debt and shall continue after any applicable grace period, the effect of
which is to cause (or permit any holder thereof to cause) such Debt to become
due and payable prior to the stated maturity thereof; provided, however, that
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with respect to any Originator the amount of such Debt is at least $75,000,000;
or
(g) Any purchase or any reinvestment pursuant hereto shall for any
reason (other than pursuant to the terms hereof) cease to create, or any
Receivable Interest shall for any reason cease to be, a valid and perfected
first priority undivided percentage ownership interest in Receivables to the
extent of any Purchaser's Receivable Interest in each applicable Pool Receivable
and the Related Security and Collections with respect thereto, or this Agreement
shall for any reason cease to evidence the transfer to a Purchaser (or its
assignees or transferees) of legal and equitable right, title and interest to,
and ownership of, an undivided percentage ownership interest in any Pool
Receivable to the extent of such Purchaser's Receivable Interest or cease to
evidence in any Purchaser legal and equitable title to, and ownership of, an
undivided percentage ownership interest in such Receivable and the Related
Security and Collection to the extent of the Receivable Interest of such
Purchaser, except as may be limited by applicable law
47
with respect to the Related Security and with respect to Pool Receivables of
Government Obligors; or
(h) Any purchase pursuant to any Transfer Agreement shall for any
reason (other than pursuant to the term thereof) cease to create, or an interest
in any Receivable shall cease to be, a valid and perfected first priority
undivided percentage ownership interest in such Receivable and the Related
Security and Collections with respect thereto or the Transfer Agreement shall
for any reason cease to evidence the transfer to the Seller of all legal and
equitable right, title and interest of the relevant Originator to, and ownership
of, an undivided percentage ownership in any Receivable, except as may be
limited by applicable law with respect to the Related Security and with respect
to Receivables of Government Obligors; or
(i) The Seller, any Originator or the Collection Agent (if
Georgia-Pacific or an Affiliate thereof) shall generally not pay its debts as
such debts become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against the Seller, any Originator or
the Collection Agent (if Georgia-Pacific or an Affiliate thereof) seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 45 days, or any
of the actions sought in such proceeding (including an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall occur; or the Seller
or any Originator shall take any corporate action to authorize any of the
actions set forth above in this subsection (i); or
(j) As of any Settlement Date, the Default Ratio shall exceed 7.0%, or
the Delinquency Ratio shall exceed 10.0%, or the Loss-to-Liquidation Ratio shall
exceed .50%, or the average of the Dilution Ratios for the immediately preceding
three calendar months shall exceed 10.0%, or the Average Maturity for the
related Settlement Period shall exceed 40 days; or
(k) There shall have occurred any material adverse change in the
financial condition or operations of Georgia-Pacific and its subsidiaries, taken
as a whole, as they existed as of September 29, 2001; or there shall have
occurred any event which has a reasonable likelihood of having a material
adverse effect on the collectibility of the Pool Receivables generally or any
significant portion of the Pool Receivables or the ability of the Seller, any
Originator or the Collection Agent to perform its duty to collect Pool
Receivables generally or otherwise perform its respective obligations hereunder
or under any Transfer Agreements or under any Consent and Acknowledgment; or
(l) The Pension Benefit Guaranty Corporation shall file a notice of
lien pursuant to Section 4068 of ERISA with regard to any of the assets of the
Seller or any ERISA Affiliate, and such liens have not been suspended or have
not been bonded in the full amount thereof and are not being contested in good
faith by the Seller or such ERISA Affiliate; provided,
--------
48
however, that with respect to any Originator, the amount of such lien shall be
-------
greater than $50,000,000; or
(m) Georgia-Pacific's long-term senior unsecured debt rating shall be
withdrawn or shall fall below (i) "BBB-" (but not below "BB+") by S&P and "Baa3"
(but not below "Ba1") by Xxxxx'x or (ii) "BB+" by S&P or "Ba1" by Xxxxx'x; or
(n) There shall have occurred a change of control of Georgia-Pacific,
the Seller or any Originator; provided, however, that a change of control of an
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Originator shall not be an Event of Termination if after such change of control
Georgia-Pacific indirectly controls such Originator. A "change of control" shall
mean (i) with respect to Georgia-Pacific, the acquisition by any Person of 20%
of either (A) the then outstanding common shares of Georgia-Pacific or (B) the
combined voting rights of the then outstanding voting securities of
Georgia-Pacific, (ii) with respect to the Seller, the failure of Georgia-Pacific
to own directly or indirectly, 100% of either (A) the then outstanding common
shares of the Seller or (B) the combined voting rights of the then outstanding
