Exhibit 10.29
RECEIVABLES SALE AND CONTRIBUTION AGREEMENT
DATED AS OF APRIL 11, 2002
BY AND AMONG
WABASH NATIONAL CORPORATION,
AS PERFORMANCE GUARANTOR,
NOAMTC, INC. AND WABASH NATIONAL, L.P.,
EACH AS AN ORIGINATOR,
AND
WNC RECEIVABLES, LLC,
AS BUYER
Wabash National Corporation, NOAMTC, Inc.,
Wabash National, L.P. and WNC Receivables, LLC
Receivables Sale and Contribution Agreement
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND INTERPRETATION.................................... 1
Section 1.01. Definitions................................................... 1
Section 1.02. Rules of Construction......................................... 1
ARTICLE II SALE OF RECEIVABLES.............................................. 2
Section 2.01. Agreement to Sell............................................. 2
Section 2.02. Grant of Security Interest.................................... 3
ARTICLE III CONDITIONS PRECEDENT............................................ 4
Section 3.01. Conditions to Initial Sale.................................... 4
Section 3.02. Conditions to all Transfers................................... 4
ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS........................ 5
Section 4.01. Representations and Warranties of Performance Guarantor
and each of the Originators................................... 5
Section 4.02. Affirmative Covenants of Performance Guarantor
and each Originator........................................... 13
Section 4.03. Reporting Requirements of the Performance Guarantor........... 20
Section 4.04. Negative Covenants of each of the Originators................. 20
Section 4.05. Breach of Representations, Warranties or Covenants............ 22
ARTICLE V INDEMNIFICATION................................................... 23
Section 5.01. Indemnification............................................... 23
ARTICLE VI DISTRIBUTIONS.................................................... 25
Section 6.01. Distributions................................................. 25
ARTICLE VII COLLATERAL SECURITY............................................. 25
Section 7.01. Security Interest............................................. 25
Section 7.02. Other Collateral; Rights in Receivables....................... 26
Section 7.03. Originators Remain Liable..................................... 26
ARTICLE VIII PERFORMANCE UNDERTAKING........................................ 27
Section 8.01. Guaranty of Performance of Guaranteed Obligations............. 27
Section 8.02. Performance Guarantor's Further Agreements to Pay............. 27
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TABLE OF CONTENTS (Continued)
Page
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Section 8.03. Waivers by Performance Guarantor.............................. 28
Section 8.04. Unenforceability of Guaranteed Obligations Against
Originators or Affiliated Servicer............................ 29
Section 8.05. Subrogation; Subordination.................................... 29
Section 8.06. Termination of Performance Undertaking........................ 30
Section 8.07. Effect of Bankruptcy.......................................... 30
Section 8.08. Setoff........................................................ 31
ARTICLE IX MISCELLANEOUS.................................................... 31
Section 9.01. Notices....................................................... 31
Section 9.02. No Waiver; Remedies........................................... 32
Section 9.03. Successors and Assigns........................................ 32
Section 9.04. Termination; Survival of Obligations.......................... 33
Section 9.05. Complete Agreement; Modification of Agreement................. 34
Section 9.06. Amendments and Waivers........................................ 34
Section 9.07. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.. 34
Section 9.08. Counterparts.................................................. 36
Section 9.09. Severability.................................................. 36
Section 9.10. Section Titles................................................ 36
Section 9.11. No Setoff..................................................... 36
Section 9.12. Press Releases................................................ 36
Section 9.13. Further Assurances............................................ 37
Section 9.14. Fees and Expenses............................................. 37
Wabash National Corporation, NOAMTC, Inc.,
Wabash National, L.P. and WNC Receivables, LLC
Receivables Sale and Contribution Agreement
INDEX OF APPENDICES
Exhibit 2.01(a) Form of Receivables Assignment
Schedule 4.01(a) Jurisdictions of Incorporation/Organization
Schedule 4.01(b) Executive Offices; Collateral Locations; Other Names
Schedule 4.01(d) Litigation Schedule 4.01(f) Financial Statements
Schedule 4.01(i) Labor Matters
Schedule 4.01(j) Ventures, Subsidiaries and Affiliates;
Outstanding Equity Interests
Schedule 4.01(k) Taxes Schedule 4.01(l) Intellectual Property
Schedule 4.01(o) ERISA Schedule 4.01(s) Warranty Policy
Schedule 4.01(v) Deposit and Disbursement Accounts
Schedule 4.02(h) Trade Names
Schedule 4.04(b) Existing Liens
Schedule 4.04(e) Capital Structure
Schedule 4.04(o)(B) Sale of Assets
Schedule 4.04(o)(L) Prepayment of Other Indebtedness
Annex X Definitions
Annex Y Schedule of Documents
Annex 4.03 Reporting Requirements of the Performance Guarantor
Annex 4.04(l) Financial Covenants
Annex 4.04(o) Additional Negative Covenants
Wabash National Corporation, NOAMTC, Inc.,
Wabash National, L.P. and WNC Receivables, LLC
Receivables Sale and Contribution Agreement
THIS RECEIVABLES SALE AND CONTRIBUTION AGREEMENT (as amended, supplemented
or otherwise modified and in effect from time to time, this "Agreement") is
entered into as of April 11, 2002, by and among WABASH NATIONAL CORPORATION, a
Delaware corporation (the "Performance Guarantor"), NOAMTC, INC., a Delaware
corporation, WABASH NATIONAL, L.P., a Delaware limited partnership (each, an
"Originator" and collectively, the "Originators"), and WNC RECEIVABLES, LLC, a
Delaware limited liability company (the "Buyer").
RECITALS
A. Each of the Originators now owns, and from time to time hereafter will
own, Receivables.
B. Buyer has been formed for the sole purpose of purchasing, or otherwise
acquiring by capital contribution, and reselling to the Agent for the benefit of
the Purchasers, all Receivables originated by each Originator.
C. Each of the Originators intends to sell, and Buyer intends to purchase,
such Receivables, from time to time, as described herein.
D. In addition, each of the Originators may, from time to time, contribute
capital to Buyer in the form of Contributed Receivables or cash.
E. Performance Guarantor owns, directly or indirectly, one hundred percent
(100%) of the equity interests of each of the Originators and as such will
receive direct and indirect economic benefits from the sales of the Receivables
described in Recital C.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions. Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed to them in Annex X.
Section 1.02. Rules of Construction. For purposes of this Agreement, the
rules of construction set forth in Annex X shall govern. All Appendices hereto,
or expressly identified to this Agreement, are incorporated herein by reference
and, taken together with this Agreement, shall constitute but a single
agreement.
Wabash National Corporation, NOAMTC, Inc.,
Wabash National, L.P. and WNC Receivables, LLC
Receivables Sale and Contribution Agreement
ARTICLE II
SALE OF RECEIVABLES
Section 2.01. Agreement to Sell.
(a) Sale of Receivables. Subject to the terms and conditions hereof, each
of the Originators agrees to sell or contribute, without recourse except to the
extent specifically provided herein, to Buyer on the Closing Date and on each
Business Day thereafter including the Facility Termination Date (the Closing
Date and each such Business Day, a "Transfer Date") all Receivables owned by it
on each such Transfer Date, and Buyer agrees to purchase or acquire as a capital
contribution all such Receivables on each such Transfer Date. All such Transfers
by either Originator shall be evidenced by a single certificate of assignment
substantially in the form of Exhibit 2.01(a) (the "Receivables Assignment"), and
each of the Originators and Buyer shall execute and deliver the Receivables
Assignment on or before the Closing Date.
(b) Determination of Sold Receivables. It is understood and agreed that
each Transfer of a Receivable on a Transfer Date subsequent to the Closing Date
shall occur immediately upon creation of such Receivable. On and as of each
Transfer Date, all Receivables owned by each of the Originators and not
previously acquired by Buyer shall be identified for sale to Buyer such that the
Sale Price to be paid by Buyer therefor does not exceed the amount of cash
available to Buyer for the payment thereof (each such Receivable identified for
sale, individually, a "Sold Receivable" and, collectively, the "Sold
Receivables"). The Sold Receivables will be identified by reference to the
General Trial Balance of each of the Originators.
(c) Payment of Sale Price. In consideration for each Sale of Sold
Receivables hereunder by an Originator, Buyer shall pay to the applicable
Originator on the Transfer Date therefor the Sale Price therefor in Dollars in
immediately available funds. All such payments by Buyer under this Section
2.01(c) shall be effected by means of a wire transfer on the day when due to
such account or accounts as the applicable Originator may designate.
(d) Determination of Contributed Receivables. To the extent that, on and as
of any Transfer Date, Receivables owned by each of the Originators which do not
constitute Sold Receivables pursuant to Section 2.01(b), then each of the
Originators shall, unless it has delivered an Election Notice (as defined below)
to Buyer, contribute such Receivables to Buyer as a capital contribution (each
such contributed Receivable, individually, a "Contributed Receivable," and
collectively, the "Contributed Receivables"). If any Originator elects not to
contribute Receivables to Buyer on any Transfer Date, or if any Receivables
eligible for sale and owned by such Originator are not sold on any Transfer
Date, such Originator shall deliver to Buyer not later than 5:00 p.m. (New York
City time) on such Transfer Date a notice of election thereof (each such notice,
an "Election Notice").
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(e) Ownership of Transferred Receivables. On and after each Transfer Date
and after giving effect to the Sales to be made on each such date, Buyer shall
own the Transferred Receivables and no Originator shall take any action
inconsistent with such ownership.
(f) Reconstruction of General Trial Balance. If at any time any Originator
fails to generate its General Trial Balance, Buyer shall have the right to
reconstruct such General Trial Balance so that a determination of the Sold
Receivables and Contributed Receivables can be made pursuant to Section 2.01(b).
Each of the Originators agrees to cooperate with such reconstruction, including
by delivery to Buyer, upon Buyer's request, of copies of all applicable
Contracts and Records.
(g) Servicing of Receivables. So long as no Event of Servicer Termination
shall have occurred and be continuing and no Successor Servicer has assumed the
responsibilities and obligations of the Servicer pursuant to Section 9.02 of the
Purchase Agreement, the Servicer shall (i) conduct the servicing, administration
and collection of the Transferred Receivables and shall take, or cause to be
taken, all such actions as may be necessary or advisable to service, administer
and collect the Transferred Receivables, all in accordance with (A) the terms of
the Purchase Agreement, (B) customary and prudent servicing procedures for trade
receivables of a similar type and (C) all applicable laws, rules and
regulations, and (ii) hold all Contracts and other documents and incidents
relating to the Transferred Receivables in trust for the benefit of Buyer, as
the owner thereof, and for the sole purpose of facilitating the servicing of the
Transferred Receivables in accordance with the terms of the Purchase Agreement.
Section 2.02. Grant of Security Interest. The parties hereto intend that
each Transfer of Receivables pursuant to this Agreement shall constitute an
absolute sale, transfer and assignment of all of the applicable Originator's
rights, title and interest in and to the Transferred Receivables to Buyer, and
not a loan from Buyer to the Originators secured by the Transferred Receivables.
Notwithstanding the foregoing, in addition to and not in derogation of any
rights now or hereafter acquired by Buyer under Section 2.01 hereof, the parties
agree that if for any reason the Transfer of a Receivable is treated as a loan,
each of the Originators does hereby grant, to the Buyer a continuing security
interest in all of such Originator's right, title and interest in, to and under
the Originator Collateral whether now owned or hereafter acquired by such
Originator to secure the obligations of such Originator to the Buyer hereunder
(including, if and to the extent that any Transfer is recharacterized as a
transfer for security, the repayment of a loan deemed to have been made by the
Buyer in the amount of the Sale Price with respect thereto and which secures the
Buyer's right to receive all Collections of the Transferred Receivables as
otherwise contemplated under this Agreement), which security interest shall be
prior to all Adverse Claims thereto.
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ARTICLE III
CONDITIONS PRECEDENT
Section 3.01. Conditions to Initial Sale. The initial Sale hereunder shall
be subject to satisfaction of each of the following conditions precedent (any
one or more of which may be waived in writing by each of Buyer and the Agent, as
Buyer's assignee):
(a) Sale Agreement; Other Documents. This Agreement or counterparts hereof
shall have been duly executed by, and delivered to, Performance Guarantor, each
of the Originators and Buyer, and Buyer shall have received such documents,
instruments, agreements and legal opinions as Buyer shall request in connection
with the transactions contemplated by this Agreement, and all those identified
in the Schedule of Documents, each in form and substance satisfactory to Buyer.
(b) Governmental Approvals. Buyer shall have received (i) satisfactory
evidence that Performance Guarantor and each of the Originators has obtained all
required consents and approvals of all Persons, including all requisite
Governmental Authorities, to the execution, delivery and performance of this
Agreement and the other Related Documents and the consummation of the
transactions contemplated hereby and thereby or (ii) an Officer's Certificate
from Performance Guarantor and each of the Originators in form and substance
satisfactory to Buyer affirming that no such consents or approvals are required.
(c) Compliance with Laws. Performance Guarantor and each of the Originators
shall be in compliance with all applicable foreign, federal, state and local
laws and regulations, including those specifically referenced in Section 4.02(g)
except to the extent that the failure to so comply, individually or in the
aggregate, could not be expected to have a Material Adverse Effect.
(d) Purchase Agreement Conditions. Each of those conditions precedent set
forth in Sections 3.01 and 3.02 of the Purchase Agreement shall have been
satisfied or waived in writing as provided therein.
Section 3.02. Conditions to all Transfers. Each Transfer hereunder
(including the initial Transfer) shall be subject to satisfaction of the
following further conditions precedent as of the Transfer Date therefor:
(a) the representations and warranties of Performance Guarantor and each of
the Originators contained herein or in any other Related Document shall be true
and correct as of such Transfer Date or in any other Related Document, both
before and after giving effect to such Transfer and to the application of the
Sale Price therefor, except to the extent that any such representation or
warranty expressly relates to an earlier date and except for changes therein
expressly permitted by this Agreement;
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Receivables Sale and Contribution Agreement
(b) no Incipient Termination Event or Termination Event shall have occurred
and be continuing or would result after giving effect to such Transfer or the
application of the Sale Price therefor;
(c) Performance Guarantor, each of the Originators and each other member of
the Parent Group, shall be in compliance with each of its covenants and other
agreements set forth herein; and
(d) Performance Guarantor and each of the Originators shall have taken such
other action, including delivery of approvals, consents, opinions, documents and
instruments to Buyer as Buyer may request.
The acceptance by each of the Originators of the Sale Price for any of its
Sold Receivables on any Transfer Date shall be deemed to constitute, as of any
such Transfer Date, a representation and warranty by such Originator that the
conditions in this Section 3.02 have been satisfied. On each Transfer Date,
Performance Guarantor shall be deemed to have made a representation and warranty
that the conditions in this Section 3.02 have been satisfied. Upon any such
acceptance, title to the Transferred Receivables sold or contributed on such
Transfer Date shall be vested absolutely in Buyer, whether or not such
conditions were in fact so satisfied.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.01. Representations and Warranties of Performance Guarantor and
each of the Originators. To induce Buyer to purchase the Sold Receivables and to
acquire the Contributed Receivables, Performance Guarantor and each of the
Originators makes the following representations and warranties to Buyer, each
and all of which shall survive the execution and delivery of this Agreement.
(a) Existence; Compliance with Law. Performance Guarantor and each
Originator (i) is either a corporation or limited partnership, as the case may
be, duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization as set forth on Schedule 4.01(a) attached hereto;
(ii) is duly qualified to conduct business and is in good standing in each other
jurisdiction where its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to be so
qualified is not reasonably likely to result in a Material Adverse Effect; (iii)
has the requisite corporate or partnership power and authority and the legal
right to own, pledge, mortgage or otherwise encumber and operate its properties,
to lease the property it operates under lease, and to conduct its business, in
each case, as now, heretofore and proposed to be conducted; (iv) has all
licenses, permits, consents or approvals from or by, and has made all filings
with, and has given all notices to, all Governmental Authorities having
jurisdiction, to the extent required for such ownership, operation and conduct,
except where the failure to obtain such licenses, permits, consents or approvals
is not reasonably likely to result in a Material Adverse Effect; (v) is in
compliance
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with its Organic Documents; and (vi) subject to specific representations set
forth herein regarding ERISA, Environmental Laws, tax laws and other laws, is in
compliance with all applicable provisions of law, except where the failure to
comply, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(b) Executive Offices; Collateral Locations; Legal or Other Names; FEIN. As
of the Closing Date, the current location of each Originator's chief executive
office, principal place of business, other offices, the warehouses and premises
within which any Originator Collateral is stored or located, and the locations
of all records of the Originators and Performance Guarantor concerning the
Originator Collateral are set forth in Schedule 4.01(b) and neither Originator's
state of organization, chief executive office location or principal place of
business location has changed within the past 12 months. During the prior five
years, except as set forth in Schedule 4.01(b), neither of the Originators has
been known as or used any corporate, fictitious or trade name. In addition,
Schedule 4.01(b) lists the organizational identification number issued by each
Originator's state of organization or states that no such number has been issued
and lists the federal employer identification number of each of the Originators.
(c) Power, Authorization, Enforceable Obligations. The execution, delivery
and performance by Performance Guarantor and each Originator of this Agreement
and the execution, delivery and performance by Performance Guarantor and each
Originator of any other Related Documents to which it is a party and the
creation and perfection of all Transfers and Liens provided for herein and
therein: (i) are within such Person's corporate or partnership power, as the
case may be; (ii) have been duly authorized by all necessary or proper corporate
or partnership action, as the case may be, and all necessary shareholder or
partner action, as applicable; (iii) do not contravene any provision of such
Person's Organic Documents; (iv) do not violate any law or regulation, or any
order or decree of any court or Governmental Authority, except where such
violation could not reasonably be expected to have a Material Adverse Effect;
(v) do not conflict with or result in the breach or termination of, constitute a
default under or accelerate or permit the acceleration of any performance
required by, any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which such Person is a party or by which Person or any of its
property is bound; (vi) do not result in the creation or imposition of any
Adverse Claim upon any of the property of Performance Guarantor and each
Originator; and (vii) do not require the consent or approval of any Governmental
Authority or any other Person, except those which will have been duly obtained,
made or complied with prior to the Closing Date as provided Section 3.01(b). The
exercise by Buyer of any of its rights and remedies under any Related Document
to which it is a party, do not require the consent or approval of any
Governmental Authority or any other Person (other than consents or approvals
solely relating to or required to be obtained by the Buyer, and subject to the
Bankruptcy Code), except those which will have been duly obtained, made or
complied with prior to the Closing Date as provided in Section 3.01(b). On or
prior to the Closing Date, each of the Related Documents shall have been duly
executed and delivered by Performance Guarantor and each Originator that is a
party thereto and each such Related Document shall then constitute a legal,
valid and binding obligation of such Person enforceable against it in accordance
with its terms.