voting securities of the Seller or (iii) with respect to any Originator, the
failure of Georgia-Pacific to own directly or indirectly at least 50% of either
(A) the then outstanding common shares of any Originator or (B) the combined
voting rights of the then outstanding voting securities of any Originator; or
(o) The failure of the Seller and the Purchasers to agree on the
amendment of subsection (j) of this Section 7.01 or the Reserve as contemplated
by Section 2.01(e) upon the Seller's decision to cease purchasing Receivables
from any Originator, by Section 2.01(f) upon the Seller's decision to cease
purchasing Receivables from any Originator Division, by Section 2.01(g) upon the
Seller's decision to commence purchasing Receivables from any Originator
Division, by Section 2.01(h) upon the sale by Georgia-Pacific of the stock of
any Originator, by Section 2.01(i) upon the sale or other disposition by any
Originator of all or a substantial portion of its assets and by Section 5.01(aa)
upon the notification to the Seller as set forth therein, in each case after the
expiration of a period of 30 days after such cessation, such sale or such
notice, as the case may be; or
(p) The occurrence or declaration of an "Event of Termination" under
the Secondary Purchase Agreement, unless the same shall be cured or waived; or
(q) The occurrence or declaration of an "Event of Termination" under
any Transfer Agreement, unless the same shall be cured or waived with the
consent of all of the Purchasers;
then, and in any such event, at the direction of the Required Purchasers, the
Administrative Agent shall, by notice to the Seller, designate another Person to
succeed Georgia-Pacific as the Collection Agent, subject to the approval of the
Purchasers; provided, that automatically upon the occurrence of any event
--------
(without any requirement for the passage of time or the giving of notice)
described in subsection (i) of this Section 7.01, the Termination Date shall
occur. Upon the occurrence of any Event of Termination, the Purchasers and the
Administrative Agent shall have, in addition to the rights and remedies which
they may have under this Agreement, all other rights and remedies provided after
default under the UCC and under other applicable law, which rights and remedies
shall be cumulative.
49
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.01 Indemnities by the Seller. Without limiting any other
-------------------------
rights that the Administrative Agent or the Purchasers or any Affiliate thereof
or any other Affected Party and their respective officers, directors, employees
and agents (each, an "Indemnified Party") may have hereunder or under applicable
------------------
law, the Seller hereby agrees to indemnify each Indemnified Party from and
against any and all claims, losses and liabilities (including reasonable
attorneys fees and expenses) (all of the foregoing being collectively referred
to as "Indemnified Amounts") arising out of or resulting from this Agreement or
-------------------
the use of proceeds of purchases or reinvestments or the ownership of Receivable
Interests or in respect of any Receivable or any Contract, excluding, however,
(a) Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of such Indemnified Party, (b) recourse for uncollectible
Receivables (except to the extent the Seller has recourse against the Originator
with respect to such Receivable on grounds other than the noncollectability of
the Receivable) or (c) except as set forth below, any income taxes incurred by
such Indemnified Party arising out of or as a result of this Agreement or the
ownership of Receivable Interests or in respect of any Receivable or any
Contract. Without limitation of the generality of the foregoing, the Seller
shall pay on demand to each Indemnified Party any and all amounts necessary to
indemnify such Indemnified Party from and against any and all Indemnified
Amounts relating to or resulting from any of the following:
(i) the creation of a Receivable Interest in any Pool Receivable which
is not at the date of the creation of such Receivable Interest an Eligible
Receivable;
(ii) reliance on any representation or warranty made or deemed made by
the Seller or any Originator (or any of their respective Responsible
Officers) or any statement made by any Responsible Officer of the Seller or
any Originator under or in connection with this Agreement which shall have
been incorrect when made;
(iii) the failure by the Seller or any Originator to comply with any
applicable law, rule or regulation;
(iv) the failure to vest in a Purchaser an undivided percentage
ownership interest, to the extent of such Purchaser's Receivable Interest,
in the Receivables (including, without limitation, Receivables of
Government Obligors) in, or purporting to be in, the Receivables Pool and
the Related Security and Collections in respect thereof, free and clear of
any Adverse Claim other than as authorized hereunder;
(v) the failure to vest in the Seller all right, title and interest in
the Receivables purchased by the Seller from any Originator pursuant to a
Transfer Agreement, free and clear of any Adverse Claim other than as
authorized hereunder;
(vi) the failure to have filed, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of any
applicable jurisdiction, under applicable law with respect to the
assignment of Receivables of Government Obligors or other applicable laws
with respect to any Receivables in, or purporting to be
50