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(d) No Litigation. No Litigation is now pending or, to the knowledge of
Performance Guarantor or any Originator, threatened against any Originator or
Performance Guarantor, that (i) challenges such Originator's or Performance
Guarantor's right or power to enter into or perform any of its obligations under
the Related Documents to which it is a party, or the validity or enforceability
of any Related Document or any action taken thereunder, (ii) seeks to prevent
the Transfer, Purchase, contribution or pledge of any Receivable or the
consummation of any of the transactions contemplated under this Agreement or the
other Related Documents or (iii) has a reasonable risk of being determined
adversely to Performance Guarantor or any Originator and that, if so determined,
could reasonably be expected to have a Material Adverse Effect. Except as set
forth on Schedule 4.01(d), as of the Closing Date there is no Litigation pending
or threatened that seeks damages in excess of $500,000 or injunctive relief
against, or alleges criminal misconduct by, any Originator or Performance
Guarantor.
(e) Solvency. Both before and after giving effect to (i) the transactions
contemplated by this Agreement and the other Related Documents and (ii) the
payment and accrual of all transaction costs in connection with the foregoing,
each Originator and Performance Guarantor is and will be Solvent.
(f) Financial Statements and Projections. All Financial Statements
concerning the Performance Guarantor and each Originator that are referred to
subparagraph (i) below have been prepared in accordance with Agreement
Accounting Principles with procedures consistently applied throughout the
periods covered (except as disclosed therein and except, with respect to
unaudited Financial Statements, for the absence of footnotes and normal year-end
audit adjustments) and present fairly in all material respects the financial
position of the Persons covered thereby as at the dates thereof and the results
of their operations and cash flows for the periods then ended.
(i) Financial Statements. The following Financial Statements attached
hereto as Schedule 4.01(f) have been delivered on the date hereof:
(A) The audited consolidated and consolidating balance sheets at
December 31, 1999 and 2000 and the related statements of income and
cash flows of Parent and its consolidated Subsidiaries for the fiscal
years then ended, certified by Xxxxxx Xxxxxxxx LLP.
(B) A draft of the audited consolidated and consolidating balance
sheets at December 31, 2001 and the related statements of income and
cash flows of Parent and its consolidated Subsidiaries for the fiscal
year then ended, prepared by Xxxxxx Xxxxxxxx LLP.
(C) The unaudited balance sheet(s) at September 30, 2001 and the
related consolidated statement(s) of income and cash flows of Parent
and its consolidated Subsidiaries for the three fiscal quarters then
ended.
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(D) The unaudited monthly balance sheets for the period between
January 31, 2002 and February 28, 2002 and the related consolidated
statement(s) of income of Parent and its consolidated Subsidiaries.
(ii) Projections. The Projections delivered on the date hereof and
attached hereto as Schedule 4.01(f) have been prepared by Parent in light
of the past operations of the Parent Group's businesses and reflect
Projections for the two-year period beginning on April 30, 2002 on a
month-by-month basis for the first year and on a year-by-year basis
thereafter. The Projections are based upon estimates and assumptions stated
therein, all of which Parent believes to be reasonable and fair in light of
current conditions and current facts known to Parent and, as of the Closing
Date, reflect Parent's good faith and reasonable estimates of the future
financial performance of Parent and of the other information projected
therein for the period set forth therein.
(g) Material Adverse Effect. Between September 30, 2001 and the Closing
Date, (i) no member of the Parent Group has incurred any obligations, contingent
or non-contingent liabilities, liabilities for charges, long-term leases or
unusual forward or long-term commitments that, alone or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, (ii) no contract,
lease or other agreement or instrument has been entered into by any member of
the Parent Group or has become binding upon any member of the Parent Group's
assets and no law or regulation applicable to any member of the Parent Group has
been adopted that has had or could reasonably be expected to have a Material
Adverse Effect; and (iii) no member of the Parent Group is in default and no
third party is in default under any material contract, lease or other agreement
or instrument to which any member of the Parent Group is a party that alone or
in the aggregate could reasonably be expected to have a Material Adverse Effect
excluding any default that has been cured or waived on or prior to the Closing
Date.
(h) Ownership of Receivables; Liens. Except the Lien of the Collateral
Agent on the Receivables which Lien will be automatically released upon Transfer
thereof pursuant to the Increditor Agreement: (i) each Originator owns each
Receivable originated by it free and clear of any Adverse Claim (other than
Permitted Originator Encumbrances set forth in clauses (a), (h) and (j) of the
definition of such term) and, from and after each Transfer Date, Buyer will
acquire valid and properly perfected title to and the sole record and beneficial
ownership interest in each Transferred Receivable purchased or otherwise
acquired from such Originator on such date, free and clear of any Adverse Claim
or restrictions on transferability; (ii) as of the Closing Date, none of the
other assets and properties of such Originator are subject to any Adverse Claims
other than Permitted Originator Encumbrances, and there are no facts,
circumstances or conditions known to any Originator that may result in any
Adverse Claims (including Adverse Claims arising under Environmental Laws) other
than Permitted Originator Encumbrances; (iii) each Originator has received all
assignments, bills of sale and other documents, and has duly effected all
recordings, filings and other actions necessary to establish, protect and
perfect such Originator's right, title and interest in and to the Receivables
originated by it and its other properties and assets; (iv) each Originator has
rights in and the power to Transfer each Receivable originated by it and
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included in the Originator Collateral, together with all related Contracts,
Collections and Records, and upon which it purports to xxxxx x Xxxx hereunder
free and clear of any and all Liens other than Permitted Originator Encumbrances
and (v) the Liens granted to Buyer pursuant to Section 7.01 will at all times be
fully perfected first priority Liens in and to the Originator Collateral,
subject only to Permitted Originator Encumbrances set forth in clauses (a), (h)
and (j) of the definition of such term.
(i) Labor Matters. As of the Closing Date (a) no strikes or other material
labor disputes against the Performance Guarantor or any Originator are pending
or, to such Person's knowledge, threatened; (b) hours worked by and payment made
to employees of Performance Guarantor or each Originator comply with the Fair
Labor Standards Act and each other federal, state, local or foreign law
applicable to such matters; (c) all payments due from Performance Guarantor or
any Originator for employee health and welfare insurance have been paid or
accrued as a liability on the books of such Person; (d) [intentionally blank];
(e) there is no organizing activity involving Performance Guarantor or any
Originator pending or, to such Person's knowledge, threatened by any labor union
or group of employees; (f) there are no representation proceedings pending or,
to Performance Guarantor's or any Originator's knowledge, threatened with the
National Labor Relations Board, and no labor organization or group of employees
of Performance Guarantor or any Originator has made a pending demand for
recognition; and (g) except as set forth in Schedule 4.01(i), there are no
material complaints or charges against Performance Guarantor or any Originator
pending or, to the knowledge of such Person, threatened to be filed with any
Governmental Authority or arbitrator based on, arising out of, in connection
with, or otherwise relating to the employment or termination of employment of
any individual by Performance Guarantor or any Originator that seek damages in
excess of $1,000,000 in the aggregate or $500,000 individually.
(j) Ventures, Subsidiaries and Affiliates; Outstanding Equity Interests.
Except as set forth in Schedule 4.01(j), neither Performance Guarantor nor any
Originator has any Subsidiaries, is engaged in any joint venture or partnership
with any other Person, or is an Affiliate of any other Person. All of the issued
and outstanding Equity Interests of each Originator is owned (directly or
indirectly) by Performance Guarantor. There are no outstanding rights to
purchase, options, warrants or similar rights or agreements pursuant to which
any Originator may be required to issue, sell, repurchase or redeem any of its
Equity Interest or other equity securities or any Equity Interest or other
equity securities of its Subsidiaries. All outstanding Equity Interests of each
Originator and Performance Guarantor as of the Closing Date is described in
Schedule 4.01(j).
(k) Taxes. All tax returns, reports and statements, including information
returns, required by any Governmental Authority to be filed by the Parent and
each of its Subsidiaries have been filed with the appropriate Governmental
Authority and all charges have been paid prior to the date on which any fine,
penalty, interest or late charge may be added thereto for nonpayment thereof (or
any such fine, penalty, interest, late charge or loss has been paid), excluding
charges or other amounts being contested in accordance with Section 4.02(m)(ii).
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Proper and accurate amounts have been withheld by such member of the Parent
Group from its respective employees for all periods in full and complete
compliance with all applicable federal, state, local and foreign laws and such
withholdings have been timely paid to the respective Governmental Authorities.
Schedule 4.01(k) sets forth as of the Closing Date (i) those taxable years for
which Performance Guarantor's and Originator's tax returns are currently being
audited by the IRS or any other applicable Governmental Authority and (ii) any
assessments or threatened assessments in connection with such audit or otherwise
currently outstanding. Except as described on Schedule 4.01(k), neither
Performance Guarantor nor any Originator has executed or filed with the IRS or
any other Governmental Authority any agreement or other document extending, or
having the effect of extending, the period for assessment or collection of any
charges. As of the Closing Date, none of the Performance Guarantor, any
Originator or any of their Affiliates has agreed or been requested to make any
adjustment under Code Section 481(a), by reason of a change in accounting method
or otherwise, that would have a Material Adverse Effect.
(l) Intellectual Property. As of the Closing Date, each Originator owns or
has rights to use all intellectual property necessary to continue to conduct its
business as now or heretofore conducted by it or proposed to be conducted by it.
To the knowledge of each Originator and the Performance Guarantor after diligent
inquiry, each Originator conducts its business and affairs without infringement
of or interference with any intellectual property of any other Person. Except as
set forth in Schedule 4.01(l), no Originator is aware of any infringement or
claim of infringement by others of any intellectual property of the Originators.
(m) Full Disclosure. All information contained in this Agreement, any of
the other Related Documents, or any written statement furnished by or on behalf
of Performance Guarantor or any Originator to Buyer, the Purchasers or the Agent
pursuant to the terms of this Agreement or any of the other Related Documents is
true and accurate in every material respect, and none of this Agreement, any of
the other Related Documents, or any written statement furnished by or on behalf
of Performance Guarantor or any Originator to Buyer, the Purchasers or the Agent
pursuant to the terms of this Agreement or any of the other Related Documents is
misleading as a result of the failure to include therein a material fact.
(n) Notices to Obligors. Each Originator has directed all Obligors of
Transferred Receivables originated by it to remit all payments with respect to
such Receivables for deposit in a Lockbox or Lockbox Account.
(o) ERISA.
(i) Schedule 4.01(o) lists all Plans and separately identifies all
Pension Plans, including all Title IV Plans, Multiemployer Plans, ESOPs and
Welfare Plans, including all Retiree Welfare Plans. Each Qualified Plan has
been determined by the IRS to qualify under Section 401 of the Code, the
trusts created thereunder have been determined to be exempt from tax under
the provisions of Section 501 of the Code, and nothing has
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occurred that would cause the loss of such qualification or tax-exempt
status. Except as otherwise provided in Schedule 4.01(o), (x) each Plan is
in compliance with the applicable provisions of ERISA and the Code,
including the timely filing of all reports required under the Code or
ERISA, (y) neither Performance Guarantor, any Originator nor any ERISA
Affiliate has failed to make any contribution or pay any amount due as
required by either Section 412 of the Code or Section 302 of ERISA or the
terms of any such Plan and (z) neither Performance Guarantor, any
Originator nor any ERISA Affiliate has engaged in a "prohibited
transaction," as defined in Section 4975 of the Code, in connection with
any Plan that would subject Performance Guarantor or any Originator to a
material tax on prohibited transactions imposed by Section 4975 of the
Code.
(ii) Except as set forth in Schedule 4.01(o): (A) no Title IV Plan has
any Unfunded Liability; (B) no ERISA Event or event described in Section
4062(e) of ERISA with respect to any Title IV Plan has occurred or is
reasonably expected to occur; (C) there are no pending or, to the knowledge
of Performance Guarantor or any Originator, threatened claims (other than
claims for benefits in the normal course), sanctions, actions or lawsuits,
asserted or instituted against any Plan or any Person as fiduciary or
sponsor of any Plan; (D) neither Performance Guarantor, any Originator nor
any ERISA Affiliate has incurred or reasonably expects to incur any
liability as a result of a complete or partial withdrawal from a
Multiemployer Plan; (E) within the last five years no Title IV Plan with
Unfunded Liabilities has been transferred outside of the "controlled group"
(within the meaning of Section 4001(a)(14) of ERISA) of Performance
Guarantor, any Originator or any ERISA Affiliate; (F) Equity Interests of
Performance Guarantor, the Originators and their ERISA Affiliates make up,
in the aggregate, no more than 10% of the assets of any Plan, measured on
the basis of fair market value as of the last valuation date of any Plan.
(p) Brokers. No broker or finder acting on behalf of Performance Guarantor
or any Originator was employed or utilized in connection with this Agreement or
the other Related Documents or the transactions contemplated hereby or thereby
and neither Performance Guarantor nor any Originator has any obligation to any
Person in respect of any finder's or brokerage fees in connection therewith.
(q) Margin Regulations. Neither Originator nor the Performance Guarantor is
engaged, nor will it engage, principally or as one of its important activities,
in the business of extending credit for the purpose of "purchasing" or
"carrying" any "margin security" as such terms are defined in Regulation U of
the Federal Reserve Board as now and from time to time hereafter in effect (such
securities being referred to herein as "Margin Stock"). Neither Originator nor
Performance Guarantor owns any Margin Stock, and no portion of the Sale Price
for any Sale hereunder will be used, directly or indirectly, for the purpose of
purchasing or carrying any Margin Stock, for the purpose of reducing or retiring
any Indebtedness that was originally incurred to purchase or carry any Margin
Stock or for any other purpose that might
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cause any portion of such proceeds to be considered a "purpose credit" within
the meaning of Regulations T, U or X of the Federal Reserve Board. Neither
Originator nor Performance Guarantor will take or permit to be taken any action
that might cause any Related Document to violate any regulation of the Federal
Reserve Board.
(r) Nonapplicability of Bulk Sales Laws. No transaction contemplated by
this Agreement or any of the other Related Documents requires compliance with
any bulk sales act or similar law.
(s) Warranty Policy. Attached hereto as Schedule 4.01(s) is a true and
correct copy of the Originators' Warranty Policy as in effect on the date of
this Agreement.
(t) Government Regulation. Neither Originator nor Performance Guarantor is
an "investment company" or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are defined
in the Investment Company Act. Neither Originator nor Performance Guarantor is
subject to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, or any other federal or state statute that restricts or
limits its ability to incur Indebtedness or to perform its obligations hereunder
or under the other Related Documents. The purchase or acquisition of Transferred
Receivables by Buyer hereunder, the application of the Sale Price for the
foregoing and the consummation of the transactions contemplated by this
Agreement and the other Related Documents will not violate any provision of any
such statute or any rule, regulation or order issued by the Securities and
Exchange Commission.
(u) Books and Records; Minutes. Each of Performance Guarantor and the
Originators maintains (i) books and records of account and (ii) minutes of the
meetings and other proceedings of its Equity Holders and board of directors or
partners, as applicable, that are separate from the analogous records and
minutes of Buyer.
(v) Deposit and Disbursement Accounts. Schedule 4.01(v) lists all banks and
other financial institutions at which the Originators maintains any deposit
accounts established for the receipt of collections on accounts receivable as of
the Closing Date, including any Lockbox Accounts, and such schedule correctly
identifies the name, address and telephone number of each depository, the name
in which the account is held, a description of the purpose of the account, and
the complete account number therefor, in each case as of the Closing Date.
(w) Representations and Warranties in Other Related Documents. Each of the
representations and warranties of Performance Guarantor and the Originators
contained in the Related Documents (other than this Agreement) is true and
correct in all material respects and Performance Guarantor and each Originator
hereby makes each such representation and warranty to, and for the benefit of,
the Purchasers and the Agent as if the same were set forth in full herein, and
Performance Guarantor and each Originator consents to the assignment of Buyer's
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rights to the Agent for the benefit of the Purchasers and their respective
successors and assigns as contemplated in Section 4.02(f).
(x) Receivables. With respect to each Receivable designated as an Eligible
Receivable in any Investment Base Certificate:
(i) such Receivable satisfies the criteria for an Eligible Receivable
prior to its Transfer to Buyer;
(ii) prior to its Transfer to Buyer, such Receivable was owned by the
applicable Originator free and clear of any Adverse Claim (other than
Permitted Originator Encumbrances set forth in clauses (a), (h) and (j) of
the definition of such term), and such Originator had the full right, power
and authority to sell, contribute, assign, transfer and pledge its interest
therein as contemplated under this Agreement and the other Related
Documents and, upon such Transfer, Buyer will acquire valid and properly
perfected title to and the sole record and beneficial ownership interest in
such Receivable, free and clear of any Adverse Claim and, following such
Transfer, such Receivable will not be subject to any Adverse Claim as a
result of any action or inaction on the part of such Originator;
(iii) the Transfer of each such Receivable pursuant to this Agreement
and the Receivables Assignment constitutes, as applicable, a valid sale,
contribution, transfer, assignment, setover and conveyance to Buyer of all
right, title and interest of such Originator in and to such Receivable; and
(iv) none of the Performance Guarantor nor the Originators has any
knowledge of any fact (including any defaults by the Obligor thereunder on
any other Receivable) that would cause it or should have caused it to
expect that any payments on such Receivable will not be paid in full when
due or to expect any other Material Adverse Effect.
The representations and warranties described in this Section 4.01 shall
survive the Transfer of the Transferred Receivables to Buyer, any subsequent
assignment of the Transferred Receivables by Buyer, and the termination of this
Agreement and the other Related Documents and shall continue until the
indefeasible payment in full of all Transferred Receivables.
Section 4.02. Affirmative Covenants of Performance Guarantor and each
Originator. Performance Guarantor and each Originator covenants and agrees that,
unless otherwise consented to by Buyer and the Agent, from and after the Closing
Date and until the Termination Date:
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(a) Offices and Records. Performance Guarantor and each Originator shall
maintain its principal place of business and chief executive office and the
office at which it keeps its Records at the respective locations specified in
Schedule 4.01(b) or, upon 30 days' prior written notice to Buyer and the Agent,
at such other location in a jurisdiction where all action requested by Buyer,
the Purchasers or the Agent pursuant to Section 9.13 shall have been taken with
respect to the Transferred Receivables. Each Originator shall at its own cost
and expense, for not less than three years from the date on which each
Transferred Receivable was originated, or for such longer period as may be
required by law, maintain adequate Records with respect to such Transferred
Receivable, including records of all payments received, credits granted and
merchandise returned with respect thereto. Each Originator will, (A) at all
times from and after the date hereof, clearly and conspicuously xxxx its
computer and master data processing books and records with a legend describing
the Buyer's interest in the Receivables, and (B) segregate (from all other
receivables then owned by the Originators) all contracts relating to each
Receivable.
(b) Access. Performance Guarantor and each Originator shall, during normal
business hours, from time to time upon one Business Day's prior notice and as
frequently as Buyer, the Servicer or the Agent determines to be appropriate: (i)
provide Buyer, the Servicer or the Agent and any of their respective officers,
employees and agents access to its properties (including properties utilized in
connection with the collection, processing or servicing of the Transferred
Receivables), facilities, advisors and employees (including officers) and to the
Originator Collateral, (ii) permit Buyer, the Servicer or the Agent and any of
their respective officers, employees and agents, to inspect, audit and make
extracts from its books and records, including all Records, (iii) permit Buyer,
the Servicer or the Agent and their respective officers, employees and agents,
to inspect, review and evaluate the Transferred Receivables and other Originator
Collateral, as applicable, and (iv) permit Buyer, the Servicer or the Agent and
their respective officers, employees and agents to discuss matters relating to
the Transferred Receivables or Performance Guarantor's or any Originator's
performance under this Agreement or the affairs, finances and accounts of
Performance Guarantor and the Originators with any of their officers, directors,
employees, representatives or agents (in each case, with those Persons having
knowledge of such matters) and with their independent certified public
accountants. If an Incipient Termination Event or a Termination Event shall have
occurred and be continuing, or the Agent, in good faith, believes that an
Incipient Termination Event or a Termination Event is imminent or deems the
Agent's rights or interests (on behalf of the Purchasers) in the Transferred
Receivables or the Originator Collateral insecure, Performance Guarantor and
each Originator shall provide such access at all times and without advance
notice and shall provide Buyer, the Servicer or the Agent with access to its
suppliers and customers. Performance Guarantor and each Originator shall make
available to Buyer, the Servicer or the Agent and their respective counsel, as
quickly as is possible under the circumstances, originals or copies of all books
and records, including Records, that Buyer, the Servicer or the Agent may
request. Performance Guarantor and each Originator shall deliver any document or
instrument necessary for Buyer, the Servicer or the Agent, as they may from time
to time request, to obtain records from any service bureau or other Person that
maintains records for Performance Guarantor and
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the Originators, and shall maintain duplicate records or supporting
documentation on media, including computer tapes and discs owned by Performance
Guarantor and the Originators.
(c) Supplemental Disclosure. From time to time as may be reasonably
requested by Agent (which request will not be made more frequently than once
each year absent the occurrence and continuance of a Termination Event), the
Performance Guarantor or any Originator shall supplement each Schedule of
Documents hereto, or any representation herein or in any other Related
Documents, with respect to any matter hereafter arising that, if existing or
occurring at the date of this Agreement, would have been required to be set
forth or described in such Schedule of Documents or as an exception to such
representation or that is necessary to correct any information in such Schedule
of Documents or representation which has been rendered inaccurate thereby (and,
in the case of any supplements to any Schedule of Documents, such Schedule of
Documents shall be appropriately marked to show the changes made therein);
provided that (a) no such supplement to any such Schedule of Documents or
representation shall amend, supplement or otherwise modify any Schedule of
Documents or representation, or be or be deemed a waiver of any Termination
Event resulting from the matters disclosed therein, except as consented to by
Agent in writing, and (b) no supplement shall be required or permitted as to
representations and warranties that relate solely to the Closing Date.
(d) Communication with Accountants. Performance Guarantor and each
Originator authorize Buyer, the Servicer and the Agent to communicate directly
with its independent certified public accountants, and authorizes and shall
instruct those accountants and advisors to disclose and make available to Buyer,
the Servicer and the Agent any and all financial statements and other supporting
financial documents, schedules and information relating to Performance Guarantor
and the Originators (including copies of any issued management letters) with
respect to the business, financial condition and other affairs of Performance
Guarantor and Originators. Performance Guarantor and each Originator agrees to
render to Buyer, the Servicer and the Agent at Performance Guarantor's or such
Originator's own cost and expense, such clerical and other assistance as may be
reasonably requested with regard to the foregoing. If any Termination Event
shall have occurred and be continuing, Performance Guarantor and each Originator
shall, promptly upon request therefor, assist Buyer in delivering to the Agent
Records reflecting activity through the close of business on the Business Day
immediately preceding the date of such request.
(e) Compliance With Credit and Collection Policies. Each Originator shall
comply in all material respects with the Credit and Collection Policies
applicable to each Transferred Receivable and the Contracts therefor, and with
the terms of such Receivables and Contracts.
(f) Assignment. Performance Guarantor and each Originator agrees that, to
the extent permitted under the Purchase Agreement, Buyer may assign all of its
right, title and interest in, to and under the Transferred Receivables and this
Agreement, including its right to exercise the remedies set forth in Section
4.05. Performance Guarantor and each Originator agrees that, upon any such
assignment, the assignee thereof may enforce directly, without joinder
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of Buyer, all of the obligations of Performance Guarantor and the Originators
hereunder, including any obligations of Performance Guarantor or the Originators
set forth in Sections 4.02(p), 4.05, 5.01 and 9.14.
(g) Compliance with Agreements and Applicable Laws. Performance Guarantor
and each Originator shall perform each of its obligations under this Agreement
and the other Related Documents and comply with all federal, state and local
laws and regulations applicable to it and the Receivables, including those
relating to truth in lending, retail installment sales, fair credit billing,
fair credit reporting, equal credit opportunity, fair debt collection practices,
privacy, licensing, taxation, ERISA and labor matters and Environmental Laws and
Environmental Permits, except to the extent that the failure to so comply,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
(h) Maintenance of Existence and Conduct of Business. Performance Guarantor
and each Originator shall (i) do or cause to be done all things necessary to
preserve and keep in full force and effect its legal existence and its rights
and franchises; (ii) continue to conduct its business substantially as now
conducted or as otherwise permitted hereunder and in accordance with the terms
of its Organic Documents; (iii) at all times maintain, preserve and protect all
of its assets and properties used or useful in the conduct of its business,
including all licenses, permits, charters and registrations, and keep the same
in good repair, working order and condition in all material respects (taking
into consideration ordinary wear and tear) and from time to time make, or cause
to be made, all necessary or appropriate repairs, replacements and improvements
thereto consistent with industry practices; and (iv) transact business only in
such corporate and trade names as are set forth in Schedule 4.02(h) or, upon 30
days' prior written notice to Buyer, the Agent, in such other corporate or trade
names with respect to which all action requested by Buyer, the Purchasers or the
Agent pursuant to Section 9.13 shall have been taken with respect to the
Transferred Receivables. No Originator shall change the type of entity it is,
its jurisdiction of incorporation or organization, or its organization number,
if any, issued by its state of incorporation or organization, except upon 30
days' prior written notice to Buyer and the Agent, and with respect to which
jurisdiction all action requested by Buyer, the Purchasers or the Agent pursuant
to Section 9.13 shall have been taken with respect to the Transferred
Receivables.
(i) Notice of Material Event. Performance Guarantor and each Originator
shall promptly inform Buyer in writing of the occurrence of any of the
following, in each case setting forth the details thereof and what action, if
any, Performance Guarantor or such Originator proposes to take with respect
thereto:
(i) any Litigation commenced or threatened against Performance
Guarantor or any Originator or with respect to or in connection with all or
any portion of the Transferred Receivables that (A) seeks damages or
penalties in an uninsured amount in excess of $500,000 in any one instance
or $1,000,000 in the aggregate, (B) seeks injunctive relief, (C) is
asserted or instituted against any Plan, its fiduciaries or its assets or
against any Originator, Performance Guarantor or any ERISA Affiliate in
connection
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with any Plan, (D) alleges criminal misconduct by Performance Guarantor or
any Originator, (E) alleges the violation of any law regarding, or seeks
remedies in connection with, any Environmental Liability, (F) would, if
determined adversely, have a Material Adverse Effect;
(ii) the commencement of a case or proceeding by or against
Performance Guarantor or any Originator seeking a decree or order in
respect of Person (A) under the Bankruptcy Code or any other applicable
federal, state or foreign bankruptcy or other similar law, (B) appointing a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or
similar official) for Performance Guarantor or any Originator, or for any
substantial part of such Person's assets, or (C) ordering the winding-up or
liquidation of the affairs of any Originator or Performance Guarantor;
(iii) (A) any Adverse Claim made or asserted against any of the
Transferred Receivables of which it becomes aware or (B) any determination
that a Transferred Receivable designated as an Eligible Receivable in an
Investment Base Certificate or otherwise was not an Eligible Receivable at
the time of such designation; or
(iv) any other event, circumstance or condition that has had or could
reasonably be expected to have a Material Adverse Effect.
(j) Use of Proceeds. Each Originator shall utilize the proceeds of the Sale
Price obtained by it for each Sale made by it hereunder solely for general
corporate purposes and to pay any related expenses payable by each of the
Originators under this Agreement and the other Related Documents in connection
with the transactions contemplated hereby and thereby and for no other purpose.
(k) Separate Identity.
(i) Performance Guarantor and each Originator shall, and shall cause
each of its Affiliates included in the Parent Group to, maintain corporate
records and books of account separate from those of Buyer.
(ii) The financial statements of Performance Guarantor and each
Originator shall disclose the effects of the Originators' transactions in
accordance with GAAP and, in addition, disclose that (A) Buyer's sole
business consists of the purchase or acceptance through capital
contribution of the Receivables from the Originators and the subsequent
resale of such Receivables to the Agent for the benefit of the Purchasers,
(B) Buyer is a separate legal entity with its own separate creditors who
will be entitled, upon its liquidation, to be satisfied out of Buyer's
assets prior to any value in Buyer becoming available to Buyer's equity
holders and (C) the assets of Buyer are not available to pay creditors of
Performance Guarantor, the Originators or any of their Affiliates.
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(iii) The resolutions, agreements and other instruments underlying the
transactions described in this Agreement shall be continuously maintained
by Performance Guarantor and the Originators as official records.
(iv) The Performance Guarantor shall, and shall cause each member of
the Parent Group to, maintain an arm's length relationship with Buyer and
shall not hold itself out as being liable for the Indebtedness of Buyer.
(v) Performance Guarantor and each Originator shall, and shall cause
each member of the Parent Group to, keep its assets and its liabilities
wholly separate from those of Buyer.
(vi) Performance Guarantor and each Originator shall, and shall cause
each member of the Parent Group to, conduct its business solely in its own
name through its duly Authorized Officers or agents and in a manner
designed not to mislead third parties as to the separate identity of the
Buyer.
(vii) Performance Guarantor and the Originators shall not, and shall
not permit any member of the Parent Group to, mislead third parties by
conducting or appearing to conduct business on behalf of Buyer or expressly
or impliedly representing or suggesting that Performance Guarantor or any
Originator or Affiliate thereof is liable or responsible for the
Indebtedness of Buyer or that the assets of Performance Guarantor or any
Originator or any Affiliate are available to pay the creditors of Buyer.
(viii) Performance Guarantor and each Originator shall cause operating
expenses and liabilities of Buyer to be paid from Buyer's own funds.
(ix) Performance Guarantor and each Originator shall at all times have
stationery and other business forms and a mailing address and telephone
number separate from those of Buyer.
(x) Performance Guarantor and each Originator shall, and shall cause
each member of the Parent Group to, at all times limit its transactions
with Buyer only to those expressly permitted hereunder or under any other
Related Document.
(xi) Performance Guarantor and each Originator shall, and shall cause
each member of the Parent Group to, comply with (and cause to be true and
correct) each of the facts and assumptions contained in the opinion of
Xxxxx & Xxxxxxx delivered pursuant to the Schedule of Documents.
(l) ERISA. Performance Guarantor and each Originator shall give Buyer and
the Agent prompt written notice of any event that could result in the imposition
of a Lien under Section 412 of the Code or Section 302 or 4068 of ERISA.
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(m) Payment, Performance and Discharge of Obligations.
(i) Subject to Section 4.02(m)(ii), Performance Guarantor and each
Originator shall, and shall cause each member of the Parent Group to, pay,
perform and discharge or cause to be paid, performed and discharged all of
its obligations and liabilities, including all taxes, assessments and
governmental charges upon its income and properties and all lawful claims
for labor, materials, supplies and services, promptly when due.
(ii) Performance Guarantor, its Affiliates and any Originator may in
good faith contest, by appropriate proceedings, the validity or amount of
any charges or claims described in Section 4.02(m)(i); provided, that (A)
adequate reserves with respect to such contest are maintained on the books
of such Person, in accordance with GAAP, (B) such contest is maintained and
prosecuted continuously and with diligence, (C) none of the Originator
Collateral may become subject to forfeiture or loss as a result of such
contest, (D) no Lien may be imposed to secure payment of such charges or
claims other than inchoate tax liens and (E) Buyer has affirmatively
advised such Performance Guarantor (with respect to the Performance
Guarantor or its Affiliates) or any Originator in writing that Buyer
reasonably believes that nonpayment or nondischarge thereof could not
reasonably be expected to have or result in a Material Adverse Effect.
(n) Deposit of Collections. Performance Guarantor and each Originator shall
deposit or cause to be deposited promptly into a Lockbox Account, and in any
event no later than the first Business Day after receipt thereof, all
Collections it may receive in respect of Transferred Receivables.
(o) Accounting Changes. If any Accounting Changes occur and such changes
result in a change in the standards or terms used herein, then the parties
hereto agree to enter into negotiations in order to amend such provisions so as
to equitably reflect such Accounting Changes with the desired result that the
criteria for evaluating the financial condition of such Persons shall be the
same after such Accounting Changes as if such Accounting Changes had not been
made. If the parties hereto agree upon the required amendments to this
Agreement, then after appropriate amendments have been executed and the
underlying Accounting Change with respect thereto has been implemented, any
reference to GAAP contained herein shall, only to the extent of such Accounting
Change, refer to GAAP consistently applied after giving effect to the
implementation of such Accounting Change. If such parties cannot agree upon the
required amendments within 30 days following the date of implementation of any
Accounting Change, then all financial statements delivered and all standards and
terms used herein shall be prepared, delivered and used without regard to the
underlying Accounting Change.
(p) Adjustments to Sale Price. If on any day the Billed Amount of any
Transferred Receivable originated by an Originator is reduced as a result of any
Dilution Factors, and the amount of such reduction exceeds the amount, if any,
of Dilution Factors taken into account in
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the calculation of the Sale Price for such Transferred Receivable, the
Originator shall make a cash payment to Buyer in the amount of such excess by
remitting such amount to the Collection Account in accordance with the terms of
the Purchase Agreement.
Section 4.03. Reporting Requirements of the Performance Guarantor. The
Performance Guarantor hereby agrees that, from and after the Closing Date and
until the Termination Date, it shall deliver or cause to be delivered to the
Buyer and to Buyer's assignee, the Agent, for distribution to the Purchasers,
the financial statements, notices and other information at the times, to the
Persons and in the manner set forth in Annex 4.03.
Section 4.04. Negative Covenants of each of the Originators. Performance
Guarantor and each Originator covenants and agrees that, without the prior
written consent of Buyer and the Agent, from and after the Closing Date and
until the Termination Date:
(a) [Reserved].
(b) Liens. Performance Guarantor shall not, and shall not permit any
Originator to and no Originator shall, create, incur, assume or permit to exist
any Adverse Claim on or with respect to its Receivables or any of its other
Originator Collateral (whether now owned or hereafter acquired) except for the
Liens set forth in Schedule 4.04(b) and other Permitted Originator Encumbrances.
(c) Modifications of Receivables or Contracts. Performance Guarantor shall
not, and shall not permit any Originator to and no Originator shall, extend,
amend, forgive, discharge, compromise, cancel or otherwise modify the terms of
any Transferred Receivable, or amend, modify or waive any term or condition of
any Contract therefore.
(d) Sale Characterization. Performance Guarantor shall not, and shall not
permit any Originator to and no Originator shall, make statements or disclosures
or prepare any financial statements for any purpose, including for federal
income tax, reporting or accounting purposes, that shall account for the
transactions contemplated by this Agreement in any manner other than (i) with
respect to the Sale of each Receivable originated by it, as a true sale or
absolute assignment of its full right, title and ownership interest in such
Receivable and (ii) with respect to the Transfer of each of its Contributed
Receivables under this Agreement, as a contribution to the capital of Buyer.
(e) Capital Structure and Business. Performance Guarantor shall not, and
shall not permit its Subsidiaries to, and no Originator shall, (i) make any
changes in any of its business objectives, purposes or operations that could
have or result in a Material Adverse Effect or (ii) make any change in its
capital structure as described on Schedule 4.04(e), including the issuance of
any Equity Interest, warrants or other securities convertible into Equity
Interests or any revision of the terms of its outstanding Equity Interests or
(iii) amend, supplement or
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otherwise modify its Organic Documents, in a manner that could have or result in
a Material Adverse Effect. Performance Guarantor shall not, nor shall permit any
Originator to, and no Originator shall, change its jurisdiction of organization
except as permitted by Section 4.02(h). Performance Guarantor shall not, nor
shall permit any Originator to, engage in any business other than the businesses
currently engaged in by it.
(f) Actions Affecting Rights. Performance Guarantor shall not, and shall
not permit any Originator to and no Originator shall, (i) take any action, or
fail to take any action, if such action or failure to take action may interfere
with the enforcement of any rights hereunder or under the other Related
Documents, including rights with respect to the Transferred Receivables; (ii)
waive or alter any rights with respect to the Transferred Receivables (or any
agreement or instrument relating thereto); or (iii) fail to pay any tax,
assessment, charge, fee or other obligation of any Originator with respect to
the Transferred Receivables, or fail to defend any action, if such failure to
pay or defend may adversely affect the priority or enforceability of the
perfected title of Buyer to and the sole record and beneficial ownership
interest of Buyer in the Transferred Receivables or, prior to their Sale
hereunder, the Originator's right, title or interest therein.
(g) ERISA. Performance Guarantor shall not, and shall not cause or permit
any ERISA Affiliate to and no Originator shall, cause or permit to occur an
event that could result in the imposition of a Lien under Section 412 of the
Code or Section 302 or 4068 of ERISA or cause or permit to cause an ERISA Event
to the extent such ERISA Event could reasonably be expected to have a Material
Adverse Effect.
(h) Change to Credit and Collection Policies. Each Originator shall comply
with the Credit and Collection Policies, and no change shall be made to, the
Credit and Collection Policies without the prior written consent of Buyer and
the Agent.
(i) Adverse Tax Consequences. Performance Guarantor shall not, and shall
not permit any Originator to and no Originator shall, take or permit to be taken
any action (other than with respect to actions taken or to be taken solely by a
Governmental Authority), or fail or neglect to perform, keep or observe any of
its obligations hereunder or under the other Related Documents, that would have
the effect directly or indirectly of subjecting any payment to Buyer, the
Purchasers or the Agent to withholding taxation.
(j) No Proceedings. From and after the Closing Date and until the date one
year plus one day following the date on which all Seller Secured Obligations are
paid in full in cash, Performance Guarantor shall not, and shall not permit any
Originator to and no Originator shall, directly or indirectly, institute or
cause to be instituted against Buyer any proceeding of the type referred to in
Sections 9.01(c) and 9.01(d) of the Purchase Agreement.
(k) Commingling. Performance Guarantor shall not, and shall not permit any
Originator to and no Originator shall, deposit or permit the deposit of any
funds that do not
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constitute Collections of Transferred Receivables into any Lockbox Account. If
such funds are nonetheless deposited into a Lockbox Account and such Originator
so notifies the Buyer and the Agent (as Buyer's assignee), the Agent shall
promptly remit any such amounts as directed by such Originator.
(l) Financial Covenants. The Performance Guarantor and Originators shall
not, and shall not permit any member of the Parent Group to, violate any of the
financial covenants set forth in Annex 4.04(l).
(m) Cancellation of Indebtedness. Performance Guarantor and Originators
shall not, and shall not permit any member of the Parent Group to, cancel any
claim or Indebtedness owing to it, except for reasonable consideration
negotiated on an arm's-length basis and in the ordinary course of its business
consistent with past practices.