in, the Receivables Pool and the Related Security and Collections in
respect thereof, whether at the time of any purchase or reinvestment or at
any subsequent time;
(vii) any dispute, claim, offset or defense (other than discharge in
bankruptcy of the Obligor) of the Obligor to the payment of any Receivable
in, or purporting to be in, the Receivables Pool (including, without
limitation, a defense based on such Receivable or the related Contract not
being a legal, valid and binding obligation of such Obligor enforceable
against it in accordance with its terms), or any other claim resulting from
the sale of the merchandise or service related to such Receivable or the
furnishing or failure to furnish such merchandise or services;
(viii) any failure of the Seller or the Collection Agent (if
Georgia-Pacific or an Affiliate thereof), to perform their respective
duties or obligations in accordance with the provisions of this Agreement;
(ix) any products liability claim arising out of or in connection with
merchandise, insurance or services which are the subject of any Contract;
(x) any loss incurred by any Purchaser as a result of the Outstanding
Balance of all Pool Receivables from the same Obligor, expressed as a
percentage of the aggregate Outstanding Balance of Eligible Receivables,
being in excess of the Concentration Limit or, if applicable, Special
Concentration Limit for such Obligor;
(xi) the commingling of Collections of Pool Receivables at any time
with other funds;
(xii) any action or omission by the Seller or the Collection Agent (if
Georgia-Pacific or an Affiliate thereof) reducing or impairing the rights
of a Purchaser with respect to any Pool Receivable or the value of any Pool
Receivable, except in accordance with the Credit and Collection Policy;
(xiii) any failure of the Seller to give reasonably equivalent value
to any Originator in consideration of the transfer by such Originator to
the Seller of any Receivables, or any attempt by any Person to void any
such transfer under statutory provisions or common law or equitable action,
including, without limitation, any provision of the Bankruptcy Code;
(xiv) any reductions in the amount of a Pool Receivable the Obligor of
which is a Government Obligor, and the Related Security and Collections
with respect thereto, as the result of appropriation by the government or
the inability to collect any amount from a Government Obligor;
(xv) any inability to collect the full Outstanding Balance of a Pool
Receivable which was entitled to an Administrative Priority as a result of
the Obligor's bankruptcy and which was included as an Eligible Receivable
as a result of such Administrative Priority;
51
(xvi) any investigation, litigation or proceeding related to or
arising from this Agreement, the transactions contemplated hereby, the use
of the proceeds of the Purchase, the ownership of the Receivable Interests
or any Pool Receivable, Related Security or Contract or any other
investigation, litigation or proceeding relating to the Seller or any
Originator in which any Indemnified Party becomes involved as a result of
any of the transactions contemplated hereby;
(xvii) all losses, expenses and liabilities, if any (including,
without limitation, any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any
Purchaser in connection with such Purchaser's funding or maintenance of the
Receivable Interests) which such Purchaser may sustain as the result of the
termination or reduction of any Receivable Interest or the failure by the
Seller or the Collection Agent (if Georgia-Pacific or an Affiliate thereof)
to make any payment of Capital when due;
(xviii) any inability to litigate any claim against any Obligor in
respect of any Pool Receivable as a result of such Obligor being immune
from civil and commercial law and suit on the grounds of sovereignty or
otherwise from any legal action, suit or proceeding;
(xix) any Event of Termination described in clause (i) of Section
7.01;
(xx) any loss incurred by any Purchaser on any Pool Receivable of a
Government Obligor; or
(xxi) any Taxes (other than Excluded Taxes) (A) which may asserted or
imposed in respect of a Pool Receivable and sales thereof or the receipt of
Collections or other proceeds with respect to a Pool Receivable or any
Related Security, (B) which may arise by reason of the investment or
ownership or the sale or other disposition of any Receivable Interest, or
any other interest in a Pool Receivable or any Related Security or (C)
which may arise otherwise by reason of the execution, delivery, performance
or enforcement of the Sale Documents; except that, notwithstanding the
foregoing exclusion related to Excluded Taxes, in the event that the
conveyance of the Receivable Interests and the Related Security and the
other obligations of the Seller hereunder are for any reason determined not
to be treated as indebtedness of the Seller for income or franchise tax
purposes, the Seller shall indemnify each Indemnified Party in respect of
such additional amounts in respect of such Taxes as may be described in
clauses (A), (B) or (C), with such amounts being calculated on an after-tax
basis, as are imposed on or incurred by an Indemnified Party to the extent
that such Taxes would not have been imposed or incurred (or would have been
imposed or incurred at different times) had the obligations of the Seller
hereunder been treated as indebtedness for such income or franchise tax
purposes, as applicable.