(n) No Impairment of Intercompany Transfers. Except as may be permitted by
the Credit Agreement, Performance Guarantor and Originators shall not, and shall
not permit any member of the Parent Group to, directly or indirectly enter into
or become bound by any agreement, instrument, indenture or other obligation
(other than this Agreement and the other Related Documents) that could directly
or indirectly restrict, prohibit or require the consent of any Person with
respect to the payment of dividends or distributions or the making or repayment
of intercompany loans by a member of the Parent Group to another member.
(o) Additional Negative Covenants. The Performance Guarantor and
Originators shall not, and shall not permit any member of the Parent Group to,
violate any of the additional negative covenants set forth in Annex 4.04(o).
Section 4.05. Breach of Representations, Warranties or Covenants. Upon
discovery by Performance Guarantor, any Originators or Buyer of any breach of
any representation, warranty or covenant described in Sections 4.01, 4.02 or
4.04 (other than a representation, warranty or covenant relating to the absence
of Dilution Factors), which breach is reasonably likely to have a Material
Adverse Effect on the value of a Transferred Receivable or the interests of
Buyer therein, the party discovering the same shall give prompt written notice
thereof to the other parties hereto. The applicable Originator may, at any time
on any Business Day, or shall, if requested by notice from Buyer, on the first
Business Day following receipt of such notice, either (a) repurchase such
Transferred Receivable from Buyer for cash, or (b) make a capital contribution
in cash to Buyer by remitting the amount (the "Rejected Amount") of such capital
contribution to the Collection Account in accordance with the terms of the
Purchase Agreement, in each case in an amount equal to the Billed Amount of such
Transferred Receivable minus the sum of (A) Collections received in respect
thereof and (B) the amount of any Dilution Factors taken into account in the
calculation of the Sale Price therefor. Notwithstanding the foregoing, if any
Receivable is not paid in full on account of any Dilution Factors, the
applicable Originator's repurchase obligations under this Section 4.05 with
respect to such Receivable shall be reduced by the amount of any such Dilution
Factors taken into account in the calculation of the Sale Price
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therefor. The applicable Originator shall ensure that no Collections or other
proceeds with respect to a Transferred Receivable so reconveyed to it are paid
or deposited into any Lockbox Account.
ARTICLE V
INDEMNIFICATION
Section 5.01. Indemnification. Without limiting any other rights that Buyer
or any of its members, officers, directors, employees, attorneys, agents or
representatives (each, a "Buyer Indemnified Person") may have hereunder or under
applicable law, Performance Guarantor and each Originator hereby agrees to
indemnify and hold harmless each Buyer Indemnified Person from and against any
and all Indemnified Amounts that may be claimed or asserted against or incurred
by any such Buyer Indemnified Person in connection with or arising out of the
transactions contemplated under this Agreement or under any other Related
Document, any actions or failures to act in connection therewith, including any
and all legal costs and expenses arising out of or incurred in connection with
disputes between or among any parties to any of the Related Documents, or in
respect of any Transferred Receivable or any Contract therefor or the use by
Originator of the Sale Price therefor; provided, that neither Performance
Guarantor nor the Originators shall be liable for any indemnification to a Buyer
Indemnified Person to the extent that any such Indemnified Amounts result solely
from (a) such Buyer Indemnified Person's gross negligence or willful misconduct,
as finally determined by a court of competent jurisdiction, (b) recourse for
uncollectible or uncollected Transferred Receivables due to the lack of
creditworthiness of the Obligor or the occurrence of any event of bankruptcy
with respect to such Obligor, or (c) any income tax or franchise tax incurred by
any Buyer Indemnified Person, except to the extent that the incurrence of any
such tax results from a breach of or default under this Agreement or any other
Related Document. Subject to the exceptions set forth in clauses (a), (b) and
(c) of the immediately preceding sentence but otherwise without limiting the
generality of the foregoing, each Originator and Performance Guarantor shall pay
on demand to each Buyer Indemnified Person any and all Indemnified Amounts
relating to or resulting from:
(i) reliance on any representation or warranty made or deemed made by
Performance Guarantor or any Originator (or any of its officers) under or
in connection with this Agreement or any other Related Document or on any
other information delivered by Performance Guarantor or an Originator
pursuant hereto or thereto that shall have been incorrect in any material
respect when made or deemed made or delivered;
(ii) the failure by Performance Guarantor or any Originator to comply
with any term, provision or covenant contained in this Agreement, any other
Related Document or any agreement executed in connection herewith or
therewith, any applicable law, rule or regulation with respect to any
Transferred Receivable or Contract therefor, or the nonconformity of any
Transferred Receivable or the Contract therefor with any such applicable
law, rule or regulation;
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(iii) the failure to vest and maintain vested in Buyer, or to Transfer
to Buyer, valid and properly perfected title to and sole record and
beneficial ownership of the Receivables that constitute Transferred
Receivables, together with all Collections in respect thereof, free and
clear of any Adverse Claim;
(iv) any dispute, claim, offset or defense of any Obligor (other than
its discharge in bankruptcy) to the payment of any Receivable that is the
subject of a Transfer hereunder (including a defense based on such
Receivable or the Contract therefor not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its
terms), or any other claim resulting from the sale of the merchandise or
services giving rise to such Receivable or the furnishing or failure to
furnish such merchandise or services or relating to collection activities
with respect to such Receivable (if such collection activities were
performed by Performance Guarantor or any Originator or any Affiliate
acting as the Servicer or a Sub-Servicer), except to the extent that such
dispute, claim, offset or defense results solely from any action or
inaction on the part of Buyer;
(v) any products liability claim or other claim arising out of or in
connection with merchandise, insurance or services that is the subject of
any Contract;
(vi) the commingling of Collections with respect to Transferred
Receivables by Performance Guarantor or any Originator at any time with its
other funds or the funds of any other Person;
(vii) any failure by any Originator to cause the filing of, or any
delay in filing, financing statements or other similar instruments or
documents under the UCC of any applicable jurisdiction or any other
applicable laws with respect to any Receivable that is the subject of a
Sale hereunder, whether at the time of any such Sale or at any subsequent
time;
(viii) any failure by Performance Guarantor , any Originator or any
Servicer to perform, keep or observe any of their respective duties or
obligations hereunder, under any other Related Document or under any
Contract related to a Transferred Receivable;
(ix) any investigation, Litigation or proceeding related to this
Agreement or the use of the Sale Price obtained in connection with any Sale
or the ownership of Receivables or Collections with respect thereto or in
respect of any Receivable or Contract, except to the extent any such
investigation, Litigation or proceeding relates to a matter involving a
Buyer Indemnified Person for which neither Performance Guarantor nor any
Originator or any of its Affiliates is at fault, as finally determined by a
court of competent jurisdiction; or
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(x) any claim brought by any Person other than a Buyer Indemnified
Person arising from any activity by Performance Guarantor, Originators or
any of their Affiliates in servicing, administering or collecting any
Transferred Receivables.
NO BUYER INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER
PARTY TO THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT, ANY SUCCESSOR, ASSIGNEE
OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS
DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY TRANSACTION
CONTEMPLATED HEREUNDER OR THEREUNDER.
ARTICLE VI
DISTRIBUTIONS
Section 6.01. Distributions. The Buyer may declare or pay distributions to
its members at any time that, after giving effect to such distributions, the
book value of the assets of the Buyer, minus reserves applicable thereto and
minus all of the Buyer's liabilities (including accrued and deferred income
taxes), all as determined in accordance with GAAP, shall be equal to or greater
than five percent (5.0%) of the Outstanding Balance of all Transferred
Receivables.
ARTICLE VII
COLLATERAL SECURITY
Section 7.01. Security Interest. To secure the prompt and complete payment,
performance and observance of any and all recourse and indemnity obligations of
each of the Originators to Buyer, including those set forth in Sections 4.02(p),
4.05, 5.01 and 9.14, and to induce Buyer to enter into this Agreement in
accordance with the terms and conditions hereof, each Originator hereby grants,
assigns, conveys, pledges, hypothecates and transfers to Buyer a Lien upon all
of such Originator's right, title and interest in, to and under the following
property, whether now owned by or owing to, or hereafter acquired by or arising
in favor of, such Originator (including under any trade names, styles or
derivations of such Originator), and whether owned by or consigned by or to, or
leased from or to, such Originator, and regardless of where located (all of
which being hereinafter collectively referred to as the "Originator
Collateral"):
(a) all Receivables, Records (including Contracts) therefor and Collections
thereon;
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(b) all monies, securities and other property now or hereafter in the
possession or custody of, or in transit to, Buyer, for any purpose (including
safekeeping, collection or pledge), from or for either of the Originators, or as
to which either of the Originators may have any right or power, and all of
Buyer's credits and balances with either of the Originators existing at any
time;
(c) to the extent not otherwise included, customer lists, credit files and
other related property and rights and all computer hardware and software
pertaining to the foregoing; and
(d) to the extent not otherwise included, all proceeds of the foregoing and
all substitutions and replacements for, each of the foregoing.
Section 7.02. Other Collateral; Rights in Receivables. Nothing contained in
this Article VII shall limit the rights of Buyer in and to any other collateral
that may have been or may hereafter be granted to Buyer by either of the
Originators or any third party pursuant to any other agreement or the rights of
Buyer under any of the Transferred Receivables.
Section 7.03. Originators Remain Liable. It is expressly agreed by each of
the Originators that, anything herein to the contrary notwithstanding, such
Originator shall remain liable under any and all of the Receivables originated
by it, the Contracts therefor and all other Originator Collateral to observe and
perform all the conditions and obligations to be observed and performed by it
thereunder. The Buyer shall not have any obligation or liability under any such
Receivables, Contracts or Originator Collateral by reason of or arising out of
this Agreement or the granting herein of a Lien thereon or the receipt by the
Buyer of any payment relating thereto pursuant hereto. The exercise by the Buyer
of any of its respective rights under this Agreement shall not release either of
the Originators from any of its respective duties or obligations under any such
Receivables, Contracts or Originator Collateral. The Buyer shall not be required
or obligated in any manner to perform or fulfill any of the obligations of
either of the Originators under or pursuant to any such Receivable, Contract or
Originator Collateral, or to make any payment, or to make any inquiry as to the
nature or the sufficiency of any payment received by it or the sufficiency of
any performance by any party under any such Receivable, Contract or Originator
Collateral, or to present or file any claims, or to take any action to collect
or enforce any performance or the payment of any amounts that may have been
assigned to it or to which it may be entitled at any time or times.
ARTICLE VIII
PERFORMANCE UNDERTAKING
Section 8.01. Guaranty of Performance of Guaranteed Obligations.
Performance Guarantor hereby guarantees to Buyer, the full and punctual payment
and performance by each
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Originator and each Servicer that is a Subsidiary or an Affiliate of Performance
Guarantor (each, an "Affiliated Servicer") of its respective Guaranteed
Obligations. The undertaking embodied in this Article VIII (this "Undertaking")
is an absolute, unconditional and continuing guaranty of the full and punctual
performance of all Guaranteed Obligations under this Agreement or the Purchase
Agreement, as applicable, and each other document executed and delivered by
either of the Originators or Affiliated Servicer pursuant to such agreements, as
applicable, and is in no way conditioned upon any requirement that Buyer first
attempt to collect any amounts owing by the Originators or Affiliated Servicer
to Buyer, the Agent or the Purchasers from any other Person or resort to any
collateral security, any balance of any deposit account or credit on the books
of Buyer, the Agent or the Purchasers in favor of either of the Originators or
Affiliated Servicer or any other Person or other means of obtaining payment.
Should either of the Originators or Affiliated Servicer default in the payment
or performance of any of its Guaranteed Obligations, Buyer (or its assigns) may
cause the immediate performance by Performance Guarantor of such Guaranteed
Obligations and cause any payment of Guaranteed Obligations to become forthwith
due and payable to Buyer (or its assigns) by Performance Guarantor, without
demand or notice of any nature (other than as expressly provided herein), all of
which are hereby expressly waived by Performance Guarantor. Notwithstanding the
foregoing, this Undertaking is not a guarantee of the collection of any of the
Receivables and Performance Guarantor shall not be responsible for any
Guaranteed Obligations to the extent the failure to perform such Guaranteed
Obligations by either of the Originators or Affiliated Servicer results from
Receivables being uncollectible on account of the insolvency, bankruptcy or lack
of creditworthiness of the related Obligor; provided that nothing herein shall
relieve either of the Originators or Affiliated Servicer from performing in full
its Guaranteed Obligations under the Related Documents to which it is a party or
Performance Guarantor of its Undertaking hereunder with respect to the full
performance of such duties.
Section 8.02. Performance Guarantor's Further Agreements to Pay.
Performance Guarantor further agrees, as the principal obligor and not as a
guarantor only, to pay to Buyer (and its assigns), forthwith upon demand in
funds immediately available to Buyer, all reasonable costs and expenses
(including court costs and reasonable legal expenses) incurred or expended by
Buyer in connection with the Guaranteed Obligations, this Undertaking and the
enforcement thereof, together with interest on amounts recoverable under this
Undertaking from the time when such amounts become due until payment, at a rate
of interest (computed for the actual number of days elapsed based on a 360-day
year) equal to the sum of the Index Rate plus the Daily Margin plus the Daily
Default Margin per annum, such rate of interest changing when and as the Index
Rate changes.
Section 8.03. Waivers by Performance Guarantor. Performance Guarantor
waives notice of acceptance of this Undertaking, notice of any action taken or
omitted by Buyer (or its assigns) in reliance on this undertaking, and any
requirement that Buyer (or its assigns) be diligent or prompt in making demands
under this undertaking, giving notice of any Termination Event, Event of
Servicer Termination, other default or omission by either of the Originators or
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Affiliated Servicer or asserting any other rights of Buyer under this
Undertaking. Performance Guarantor warrants that it has adequate means to obtain
from the Originators and Affiliated Servicer, on a continuing basis, information
concerning their financial condition, and that it is not relying on Buyer to
provide such information, now or in the future. Performance Guarantor also
irrevocably waives all defenses (i) that at any time may be available in respect
of the Guaranteed Obligations by virtue of any statute of limitations,
valuation, stay, moratorium law or other similar law now or hereafter in effect
or (ii) that arise under the law of suretyship, including impairment of
collateral. Buyer (and its assigns) shall be at liberty, without giving notice
to or obtaining the assent of Performance Guarantor and without relieving
Performance Guarantor of any liability under this Undertaking, to deal with each
of the Originators and Affiliated Servicer and with each other party who now is
or after the date hereof becomes liable in any manner for any of the Guaranteed
Obligations, in such manner as Buyer in its sole discretion deems fit, and to
this end Performance Guarantor agrees that the validity and enforceability of
this Undertaking, shall not be impaired or affected by any of the following: (a)
any extension, modification or renewal of, or indulgence with respect to, or
substitutions for, the Guaranteed Obligations or any part thereof or any
agreement relating thereto at any time; (b) any failure or omission to enforce
any right, power or remedy with respect to the Guaranteed Obligations or any
part thereof or any agreement relating thereto, or any collateral securing the
Guaranteed Obligations or any part thereof; (c) any waiver of any right, power
or remedy or of any Termination Event, Event of Servicer Termination, or default
with respect to the Guaranteed Obligations or any part thereof or any agreement
relating thereto; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any other
obligation of any Person or entity with respect to the Guaranteed Obligations or
any part thereof; (e) the enforceability or validity of the Guaranteed
Obligations or any part thereof or the genuineness, enforceability or validity
of any agreement relating thereto or with respect to the Guaranteed Obligations
or any part thereof; (f) the application of payments received from any source to
the payment of any payment obligations of either Originator or Affiliated
Servicer or any part thereof or amounts which are not covered by this
Undertaking even though Buyer (or its assigns) might lawfully have elected to
apply such payments to any part or all of the payment obligations of Originators
or Affiliated Servicer or to amounts which are not covered by this Undertaking;
(g) the existence of any claim, setoff or other rights which Performance
Guarantor may have at any time against Originators or Affiliated Servicer in
connection herewith or any unrelated transaction; (h) any assignment or transfer
of the Guaranteed Obligations or any part thereof; or (i) any failure on the
part of Originators or Affiliated Servicer to perform or comply with any term of
the Agreements or any other document executed in connection therewith or
delivered thereunder, all whether or not Performance Guarantor shall have had
notice or knowledge of any act or omission referred to in the foregoing clauses
(a) through (i) of this Section 8.03.
Section 8.04. Unenforceability of Guaranteed Obligations Against
Originators or Affiliated Servicer. Notwithstanding (a) any change of ownership
of Originators or Affiliated Servicer or the insolvency, bankruptcy or any other
change in the legal status of Originators or Affiliated Servicer; (b) any change
in or the imposition of any law, decree, regulation or other
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governmental act which does or might impair, delay or in any way affect the
validity, enforceability or the payment when due of the Guaranteed Obligations;
(c) the failure of either of the Originators, Affiliated Servicer or Performance
Guarantor to maintain in full force, validity or effect or to obtain or renew
when required all governmental and other approvals, licenses or consents
required in connection with the Guaranteed Obligations or this Undertaking, or
to take any other action required in connection with the performance of all
obligations pursuant to the Guaranteed Obligations or this Undertaking; or (d)
if any of the moneys included in the Guaranteed Obligations have become
irrecoverable from either of the Originators or Affiliated Servicer for any
other reason other than final payment in full of the payment Guaranteed
Obligations in accordance with their terms, this Undertaking shall nevertheless
be binding on Performance Guarantor. This Undertaking shall be in addition to
any other guaranty or other security for the Guaranteed Obligations, and it
shall not be rendered unenforceable by the invalidity of any such other guaranty
or security. In the event that acceleration of the time for payment of any of
the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or
reorganization of either of the Originators or Affiliated Servicer or for any
other reason with respect to either of the Originators or Affiliated Servicer,
all such amounts then due and owing with respect to the Guaranteed Obligations
under the terms of the Agreements, or any other agreement evidencing, securing
or otherwise executed in connection with the Guaranteed Obligations, shall be
immediately due and payable by Performance Guarantor.