SECTION 8.02 Contribution. If for any reason the indemnification
------------
provided above in Section 8.01 (and subject to the exceptions set forth therein)
is unavailable to an Indemnified Party or is insufficient to hold an Indemnified
Party harmless, then the Seller shall contribute to the amount paid or payable
by such Indemnified Party as a result of such loss, claim
52
or liability in such proportion as is appropriate to reflect not only the
relative benefits received by such Indemnified Party on the one hand and the
Seller on the other hand but also the relative fault of such Indemnified Party
as well as any other relevant equitable considerations.
ARTICLE IX.
THE ADMINISTRATIVE AGENT
SECTION 9.01 Authorization and Action. Each Purchaser hereby appoints
------------------------
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement, the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of any Purchaser, the Required Purchasers or all of the
Purchasers (and all references in this Agreement to the "Purchasers" shall be
deemed to mean "all of the Purchasers") as provided by this Agreement and such
instructions shall be binding upon all parties hereto and all assignees of the
Purchasers; provided, however, that the Administrative Agent shall not be
-------- -------
required to take any action which exposes the Administrative Agent to personal
liability or which is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Purchaser prompt notice of each
notice given to it by the Seller, or by it to the Seller, pursuant to the terms
of this Agreement. The appointment and authority of the Administrative Agent
hereunder shall terminate at the later to occur of (i) the payment to (A) each
Purchaser of its Aggregate Capital, accrued and unpaid Yield and all other
amounts due to such Purchaser hereunder and (B) the Administrative Agent of all
amounts due hereunder and (ii) the Facility Termination Date.
SECTION 9.02 UCC Filings. The Purchasers and the Seller expressly
-----------
recognize and agree that the Administrative Agent may be listed as the assignee
or secured party of record on the various UCC filings required to be made
hereunder in order to perfect the transfer of the Receivable Interests from the
Seller to the Purchasers, that such listing shall be for administrative
convenience only in creating a record or nominee owner to take certain actions
hereunder on behalf of the Purchasers and that such listing will not affect in
any way the status of the Purchasers as the beneficial owners of the Receivable
Interests. In addition, such listing shall impose no duties on the
Administrative Agent other than those expressly and specifically undertaken in
accordance with the provisions of this Article IX. In furtherance of the
foregoing, each Purchaser shall be entitled to enforce its rights created under
this Agreement without the need to conduct such enforcement through the
Administrative Agent except as provided herein.
SECTION 9.03 Administrative Agent's Reliance, Etc. Neither the
------------------------------------
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent (i) may consult with legal counsel
(including counsel for the Seller), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation to any Person
and shall not be responsible to any Person for any statements,
53
warranties or representations (whether written or oral) made in or in connection
with this Agreement; (iii) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or conditions of
this Agreement on the part of the Seller, or of any Transfer Agreement on the
part of the Seller or the Originator a party thereto, or to inspect the property
(including the books and records) of the Seller or any Originator; (iv) shall
not be responsible to any Purchaser for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
Transfer Agreement or any other instrument or document furnished pursuant
hereto; and (v) shall incur no liability under or in respect of this Agreement
by acting upon any notice, consent, certificate or other instrument or writing
(which may be by facsimile, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 9.04 Citicorp and Affiliates. With respect to any Pool
-----------------------
Receivable owned by Citicorp, Citicorp shall have the same rights and powers
under this Agreement and any document delivered pursuant hereto as would any
Purchaser and may exercise the same as though it were not the Administrative
Agent. Citicorp and its Affiliates may generally engage in any kind of business
with the Seller, any Originator or any Obligor and any of their respective
Affiliates and any Person who may do business with or own securities of the
Seller, any Originator or any Obligor or any of their respective Affiliates, all
as if Citicorp were not the Administrative Agent and without any duty to account
therefor to any Purchaser.