Section 8.05. Subrogation; Subordination. Notwithstanding anything to the
contrary contained herein, until the Guaranteed Obligations are paid in full,
Performance Guarantor: (a) will not enforce or otherwise exercise any right of
subrogation to any of the rights of Buyer, the Agent or the Purchasers against
either of the Originators or Affiliated Servicer, (b) hereby waives all rights
of subrogation (whether contractual, under Section 509 of the United States
Bankruptcy Code, at law or in equity or otherwise) to the claims of Buyer, the
Agent and the Purchasers against either of the Originators or Affiliated
Servicer and all contractual, statutory or legal or equitable rights of
contribution, reimbursement, indemnification and similar rights and "claims" (as
such term is defined in the United States Bankruptcy Code) which Performance
Guarantor might now have or hereafter acquire against either of the Originators
or Affiliated Servicer that arise from the existence or performance of
Performance Guarantor's obligations hereunder, (c) will not claim any setoff,
recoupment or counterclaim against either of the Originators or Affiliated
Servicer in respect of any liability of Performance Guarantor to either of the
Originators or Affiliated Servicer and (d) waives any benefit of and any right
to participate in any collateral security which may be held by the Agent or any
Purchaser. The payment of any amounts due with respect to any Indebtedness of
either of the Originators or Affiliated Servicer now or hereafter owed to
Performance Guarantor is hereby subordinated to the prior payment in full of all
of the Guaranteed Obligations. Performance Guarantor agrees that, after the
occurrence of any default in the payment or performance of any of the Guaranteed
Obligations, Performance Guarantor will not demand, xxx for or otherwise attempt
to collect any such Indebtedness of either of the Originators or Affiliated
Servicer to Performance Guarantor until all of the Guaranteed Obligations shall
have been paid and performed in full. If, notwithstanding the foregoing
sentence, Performance Guarantor shall collect, enforce or receive any amounts in
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respect of such Indebtedness while any Guaranteed Obligations are still
unperformed or outstanding, such amounts shall be collected, enforced and
received by Performance Guarantor as trustee for Buyer (and its assigns) and be
paid over to Buyer (or its assigns) on account of the Guaranteed Obligations
without affecting in any manner the liability of Performance Guarantor under the
other provisions of this Undertaking. The provisions of this Section shall be
supplemental to and not in derogation of any rights and remedies of Buyer under
any separate subordination agreement which Buyer may at any time and from time
to time enter into with Performance Guarantor.
Section 8.06. Termination of Performance Undertaking. Performance
Guarantor's obligations hereunder shall continue in full force and effect until
all Seller Secured Obligations are finally paid and satisfied in full and the
Purchase Agreement is terminated, provided that this Undertaking shall continue
to be effective or shall be reinstated, as the case may be, if at any time
payment or other satisfaction of any of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned upon the bankruptcy, insolvency, or
reorganization of either of the Originators or Affiliated Servicer or otherwise,
as though such payment had not been made or other satisfaction occurred, whether
or not Buyer (or its assigns) is in possession of this Undertaking. No
invalidity, irregularity or unenforceability by reason of the federal bankruptcy
code or any insolvency or other similar law, or any law or order of any
government or agency thereof purporting to reduce, amend or otherwise affect the
Guaranteed Obligations shall impair, affect, be a defense to or claim against
the obligations of Performance Guarantor under this Undertaking.
Section 8.07. Effect of Bankruptcy. This Performance Undertaking shall
survive the insolvency of either of the Originators or Affiliated Servicer and
the commencement of any case or proceeding by or against either of the
Originators or Affiliated Servicer under the federal bankruptcy code or other
federal, state or other applicable bankruptcy, insolvency or reorganization
statutes. No automatic stay under the federal bankruptcy code with respect to
either of the Originators or Affiliated Servicer or other federal, state or
other applicable bankruptcy, insolvency or reorganization statutes to which
either of the Originators or Affiliated Servicer is subject shall postpone the
obligations of Performance Guarantor under this Undertaking.
Section 8.08. Setoff. Regardless of the other means of obtaining payment of
any of the Guaranteed Obligations, Buyer (and its assigns) is hereby authorized
at any time and from time to time, without notice to Performance Guarantor (any
such notice being expressly waived by Performance Guarantor) and to the fullest
extent permitted by law, to set off and apply any deposits and other sums
against the obligations of Performance Guarantor under this Undertaking, whether
or not Buyer (or any such assign) shall have made any demand under this
Undertaking and although such obligations may be contingent or unmatured.
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ARTICLE IX
MISCELLANEOUS
Section 9.01. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other parties, or whenever any of the parties desires to give or
serve upon any other parties any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt and three
Business Days after deposit in the United States Mail, registered or certified
mail, return receipt requested, with proper postage prepaid, (b) upon
transmission, when sent by telecopy or other similar facsimile transmission
(with such telecopy or facsimile promptly confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided in this Section
9.01), (c) one Business Day after deposit with a reputable overnight courier
with all charges prepaid or (d) when delivered, if hand-delivered by messenger,
all of which shall be addressed to the party to be notified and sent to the
address or facsimile number set forth below in this Section 9.01 or to such
other address (or facsimile number) as may be substituted by notice given as
herein provided:
Performance Guarantor:
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxxxx X. Black
Fax: (000) 000-0000
either of the Originators:
c/o Performance Guarantor at the address set forth above
Buyer:
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxxxx X. Black
Fax: (000) 000-0000
provided that each such declaration or other communication shall be deemed to
have been validly delivered to the Agent under this Agreement upon delivery to
the Agent in accordance with the terms of the Purchase Agreement. The giving of
any notice required hereunder may be waived in writing by the party entitled to
receive such notice. Failure or delay in delivering copies of any notice,
demand, request, consent, approval, declaration or other communication to any
Person (other than Buyer) designated in any written communication provided
hereunder to receive copies shall in no way adversely affect the effectiveness
of such notice, demand, request,
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consent, approval, declaration or other communication. Notwithstanding the
foregoing, whenever it is provided herein that a notice is to be given to any
other party hereto by a specific time, such notice shall only be effective if
actually received by such party prior to such time, and if such notice is
received after such time or on a day other than a Business Day, such notice
shall only be effective on the immediately succeeding Business Day.
Section 9.02. No Waiver; Remedies. Buyer's failure, at any time or times,
to require strict performance by any Originators or Performance Guarantor of any
provision of this Agreement or the Receivables Assignment shall not waive,
affect or diminish any right of Buyer thereafter to demand strict compliance and
performance herewith or therewith. Any suspension or waiver of any breach or
default hereunder shall not suspend, waive or affect any other breach or default
whether the same is prior or subsequent thereto and whether the same or of a
different type. None of the undertakings, agreements, warranties, covenants and
representations of the Originators or Performance Guarantor contained in this
Agreement or the Receivables Assignment, and no breach or default by any
Originator or Performance Guarantor hereunder or thereunder, shall be deemed to
have been suspended or waived by Buyer unless such waiver or suspension is by an
instrument in writing signed by an officer of or other duly authorized signatory
of Buyer and directed to Performance Guarantor or such Originator, as
applicable, specifying such suspension or waiver. Buyer's rights and remedies
under this Agreement shall be cumulative and nonexclusive of any other rights
and remedies that Buyer may have under any other agreement, including the other
Related Documents, by operation of law or otherwise. Recourse to the Originator
Collateral shall not be required.
Section 9.03. Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of Originators, Performance Guarantor and Buyer
and their respective successors and permitted assigns, except as otherwise
provided herein. Neither Performance Guarantor nor any Originator may assign,
transfer, hypothecate or otherwise convey its rights, benefits, obligations or
duties hereunder without the prior express written consent of Buyer, the
Purchasers and the Agent. Any such purported assignment, transfer, hypothecation
or other conveyance by any Originator or Performance Guarantor without the prior
express written consent of Buyer, the Purchasers and the Agent shall be void.
Each Originator and Performance Guarantor acknowledges that, to the extent
permitted under the Purchase Agreement, Buyer may assign its rights granted
hereunder, including the benefit of any indemnities under Article V and any of
its rights in the Originator Collateral granted under Article VII, and upon such
assignment, such assignee shall have, to the extent of such assignment, all
rights of Buyer hereunder and, to the extent permitted under the Purchase
Agreement, may in turn assign such rights. Each Originator and Performance
Guarantor agrees that, upon any such assignment, such assignee may enforce
directly, without joinder of Buyer, the rights set forth in this Agreement. All
such assignees, including parties to the Purchase Agreement in the case of any
assignment to such parties, shall be third party beneficiaries of, and shall be
entitled to enforce Buyer's rights and remedies under, this Agreement to the
same extent as if they were parties hereto. Without limiting the generality of
the foregoing, all notices to be provided to the Buyer hereunder shall be
delivered to both the Buyer and the Agent under the Purchase Agreement, and
shall be effective
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only upon such delivery to the Agent. The terms and provisions of this Agreement
are for the purpose of defining the relative rights and obligations of each
Originator, Performance Guarantor and Buyer with respect to the transactions
contemplated hereby and, except for the Purchasers and the Agent, no Person
shall be a third party beneficiary of any of the terms and provisions of this
Agreement.
Section 9.04. Termination; Survival of Obligations.
(a) This Agreement shall create and constitute the continuing obligations
of the parties hereto in accordance with its terms, and shall remain in full
force and effect until the Termination Date.
(b) Except as otherwise expressly provided herein or in any other Related
Document, no termination or cancellation (regardless of cause or procedure) of
any commitment made by Buyer under this Agreement shall in any way affect or
impair the obligations, duties and liabilities of any Originator, Performance
Guarantor or the rights of Buyer relating to any unpaid portion of any and all
recourse and indemnity obligations of Originator and Performance Guarantor to
Buyer, including those set forth in Sections 4.02(p), 4.05, 5.01 and 9.14, due
or not due, liquidated, contingent or unliquidated or any transaction or event
occurring prior to such termination, or any transaction or event, the
performance of which is required after the Facility Termination Date. Except as
otherwise expressly provided herein or in any other Related Document, all
undertakings, agreements, covenants, warranties and representations of or
binding upon Originators and Performance Guarantor, and all rights of Buyer
hereunder, all as contained in the Related Documents, shall not terminate or
expire, but rather shall survive any such termination or cancellation and shall
continue in full force and effect until the Termination Date; provided, that the
rights and remedies pursuant to Sections 4.02(p), 4.05, the indemnification and
payment provisions of Article V, and the provisions of Sections 4.04(j), 9.03,
9.12 and 9.14 shall be continuing and shall survive any termination of this
Agreement.
Section 9.05. Complete Agreement; Modification of Agreement. This Agreement
and the other Related Documents constitute the complete agreement between the
parties with respect to the subject matter hereof and thereof, supersede all
prior agreements and understandings relating to the subject matter hereof and
thereof, and may not be modified, altered or amended except as set forth in
Section 9.06.
Section 9.06. Amendments and Waivers. No amendment, modification,
termination or waiver of any provision of this Agreement or any of the other
Related Documents, or any consent to any departure by any Originator or
Performance Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by each of the parties hereto and the Purchasers
and the Agent. No consent or demand in any case shall, in itself, entitle any
party to any other consent or further notice or demand in similar or other
circumstances.
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Section 9.07. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND EACH RELATED DOCUMENT (EXCEPT TO THE EXTENT THAT ANY
RELATED DOCUMENT EXPRESSLY PROVIDES TO THE CONTRARY) AND THE OBLIGATIONS ARISING
HEREUNDER AND THEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS (WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES), EXCEPT TO THE EXTENT THAT THE PERFECTION,
EFFECT OF PERFECTION OR PRIORITY OF THE INTERESTS OF THE BUYER IN THE
RECEIVABLES OR REMEDIES HEREUNDER OR THEREUNDER, IN RESPECT THEREOF, ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF ILLINOIS, AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN XXXX COUNTY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO
ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED DOCUMENT;
PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS
MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF XXXX COUNTY; PROVIDED
FURTHER, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE
BUYER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION
TO REALIZE ON THE ORIGINATOR COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS OF ORIGINATORS OR PERFORMANCE GUARANTOR ARISING HEREUNDER, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF BUYER. EACH PARTY HERETO
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION
THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER
VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL
OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO
HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS
ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS,
COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO SUCH PARTY AT THE ADDRESS SET FORTH BENEATH ITS NAME ON THE
SIGNATURE PAGES HEREOF AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON
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THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT
IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL
AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 9.08. Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
Section 9.09. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
Section 9.10. Section Titles. The section titles and table of contents
contained in this Agreement are provided for ease of reference only and shall be
without substantive meaning or content of any kind whatsoever and are not a part
of the agreement between the parties hereto.
Section 9.11. No Setoff. Neither Performance Guarantor's nor any
Originator's obligations under this Agreement shall be affected by any right of
setoff, counterclaim, recoupment, defense or other right any Originator or
Performance Guarantor might have against Buyer, the Purchasers or the Agent, all
of which rights are hereby expressly waived by the Originators and Performance
Guarantor.
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Section 9.12. Press Releases. Each of the Performance Guarantor and the
Originators agrees that it shall not (and shall not permit any of its
Subsidiaries to) issue any news release or make any public announcement
pertaining to the transactions contemplated by this Agreement and the Related
Documents without the prior written consent of Buyer and the Agent (which
consent shall not be unreasonably withheld) unless such news release or public
announcement is required by law, in which case the Performance Guarantor or such
Originator, as the case may be, shall consult with Buyer and each of the
Committed Purchaser and the Conduit Purchaser prior to the issuance of such news
release or public announcement. Each of the Performance Guarantor and the
Originators may, however, disclose the general terms of the transactions
contemplated by this Agreement and the Related Documents to trade creditors,
suppliers and other similarly-situated Persons so long as such disclosure is not
in the form of a news release or public announcement.
Section 9.13. Further Assurances.
(a) Performance Guarantor shall, and shall cause each Originator to, and
each Originator shall, at its sole cost and expense, upon request of Buyer, the
Purchasers or the Agent, promptly and duly execute and deliver any and all
further instruments and documents and take such further actions that may be
necessary or desirable or that Buyer, the Purchasers or the Agent may request to
carry out more effectively the provisions and purposes of this Agreement or any
other Related Document or to obtain the full benefits of this Agreement and of
the rights and powers herein granted, including (i) using its best efforts to
secure all consents and approvals necessary or appropriate for the assignment to
or for the benefit of Buyer of any Transferred Receivable or Originator
Collateral held by an Originator or in which any Originator has any rights not
heretofore assigned, (ii) filing any financing or continuation statements under
the UCC with respect to the ownership interests or Liens granted hereunder or
under any other Related Document, (iii) transferring Originator Collateral to
Buyer's possession if such collateral consists of chattel paper or instruments
or if a Lien upon such collateral can be perfected only by possession, or if
otherwise requested by Buyer; and (iv) entering into "control agreements" (as
defined in the UCC with respect to any Originator Collateral to the extent that
a first priority Lien upon such Originator Collateral can be perfected only by
control. Each of the Originators hereby authorizes Buyer, the Purchasers and the
Agent to file any such financing or continuation statements without the
signature of each of the Originators to the extent permitted by applicable law.
A carbon, photographic or other reproduction of this Agreement or of any notice
or financing statement covering the Transferred Receivables, the Originator
Collateral or any part thereof shall be sufficient as a notice or financing
statement where permitted by law. If any amount payable under or in connection
with any of the Originator Collateral is or shall become evidenced by any
instrument, such instrument, other than checks and notes received in the
ordinary course of business, shall be duly endorsed in a manner satisfactory to
Buyer immediately upon the applicable Originator's receipt thereof and promptly
delivered to Buyer.
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(b) If any Originator or Performance Guarantor fails to perform any
agreement or obligation under this Section 9.13, Buyer, the Purchasers or the
Agent may (but shall not be required to) itself perform, or cause performance
of, such agreement or obligation, and the reasonable expenses of Buyer, the
Purchasers or the Agent incurred in connection therewith shall be payable by
such Originator or Performance Guarantor upon demand of Buyer or the Agent.
Section 9.14. Fees and Expenses. In addition to its indemnification
obligations pursuant to Article V, each Originator and Performance Guarantor
agrees, jointly and severally, to pay on demand all costs and expenses incurred
by Buyer in connection with the negotiation, preparation, execution and delivery
of this Agreement and the other Related Documents, including the fees and
out-of-pocket expenses of Buyer's counsel, advisors, consultants and auditors
retained in connection with the transactions contemplated thereby and advice in
connection therewith, and each Originator and Performance Guarantor agrees,
jointly and severally, to pay all costs and expenses, if any (including
attorneys' fees and expenses but excluding any costs of enforcement or
collection of the Transferred Receivables), in connection with the enforcement
of this Agreement and the other Related Documents.
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IN WITNESS WHEREOF, the parties have caused this Receivables Sale Agreement
to be executed by their respective duly authorized representatives, as of the
date first above written.
WABASH NATIONAL CORPORATION,
AS PERFORMANCE GUARANTOR
By:
------------------------------------
Name: Xxxxxxxxxxx X. Black
Title: Vice President & Treasurer
WABASH NATIONAL, L.P.
By: NOAMTC, Inc., its general partner
By:
------------------------------------
Name: Xxxxxxxxxxx X. Black,
Authorized Representative
NOAMTC, INC.
By:
------------------------------------
Name: Xxxxxxxxxxx X. Black,
Authorized Representative
WNC RECEIVABLES, LLC
By:
------------------------------------
Name: Xxxxxxxxxxx X. Black
Title: Manager
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EXHIBIT 2.01(a)
Form of
RECEIVABLES ASSIGNMENT
THIS RECEIVABLES ASSIGNMENT (the "Receivables Assignment") is entered into
as of April 11, 2002, by and between NOAMTC, INC., a Delaware corporation,
WABASH NATIONAL, L.P., a Delaware limited partnership (each an "Originator" and
collectively, the "Originators"), and WNC RECEIVABLES, LLC, a Delaware limited
liability company (the "Buyer").
1. We refer to that certain Receivables Sale and Contribution Agreement (as
amended, restated, supplemented or otherwise modified from time to time, the
"Sale Agreement") of even date herewith among the Originators, Wabash National
Corporation, in its capacity as Performance Guarantor ("Performance Guarantor"),
and Buyer. All of the terms, covenants and conditions of the Sale Agreement are
hereby made a part of this Receivables Assignment and are deemed incorporated
herein in full. Unless otherwise defined herein, capitalized terms or matters of
construction defined or established in the Sale Agreement shall be applied
herein as defined or established therein.
2. For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, each Originator hereby sells, or sells and
contributes, to Buyer, without recourse, except as provided in Sections 4.02(p),
4.05, and 5.01 of the Sale Agreement, all of each Originator's right, title and
interest in, to and under all of its Receivables (including all Collections,
Records and proceeds with respect thereto) existing as of the Closing Date and
thereafter created or arising at any time until the Facility Termination Date.
3. Subject to the terms and conditions of the Sale Agreement, each
Originator hereby covenants and agrees to sign, sell or contribute, as
applicable, execute and deliver, or cause to be signed, sold or contributed,
executed and delivered, and to do or make, or cause to be done or made, upon
request of Buyer and at each Originator's expense, any and all agreements,
instruments, papers, deeds, acts or things, supplemental, confirmatory or
otherwise, as may be reasonably required by Buyer for the purpose of or in
connection with acquiring or more effectively vesting in Buyer or evidencing the
vesting in Buyer of the property, rights, title and interests of each Originator
sold or contributed hereunder or intended to be sold or contributed hereunder.
4. Wherever possible, each provision of this Receivables Assignment shall
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Receivables Assignment shall be prohibited by
or invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity without
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invalidating the remainder of such provision or the remaining provisions of this
Receivables Assignment.
5. THIS RECEIVABLES ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT
REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICT OF LAWS, AND ANY APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA.