SECTION 9.05 Purchasers' Purchase Decisions. Each Purchaser
------------------------------
acknowledges that it has, independently and without reliance upon the
Administrative Agent, any of its Affiliates or any other Purchaser and based on
such documents and information as it has deemed appropriate, made its own
evaluation and decision to enter into this Agreement and, if it so determines,
to purchase undivided ownership interests in Pool Receivables hereunder. Each
Purchaser also acknowledges that it will, independently and without reliance
upon the Administrative Agent, any of its Affiliates or any other Purchaser and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own decisions in taking or not taking action under
this Agreement.
SECTION 9.06 Successor Administrative Agent. The Administrative Agent
------------------------------
may resign at any time by giving 30 days' written notice thereof to the
Purchasers, the Seller, the Collection Agent and the Secondary Purchasers and
may be removed at any time with or without cause by the Required Purchasers.
Upon any such resignation or removal, the Purchasers shall have the right to
appoint a successor Administrative Agent approved by the Seller (which approval
will not be unreasonably withheld or delayed). If no successor Administrative
Agent shall have been so appointed by the Purchasers, and shall have accepted
such appointment, within 30 days after the retiring Administrative Agent's
giving of notice of resignation or the Purchasers' removal of the Administrative
Agent, then Georgia-Pacific shall appoint a Secondary Purchaser or such other
Person approved by the Purchasers (which approval will not be unreasonably
withheld or delayed) as a successor Administrative Agent. If such successor
Administrative Agent is not a Secondary Purchaser, such successor Administrative
Agent shall be (a) either (i) a commercial bank having a combined capital and
surplus of at least $250,000,000 or (ii) an Affiliate of such bank and (b)
experienced in the types of transactions contemplated by this Agreement. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent
54
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article IX shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
ARTICLE X.
ASSIGNMENT OF RECEIVABLE INTERESTS
SECTION 10.01 Assignment. Each Purchaser (with respect to any
----------
Receivable Interest) may (i) without the consent of the Seller, grant a security
interest therein to its program collateral agent, (ii) without the consent of
the Seller, assign to another Purchaser, any Secondary Purchaser, any of its
liquidity providers or to any vehicle administered by a Secondary Purchaser
which vehicle is rated at least P-1 by Xxxxx'x and either (A) A-1 by S&P or (B)
F1 by Fitch and (iii) with the prior written consent of the Seller (which
consent shall not be unreasonably withheld or delayed), assign to any other
Person (such Person, and the Persons described in clause (ii) above, referred to
herein as "Assignees"), and any such Assignee, may, without the written consent
of the Seller, assign to any Person described in clause (ii) hereof and may,
with the prior written consent of the Seller (which consent shall not be
unreasonably withheld or delayed), assign to any other Person, any Receivable
Interest. Upon any assignment of a Receivable Interest, (i) the Assignee shall
become the owner of such Receivable Interest for all purposes of this Agreement
and (ii) the assignor thereof (the "Assignor") shall relinquish its rights with
respect to such Receivable Interest for all purposes of this Agreement. Any
assignments hereunder shall be upon such terms and conditions as the Assignor
and the Assignee may mutually agree. The parties thereto shall deliver to the
Administrative Agent an assignment agreement, in substantially the form of
Exhibit D hereto (an "Assignment"), duly executed by such parties, and such
Assignor shall promptly execute and deliver all further instruments and
documents, and take all further action, that the Assignee may reasonably request
in order to perfect, protect or more fully evidence the Assignee's right, title
and interest in and to any Receivable Interest assigned hereunder, and to enable
the Assignee to exercise or enforce any rights hereunder. Upon any assignment
pursuant to this Section 10.01, the Assignee thereof shall have all of the
rights and obligations (and only such rights and obligations) of the owner of a
Receivable Interest hereunder and shall be subject to the same terms and
conditions hereunder with respect to its ownership of a Receivable Interest;
provided that, an Assignee (other than an assignee described in clause (i) of
the first sentence of this Section 10.01) shall not assume any other rights or
obligations of a Purchaser hereunder without the consent of the Purchasers
(which consent shall not be unreasonably withheld or delayed). The
Administrative Agent shall provide notice to the Seller of any assignment
hereunder.
SECTION 10.02 Effects of Assignment. By executing and delivering an
---------------------
Assignment, the Assignor thereunder and the Assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment, the Assignor makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement, or any other agreement, instrument or document furnished pursuant
hereto; (ii) the
55
Assignor makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, or any
other agreement, instrument or document furnished pursuant hereto; (ii) the
Assignor makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Seller or any Originator or the
performance or observance by the Seller or any Originator of any of its
obligations under this Agreement (in the case of the Seller) or the Transfer
Agreements (in the case of the Seller and the Originators) or other agreement,
instrument or document furnished pursuant hereto; (iii) such Assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other agreements,
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and to purchaser the
pertinent Receivable Interests; (iv) such Assignee will, independently and
without reliance upon the Administrative Agent, any Purchaser, any Secondary
Purchaser or any of their Affiliates or such Assignor and based on such
agreements, documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such Assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent by the terms
hereof, together with such powers as are reasonably incidental thereto; (vi)
such Assignee appoints as its agent the Collection Agent from time to time
designated pursuant to Section 6.01 to enforce its respective rights and
interests in and under the pertinent Receivable Interests and the Related
Security and related Contracts; and (vii) such Assignee agrees that it will not
institute against any Purchaser any proceeding of the type referred to in
Section 7.01(i).
SECTION 10.03 Additional Purchasers. Unless an Event of Termination or
---------------------
event which, with the giving of notice or the passage of time or both would
constitute an Event of Termination shall have occurred and be continuing, the
Purchasers may, upon at least three (3) Business Days' prior written notice to
the Seller and the Administrative Agent, cause an Additional Purchaser to become
a party to this Agreement by complying with the provisions of this Section
10.03. Each such notice shall set forth the name of the Additional Purchaser,
the Pro Rata Share to be acquired by such Additional Purchaser and the desired
effective date of such Additional Purchaser becoming a party to this Agreement.
Each Additional Purchaser shall, upon the execution of an Addendum by the
Purchasers, such Additional Purchaser, the Administrative Agent and the Seller,
become a party to this Agreement from and after the date of such execution with
the same effect as if such Additional Purchaser had been an original party
hereunder.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.01 Amendments, Etc. No amendment or waiver of any provision
---------------
of this Agreement or consent to any departure by the Seller or the Collection
Agent therefrom shall be effective unless in a writing signed by all of the
Purchasers or, where permitted under this Agreement, the Required Purchasers,
and then such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
--------
however, that no amendment or waiver of Section 6.03 or of any other provision
-------
of this Agreement which affects the rights or obligations of the Administrative
Agent shall be effective unless signed by the Administrative Agent. No failure
on the part of the Purchasers or the Administrative Agent to exercise, and no
delay in exercising, any right hereunder shall operate as
56
a waiver thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any
other right.
SECTION 11.02 Notices, Etc.
------------
(a) All notices and other communications hereunder shall, unless
otherwise stated herein, be in writing (including facsimile communication) and
shall be delivered or sent by facsimile, to each party hereto, at its address
set forth under its name on the signature pages hereof or at such other address
as shall be designated by such party in a written notice to the other parties
hereto. Notices and communications by facsimile shall be effective when sent,
and notices and communications sent by other means shall be effective when
received.
(b) Any notice to or from, or action or consent by, any Purchaser
hereunder shall be sufficient if given to or by, or taken, received or consented
to by its respective program administrator (or by any sub-agent thereof) on its
behalf.
SECTION 11.03 Assignability; Termination.
--------------------------
(a) This Agreement and each Purchaser's rights herein (including
ownership of each Receivable Interest) shall be assignable by such Purchaser and
its respective successors and assigns in accordance with Section 10.01. The term
"Purchaser" shall include any owner by assignment or otherwise of a Receivable
Interest but shall not include any Person to whom a participation is granted.
Neither the Seller nor the Collection Agent may assign its rights hereunder or
any interest herein without the prior written consent of the Purchasers, except,
in the case of the Collection Agent, as otherwise provided in Article VI hereof.
(b) Any Purchaser may grant participations to any Person without the
consent or knowledge of the Seller, any other Purchaser or the Administrative
Agent; provided, that such grant will not affect the obligation, if any, of such
Purchaser hereunder nor the obligations of the Seller hereunder.
(c) The provisions of Sections 8.01, 11.04, 11.05, 11.06 and 11.07
survive any termination of this Agreement.
SECTION 11.04 Costs, Expenses and Taxes.