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IN WITNESS WHEREOF, the parties have caused this Receivables Assignment to
be executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
NOAMTC, INC., as an Originator
By:
------------------------------------
Name: Xxxxxxxxxxx X. Black,
Authorized Representative
WABASH NATIONAL, L.P., as an Originator
By: NOAMTC, Inc., its general partner
By:
------------------------------------
Name: Xxxxxxxxxxx X. Black,
Authorized Representative
WNC RECEIVABLES, LLC, as Buyer
By:
------------------------------------
Name: Xxxxxxxxxxx X. Black
Title: Manager
[Signature Page to Sale Agreement]
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SCHEDULE 4.01(A)
JURISDICTION OF INCORPORATION/ORGANIZATION
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SCHEDULE 4.01(B)
EXECUTIVE OFFICES; COLLATERAL LOCATIONS; OTHER NAMES
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SCHEDULE 4.01(D)
LITIGATION
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SCHEDULE 4.01(F)
FINANCIAL STATEMENTS AND PROJECTIONS
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SCHEDULE 4.01(I)
LABOR MATTERS
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SCHEDULE 4.01(J)
VENTURES, SUBSIDIARIES AND AFFILIATES; OUTSTANDING EQUITY INTERESTS
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SCHEDULE 4.01(K)
TAX MATTERS
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SCHEDULE 4.01(L)
INTELLECTUAL PROPERTY
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SCHEDULE 4.01(O)
ERISA
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SCHEDULE 4.01(S)
WARRANTY POLICY
WARRANTY INFORMATION
Products Warranted. Wabash National, L. P. (Wabash) provides the following
WARRANTY on its Trailers and RoadRailer MarkV Trailers, which are operated in
the U.S.A. and Canada (the Product), to the first retail customer. Other
products are covered by a separate warranty previously furnished.
Warranty. Wabash warrants to the first retail customer that any new
trailer, including a RoadRailer trailer, will be free of defects in
material and workmanship when properly maintained and used in normal
service free from accident, derailment or collision. Unless specified
otherwise, the warranty shall be for the following period.
Container chassis and special trailers - one year Dry freight,
refrigerated and flat trailers - five years
Normal service means the loading, unloading, and carriage of uniformly
distributed legal loads of non-corrosive and properly secured cargo on well
maintained railways and public roads, with gross vehicle weights not
exceeding the labeled gross vehicle weight rating. RoadRailer trailers
shall not be subjected to rail buff and draft forces which exceed the
trailer's rated capacity, nor shall the trailer be operated at a speed on
rail exceeding the rail bogie's rated speed limit.
Wabash does not warrant parts or accessories supplied by others. Wabash
assigns to the customer any warranties in favor of Wabash with respect to
any such parts or accessories which may legally be assigned by Wabash.
This warranty does not cover:
1. Parts which are not defective but which may wear out and have to
be replaced.
2. Alignments or adjustments which are normal maintenance items not
caused by a defect in the trailer.
3. Parts which after delivery have been repaired or altered by
anyone other than Wabash's service representatives unless, in
Wabash's opinion, such repairs or alterations did not in any way
contribute to the defective conditions.
4. Any item covered by a separate Wabash warranty.
THIS NON-ASSIGNABLE WARRANTY IS MADE BY WABASH SOLELY TO THE FIRST RETAIL
CUSTOMER AND SHALL BE IN
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LIEU OF ANY OTHER WARRANTY, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED
TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR
PURPOSE, WHICH ARE DISCLAIMED.
The only warranty covering the Product is the written express warranty
above. All warranty remedies are subject to the following limitations.
Customer and Wabash agree that Wabash's exclusive liability under this
warranty or otherwise shall be the repair or replacement, at Wabash's
option, of any defective Product. Customer must give notice of the defect
immediately after such defect is or ought to have been discovered, and
return the Product to Wabash or other mutually agreeable location, within
twenty (20) days after Wabash request the return. Wabash shall have no
liability for cargo loss, loss of use or any other incidental or
consequential damages.
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SCHEDULE 4.01(V)
DEPOSIT AND DISBURSEMENT ACCOUNTS
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SCHEDULE 4.02(H)
TRADE NAMES
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SCHEDULE 4.04(B)
EXISTING LIENS
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SCHEDULE 4.04(E)
CAPITAL STRUCTURE
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SCHEDULE 4.04(O)(B)
SALE OF ASSETS
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SCHEDULE 4.04(O)(L)
PREPAYMENT OF OTHER INDEBTEDNESS
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ANNEX X
DEFINITIONS
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ANNEX Y
SCHEDULE OF DOCUMENTS
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ANNEX 4.03
REPORTING REQUIREMENTS OF THE
PERFORMANCE GUARANTOR
The Performance Guarantor shall furnish, or cause to be furnished, to the
Agent (as Buyer's assignee) for distribution to the Purchasers:
(a) Annual Audited Financials. As soon as available, and in any event
within 90 days after the end of each fiscal year, Financial Statements for the
Parent and each of its Subsidiaries on an audited consolidated and an unaudited
consolidating basis, consisting of balance sheets and statements of income and
retained earnings and cash flows, setting forth in comparative form in each case
the figures for the previous fiscal year, which Financial Statements shall be
prepared in accordance with GAAP and, in the case of such consolidated
statements, certified without qualification by an independent certified public
accounting firm of national standing or otherwise acceptable to Agent. Such
Financial Statements shall be accompanied by (i) a statement prepared in
reasonable detail showing the calculations used in determining compliance with
Section 4.04(l) of the Sale Agreement, (ii) the certification of the Chief
Executive Officer or Chief Financial Officer that all such Financial Statements
present fairly in accordance with GAAP the financial position, results of
operations and statements of cash flows of the Parent and each of its
Subsidiaries on a consolidated and consolidating basis, as at the end of such
fiscal year and for the period then ended, and that there was no Termination
Event or Incipient Termination Event in existence as of such time or, if a
Termination Event or Incipient Termination Event has occurred and is continuing,
describing the nature thereof and all efforts undertaken to cure such
Termination Event or Incipient Termination Event, and (iii) a Bringdown
Certificate from each of the Parent, the Originators, the Servicer, the Seller
and the Independent Member.
(b) Quarterly Financials. As soon as available, and in any event within 45
days after the end of each fiscal quarter, consolidated and consolidating
financial information regarding the Parent and each of its Subsidiaries,
certified by the Chief Executive Officer or Chief Financial Officer of such
member of the Parent Group, consisting of (i) unaudited balance sheets as of the
close of such fiscal quarter and the related statements of income and cash flows
for that portion of the fiscal year ending as of the close of such fiscal
quarter and (ii) unaudited statements of income and cash flows for such fiscal
quarter, in each case setting forth in comparative form the figures for the
corresponding period in the prior year and the figures contained in the
Projections for such fiscal year, all prepared in accordance with GAAP (subject
to normal year-end adjustments). Such financial information shall be accompanied
by (A) a statement in reasonable detail showing the calculations used in
determining compliance with Section 4.04(l) of the Sale Agreement that is tested
on a quarterly basis and (B) the certification of the Chief Executive Officer,
Chief Financial Officer or Treasurer of the Parent that (i) such financial
information presents fairly in accordance with GAAP (subject to normal year-end
adjustments) the financial position, results of operations and statements of
cash flows of the Parent and each of its Subsidiaries on a consolidated and
consolidating basis, as at the end of such fiscal quarter and for
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the period then ended, and (ii) any other information presented is true, correct
and complete in all material respects and that that there was no Termination
Event or Incipient Termination Event in existence as of such time or, if a
Termination Event or Incipient Termination Event has occurred and is continuing,
describing the nature thereof and all efforts undertaken to cure such
Termination Event or Incipient Termination Event.
(c) Monthly Financials. As soon as available, and in any event within 30
days after the end of each fiscal month (but within 45 days if the applicable
month is the end of a fiscal quarter or within 90 days if the applicable month
is the end of a fiscal year), financial information regarding the Parent and
each of its Subsidiaries, certified by the Chief Financial Officer of such
member of the Parent Group, consisting of consolidated and consolidating (i)
unaudited balance sheets as of the close of such fiscal month and the related
statements of income and cash flows for that portion of the fiscal year ending
as of the close of such fiscal month and (ii) unaudited statements of income and
cash flows for such fiscal month, setting forth in comparative form the figures
for the corresponding period in the prior year and the figures contained in the
Projections for such fiscal year, all prepared in accordance with GAAP. Such
financial information shall be accompanied by the certification of the Chief
Executive Officer, Chief Financial Officer or Treasurer of the Parent that (A)
such financial information presents fairly in accordance with GAAP the financial
position and results of operations of the Parent and its Subsidiaries, on a
consolidated and consolidating basis, in each case as at the end of such month
and for the period then ended and (B) any other information presented is true,
correct and complete in all material respects and that there was no Incipient
Termination Event or Incipient Termination Event in existence as of such time
or, if an Incipient Termination Event or Termination Event shall have occurred
and be continuing, describing the nature thereof and all efforts undertaken to
cure such Termination Event or Incipient Termination Event.
(d) Operating Plan. As soon as available, but not later than 30 days prior
to the end of each fiscal year, an annual operating plan for the Parent and its
Subsidiaries for the following year, approved by the Chief Executive Officer and
Chief Financial Officer of the Parent, which will (i) include a statement of all
of the material assumptions on which such plan is based, (ii) include monthly
balance sheets and income statements for the following year and (iii) monthly
cash flow and Availability projections, all prepared on the same basis and in
similar detail as that on which operating results are reported (and in the case
of cash flow projections, representing management's good faith estimates of
future financial performance based on historical performance), and including
plans for personnel, capital expenditures and facilities.
(e) Management Letters. Within five Business Days after receipt thereof by
the Parent or any of its Subsidiaries, copies of all management letters,
exception reports or similar letters or reports received by the Parent or any of
its Subsidiaries from its independent certified public accountants.
(f) Default Notices. As soon as practicable, and in any event within one
Business Days after an Authorized Officer of the Parent or any of its
Subsidiaries has actual knowledge of
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the existence thereof, telephonic or telecopied notice of each of the following
events, in each case specifying the nature and anticipated effect thereof and
what action, if any, the Parent or its respective Subsidiary proposes to take
with respect thereto, which notice, if given telephonically, shall be promptly
confirmed in writing on the next Business Day:
(i) any Incipient Termination Event or Termination Event;
(ii) any Adverse Claim made or asserted against any of the Originator
Collateral of which it becomes aware;
(iii) the occurrence of any event that would have a material adverse
effect on the aggregate value of the Originator Collateral or on the
assignments and Liens granted by the Parent and each of its Subsidiaries
pursuant to this Agreement;
(iv) the occurrence of any event of the type described in Sections
4.02(i)(i), (ii) or (iii) of the Sale Agreement involving any Obligor
obligated under Transferred Receivables with an aggregate Outstanding
Balance at such time of $100,000 or more;
(v) the commencement of a case or proceeding by or against the Parent
or any of its Subsidiaries seeking a decree or order in respect of the
Parent or any of its Subsidiaries (A) under the Bankruptcy Code or any
other applicable federal, state or foreign bankruptcy or other similar law,
(B) appointing a custodian, receiver, liquidator, assignee, trustee or
sequestrator (or similar official) for the Parent or any of its
Subsidiaries or for any substantial part of its assets, or (C) ordering the
winding-up or liquidation of the affairs of the Parent or any of its
Subsidiaries;
(vi) the receipt of notice that (A) the Parent or any of its
Subsidiaries is being placed under regulatory supervision, (B) any license,
permit, charter, registration or approval necessary for the conduct of the
business of the Parent or any of its Subsidiaries is to be, or may be,
suspended or revoked, or (C) the Parent or any of its Subsidiaries is to
cease and desist any practice, procedure or policy employed by it in the
conduct of its business if such cessation may have a Material Adverse
Effect; or
(vii) any other event, circumstance or condition that has had or could
reasonably be expected to have a Material Adverse Effect.
(g) SEC Filings and Press Releases. Promptly upon their becoming available,
copies of: (i) all financial statements, reports, notices and proxy statements
made publicly available by the Parent or any of its Subsidiaries to its security
holders; (ii) all regular and periodic reports and all registration statements
and prospectuses, if any, filed by the Parent or any of its Subsidiaries with
any securities exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority; and (iii) all press releases and
other statements
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made available by the Parent or any of its Subsidiaries to the public concerning
material adverse changes or developments in the business of any such Person.
(h) Litigation. Promptly upon learning thereof, written notice of any
Litigation affecting the Parent or any of its Subsidiaries, the Transferred
Receivables or the Originator Collateral, whether or not fully covered by
insurance, and regardless of the subject matter thereof that (i) seeks damages
in excess of $500,000, (ii) seeks injunctive relief, (iii) is asserted or
instituted against any Plan, its fiduciaries or its assets or against the Parent
or any of its Subsidiaries or any ERISA Affiliate of the Parent or any of its
Subsidiaries in connection with any Plan, (iv) alleges criminal misconduct the
Parent or any of its Subsidiaries, (v) alleges the violation of any law
regarding, or seeks remedies in connection with, any Environmental Liabilities,
or (vi) would, if determined adversely, have a Material Adverse Effect.
(i) Other Documents. Within two Business Days after receipt thereof, such
other financial and other information respecting the Transferred Receivables,
the Contracts therefor or the condition or operations, financial or otherwise,
of the Parent or any of its Subsidiaries as the Agent shall, from time to time,
request.
(j) Miscellaneous Certifications. As soon as available, and in any event
within 90 days after the end of each fiscal year, (i) a Bringdown Certificate
and (ii) if requested, an opinion of counsel, in form and substance satisfactory
to the Purchasers and the Agent, reaffirming as of the date of such opinion the
opinion of counsel with respect to the Parent and each of its Subsidiaries
delivered to the Agent for distribution to the Purchasers on the Closing Date.
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ANNEX 4.04(L)
DEFINITIONS
As used in this Annex 4.04(l), 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):
"AFFILIATE" shall mean, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the Equity Interest
having ordinary voting power in the election of directors of such Person, (b)
each Person that controls, is controlled by or is under common control with such
Person, or (c) each of such Person's officers, directors, joint venturers and
partners. For the purposes of this definition, "control" of a Person shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"AGENT" shall mean General Electric Capital Corporation, in its capacity as
Agent for the Purchasers under the Purchase Agreement.
"AGREEMENT ACCOUNTING PRINCIPLES" shall mean generally accepted accounting
principles as in effect from time to time in the United States, applied in a
manner consistent with those used in preparing the financial statements referred
to in Section 4.04(f) of the Sale Agreement.
"CAPITAL EXPENDITURES" shall mean, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
Capitalized Leases and purchase money Indebtedness to the extent permitted
hereunder) by the Performance Guarantor and its Subsidiaries during that period
that, in conformity with Agreement Accounting Principles, are required to be
included in or reflected by the property, plant, equipment or similar fixed
asset accounts reflected in the consolidated balance sheet of the Performance
Guarantor and its Subsidiaries.
"CAPITAL INVESTMENT" shall mean, as of any date of determination, the
amount equal to (a) the aggregate deposits made by the Purchaser to the
Collection Account pursuant to the Purchase Agreement on or before such date,
minus (b) the aggregate amounts disbursed to the Purchaser in reduction of
Capital Investment pursuant to the Purchase Agreement on or before such date.
"CAPITALIZED LEASE" shall mean, with respect to any Person, any lease of
any property (whether real, personal or mixed) by such Person as lessee that, in
accordance with Agreement Accounting Principles, would be required to be
classified and accounted for as a capital lease on a balance sheet of such
Person.
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"CAPITALIZED LEASE OBLIGATION" shall mean, with respect to any Capitalized
Lease of any Person, the amount of the obligation of the lessee thereunder that,
in accordance with Agreement Accounting Principles, would appear on a balance
sheet of such lessee in respect of such Capitalized Lease.
"CASH EQUIVALENTS" shall mean (i) marketable direct obligations issued or
unconditionally guaranteed by the government of the United States; (ii) domestic
and Eurodollar certificates of deposit and time deposits, bankers' acceptances
and floating rate certificates of deposit issued by any commercial bank
organized under the laws of the United States, any state thereof, the District
of Columbia, or its branches or agencies and having capital and surplus in an
aggregate amount not less than $500,000,000 (fully protected against currency
fluctuations for any such deposits with a term of more than ten (10) days);
(iii) shares of money market, mutual or similar funds having net assets in
excess of $500,000,000 maturing or being due or payable in full not more than
one hundred eighty (180) days after the Performance Guarantor's acquisition
thereof and the investments of which are limited to investment grade securities
(i.e., securities rated at least Baa by Xxxxx'x Investors Service, Inc. or at
least BBB by Standard & Poor's Ratings Group) and (iv) commercial paper of
United States banks and bank holding companies and their subsidiaries and United
States finance, commercial, industrial or utility companies which, at the time
of acquisition, are rated A-1 (or better) by Standard & Poor's Ratings Group or
P-1 (or better) by Xxxxx'x Investors Service, Inc.; provided that the maturities
of such Cash Equivalents shall not exceed 365 days.
"CLOSING DATE" shall mean the date on which the initial Purchase under the
Purchase Agreement occurs.
"COLLECTION ACCOUNT" shall mean an account established by the Agent
designated as the Collection Account (Bankers Trust Company, New York, New York,
ABA No. 000000000, Account No. 00000000, Account Name: GECC/CAF Depository,
Reference: Wabash National CFC4337) and otherwise in accordance with the
requirements set forth in the Purchase Agreement.
"CONSOLIDATED EBITDA" shall mean, for any period, on a consolidated basis
for the Performance Guarantor and its Subsidiaries, the sum of the amounts for
such period, without duplication of (i) Consolidated Operating Income, plus (ii)
charges against income for foreign taxes and U.S. income taxes to the extent
deducted in computing Consolidated Operating Income, plus (iii) Interest Expense
to the extent deducted in computing Consolidated Operating Income, plus (iv)
depreciation expense to the extent deducted in computing Consolidated Operating
Income, plus (v) amortization expense, including, without limitation,
amortization of goodwill and other intangible assets to the extent deducted in
computing Consolidated Operating Income, plus (vi) other non-cash charges (in an
aggregate amount not in excess of $15,000,000 during any fiscal year of the
Performance Guarantor) in accordance with Agreement Accounting Principles to the
extent deducted in computing Consolidated Operating Income, minus (x) the total
interest income of the Performance Guarantor and its Subsidiaries to the extent
included in computing Consolidated Operating Income minus (y) the total tax
benefit reported by the
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Performance Guarantor and its Subsidiaries to the extent included in computing
Consolidated Operating Income.
"CONSOLIDATED EQUITY" shall mean as of the date of any determination
thereof, the total stockholders' equity of the Performance Guarantor and its
Subsidiaries on a consolidated basis, all as determined in accordance with
Agreement Accounting Principles.
"CONSOLIDATED OPERATING INCOME" shall mean, with reference to any period,
the net operating income (or loss) of the Parent and its Subsidiaries for such
period (taken as a cumulative whole on a consolidated basis) including without
limitation all restructuring expenses for such period (exclusive of "other
income/expenses" as reflected in the Parent's consolidated statement of income
of the Parent and its Subsidiaries for such period and related to non-operating
and non-recurring income and expenses), as determined in accordance with
Agreement Accounting Principles, after eliminating all offsetting debits and
credits between the Performance Guarantor and its Subsidiaries and all other
items required to be eliminated in the course of the preparation of consolidated
financial statements of the Performance Guarantor and its Subsidiaries in
accordance with Agreement Accounting Principles.