-------------------------
(a) In addition to the rights of indemnification granted under Section
8.01 hereof, the Seller agrees to pay on demand all reasonable costs and
expenses in connection with the preparation, execution, delivery and
administration (including periodic auditing of Pool Receivables) of this
Agreement and the other documents and agreements to be delivered hereunder,
including, without limitation, (i) the reasonable fees and expenses of Xxxxxx &
Xxxxxxx, counsel for the Purchasers, actually incurred with respect to the
preparation, execution and delivery of this Agreement, the Secondary Purchase
Agreement and the other documents and agreements to be delivered hereunder or
thereunder; (ii) the reasonable fees and out-of-pocket expenses of counsel for
the Administrative Agent actually incurred with respect to administration of
this Agreement, including without limitation, advising the Administrative Agent
as to its rights and remedies hereunder; and (iii) all costs and expenses, if
any (including reasonable
57
counsel fees and expenses), actually incurred in connection with the enforcement
or amendment of this Agreement and the other documents and agreements to be
delivered hereunder.
(b) In addition, the Seller shall pay on demand (i) any and all
reasonable costs and expenses actually incurred by any issuing and paying agent
or other Person responsible for the administration of each Purchaser's
commercial paper program in connection with the preparation, completion,
issuance, delivery or payment of commercial paper notes issued to fund the
purchase or maintenance of any Receivable Interest, and (ii) any and all stamp
and other taxes and fees payable in connection with the execution, delivery,
filing and recording of this Agreement or the other documents or agreements to
be delivered hereunder, and agrees to save each Indemnified Party harmless from
and against any liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes and fees.
(c) The Seller also shall pay on demand all other reasonable costs and
expenses and all taxes (excluding income taxes) actually incurred by a Purchaser
or any stockholder of a Purchaser ("Other Costs"), including (i) the costs of
-----------
auditing such Purchaser's books by certified public accountants and of rating
such Purchaser's commercial paper by independent financial rating agencies, (ii)
the taxes (excluding income taxes) resulting from such Purchaser's operations
and (iii) the reasonable fees and out-of-pocket expenses of counsel for such
Purchaser or any counsel for any shareholder of such Purchaser with respect to
advising such Purchaser or shareholder as to rights and remedies under this
Agreement, the enforcement of this Agreement or advising such Purchaser or
shareholder as to matters relating to such Purchaser's operations; provided,
--------
that the Seller and any other persons who from time to time sell receivables or
interests therein to such Purchaser ("Other Sellers") each shall be liable for
-------------
such Other Costs ratably in accordance with the usage under their respective
facilities; provided, further, that (i) if such Other Costs are attributable to
-------- -------
the Seller and not attributable to any Other Seller, the Seller shall be solely
liable for such Other Costs and (ii) if such Other Costs are attributable to any
Other Seller and not attributable to the Seller in any way, the Seller shall not
be liable for any of such Other Costs.
SECTION 11.05 No Proceedings. The Seller, the Collection Agent and the
--------------
Administrative Agent each hereby agrees that it will not institute or join
against any Purchaser any proceeding of the type referred to in Section 7.01(i).
SECTION 11.06 Confidentiality. Unless otherwise required by applicable
---------------
law, rule or regulation or by court order or process, the Seller and the
Collection Agent agree to maintain the confidentiality of this Agreement (and
all drafts thereof) in communications with third parties and otherwise;
provided, that this Agreement may be disclosed to the Seller's and the
--------
Collection Agent's legal counsel and auditors if they agree to hold it
confidential.
SECTION 11.07 No Recourse. The obligations of each Purchaser under
-----------
this Agreement or any other agreement, instrument, document or certificate
executed and delivered by or issued by such Purchaser or any officer thereof in
connection herewith are solely the corporate obligations of such Purchaser. No
recourse shall be had for payment of any fee or other obligation or claim
arising out of or relating to this Agreement or any other agreement, instrument,
document or certificate executed and delivered or issued by such Purchaser or
any officer in connection herewith, against any stockholder, employee, officer,
director or
58
incorporator of such Purchaser. The provisions of this Section 11.07 shall
survive the termination of this Agreement.
Notwithstanding the generality of the foregoing, no recourse shall be
had for the payment of any amount owing in respect of any obligation of, or
claim against, Victory arising out of or based upon this Agreement or any other
related agreement against X X Management Corporation or against any stockholder,
employee, officer, director or incorporator of Victory or X X Management
Corporation; provided, however, that the foregoing shall not relieve any such
-------- -------
person or entity from any liability that may otherwise arise as a result of the
willful misconduct or intentional misrepresentation of such person or entity.