"CONSOLIDATED TAX ADJUSTED EQUITY" shall mean, as of the date of any
termination thereof, Consolidated Equity plus the cumulative federal, state and
local income tax benefit reported by Performance Guarantor in accordance
Agreement Accounting Principles.
"CONSOLIDATED TOTAL ASSETS" shall mean as of the date of any determination
thereof, total assets of the Performance Guarantor and its Subsidiaries
determined on a consolidated basis in accordance with Agreement Accounting
Principles.
"CONTINGENT OBLIGATION," as applied to any Person, shall mean any
obligation (except the endorsement in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person guaranteeing or
in effect guaranteeing any Indebtedness, dividend or other obligation of any
other Person in any manner, whether directly or indirectly, including (without
limitation) obligations incurred through an agreement, contingent or otherwise,
by such Person:
(a) to purchase such Indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such
Indebtedness or obligation, or (ii) to maintain any working capital or other
balance sheet condition or any income statement condition of any other Person or
otherwise to advance or make available funds for the purchase or payment of such
Indebtedness or obligation;
(c) to lease properties or to purchase properties or services primarily for
the purpose of assuring the owner of such Indebtedness or obligation of the
ability of any other Person to make payment of the Indebtedness or obligation;
or
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(d) otherwise to assure the owner of such Indebtedness or obligation
against loss in respect thereof.
In any computation of the Indebtedness or other liabilities of the obligor
under any Contingent Obligation, the Indebtedness or other obligations that are
the subject of such Contingent Obligation shall be assumed to be direct
obligations of such obligor.
"CONTROLLED GROUP" shall mean the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Performance Guarantor; (ii) a
partnership or other trade or business (whether or not incorporated) which is
under common control (within the meaning of Section 414(c) of the Code) with the
Performance Guarantor; and (iii) a member of the same affiliated service group
(within the meaning of Section 414(m) of the Code) as the Performance Guarantor,
any corporation described in clause (i) above or any partnership or trade or
business described in clause (ii) above.
"CREDIT AGREEMENT" shall mean that certain Amended and Restated Credit
Agreement dated as of April 11, 2002, among the Performance Guarantor, as
borrower, the lenders party thereto and the Credit Facility Agent.
"CREDIT FACILITY AGENT" shall mean Bank One, Indiana, N.A. in its capacity
as administrative agent under the Credit Agreement, or its successor appointed
pursuant to the Credit Agreement.
"EQUITY INTEREST" shall mean all shares, options, warrants, member
interests, general or limited partnership interests or other equivalents
(regardless of how designated) of or in a corporation, limited liability
company, partnership or equivalent entity whether voting or nonvoting, including
common stock, preferred stock or any other "equity security" (as such term is
defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934, 15
U.S.C. Sections 78a et seq., and any regulations promulgated thereunder).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974 and
any regulations promulgated thereunder.
"FINANCE CONTRACT" shall mean any chattel paper originated by the
Performance Guarantor or any of its Subsidiaries pursuant to a bona fide sale in
the ordinary course of business with a customer of any Subsidiary.
"GAAP" shall mean generally accepted accounting principles in the United
States of America as in effect on the Closing Date.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any state or
other political subdivision thereof, and any agency, department or other entity
exercising
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executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"INDEBTEDNESS" of any Person shall mean, without duplication,
(a) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services payment for which is deferred 90 days or
more, but excluding obligations to trade creditors incurred in the ordinary
course of business that are not overdue by more than 90 days unless being
contested in good faith,
(b) all reimbursement and other obligations with respect to letters of
credit, bankers' acceptances and surety bonds, whether or not matured,
(c) all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property),
(d) all Capitalized Lease Obligations,
(e) all indebtedness referred to in clauses (a) through (d) above secured
by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property or other
assets (including accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
indebtedness,
(f) all Off-Balance Sheet Liabilities of such Person,
(g) the aggregate Capital Investment, and
(h) all Contingent Obligation of such Person with respect to liabilities of
a type described in any of clauses (a) through (g) hereof.
Indebtedness of any Person shall include all obligations of such Person of
the character described in clauses (a) through (h) to the extent such Person
remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under Agreement Accounting Principles.
In no event shall Indebtedness include Unfunded Liabilities of any Plan of the
Performance Guarantor and its Subsidiaries, which amount, as of December 31,
2001, was zero.
"INTEREST COVERAGE RATIO" shall mean, as of any date the same is to be
determined, the ratio of (i) Consolidated EBITDA as of such date for (A) in the
case of calculating Consolidated EBITDA for each relevant month in the
Performance Guarantor's fiscal year ending on or about December 31, 2002, the
cumulative period of months ending on and after April 30, 2002 and (B) in the
case of calculating Consolidated EBITDA for each month
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thereafter, the period of four consecutive fiscal quarters then ending to (ii)
Interest Expense during the same applicable periods.
"INTEREST EXPENSE" shall mean, for any period, the total interest expense
of the Performance Guarantor and its consolidated Subsidiaries, whether paid or
accrued (including the total interest expense under the Permitted Receivables
Transfer), including interest expense not payable in cash (including
amortization or write-off of debt discount and debt issuance costs and
commissions and discounts and other fees and charges associated with
Indebtedness, including the Obligations, all as determined in conformity with
Agreement Accounting Principles.
"LENDERS" shall mean the lending institutions from time to time parties to
the Credit Agreement, and their respective successors and assigns.
"LEVERAGE VALUATION RATIO" shall mean, as of any date the same is to be
determined, the ratio of (i) the sum of the aggregate outstanding principal
amount of the Obligations (excluding L/C Obligations, as defined in the Credit
Agreement) and the Indebtedness under the Note Agreements to (ii) Consolidated
Total Assets to the extent consisting of cash and Cash Equivalents, net
inventory, net prepaid and other expenses and net property, plant and equipment
as of such date, in all cases as determined in accordance with Agreement
Accounting Principles.
"LIEN" shall mean any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN DOCUMENT" shall mean the Note Agreements, the Senior Notes, the
Credit Agreement, and all notes, security agreements, pledge agreements,
mortgages and related collateral documents executed pursuant to any of the
foregoing.
"NOTE AGREEMENTS" shall mean, in the case of the holders of the Performance
Guarantor's Series A Senior Notes, those certain separate and several Amended
and Restated Note Purchase Agreements, each dated as of the Closing Date,
between the Performance Guarantor and such holders, in the case of the holders
of the Performance Guarantor's Series C through H Senior Notes, those certain
separate and several Amended and Restated Note Purchase Agreement, dated as of
the Closing Date, between the Performance Guarantor and such holders, and in the
case of the holders of the Performance Guarantor's Series I Senior Notes, that
certain Amended and Restated Note Purchase Agreement, dated as of the Closing
Date, between the Performance Guarantor and such holders, in each case as
amended from time to time.
"NOTEHOLDER" shall mean each holder of a Senior Note pursuant to a Note
Agreement, and its successors and assigns.
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"OBLIGATIONS" shall mean all loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Performance Guarantor to the
Credit Facility Agent, any Lender, any Affiliate of any of the foregoing or any
Indemnitee (as defined in the Credit Agreement), of any kind or nature, present
or future, arising under the Credit Agreement, the Senior Notes, or any other
Loan Document, whether or not evidenced by any note, guaranty or other
instrument, whether or not for the payment of money, whether arising by reason
of an extension of credit, loan, guaranty, indemnification, or in any other
manner, whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter arising
and however acquired. The term includes, without limitation, all interest,
charges, expenses, fees, attorneys' fees and disbursements, paralegals' fees (in
each case whether or not allowed), and any other sum chargeable to the
Performance Guarantor under the Credit Agreement or any other Loan Document.
"OFF-BALANCE SHEET LIABILITIES" of a Person shall mean (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of its Subsidiaries,
(b) any liability of such Person or any of its Subsidiaries under any sale and
leaseback transactions which do not create a liability on the consolidated
balance sheet of such Person, (c) any liability of such person or any of its
Subsidiaries under any so-called "synthetic" lease transaction, or (d) any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the consolidated balance sheets of such Person and its
Subsidiaries.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PERSON" shall mean any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, trust, association, corporation (including
a business trust), limited liability company, institution, public benefit
corporation, joint stock company, Governmental Authority or any other entity of
whatever nature.
"PERMITTED RECEIVABLES TRANSFER" shall mean (i) a sale or other transfer by
either Wabash National, L.P. or NOAMTC, Inc., in their capacities as parties to
the Sale Agreement, to WNC Receivables LLC, of Receivables (as defined in the
Sale Agreement) and Collections (as defined in the Sale Agreement), in
accordance with the terms of the Sale Agreement, and/or (ii) a sale by WNC
Receivables LLC to purchasers of Purchaser Interests (as defined in the Purchase
Agreement), in accordance with the terms of the Purchase Agreement.
"PERFORMANCE GUARANTOR" shall mean the Wabash National Corporation, a
Delaware corporation, in its capacity as guarantor under the Sale Agreement.
"PIK NOTES" shall mean those certain promissory notes of the Performance
Guarantor payable to the order of each Lender evidencing the aggregate deferral
fees payable by the Performance Guarantor to such Lender.
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"PLAN" shall mean an employee benefit plan defined in Section 3(3) of ERISA
in respect of which the Performance Guarantor or any member of the Controlled
Group is, or within the immediately preceding six (6) years was, an "employer"
as defined in Section 3(5) of ERISA.
"PURCHASE" shall have the meaning assigned to it in the Purchase Agreement.
"PURCHASER" shall mean General Electric Capital Corporation, a Delaware
corporation, its successors and assigns.
"PURCHASE AGREEMENT" shall mean that certain Receivables Purchase and
Servicing Agreement, dated as of April 11, 2002, by and among WNC Receivables,
LLC, Wabash Financing, LLC, WNC Receivables Management Corp. and the Purchaser.
"SALE AGREEMENT" shall mean that certain Receivables Sale and Contribution
Agreement dated as of April 11, 2002, by and among Wabash National Corporation,
NOAMTC, Inc., Wabash National, L.P., and WNC Receivables, LLC..
"SENIOR NOTE" shall mean any of the Parent's 6.41% Series A Senior Secured
Notes due March 30, 2004, Designated Rate Senior Secured Notes, Series C, due
March 30, 2004, 7.31% Senior Secured Notes, Series D, due December 17, 2004,
Designated Rate Senior Secured Notes, Series E, due March 13, 2005, 7.47% Senior
Secured Notes, Series F, due December 17, 2006, 7.53% Senior Secured Notes,
Series G, due December 30, 2008, 7.55% Senior Secured Notes, Series H, due
December 17, 2008, 8.04% Senior Secured Notes, Series I, due September 29, 2007,
or the PIK Notes.
"SINGLE EMPLOYER PLAN" shall mean a Plan maintained by the Performance
Guarantor or any member of the Controlled Group for employees of the Performance
Guarantor or any member of the Controlled Group.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation or
other entity (a) of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of directors or other
Persons performing similar functions are at the time directly or indirectly
owned by such Person or (b) that is directly or indirectly controlled by such
Person within the meaning of control under Section 15 of the Securities Act of
1933, 15 U.S.C. Sections 77a et seq., and any regulations promulgated
thereunder.
"UNFUNDED LIABILITIES" shall mean the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
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FINANCIAL COVENANTS
The Performance Guarantor shall, and shall cause each of its
Subsidiaries to, comply with the following:
(A) Minimum Consolidated Tax Adjusted Equity. If the Performance
Guarantor shall have reported a cumulative tax benefit as of the last day
of any fiscal quarter specified below, the Performance Guarantor shall, as
of the last day of such fiscal quarter, maintain Consolidated Tax Adjusted
Equity at an amount not less than the applicable "Minimum Consolidated Tax
Adjusted Equity" specified below:
Minimum Consolidated Tax
Fiscal Quarter Ending Adjusted Equity
--------------------- ------------------------
March 31, 2003 $ 99,064,000
June 30, 2003 $100,681,000
September 30, 2003 $103,283,000
December 31, 2003 $ 96,504,000
(B) Minimum Consolidated Equity. If the Performance Guarantor shall
not have reported a cumulative tax benefit as of the last day of any fiscal
quarter specified below, the Performance Guarantor shall, as of the last
day of such fiscal quarter, maintain Consolidated Equity at an amount not
less than the applicable "Minimum Consolidated Equity" specified below:
Minimum Consolidated
Fiscal Quarter Ending Equity
--------------------- --------------------
March 31, 2003 $87,882,000
June 30, 2003 $90,461,000
September 30, 2003 $94,751,000
December 31, 2003 $84,077,000
(C) Maximum Leverage Valuation Ratio. The Performance Guarantor shall
not permit, as of the last day of each of the fiscal quarters specified
below, the Leverage Valuation Ratio to exceed the applicable "Maximum
Leverage Valuation Ratio" specified below: Fiscal Quarter Ending Maximum
Leverage Valuation Ratio
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Minimum Leverage
Fiscal Quarter Ending Valuation
--------------------- ----------------
June 30, 2002 [0.95 to 1]
September 30, 2002 [0.95 to 1]
December 31, 2002 [0.95 to 1]
March 31, 2003 [0.85 to 1]
June 30, 2003 [0.80 to 1]
September 30, 2003 [0.80 to 1]
December 31, 2003 [0.75 to 1]
(D) Minimum Consolidated EBITDA. (i) The Performance Guarantor shall,
as of the last day of each of the fiscal quarters of the Performance
Guarantor occurring in calendar year 2002, maintain Consolidated EBITDA for
the cumulative period commencing on April 1, 2002 and ending on the last
day of such fiscal quarter, at an amount not less than $(20,000,000).
(ii) The Performance Guarantor shall, as of the last day of the calendar
months specified below, maintain Consolidated EBITDA at an amount not less than
the applicable "Minimum Rolling 12 Month Consolidated EBITDA" specified below
for the period of 12 consecutive calendar months then ending:
Minimum Rolling 12 Month
Month Ending Consolidated EBITDA
------------ -------------------
January 31, 2003 $36,135,000
February 28, 2003 $36,620,000
March 31, 2003 $39,301,000
April 30, 2003 $40,541,000
May 31, 2003 $41,276,000
June 30, 2003 $42,192,000
July 31, 2003 $42,877,000
August 31, 2003 $43,422,000
September 30, 2003 $43,784,000
October 31, 2003 $43,941,000
November 30, 2003 $43,828,000
December 31, 2003 $43,539,000
January 31, 2004 $42,539,000
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(E) Minimum Interest Coverage Ratio. The Performance Guarantor shall
not permit the Interest Coverage Ratio as of the last day of each fiscal
quarter of the Performance Guarantor (commencing with the fiscal quarter
ending on or about March 31, 2003), for the period of four consecutive
fiscal quarters then ending, to be less than 1.25 to 1.
(F) Maximum Capital Expenditures. The Performance Guarantor will not,
and will not permit any Subsidiary to, expend for Capital Expenditures
during any fiscal year of the Performance Guarantor and its Subsidiaries,
in excess of $6,000,000 in the aggregate for the Performance Guarantor and
its Subsidiaries.
(G) Maximum Finance Contracts. The Performance Guarantor will not, and
will not permit any Subsidiary to, enter into any new Finance Contract if
and to the extent that the sum of such Finance Contract (a) when added to
the aggregate amount of all Finance Contracts entered into by the
Performance Guarantor or any of its Subsidiaries during the twelve (12)
month period that commences on the Closing Date exceeds $5,000,000 or (b)
when added to the aggregate amount of all Finance Contracts entered by the
Performance Guarantor or any of its Subsidiaries during the twelve (12)
month period that commences on the first (1st) anniversary of the Closing
Date exceeds $5,000,000.
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ANNEX 4.04(O)
ADDITIONAL NEGATIVE COVENANTS
(A) Indebtedness. Neither the Performance Guarantor nor any of its
Subsidiaries shall directly or indirectly create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to any Indebtedness,
except that (a) Buyer may incur Indebtedness incurred in connection with the
Purchase Agreement and (b) the Performance Guarantor and its Subsidiaries other
than the Buyer may incur, assume or otherwise become or remain directly or
indirectly liable for the following:
(i) the Obligations;
(ii) Permitted Existing Indebtedness;
(iii) Indebtedness arising from intercompany loans from the
Performance Guarantor or any Subsidiary (other than the Buyer
and Independent Member) to any Subsidiary (other than the Buyer
and Independent Member) so long as the intercompany loans from
the Performance Guarantor or any Domestic Subsidiary (other
than the Buyer and Independent Member) to a Foreign Subsidiary
shall not exceed an aggregate of $5,000,000 during the term of
the Credit Agreement;
(iv) Indebtedness with respect to surety, appeal and performance
bonds obtained by the Performance Guarantor or any of its
Subsidiaries other than the Buyer in the ordinary course of
business;
(v) Indebtedness constituting Contingent Obligations permitted by
Clause E below;
(vi) unsecured Indebtedness and other liabilities incurred in the
ordinary course of business and consistent with past practice,
but not incurred through the borrowing of money or the
obtaining of credit (other than customary trade terms);
(vii) Indebtedness evidenced by the Note Agreements, Senior Notes and
Related Notes; and
(viii) other unsecured Indebtedness in an aggregate principal amount
not exceeding $3,000,000 at any time outstanding.
(B) Sales of Assets. Except in connection with the SunTrust Sale and
Leaseback and any of the assets, properties or transactions identified in
Schedule 4.04(o)(B), neither the Performance Guarantor nor any of its
Subsidiaries shall sell, assign, transfer, lease, convey or otherwise dispose of
any property, whether now owned or hereafter acquired, or any income or profits
therefrom, or enter into any agreement to do so, except that the Performance
Guarantor and its Subsidiaries other than the Buyer may engage in the following
transactions:
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(i) sales of inventory in the ordinary course of business;
(ii) the disposition of obsolete equipment in the ordinary course of
business;
(iii) sales and other transfers of Transferred Receivables pursuant to
this Agreement;
(iv) sales, assignments, transfers, leases, conveyances or other
dispositions of other assets (but not including assets of Apex
Trailer Leasing & Rentals, L.P.) if such transaction (a) is for
not less than fair market value, and (b) when combined with all
such other sales, assignments, transfers, conveyances or other
dispositions during the then current fiscal year represents the
disposition of assets with a fair market value of not greater
than $5,000,000; and
(v) transfers of assets by the Performance Guarantor or any
Subsidiary to any Subsidiary other than Buyer so long as (i) in
the case of a transferee which is a Domestic Subsidiary, the
security interests granted pursuant to the Collateral Documents
in the events so transferred shall remain in full force and
effect and perfected and (ii) transfers of assets by the
Performance Guarantor or any Domestic Subsidiary to any Foreign
Subsidiary shall not exceed an aggregate of $1,000,000 during
the term of this Agreement.
(C) Liens. Neither the Performance Guarantor nor any of its Subsidiaries
other than Buyer shall directly or indirectly create, incur, assume or permit to
exist any Lien on or with respect to any of their respective property or assets
except that they may create, incur or suffer to exist the following Liens :
(i) Permitted Existing Liens;
(ii) Customary Permitted Liens;
(iii) purchase money Liens (including the interest of a lessor under a
Capitalized Lease and Liens to which any property is subject at
the time of the acquisition thereof by the Performance Guarantor
or one of its Subsidiaries) securing permitted purchase money
Indebtedness; provided that such Liens shall not apply to any
property of the Performance Guarantor or its Subsidiaries other
than that purchased or subject to such Capitalized Lease;
(iv) Liens arising in connection with sales and other transfers of
Transferred Receivables pursuant to this Agreement;
(v) Environmental Liens securing liabilities, claims, costs or
damages not exceeding $5,000,000 in the aggregate;
(vi) Liens securing the Credit Facility and the Senior Notes on
assets other than the Transferred Receivables and their
Collections; and
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(vii) Liens granted by a Foreign Subsidiary on Property located in
Canada to the extent securing Indebtedness permitted by Clause
(A)(ii).
In addition, neither the Performance Guarantor nor any or its Subsidiaries
shall, after the date hereof, become a party to any agreement, note, indenture
or other instrument (other than the Intercreditor and Collateral Agency
Agreement), or take any other action, which would prohibit the creation of a
Lien on any of its properties or other assets in favor of the Collateral Agent
for the benefit of itself and the Secured Parties as collateral for the Secured
Obligations; provided that any agreement, note, indenture or other instrument in
connection with permitted purchase money Indebtedness (including Capitalized
Lease Obligations) may prohibit the creation of a Lien in favor of the
Collateral Agent for the benefit of itself and the Lenders on the items of
property obtained with the proceeds of such permitted purchase money
Indebtedness; and provided further that this Agreement and the Purchase
Agreement may prohibit the creation of a Lien in favor of the Collateral Agent
for the benefit of itself and the Lenders on the assets of Buyer and on the
Transferred Receivables.
(D) Investments. Neither the Performance Guarantor nor any of its
Subsidiaries shall directly or indirectly make or own any Investment except that
the Performance Guarantor and its Subsidiaries other than the Buyer may make the
following Investments:
(i) Investments in Cash Equivalents;
(ii) Permitted Existing Investments;
(iii) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
(iv) Investments consisting of deposit accounts maintained by the
Performance Guarantor or any of its Subsidiaries in connection
with their cash management systems;
(v) Investments with respect to Indebtedness permitted pursuant to
Clause (A)(iii);
(vi) Existing Investments in any Subsidiaries;
(vii) Investments consisting of minority interests and joint ventures
and loans or advances to such entities, provided that at the
time any such Investment is made the amount of all Investments
under this clause (vii) (including such new Investment, and
including all Permitted Existing Investments that are of the
type covered by this clause (vii)) does not exceed $5,000,000
at such time;
(viii) Investments in Buyer pursuant to this Agreement; and
(ix) Investments in connection with Permitted Acquisitions.
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(E) Contingent Obligations. Neither the Performance Guarantor nor any of
its Subsidiaries shall directly or indirectly create or become or be liable with
respect to any Contingent Obligation, except: (i) recourse obligations resulting
from endorsement of negotiable instruments for collection in the ordinary course
of business; (ii) Permitted Existing Contingent Obligations and any extensions,
renewals or replacements thereof, provided that any such extension, renewal or
replacement is not greater than the Indebtedness under, and shall be on terms no
less favorable to the Performance Guarantor or such Subsidiary than the terms
of, the Permitted Existing Contingent Obligation being extended, renewed or
replaced; (iii) obligations, warranties and indemnities, not relating to
Indebtedness of any Person, which have been or are undertaken or made in the
ordinary course of business and consistent with past practices and not for the
benefit of or in favor of an Affiliate of the Performance Guarantor or such
Subsidiary; (iv) Contingent Obligations of the Performance Guarantor or any of
its Subsidiaries (other than Buyer) with respect to any Indebtedness permitted
by this Agreement; and (v) Contingent Obligations with respect to surety, appeal
and performance bonds obtained by the Performance Guarantor or any Subsidiary in
the ordinary course of business.
(F) Acquisitions. Neither the Performance Guarantor nor any of its
Subsidiaries shall make any Acquisition other than a Permitted Acquisition.
(G) Transactions with Shareholders or Affiliates. Neither the Performance
Guarantor nor any of its Subsidiaries shall directly or indirectly enter into or
permit to exist any transaction (including, without limitation, the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any holder or holders of any Equity Interests of the Performance Guarantor, or
with any Affiliate of the Performance Guarantor which is not its Subsidiary, on
terms that are less favorable to the Performance Guarantor or its Subsidiaries,
as applicable, than those that might be obtained in an arm's length transaction
at the time from Persons who are not such a holder or Affiliate.
(H) Restriction on Fundamental Changes. Neither the Performance Guarantor
nor any of its Subsidiaries shall enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or
convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, all or substantially all of the Performance Guarantor's
or any such Subsidiary's business or property, whether now or hereafter
acquired, except transactions permitted under Clause (B) and except that any
Subsidiary of the Performance Guarantor (other than Seller and Independent
Member) may merge with or liquidate into the Performance Guarantor or any other
Subsidiary of the Performance Guarantor (other than Seller and Independent
Member), provided that the surviving entity expressly assumes any liabilities,
if any, of either of such Subsidiaries with respect to the Obligations pursuant
to an assumption agreement reasonably satisfactory to the Collateral Agent and
provided further that the consolidated net worth of the surviving corporation is
not less than the consolidated net worth of the Subsidiary with any liability
with respect to the Obligations immediately prior to such merger.
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(I) Margin Regulations. Neither the Performance Guarantor nor any of its
Subsidiaries shall use all or any portion of the proceeds of any credit extended
under the Credit Facility or the Senior Notes to purchase or carry Margin Stock.
(J) ERISA. The Performance Guarantor shall not:
(i) engage, or permit any of its Subsidiaries to engage, in any
prohibited transaction described in Sections 406 of ERISA or
4975 of the Code for which a statutory or class exemption is not
available or a private exemption has not been previously
obtained from the DOL;
(ii) permit to exist any accumulated funding deficiency (as defined
in Sections 302 of ERISA and 412 of the Internal Revenue Code),
with respect to any Benefit Plan, whether or not waived;
(iii) fail, or permit any Controlled Group member to fail, to pay
timely required contributions or annual installments due with
respect to any waived funding deficiency to any Benefit Plan;
(iv) terminate, or permit any Controlled Group member to terminate,
any Benefit Plan which would result in any liability of the
Performance Guarantor or any Controlled Group member under Title
IV of ERISA;
(K) Fiscal Year. Neither the Performance Guarantor nor any of its
consolidated Subsidiaries shall change its fiscal year for accounting or tax
purposes from a period consisting of the 12-month period ending on December 31
of each calendar year.
(L) Prepayment of Other Indebtedness. Neither the Performance Guarantor nor
any of its Subsidiaries shall make any optional prepayment, redemption,
repurchase or defeasance of any Indebtedness of the Performance Guarantor or any
such Subsidiary which would, in accordance with Agreement Accounting Principles,
constitute long-term Indebtedness, other than the Obligations, any intercompany
Indebtedness permitted by Clause (A)(iii), and other Indebtedness described on
Schedule 4.04(o)(L) hereto.
(M) Limitations on Restrictive Agreements. Neither the Performance
Guarantor nor any of its Subsidiaries (other than Buyer) shall enter into, or
suffer to exist, any agreement (other than the Note Agreements) with any Person
which, directly or indirectly, prohibits or limits the ability of any Subsidiary
to (i) pay dividends or make other distributions to the Performance Guarantor or
prepay any Indebtedness owed to Performance Guarantor or (ii) transfer any of
its properties or assets to the Performance Guarantor (other than with respect
to assets subject to Liens permitted by Clause (C) above).
(N) Leases. Except in connection with the SunTrust Sale and Leaseback, the
Fleet Lease Transaction and the National City Lease Transaction, create, incur,
assume or suffer to exist, or permit any of its Subsidiaries to create, incur,
assume or suffer to exist, any obligation
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as lessee for the rental or hire of any real or personal property, except: (i)
leases existing on the date of this Agreement and any extensions or renewals
thereof, but no increase in the amount payable thereunder; and (ii) leases
(other than Capitalized Leases or leases constituting Off-Balance Sheet
Liabilities) which do not in the aggregate require the Performance Guarantor and
its Subsidiaries on a consolidated basis to make payments (including taxes,
insurance, maintenance and similar expenses which the Performance Guarantor or
any Subsidiary is required to pay under the terms of any lease) any time during
the Credit Agreement in excess of $3,500,000.
(O) Restricted Payments. Neither the Performance Guarantor nor any of its
Subsidiaries shall declare or make any Restricted Payment; provided that (a) the
foregoing shall not operate to restrict, prohibit or prevent (1) lease payments
made by the Performance Guarantor or any Subsidiary in accordance with the terms
and conditions of the Fleet Lease Transaction and the National City Lease
Transaction, (2) the payment of proceeds arising from, and upon, the disposition
of Property subject to and in accordance with the terms and conditions of the
Fleet Lease Transaction and the National City Lease Transaction and (3)
distributions to the Originators in connection with the sale or other transfer
of Transferred Receivables pursuant to this Agreement and (b) the Performance
Guarantor may, commencing with the March 15, 2003 scheduled dividend, resume
(but not catch up any method payments) making the regularly scheduled 6%
dividends on the Fruehauf Preferred Stock on a quarterly basis in an amount per
quarter not to exceed 6% of the Stated Value Per Share (as defined in the
Fruehauf Preferred Stock) so long as (i) no Unmatured Default or Default (as
defined in the Credit Agreement) shall have occurred and be continuing
hereunder, (ii) no Unmatured Default or Default would have occurred under the
financial covenants forth in clause (1), (2) and (3) below if such financial
covenants had been in full force and effect from the Closing Date to the date of
declaration of such proposed Restricted Payment on the Fruehauf Preferred Stock
and (iii) the Performance Guarantor has appointed a full-time permanent chief
executive officer as of the date of declaration of such proposed Restricted
Payment on the Fruehauf Preferred Stock.
For purpose of this subsection (O), on and prior to the date of the
declaration of any proposed Restricted Payment on the Fruehauf Preferred Stock
pursuant to this subsection (O), the Performance Guarantor shall have, and shall
have caused each of its Subsidiaries to have, complied with the following
financial covenants set forth in clauses (1), (2), (3) and (4) below:
(1) (A) If the Performance Guarantor shall have reported a cumulative tax
benefit as of the last day of any fiscal quarter specified below, the
Performance Guarantor shall, as of the last day of such fiscal quarter, maintain
Consolidated Tax Adjusted Equity at an amount not less than the applicable
"Minimum Consolidated Tax Adjusted Equity" specified below:
Minimum Consolidated
Fiscal Quarter Ending Tax Adjusted Equity
--------------------- --------------------
June 30, 2002 $106,376,000
September 30, 2002 $113,535,000
December 31, 2002 $107,267,000
March 31, 2003 $ 99,064,000
June 30, 2003 $100,681,000
September 30, 2003 $103,283,000
December 31, 2003 $ 96,504,000
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(B) If the Performance Guarantor shall not have reported a cumulative tax
benefit as of the last day of any fiscal quarter specified below, the
Performance Guarantor shall, as of the last day of such fiscal quarter, maintain
Consolidated Equity at an amount not less than the applicable "Minimum
Consolidated Equity" specified below:
Minimum Consolidated
Fiscal Quarter Ending Equity
--------------------- --------------------
June 30, 2002 $101,492,000
September 30, 2002 $110,961,000
December 31, 2002 $100,966,000
March 31, 2003 $ 87,882,000
June 30, 2003 $ 90,461,000
September 30, 2003 $ 94,751,000
December 31, 2003 $ 84,077,000
(2) (A) The Performance Guarantor shall not permit the Interest Coverage
Ratio as of the last day of each of the calendar months specified below, for the
cumulative period commencing on April, 2002 and ending on the last day of such
calendar month, to be less than the applicable "Minimum Interest Coverage Ratio"
specified below:
Minimum Interest
Fiscal Quarter Ending Coverage Ratio
--------------------- ----------------
June 30, 2002 1.50 to 1
September 30, 2002 1.50 to 1
December 31, 2002 1.25 to 1
(B) The Performance Guarantor shall not permit the Interest Coverage Ratio
as of the last day of each fiscal quarter of the Performance Guarantor specified
below, for the period of four consecutive fiscal quarters then ending, to be
less than the applicable "Minimum Interest Coverage Ratio" specified below:
Minimum Interest
Fiscal Quarter Ending Coverage Ratio
--------------------- ----------------
March 31, 2003 1.25 to 1
June 30, 2003 1.25 to 1
September 30, 2003 1.25 to 1
December 31, 2003 1.25 to 1
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Receivables Sale and Contribution Agreement
(3) The Performance Guarantor shall, as of the last day of each of the
calendar months specified below, maintain Consolidated EBITDA for the cumulative
period commencing on April 1, 2002 and ending on the last day of such calendar
month, at an amount not less than the applicable "Minimum Cumulative
Consolidated EBITDA" specified below:
Minimum Cumulative Month
Month Ending Consolidated EBITDA
------------ ------------------------
April 30, 2002 $ 3,841,000
Xxxx 31, 2002 $ 8,389,000
June 30, 2002 $14,722,000
July 31, 2002 $22,084,000
August 31, 2002 $28,732,000
September 30, 2002 $33,110,000
October 31, 2002 $36,753,000
November 30, 2002 $37,818,000
December 31, 2002 $37,856,000
(4) The Performance Guarantor shall, as of the last day of each the
calendar months specified below, maintain Consolidated EBITDA at an amount not
less than the applicable "Minimum Rolling 12 Month Consolidated EBITDA"
specified below for the period of 12 consecutive calendar months then ending:
Minimum Rolling 12 Month
Month Ending Consolidated EBITDA
------------ ------------------------
January 31, 2003 $36,135,000
February 28, 2003 $36,620,000
March 31, 20023 $39,301,000
April 30, 2003 $40,541,000
May 31, 2003 $41,276,000
June 30, 2003 $42,192,000
July 31, 2003 $42,877,000
August 31, 2003 $43,422,000
September 30, 2003 $43,784,000
October 31, 2003 $43,941,000
November 30, 2003 $43,828,000
December 31, 2003 $43,539,000
January 31, 2004 $42,539,000
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Receivables Sale and Contribution Agreement
(P) Hedging Obligations. Enter into any interest rate, commodity or foreign
currency exchange, swap, collar, cap or similar agreements evidencing Hedging
Obligations, other than interest rate, foreign currency or commodity exchange,
swap, collar, cap or similar agreements entered into by the Performance
Guarantor pursuant to which the Performance Guarantor has hedged its actual or
forecasted interest rate, foreign currency or commodity exposure. Such permitted
hedging agreements entered into by the Performance Guarantor and any Lender or
any affiliate of any Lender to hedge floating interest rate risk in an aggregate
notional amount not to exceed at any time an amount equal to the outstanding
balance of the Term Loans (as defined in the Credit Agreement) and the principal
Indebtedness under the Note Agreements at such time are sometimes referred to
herein as "Interest Rate Agreements".
(Q) Sales and Leasebacks. Neither the Performance Guarantor nor any of its
Subsidiaries shall become liable, directly, by assumption or by Contingent
Obligation, with respect to any lease, whether an operating lease or a
Capitalized Lease, of any Property (whether real or personal or mixed) (i) which
it or one of its Subsidiaries sold or transferred or is to sell or transfer to
any other Person, or (ii) which it or one of its Subsidiaries intends to use for
substantially the same purposes as any other Property which has been or is to be
sold or transferred by it or one of its Subsidiaries to any other Person in
connection with such lease, unless (a) in either case the sale involved is not
prohibited under Clause (B) and the lease involved is not prohibited under
Clause A above or (b) such sale and leaseback transaction is the SunTrust Sale
and Leaseback. The parties hereto acknowledge and agree that (1) the foregoing
shall not operate to restrict, prohibit or prevent the Fleet Lease Transaction
and the National City Lease Transaction and (2) the Borrower and its
Subsidiaries are permitted to dispose of Property pursuant to the SunTrust Sale
and Leaseback and the Collateral Agent is authorized to release its Liens on
such Property in connection with such disposition.
(R) Issuance of Disqualified and Preferred Stock. Neither the Performance
Guarantor nor any of its Subsidiaries shall issue any Disqualified Stock. The
Performance Guarantor shall not issue any new shares of preferred stock and
shall not permit any Subsidiary to issue any shares of preferred stock.
(S) Corporate Documents. Neither the Performance Guarantor nor any of its
Subsidiaries shall amend, modify or otherwise change any of the terms or
provisions in any of their respective constituent documents as in effect on the
date hereof in any manner materially adverse to the ability of the Performance
Guarantor or any of its Subsidiaries to perform their respective obligations
under the Related Documents to which they are parties.
(T) Other Indebtedness. The Performance Guarantor shall not amend, modify
or supplement, or permit any Subsidiary to amend, modify or supplement (or
consent to any amendment, modification or supplement of), any document,
agreement or instrument evidencing the Note Agreements, the Senior Notes, the
Related Notes, the National City Lease Transaction, the Fleet Lease Transaction,
transfer of Transferred Receivables pursuant to this Agreement or Subordinated
Indebtedness (or any replacements, substitutions or renewals thereof) or
pursuant
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Receivables Sale and Contribution Agreement
to which any such Indebtedness is issued where such amendment,
modification or supplement provides for the following or which has any of the
following effects:
(i) increases the overall principal amount of any such Indebtedness
or increases the amount of any single scheduled installment of
principal or interest;
(ii) shortens or accelerates the date upon which any installment of
principal or interest becomes due or adds any additional
mandatory redemption provisions;
(iii) shortens the final maturity date of such Indebtedness or
otherwise accelerates the amortization schedule with respect to
such Indebtedness;
(iv) increases the rate of interest accruing on such Indebtedness;
(v) provides for the payment of additional fees or increases
existing fees;
(vi) amends or modifies any financial or negative covenant (or
covenant which prohibits or restricts the Performance Guarantor
or a Subsidiary of the Performance Guarantor from taking
certain actions) in a manner which is more onerous or more
restrictive to the Performance Guarantor (or any Subsidiary of
the Performance Guarantor) or which is otherwise materially
adverse to the Performance Guarantor and/or the Lenders or, in
the case of adding covenants, which places additional
restrictions on the Performance Guarantor (or a Subsidiary of
the Performance Guarantor) or which requires the Performance
Guarantor or any such Subsidiary to comply with more
restrictive covenants than the covenants set forth herein or
which requires the Performance Guarantor to better its
financial performance from that set forth in the financial
covenants set forth herein;
(vii) amends, modifies or adds any covenant in a manner which, when
taken as a whole, is materially adverse to the Performance
Guarantor and/or the Lenders;
(viii) amends, modifies or supplements any subordination provisions
thereof; or
(ix) amends or modifies the limitations on transfer provided
therein.
(U) No Changes to Standard Warranty. The Performance Guarantor shall not,
and shall cause its Subsidiaries to not, make any material changes to the
Warranty Policies of the Performance Guarantor and its Subsidiaries in effect on
the date of this Agreement.
(V) Prohibition Against Trade-In-Value Guaranties. The Performance
Guarantor shall not, and shall cause its Subsidiaries to not, make any guarantee
of trade-in values of trailers beyond six months in duration.
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