The parties hereto further agree that Bankers Trust Company shall have no
obligation, in its capacity as program administrator for Victory or otherwise,
to take any actions hereunder if Bankers Trust Company is relieved of its
obligations as program administrator for Victory.
SECTION 11.08 Governing Law; Execution in Counterparts.
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(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING ITS APPLICABLE CONFLICT OF
LAWS RULES).
(b) This Agreement may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original and all of which
when taken together shall constitute one and the same agreement.
SECTION 11.09 Construction of Agreement. It is the intention of each
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Transfer Agreement that the conveyance by the applicable Originator to the
Seller of Receivables shall constitute a purchase and sale and not a secured
loan. It is the intention of this Agreement that the Purchases and reinvestments
shall convey to the Purchasers, to the extent of their Receivable Interests,
undivided ownership interests in the Pool Receivables and that each such
transaction shall constitute a purchase and sale and not a secured loan. If,
notwithstanding such intention, the conveyance of Receivables from any
Originator to the Seller pursuant to a Transfer Agreement shall ever be
characterized as a secured loan and not a sale, then the Seller shall be deemed
to have transferred to the Purchasers, in addition to the Receivable Interests,
all of the Seller's right, title and interest in, to and under the obligations
of such Originator deemed to be secured by a pledge of such Receivables, and, in
such event, this Agreement and the filings of the UCC statements referred to in
Section 3.01(b) shall be deemed to have granted (subject to the exceptions set
forth in Section 4.01 hereof), to the Purchasers a duly perfected security
interest prior to all other liens on and security interests in all of the
Seller's right, title, and interest in, to and under the obligations of such
Originator to the Seller deemed to be secured by such pledge. If the conveyance
of the Receivable Interests from the Seller to the Purchasers shall ever be
characterized as a secured loan and not a sale, it is the intention of this
Agreement that this Agreement shall constitute a security agreement under
applicable law, and that the Seller shall be deemed to have granted to the
Purchasers a duly perfected security interest in all of the Seller's right,
title and interest in, to and under the Pool Receivables, all payments on or
with respect to such Pool Receivables, all other rights relating to and payments
made in respect of the Pool Receivables, and all proceeds of any thereof prior
to all other liens on and security interests therein. Although such ownership or
security interests may be perfected in the name of the
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Purchasers, the Administrative Agent shall be deemed to be an independent
custodian for purposes of perfection of the ownership or security interest
granted to the Seller and such ownership or security interest may also be
perfected in the name of the Administrative Agent, for the benefit of the
Purchasers.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
SELLER: G-P RECEIVABLES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
and Treasurer
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Treasurer
Facsimile No.: (000) 000-0000
COLLECTION AGENT: GEORGIA-PACIFIC CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
and Treasurer
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Treasurer
Facsimile No.: (000) 000-0000
PURCHASERS: BLUE RIDGE ASSET FUNDING CORPORATION
By: /s/ W. Xxxxxx Xxxxxx
---------------------------------
Name: W. Xxxxxx Xxxxxx
Title: Senior Vice President
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
CORPORATE ASSET FUNDING COMPANY,
INC.
By: CITICORP NORTH AMERICA, INC.,
AS ATTORNEY-IN-FACT
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Sears Towers
000 Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile No.:
CORPORATE RECEIVABLES CORPORATION
By: CITICORP NORTH AMERICA, INC.,
AS ATTORNEY-IN-FACT
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Sears Tower
000 Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile No.:
FOUR WINDS FUNDING CORPORATION
By: COMMERZBANK AG (NEW YORK BRANCH),
AS ATTORNEY-IN-FACT
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
By: /s/ Xxx Xxxxxxx
------------------------------
Name: Xxx Xxxxxxx
Title: Vice President
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxxx Xxxxx
Facsimile No.:
VICTORY RECEIVABLES CORPORATION
By: /s/ R. Xxxxxxx Xxxxxxxxx
------------------------------
Name: R. Xxxxxxx Xxxxxxxxx
Title: Treasurer
X.X. Management Corporation
X/X Xxxxx & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxx 000
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Facsimile No.: (000) 000 0000
ADMINISTRATIVE
AGENT: CITICORP NORTH AMERICA, INC.,
as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Sears Tower
000 Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Facsimile No.:
