RECEIVABLE
PURCHASE FACILITY AGREEMENT
RECEIVABLE PURCHASE FACILITY AGREEMENT (the "Agreement"), dated as of
January 20, 1998, by and between Charter Communications International, Inc., a
Nevada corporation, having an office at 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 (the "Seller"), and Connecticut Bank of Commerce, having
an office at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (the "Purchaser").
RECITALS
WHEREAS, the Seller has requested that the Purchaser purchase, from time
to time, certain of the Seller's Receivables (as hereinafter defined) due from
various obligors; and
WHEREAS, the Purchaser has indicated to the Seller its desire to purchase,
from time to time, with recourse, Receivables from specified obligors arising in
the normal course of Seller's business on the terms and subject to the
conditions contained herein; and
WHEREAS, the parties hereto wish to set forth the terms and conditions of
the Receivable Purchase Facility (as defined hereinafter).
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter set forth, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. Certain Defined Terms. As used in this Agreement, the
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following capitalized terms shall have the meanings respectively assigned to
them below, which meanings shall be applicable equally to both the singular and
plural forms of the term defined:
"Acceptable Obligor" shall mean, at any time, all Obligors on the Seller's
Receivables being acquired, from time to time, by the Purchaser from the Seller
pursuant to this Agreement, except for Obligors which are Persons, or which are
subject to a bankruptcy proceeding, either voluntary or involuntary, or which
the Purchaser has given the Seller advance notice that the Obligor shall not be
considered an Acceptable Obligor.
"Affiliated Company" shall mean any Company controlled by, or under common
control with, the Seller, including any parent.
"Affiliated Person" shall mean any Person who owns, directly or indirectly,
a controlling interest in the Seller or any Affiliated Company.
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"Agreement" shall mean this Receivable Purchase Facility Agreement, as the
same may be supplemented, modified, amended or restated from time to time in the
manner provided herein.
"Assignment" shall mean the Assignment, substantially in the form of
Exhibit C hereto (appropriately completed), evidencing the Seller's assignment
to the Purchaser as Collateral the Seller's Residual Ownership Interest in the
Purchased Receivables and all of the Seller's rights, title and interest in and
to all other Receivables.
"Xxxx of Sale" shall mean the Master Xxxx of Sale, substantially in the
form of Exhibit A hereto (appropriately completed), evidencing the Seller's
conveyance and sale to the Purchaser, from time to time, during the Facility
Period, of one or more Receivables pursuant to this Agreement.
"Business Day" shall mean any date other than (i) a Saturday or Sunday, or
(ii) a day on which banking institutions in the State of Connecticut are
authorized or obligated by law or executive order to be closed.
"Collateral" shall have the meaning set forth in Section 4.3 hereof.
"Collections" shall mean all cash, checks, notes, instruments and other
items of payment.
"Company" shall mean any corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or other legal entity.
"Dollars" or "$" means the lawful currency of the United States of America
and, in relation to any amount to be paid hereunder, funds having same day or
immediate value.
"Effective Date" shall mean the date of this Agreement, which shall be the
date the Receivable Purchase Facility provided hereunder is deemed effective.
"Eligible Receivable" shall mean a Receivable (i) generated from the sale
or lease of goods or the rendering of services or otherwise which is unpaid for
90 days or less from the date of the invoice evidencing the payment obligation,
(ii) which in not subject to any dispute, offset, counterclaim or defense
whatsoever, and (iii) the Obligor of which is an Acceptable Obligor and is
not an Affiliated Company.
"Facility Fee" shall mean the fee payable by the Seller to the Purchaser on
the Effective Date equal to $12,000.
"Facility Period" shall mean the period from the Effective Date until the
Termination Date.
"Guaranteed Return" shall mean the Purchaser's receipt from the Collections
on the Purchased Receivables equal to the Purchaser's Investment plus the
Investment Return thereon.
"Ineligible Receivable" shall mean any Receivable which does not qualify as
an Eligible Receivable in accordance with the criteria established in this
Agreement.
"Investment Return" shall mean a return on the Purchaser's Investment in
one or more Purchased Receivables equal to the Prime Rate plus 2 percent per
annum from time to time outstanding on the Outstanding Receivable Investment
calculated on a daily basis from the date of Purchaser's acquisition of the
Purchased Receivable up to and including the date the Purchaser's Investment in
the Purchased Receivable is reduced to zero. Each change in the Prime Rate shall
be reflected in the Investment Return on Purchaser's Investment as of the
effective date of such change. The Investment Return shall be computed on the
basis of a year of 360 days and actual days elapsed.
"Lockbox" shall mean the post office box listed on Schedule I hereto to
which the Obligors on Purchased Receivables are instructed to remit payments on
the Receivables and/or such other post office box as may be established in
connection with this Agreement.
"Lockbox Agreement" shall mean a lockbox agreement, substantially in the
form of Exhibit E.
"Maximum Facility Amount" shall mean $600,000, which represents the maximum
Outstanding Receivable Investment that the Purchaser is obligated to make with
respect to one or more pools of Purchased Receivables under this Receivable
Purchase Facility, or such higher amount as the Board of Directors of the
Purchaser, in its absolute discretion, shall approve; provided, however, that
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in no event shall the Outstanding Balance of Purchased Receivables owed by a
single Obligor when combined with other indebtedness of such Obligor to the
Purchaser exceed the Purchaser's legal lending limit with respect to said
Obligor.
"Obligor" shall mean, with respect to any Receivable, the Company or Person
obligated to make payments with respect to the Receivable.
"Other Agreements" shall have the meaning set forth in Section 2.9(b)(ix)
hereof.
"Outstanding Balance" shall mean, with respect to any Purchased Receivable
as of any date, the current unpaid balance of the Purchased Receivable as of
such date.
"Outstanding Receivable Investment" shall mean, with respect to any
Purchased Receivable, the Purchase Price less any principal reductions from
Collections with respect to the Purchased Receivable.
"Person" shall mean an individual and his or her executors,
representatives, successors or assigns.
"Prime Rate" shall mean the prime rate of interest quoted in The Wall
Street Journal, (Eastern Edition).
"Purchase Price" shall mean 60 percent of the unpaid balance of each
Eligible Receivable included in the pool of Purchased Receivables which is
unpaid for 89 days or less from the date of the invoice evidencing the payment
obligation as of the respective Settlement Date.
"Purchased Receivable" shall mean any Receivable purchased by the Purchaser
from the Seller pursuant to this Agreement.
"Purchaser's Account" shall have the meaning set forth in Section 2.8
hereof.
"Purchaser's Investment" shall mean the total amounts paid by the Purchaser
to the Seller from time to time for Purchased Receivables acquired pursuant to
this Agreement.
"Receivable" shall mean the indebtedness and payment obligations of any
Company or Person to the Seller (including, without limitation, obligations
constituting an account or general intangible or evidenced by a note,
instrument, contract, security agreement, chattel paper, other evidence of
indebtedness or security) arising from the sale of merchandise or services by
the Seller, including, without limitation, any right to payment for goods sold
or for services rendered, and including the right to payment of any interest,
sales taxes, finance charges, returned check or late charges and other
obligations of such Company or Person with respect thereto.
"Receivable Collection Account" shall mean the deposit account established
in connection with the Lockbox for the benefit of, and in the name of, the
Purchaser, to receive all collections from the Purchased Receivables as well as
from all other Receivables which have been assigned and pledged to the Purchaser
to ensure the Purchaser's receipt of the Guaranteed Return and as security for
the Seller's substitution and repurchase obligations set forth in Section 4.1
hereof.
"Receivables Documentation" shall mean all invoices and other documents
customarily attached thereto in the possession or under the control of the
Seller evidencing each Purchased Receivable.
"Receivable Purchase Facility" shall mean the contractual arrangement under
which the Purchaser has agreed to purchase from the Seller, and the Seller has
agreed to sell to the Purchaser, Receivables, from time to time during the
Facility Period, under the terms and conditions set forth in the Agreement and
subject, in each case, to the Maximum Facility Amount.
"Receivables Sale" shall mean the Seller's sale, and the Purchaser's
purchase for the Purchase Price, of one or more Receivables from time to time as
provided in this Agreement.
"Relevant UCC State" means each jurisdiction in which the filing of a UCC
financing statement is necessary or desirable to perfect the Purchaser's
interest in the Purchased Receivables.
"Renewal Effective Date" shall have mean the first day of any Renewal
Period.
"Renewal Fee" shall mean the fee payable by the Seller to the Purchaser on
the Renewal Effective Date, in accordance with Section 7.1(b) hereof, equal to
2 percent of the Maximum Facility Amount.
"Renewal Period" shall have the meaning set forth in Section 7.1(b) hereof.
"Repurchase Price" shall mean, with respect to any Purchased Receivable as
of the date of repurchase, the Outstanding Receivable Investment plus the
Purchaser's unpaid Investment Return calculated thereon up to but not including
the date of payment.
"Residual Ownership Certificate" shall mean the certificate, substantially
in the form of Exhibit B hereto (appropriately completed), evidencing the
Seller's aggregate Residual Receivable Interest in Purchased Receivables as of
any date, which interest is junior and subordinate to the Purchaser's ownership
interest in the Purchased Receivables and which interest along with all of the
Seller's other Receivables have been assigned and pledged to the Purchaser to
ensure the Purchaser's receipt of the Guaranteed Return and as security for the
Seller's substitution and repurchase obligations set forth in Section 4.1
hereof.
"Schedule of Purchased Receivables" shall mean Schedule 1 to the Xxxx of
Sale, as the same may be supplemented, modified or amended on each Settlement
Date, which identifies each Purchased Receivable (including the Receivables
being purchased on the particular Settlement Date) and the amount of Purchaser's
Outstanding Receivable Investment therein as of the particular Settlement Date,
and which contains such other information as the Purchaser may reasonably
require.
"Seller's Depository Account" shall have the meaning set forth in Section
2.7 hereof.
"Seller's Residual Receivable Interest" shall mean, with respect to any
Purchased Receivable as of any date, the difference between the Outstanding
Balance of the Purchased Receivable and the Purchaser's Outstanding Receivable
Investment less the Investment Return thereon, which ownership interest is
junior and subordinate to the ownership interest of the Purchaser in the
Purchased Receivable.
"Settlement Date" shall mean each Business Day during the Facility Period
on which Receivable Sales occur and all reconciliations are made of amounts due
the Seller or the Purchaser, as the case may be, under the Agreement and of all
payments received on the Purchased Receivables.
"Termination Date" shall mean the earlier of (i) the first anniversary of
the Effective Date or (ii) the date of termination of the Receivable Purchase
Facility as provided in Section 7.1 (a) hereof.
"UCC" shall mean the Uniform Commercial Code (or any successor or
comparable statute) of the State of Connecticut or of any other state
(including, but not limited to, the State of Georgia and Texas), the laws of
which are required by Section 9-103 thereof to be applied in connection with the
issue of perfection of security interests.
ARTICLE II
SALE AND PURCHASE OF RECEIVABLES
Section 2.1. Purchase of Receivables . During the Facility Period, on
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any Settlement Date in which the Seller desires to consummate a Receivables
Sale, the Seller shall sell, and the Purchaser shall purchase, Receivables set
forth on the Schedule of Purchased Receivables prepared by such Seller, subject
to the Maximum Facility Amount, and provided that the Purchaser has received on
or before the respective Settlement Date the Receivables Documentation. Subject
to the preceding sentence and the Purchaser's payment of the Purchase Price, the
sale and purchase of the Receivables shall occur automatically and without any
further action on the part of Seller or Purchaser.
Section 2.2. Sale of Receivables. On any Settlement Date in which the
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Seller desires to consummate a Receivables Sale, the Seller agrees to sell,
transfer, setover and convey, and the Purchaser agrees to purchase, all rights,
title and interest in the Receivables set forth on the particular Purchased
Receivables List together with the Receivables Documentation. It is understood
and agreed that the Purchaser's Outstanding Receivable Investment shall not
exceed at any one time the Maximum Facility Amount. In addition, Purchaser shall
not be obligated to purchase any Receivable if, following such purchase, the
Purchaser would exceed the Maximum Facility Amount.
Section 2.3. Purchase Price. (a) On each Settlement Date in which
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the Seller desires to consummate a Receivables Sale, the Purchaser shall pay the
Purchase Price to the Seller by crediting the Depository Account in the amount
of the Purchase Price or by wire transferring the Purchase Price to an account
designated by the Seller, at the option of the Seller.
(b) In the event of any overpayment or underpayment of the Purchase
Price, the party benefitting from the error shall reimburse the other party for
any sum due the other party as a result of such error upon submission to the
benefitted party satisfactory evidence of such error.
Section 2.4. Guaranteed Return. (a) The Purchaser shall be entitled
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to receive, and the Seller hereby guarantees that the Purchaser shall receive,
from the Collections on the Purchased Receivables, the Guaranteed Return. On a
monthly or, at Purchaser's option, more frequent basis, Purchaser shall issue to
the Seller, on the first Business Day of each month during the Facility Period,
a monthly invoice setting forth the Investment Return due and payable for the
preceding month with respect to the Outstanding Receivable Investment, which
shall be deducted from the amounts in the Receivable Collection Account. The
Seller's Residual Receivable Interests in the Purchased Receivables, evidenced
by the Residual Ownership Certificate, shall be subordinate to the Purchaser's
rights to receive the Guaranteed Return on the Purchased Receivables. The
Seller's Residual Ownership Interest along with certain of the Seller's other
tangible and intangible assets (including, but not limited to, Seller's unsold
Receivables) shall serve as collateral security for the Purchaser's receipt of
the Guaranteed Return and Seller's substitution and repurchase obligations as
set forth in Section 4.1 hereof. On the Effective Date, the Seller shall deliver
the Residual Ownership Certificate and the Assignment of the Seller's Residual
Ownership Interest in the Purchased Receivables and of all of the Seller's
rights, title and interest in and to the other Receivables. In addition, on the
Effective Date, the Seller shall deliver to the Purchaser a UCC-1 financing
statement, substantially in the form of Exhibit D hereto, evidencing the
Seller's security interest in and pledge of the Residual Ownership Certificate,
the Residual Ownership Interest, the other unsold Receivables and the other
Collateral (as defined in Section 4.3 hereof) to the Purchaser as collateral
security for the unpaid portion of the Guaranteed Return and the Seller's
substitution and repurchase and indemnity obligations hereunder. The Seller
shall be entitled to the return of the Residual Ownership Certificate and the
reassignment of the Seller's Residual Receivable Interest in the Purchased
Receivables and the other Receivables and the release of the Purchaser's
security interest in and lien on the other Collateral upon the later of: (i) the
Termination Date; or (ii) the date the Purchaser has received its Guaranteed
Return (or the unpaid portion thereof) and its Outstanding Receivable Investment
has been reduced to zero.
(b) Upon a Seller's material breach of its payment obligations to the
Purchaser hereunder, which breach or violation is not cured by such Seller on or
before the date ten (10) days after notice of such payment breach has been given
to the Seller, the Purchaser shall be entitled to receive its Investment Return
plus 4 percent per annum on the Outstanding Receivable Investment until the
earlier of the date such payment breach referred to above is cured.
Section 2.5. Facility and Attorneys' Fees. On the Effective Date of
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this Agreement, the Seller shall pay the Purchaser the Facility Fee, which shall
be duly earned as of the Effective Date. In addition, on the Effective Date, the
Seller shall also pay the Purchaser's reasonable legal fees, costs and expenses
in connection with the Receivable Purchase Facility Agreement and the
transactions contemplated therein. The Facility Fee and the Purchaser's
attorneys' fees shall be paid out of the proceeds of the first Receivables Sale.
Section 2.6. Due Diligence Fees. The Seller shall reimburse the
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Purchaser for all of its out-of-pocket costs and expenses in connection with the
Purchaser's focused due diligence investigation of the Seller's Receivables,
which shall be due and payable within 30 days of the Seller's receipt of an
invoice from the Purchaser.
Section 2.7. Seller's Depository Account. On the Effective Date, the
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Seller will establish a depository account at the Stamford, Connecticut office
of the Purchaser (the "Seller's Depository Account"). The Seller's Depository
Account will be either a checking, savings or other depository account. The
Seller agrees to grant the Purchaser all rights to debit the Seller's Depository
Account for amounts due and payable to the Purchaser under this Agreement and to
otherwise setoff against all monies in the Seller's Depository Account which may
be due or payable to a Seller, including, but not limited to, the Purchase Price
for the Purchased Receivables and from the Seller's Residual Receivable Interest
and Collections on the Seller's unsold Receivables, for any obligations of the
Seller which are due and owing to the Purchaser under this Agreement.
Section 2.8 Collection of Receivables. The Seller shall at all times
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maintain the Lockbox and the related Receivable Collection Account listed on
Schedule I hereto and shall instruct all of its account debtors (as defined in
the UCC) with regard to the Receivables to remit all Collections in respect
thereof to such Lockbox. The Seller agrees that all Receivable Collections and
other amounts received by Seller from any Obligor immediately upon receipt shall
be deposited into the Receivable Collection Account. No Lockbox Agreement,
Receivable Collection Account, or arrangement contemplated thereby shall be
modified by the Seller without the prior written consent of the Purchaser. Upon
the terms and subject to the conditions set forth in the Lockbox Agreement,
between the Seller, the Purchaser and the depository institution at which the
Receivable Collection Account is maintained, which Lockbox Agreement is
substantially in the form of the Lockbox Agreement attached hereto as Exhibit D
(appropriately completed), all amounts received in the Receivable Collection
Account in respect to Purchased Receivables shall be wired each Business Day to
the account designated by the Purchaser in accordance with the wiring
instructions supplied by the Purchaser (the "Purchaser's Account").
Section 2.9 Crediting Payments; Application of Collections. (a) The
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receipt of any Collections by the Purchaser (whether from transfers to the
Purchaser from the Receivable Collection Account or otherwise) immediately shall
be applied provisionally to reduce the Receivable Investment, but shall not be
considered a payment on account unless such Collection item is a wire transfer
of immediately available federal funds and is made to the Purchaser's Account or
unless and until such Collection item is honored when presented for payment.
Should any Collection item not be honored when presented for payment, then
Seller shall be deemed not to have made such payment, and the Investment Return
shall be recalculated accordingly. Anything to the contrary contained herein
notwithstanding, any Collection item shall be deemed received by the Purchaser
only if it is received into the Purchaser's Account on a Business Day on or
before 3:00 p.m., New York City time. If any Collection item is received into
the Purchaser's Account on a non-Business Day or after 3:00 p.m. New York City
time on a Business Day, it shall be deemed to have been received by the
Purchaser as of the opening of business on the immediately following Business
Day.
(b) The Purchaser shall immediately, without any further notice to the
Seller, have the right to direct the Obligors on the Purchased Receivables and
the Seller's pledged Receivables to make payment of amounts due and payable
thereunder directly to the Purchaser upon the happening of any one of the
following events: (i) the Seller files a voluntary petition in bankruptcy or
files a voluntary petition or an answer or otherwise commences any action or
proceeding seeking reorganization, arrangement or readjustment of its debts or
for any other relief under the Federal Bankruptcy Code, as amended, or under any
other bankruptcy or insolvency act or law, state or federal, now or hereafter
existing, or consents to, approves of or acquiesces in, any such petition,
action or proceeding; or (ii) the Seller applies for or acquiesces in the
appointment of a receiver, assignee, liquidator, sequestrator, custodian,
trustee or similar officer for it or for all or a material part of its assets;
or (iii) the Seller makes an assignment for the benefit of creditors; or (iv)
the Seller states in writing that it is unable to pay its debts as they become
due; or (v) an involuntary petition shall be filed or an action or proceeding
otherwise commenced against the Seller seeking reorganization, arrangement or
readjustment of the Seller's debts or for any other relief under the Federal
Bankruptcy Code, as amended, or under any other bankruptcy or insolvency act or
law, state or federal, now or hereafter existing, and such petition, action or
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proceeding shall remain undismissed or unstayed for a period of 45 days; or (vi)
the Seller shall fails to honor its substitution or repurchase obligations to
the Purchaser as provided in Section 4.1 hereof; or (vii) the Seller is in
material breach of any term, covenant or agreement contained in this Agreement
or in any document, instrument or agreement related thereto (other than Section
4.1) and any such breach is not cured by the Seller within thirty (30) days
after written notice from the Purchaser to the Seller of the existence and
character of the breach; (viii) any representation or warranty made by the
Seller to the Purchaser under or in connection with this Agreement or any
document, instrument or agreement related thereto shall prove to have been
incorrect in any material respect when made or given or when deemed to have been
made or given; or (ix) an "event of default" exists or is continuing as defined
in any loan, guarantee or other agreement with the Purchaser or any Affiliate of
the Purchaser (now or hereafter existing) (collectively, the "Other
Agreements").
Section 2.10. Purchase and Sale of Receivables. The parties to
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this Agreement intend that the transactions contemplated by Sections 2.1 and 2.2
hereof shall be, and shall be treated as, a purchase by the Purchaser and a sale
by the Seller of the Purchased Receivables and not a lending transaction. The
Seller's sale, assignment, transfer and conveyance of Purchased Receivables to
the Purchaser pursuant to this Agreement does not constitute and is not intended
to result in a creation or assumption by Purchaser of any obligation of the
Seller or any other Person in connection with the Receivables or any agreement
or instrument relating thereto, including any obligation to an Obligor. If this
Agreement does not constitute a valid sale, assignment, transfer and conveyance
of all right, title and interest of the Seller in, to and under the Purchased
Receivables despite the intent of the parties hereto, the Seller hereby grants a
"security interest" (as defined in the UCC as in effect in the State of
Connecticut or other Relevant UCC State or other applicable jurisdiction) in the
Purchased Receivables, the Residual Ownership Certificate, the Seller's Residual
Receivable Interest, the Seller's other unsold Receivables and the other
Collateral (as defined in Section 4.3 hereof) to the Purchaser and the parties
agree that this Agreement shall constitute a security agreement under the UCC in
effect in the State of Connecticut or other Relevant UCC State or other
applicable jurisdiction.
Section 2.11. Receivables Sold With Limited Recourse. The Seller
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acknowledges that the Purchased Receivables are being sold to the Purchaser with
limited recourse as set forth in Section 4.1 of this Agreement.
Section 2.12. Taxes; Gross Up. All payments received by the Purchaser
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with respect to this Receivable Purchase Facility, including, but not limited
to, its Guaranteed Return and its Investment Return, shall be made without
setoff and deduction of taxes other than any income tax withholdings. If the
Seller is required to deduct any taxes (other than income taxes) from any amount
payable with respect to the Receivable Purchase Facility, that amount shall be
increased as much as shall be necessary so that after making all required
deductions, the Purchaser shall receive an amount equal to the sum it would have
received had no deductions been made.
Section 2.13. Early Termination Fee. In the event that the Receivable
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Purchase Facility is for any reason whatsoever terminated prior to the first
anniversary of the Effective Date (other than by mutual agreement of the Seller
and the Purchaser), the Seller shall pay the Purchaser an early termination fee
of one percent of the Maximum Facility Amount (pro-rated in order to reflect the
remaining number of days in the Facility Period). in order to compensate the
Purchaser for its reliance expenses and its loss of anticipated profits.
Section 2.14. Execution of Additional Documents; Verification of
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Receivable Payments. The Seller shall execute all documents that Purchaser may
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reasonably require to evidence Purchaser's ownership of the Purchased
Receivables (subject to the Seller's Residual Receivable Interest) and the
Seller's assignment and pledge of the Seller's Residual Receivable Interest and
the Seller's grant of a security interest in and lien on the other Collateral as
security for the Seller's repurchase and substitution obligations hereunder and
to ensure the Purchaser's receipt of the Guaranteed Return. Seller shall take no
action following the respective Settlement Date for the particular Purchased
Receivable that would be inconsistent with the effective transfer by Seller to
the Purchaser hereunder of Seller's right, title and interest in and to the
Purchased Receivables acquired by Purchaser hereunder (exclusive of the Seller's
Residual Ownership Interest).
Section 2.15. Delivery of Receivables Documentation. As set forth in
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this Agreement, the Seller shall deliver to the Purchaser no later than on each
respective Settlement Date the Receivables Documentation for Eligible
Receivables acquired by the Purchaser pursuant to this Agreement on such date.
Purchaser shall also be entitled to receive from the Seller any other
documentation pertaining to the Acceptable Obligor or the Purchased Receivable
as the Purchaser may reasonably request. The failure or omission by Purchaser to
conduct any partial or complete examination of the Receivables Documentation
shall not affect the Purchaser's rights to demand substitution or repurchase or
other relief as provided herein.
Section 2.16. Remittances to Seller. Notwithstanding any provisions
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set forth herein to the contrary, so long as no event described in Section
2.9(b)(i) through (ix) exists, and is continuing, at any time and from time to
time hereunder (including at each Settlement Date), upon demand of Seller,
Purchaser shall remit by wire transfer to Seller's designated account all
Collections then within Purchaser's control on Purchased Receivables for which
Purchaser has received its Guaranteed Return and the Outstanding Receivable
Investment for such Purchased Receivables have been reduced to zero.
ARTICLE III
COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Section 3.1. Representations and Warranties of the Seller. The Seller
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hereby covenants, warrants and represents to the Purchaser as of the Effective
Date and as of each Settlement Date:
(a) Authority and Due Authorization. The Seller has the requisite
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power and authority to enter into, deliver and perform this Agreement and to
effect the transactions contemplated hereby. All action necessary to authorize
the execution and delivery of this Agreement has been taken contemporaneously
with the transactions contemplated by this Agreement.
(b) Binding Agreement. This Agreement constitutes a legal, valid and
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binding obligation of the Seller enforceable against the Seller in accordance
with its terms, except to the extent such enforceability may be limited or
modified by the application of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, liquidation and other similar laws relating
to or affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law
or equity).
(c) Title to Assets; Absence of Liens, Encumbrances or Defenses to
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Payment. As of each Settlement Date, the Seller is the sole owner of and has
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good title to each Purchased Receivable, free and clear of all security
interests, pledges, liens or other encumbrances. The documents or instruments of
transfer and sale of each Purchased Receivable, when executed and delivered to
Purchaser in accordance with the terms of this Agreement, shall vest in the
Purchaser all of the right, title and interest of the Seller in such Purchased
Receivable free and clear of any security interest, pledge, lien or other
encumbrance (exclusive of such Seller's Residual Ownership Interest in the
Purchased Receivables). There are no facts, events or occurrences known to the
Seller which would impair the validity or collectibility of the Eligible
Receivables included in the Purchased Receivables or reduce or delay payment
thereunder.
(d) Eligible Receivables. Each Eligible Receivable included in
---------------------
Purchased Receivables is a valid and legally binding obligation of the
respective Eligible Obligor and qualifies as an Eligible Receivable as defined
in this Agreement.
(e) No Prior Sale of Purchased Receivables. There has been no prior
--------------------------------------
sale, assignment or hypothecation of the Purchased Receivable to any other
person or entity by Seller except as disclosed in writing to the Purchaser.
(f) Receivables Documentation Genuine. The Receivables Documentation
---------------------------------
submitted to Purchaser by Seller pursuant to this Agreement is genuine and
accurately reflects the status of each Purchased Receivable and the indebtedness
to which such documentation relates. The information set forth in the Schedule
of Purchased Receivables is true and correct in all material respects.
(g) Compliance with Purchase Limitations. Purchaser shall not be
---------------------------------------
obligated to purchase any Receivable if to do so would exceed the Maximum
Facility Amount. Seller shall be obligated to take whatever action may be
necessary to bring the Receivable Purchase Facility into compliance with the
Maximum Facility Amount.
(h) Full Disclosure. None of the representations or warranties made by
---------------
the Seller in this Agreement contains any materially misleading statements.
Section 3.2. Representations and Warranties of the Purchaser. The
----------------------------------------------------
Purchaser covenants, warrants and represents to the Seller as of the Effective
Date and as of each Settlement Date that:
(a) Authority and Due Authorization. The Purchaser has the power and
---------------------------------
authority to enter into, deliver and perform this Agreement and to effect the
transactions contemplated hereby. All action necessary to authorize the
execution and delivery of this Agreement has been taken contemporaneously with
the transactions contemplated by this Agreement.
(b) Binding Agreement. This Agreement constitutes a legal, valid and
-----------------
binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms, except to the extent such enforceability may be
limited or modified by the application of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, liquidation and other similar
laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding at law or equity).
(c) Full Disclosure. None of the representations or warranties made by
---------------
the Purchaser in this Agreement contains any materially misleading statements.
ARTICLE IV
SUBSTITUTION OR REPURCHASE OF RECEIVABLES
AND OTHER ACTIONS NECESSARY TO EFFECT
COMPLIANCE WITH VARIOUS PURCHASE LIMITATIONS
Section 4.1. Substitution or Repurchase of Receivables. (a) The Seller
-----------------------------------------
agrees to substitute an Eligible Receivable of like tenor and amount or, in lieu
thereof, to repurchase any Purchased Receivable sold to the Purchaser hereunder
at the Repurchase Price or to take whatever other action as may be necessary in
the event the Obligor refuses payment or fails to remit payment on any Eligible
Receivable included in the pool of Purchased Receivables within 90 days of the
date of Seller's invoice to the Acceptable Obligor evidencing the particular
Eligible Receivable. In addition, Seller agrees to take whatever action is
necessary to effect compliance during the Facility Period with the Maximum
Facility Amount, including but not limited to, reducing the Purchaser's
Outstanding Receivable Investment.
(b) The Purchaser shall have the right to require the Seller to repurchase
all, or any part of, its Outstanding Receivables Investment at the Repurchase
Price upon the happening of any of the events set forth in Section
2.9(b)(i)-(ix) hereof.
(c) On each Settlement Date at which the Seller has notice of a violation
of the Maximum Facility Amount or of the existence of any other ground for the
substitution of an Eligible Receivable or repurchase of one or more Purchased
Receivables as delineated in Sections 4.1(a) and 4.1(b) hereof, Seller shall
replace or repurchase the affected Purchased Receivable or Receivables at the
Repurchase Price or take whatever other action necessary and appropriate to
achieve compliance with Sections 4.1(a) and 4.1(b) hereof. The Purchaser shall
be empowered to effect the repurchase of a Purchased Receivable and to reduce
the Outstanding Receivable Investment by debiting amounts payable to the Seller
pursuant to this Agreement or by retaining amounts remitted to the Lockbox or
otherwise by Obligors on unsold Receivables.
Section 4.2. Indemnification. (a) Seller will indemnify, defend and
---------------
hold Purchaser harmless from and against any and all claims, losses, costs,
damages or suits, including reasonable attorneys' fees and expenses, arising out
of any inaccuracy in any representation or warranty or any breach of any
covenant of the Seller contained in this Agreement.
(b) Purchaser will indemnify, defend and hold Seller harmless from and
against any and all claims, losses, costs, damages or suits, including
reasonable attorneys' fees and expenses, arising out of any inaccuracy in any
representation or warranty or any breach of any covenant of the Purchaser
contained in this Agreement.
Section 4.3. Grant of Security Interest. As security for the
-----------------------------
payment and performance of the Seller's substitution and repurchase
obligations set forth in Sections 4.1(a) and 4.1(b) hereof and the Seller's
indemnity obligations set forth in Section 4.2(a) hereof, and to induce the
Purchaser to enter in this Agreement and to purchase Receivables as provided
herein in accordance with the terms and conditions hereof, the Seller hereby
pledges, assigns, transfers, hypothecates and sets over to the Purchaser, and
grants the Purchaser a security interest in, all of such Seller's right, title
and interest in, to and under the following(collectively, the "Collateral"): (i)
all currently existing and hereafter arising accounts, contract rights and all
other forms of obligations owing to Seller arising out of the sale or lease of
goods, the sale or lease of general intangibles or the rendition of services by
Seller, irrespective of whether earned by performance, and any and all credit
insurance, guaranties or security therefor (collectively, "Receivables")
(excluding Receivables purchased by the Purchaser, from time to time hereafter,
but including the Seller's residual interest in such Purchased Receivables);
(ii) the machinery, machine tools, motors, equipment, furniture, furnishings,
fixtures, vehicles (including motor vehicles and trailers), tools, parts, goods
(other than consumer goods), wherever located, described on Exhibit A to the
Security Agreement , dated October 29, 1997, on Exhibit A to the Security
Agreement, dated November 7, 1997, and on Exhibit A to the Security Agreement ,
dated January 14, 1998, including the Residual Ownership Interest of the Seller
in such equipment evidenced by a Residual Ownership Certificate, dated October
29, 1997, a Residual Ownership Certificate, dated November 7, 1997, and a
Residual Ownership Certificate, dated January 14, 1998; and (iii) the proceeds
and products, whether tangible or intangible, of any of the foregoing, including
proceeds of insurance covering any or all of the foregoing, and any and all
Receivables, general intangibles, Seller's books, negotiable collateral,
equipment, inventory, money, deposit accounts or other tangible or intangible
property resulting from the sale, exchange, collection or other disposition of
any of the foregoing, or any portion thereof or interest therein, and the
proceeds thereof, as security for the Purchaser's receipt of its Guaranteed
Return and the Seller's substitution and repurchase obligations under the
Agreement. The Purchaser shall have a first priority security interest in and
lien on all of the Seller's Receivables.
ARTICLE V
SETTLEMENT
Section 5.1. The Settlement. (a) Each Receivables Sale effected
---------------
pursuant to this Agreement shall be deemed to occur at 10:00 A.M. on each
respective Settlement Date at which the Seller delivers to the Purchaser the
Schedule of Purchased Receivables, or an amendment thereof (containing a list of
all Purchased Receivables acquired by the Purchaser pursuant to this Agreement,
which are still outstanding in whole or in part, including any Purchased
Receivables being purchased by the Purchaser on the particular Settlement Date),
and the Receivables Documentation and the Purchaser pays the Seller the
Purchase Price as provided in Sections 2.1, 2.2 and 2.3 hereof (the
Settlement"). The Settlement shall be by telephone, confirmed by letter or
wire, as the parties shall agree. Unless the Seller and the Purchaser shall
agree otherwise in writing, all of the transactions, deliveries and payments
contemplated by Article II and this Article V shall be deemed to take place
simultaneously and no such transaction, delivery or payment shall be deemed to
have taken place or been made until all such transactions, deliveries and
payments are completed on such Settlement Date.
(b) On the Effective Date of this Agreement, the Seller shall execute
the Xxxx of Sale, in the form of Exhibit A hereto, conveying to the Purchaser
all Purchased Receivables listed or otherwise described on Schedule 1 thereto,
as Schedule 1 shall be amended or supplemented on each subsequent Settlement
Date, executed by an authorized representative of the Seller, which Xxxx of Sale
Shall further evidence the conveyance pursuant to this Agreement of each
Purchased Receivable being sold by the Seller to the Purchaser hereunder.
Section 5.2. Conditions to Purchaser's Obligation to Effect Settlement.
---------------------------------------------------------
The Purchaser's obligation to complete each Receivable Sale shall be subject to
each of the following conditions:
(a) All of the representations and warranties of the Seller under this
Agreement shall be true and correct as of the Settlement Date, and no event
shall have occurred which, with the giving of notice or the passage of time,
would constitute a default by Seller under this Agreement;
(b) The Purchaser shall have received the Schedule of Purchased
Receivables and the Receivables Documentation;
(c) All other terms and conditions of this Agreement shall have been
complied with by the Seller; and
(d) Seller is not in default or material breach of its obligations,
agreements or covenants under or with respect to any Other Agreement nor shall
an event of default exist under any Other Agreement.
Section 5.3. Conditions to Seller's Obligation to Effect Settlement. The
------------------------------------------------------
Seller's obligation to complete each Receivable Sale shall be subject to each of
the following conditions:
(a) All of the representations and warranties of the Purchaser under
this Agreement shall be true and correct as of the Settlement Date, and no event
shall have occurred which would constitute a default by Purchaser under this
Agreement;
(b) The Purchaser shall have delivered all documents required to be
delivered under this Agreement; and
(c) All other terms and conditions of this Agreement shall have been
complied with by the Purchaser.
Section 5.4. Conditions to Each Party's Obligation to Effect Settlement.
----------------------------------------------------------
Subject to satisfaction of the conditions set forth in Sections 5.2 and 5.3 as
applicable to each party, the Purchaser shall pay to the Seller on each
Settlement Date the Purchase Price by either crediting the Depository Account
or wiring the Purchase Price to an account designated by the Seller and the
respective Purchased Receivable or Receivables shall be delivered to the
Purchaser from the Seller free and clear of all right, title and interest of the
Seller (exclusive of the Seller's Residual Ownership Interest) or others.
ARTICLE VI
SETTLEMENT DOCUMENTATION
Section 6.1. Settlement Documentation Required of Seller. On or
-----------------------------------------------
immediately prior to the Settlement Date, the Seller shall deliver the following
documents to Purchaser:
(a) The Schedule of Purchased Receivables (Schedule 1 to the Xxxx of Sale)
containing all Purchased Receivables purchased by the Purchaser and sold by the
Seller to Purchaser hereunder; and
(c) The Receivables Documentation for each Purchased Receivable.
Section 6.2. Settlement Documentation Required of Purchaser. On or
--------------------------------------------------
immediately prior to the Settlement Date, the Purchaser shall have delivered to
the Seller each of the following:
(a) Payment of the Purchase Price.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Termination of the Receivable Purchase Facility. (a) The
-----------------------------------------------
Receivable Purchase Facility may be terminated prior to the first anniversary of
the Effective Date, at any time: (i) by the Purchaser upon the Seller's material
breach of a term or condition of this Agreement; (ii) by the Seller upon the
Purchaser's material breach of a term or condition of this Agreement; (iii) by
either party upon the mutual written agreement of the Seller and the Purchaser;
and (iv) by the Seller upon ten (10) Business Days' notice to the Purchaser.
Upon the effective date of the termination of the Receivable Purchase Facility,
the Purchaser shall no longer be obligated to purchase any Receivables.
Notwithstanding the termination of this Agreement, the Purchaser and the Seller
shall maintain all rights and remedies hereunder until all obligations have been
paid or performed in full, including repayment of the Purchaser's Outstanding
Receivable Investment by the Obligors pursuant to the terms of this Agreement.
(b) The Seller may renew this Receivable Purchase Facility, with the
consent of the Purchaser (which consent may be withheld by the Purchaser in its
absolute discretion), for additional one year periods (each, a "Renewal
Period"), up to a maximum of three such renewals, upon payment to the Purchaser,
on or immediately prior to the Renewal Effective Date, of the Renewal Fee, which
fee shall be paid in immediately available funds. The Seller shall provide the
Purchaser with written notice, at least 20 Business Days prior to the
Termination Date of the original term or of any Renewal Period, of its desire to
renew the Receivable Purchase Facility for an additional one-year period. The
Purchaser shall notify the Seller no later than 10 Business Days prior to such
Termination Date of its decision to approve or disapprove the renewal of this
Receivable Purchase Facility. Upon renewal of this Receivable Purchase Facility
as provided herein, all references in this Agreement to the Termination Date
shall refer to the termination date of the Renewal Period.
Section 7.2. Financial Statements. Seller agrees to assist the Purchaser
--------------------
in obtaining financial and other information with respect to Eligible Obligors.
Seller also agrees to provide the Purchaser with daily, weekly or monthly
Purchased Receivables aging reports, as may be requested by the Purchaser, and
such other financial information and reports as the Purchaser deems reasonably
necessary or appropriate in connection with this Agreement. In addition, the
Seller shall provide the Purchaser with monthly and quarterly unaudited
financial statements and its audited annual financial statements promptly when
available.
Section 7.3. Survival. The Seller and Purchaser agree that the
--------
representations, warranties and agreements made by the other party herein and in
any certificate or other instrument delivered pursuant hereto shall be deemed to
be relied upon, notwithstanding any investigation heretofore or hereafter made
by the Seller or the Purchaser as applicable or on their respective behalf, and
that the representations, warranties and agreements made herein or in any such
certificate or other instrument, shall be deemed to be repeated and reaffirmed
as of each Settlement Date and shall survive the delivery and payment for the
Purchased Receivables.
Section 7.4. Successor and Assigns: Assignment of the Agreement. This
---------------------------------------------------
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser and their respective successors and assigns. The
Purchaser shall have the right, without the consent of the Seller, to assign, in
whole or in part, the proceeds of its Purchased Receivables acquired hereunder,
and to designate any Company or Person to exercise any rights of the Purchaser
hereunder, and the assignee or designee shall accede to the rights and
obligations of the Purchaser hereunder with respect to the proceeds of such
Purchased Receivables, except that the obligations to accept delivery of the
Purchased Receivables, pay the Purchase Price under this Agreement, and satisfy
the conditions and such other obligations applicable to Purchaser may not be
assigned or delegated and shall remain a direct obligation of the Purchaser.
The Purchaser shall send prompt written notice to the Seller of the assignment
of any of its rights under and in accordance with this Agreement.
Section 7.5. Notices. Any notices or other communications permitted or
-------
required hereunder shall be in writing and shall be deemed conclusively to have
been duly given if personally delivered, sent by overnight courier, or mailed by
certified mail, postage prepaid, and return receipt requested, addressed to the
Purchaser or the Seller at the address set forth at the head of this Agreement
or to such other address as the Purchaser or the Seller may designate in
writing to the other.
Section 7.6. Counterparts; Facsimile Execution. This Agreement may be
----------------------------------
executed in counterparts each of which shall constitute an original, but all of
which together shall constitute one instrument notwithstanding that all parties
are not signatories to the same counterpart. Delivery of an executed counterpart
of this Agreement by facsimile shall be equally as effective as delivery of any
original executed counterpart of this Agreement. Any party delivering an
executed counterpart of this Agreement by facsimile also shall deliver an
original executed counterpart of this Agreement, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability and
binding effect of this Agreement.
Section 7.7. Entire Agreement. This Agreement constitutes the entire
-----------------
agreement and understanding of the parties with respect to the matters and
transaction contemplated by this Agreement and supersedes any prior agreement
and understandings with respect to these matters and transactions.
Section 7.8. Governing Law and Amendments. THIS AGREEMENT SHALL BE
-------------------------------
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
CONNECTICUT, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PROTECTION OF THE PURCHASER'S
OWNERSHIP OF THE PURCHASED RECEIVABLES, OR REMEDIES HEREUNDER IN RESPECT HEREOF,
MAY BE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
CONNECTICUT. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the Seller and the Purchaser.
Section 7.9. Exhibits. The exhibits to this Agreement are hereby
--------
incorporated and made a part hereof and are an integral part of this Agreement.
Section 7.10. General Interpretive Principles. For purposes of this
---------------------------------
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and the
use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) a reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which
the reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation by
reason of enumeration.
19
Section 7.11. Reproduction of Documents. This Agreement and all documents
-------------------------
relating thereto, including, without limitation, (a) consents, waivers and
modifications which may hereafter be executed, (b) documents received by any
party at the closing, and (c) financial statements, certificates and other
information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business, and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
Section 7.12. Severability of Provisions. If any one or more of the
----------------------------
covenants, agreements, provisions or terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be duly executed as of the date first above written.
Seller:
CHARTER COMMUNICATIONS
INTERNATIONAL, INC.
By:____________________________
Name:__________________________
Title:_________________________
Purchaser:
CONNECTICUT BANK OF COMMERCE
By:____________________________
Name:__________________________
Title:_________________________
EXHIBIT A
FORM OF MASTER XXXX OF SALE
EXHIBIT A
MASTER XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that Charter Communications International,
Inc., a Nevada corporation with an office at 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 (the "Seller"), for and in consideration of the Purchase
Price and other good and valuable consideration received from Connecticut Bank
of Commerce ("Purchaser"), with an office at 000 Xxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, the receipt of which is hereby acknowledged by Seller, does
hereby bargain, sell, transfer, assign, set over and deliver unto Purchaser and
Purchaser's successors and assigns all of Seller's rights, title and interest in
the Purchased Receivables more particularly described on Schedule 1 attached
hereto (exclusive of the Seller's Residual Receivable Interest), which Schedule
shall be amended on each Settlement Date as provided in the Receivable Purchase
Facility Agreement, dated as of January 20, 1998, by and between the Seller and
the Purchaser ("Agreement").
TO HAVE AND TO HOLD the same unto Purchaser and its successors and assigns
forever.
All capitalized terms not otherwise defined in this Master Xxxx of Sale
shall have the meanings ascribed to them in or by reference to the Agreement.
IN WITNESS WHEREOF, Seller have executed this Master Xxxx of Sale as of
January 20, 1998.
CHARTER COMMUNICATIONS
INTERNATIONAL, INC.
By:___________________________
Name:_________________________
Title:________________________
ACCEPTED AND AGREED TO
ON THIS _______ day of _____________, 1998:
CONNECTICUT BANK OF COMMERCE
By:___________________________
Name:_________________________
Title:________________________
SCHEDULE 1 TO THE MASTER XXXX OF SALE
DATED AS OF JANUARY 20, 1998 (the "Settlement Date")
A. Receivables being purchased on the Settlement Date:
--------------------------------------------------------
See Attached List of Purchased Receivables
B. Aggregate Purchase Price of Purchased Receivables:
--------------------------------------------------------
U.S. $_______________ (60% of Eligible Receivables included in
Purchased Receivables pool)
C. Purchased Receivables (Exclusive of Receivables Acquired on the
--------------------------------------------------------------------
Settlement Date):
-----------------
See attached list of Purchased Receivables
4. Outstanding Receivable Investment as of the Settlement Date (exclusive of
-- -------------------------------------------------------------------------
Purchase Price to be paid on the Settlement Date):
---------------------------------------------------------
U.S. $________________
IN WITNESS WHEREOF, on the Settlement Date set forth above, the Seller has
executed and delivered to the Purchaser this Schedule 1 to the Master Xxxx of
Sale pursuant to the Receivable Purchase Facility Agreement, dated as of January
20, 1998.
CHARTER COMMUNICATIONS
INTERNATIONAL, INC.
By:________________________________
Name:______________________________
Title:_______________________________
EXHIBIT B
FORM OF RESIDUAL OWNERSHIP CERTIFICATE
EXHIBIT B TO THE
RECEIVABLE PURCHASE
FACILITY AGREEMENT
RESIDUAL OWNERSHIP CERTIFICATE
THIS RESIDUAL OWNERSHIP CERTIFICATE (the "Certificate") is issued pursuant
to a certain Receivable Purchase Facility Agreement, dated January 20, 1998 (the
"Agreement"), between Connecticut Bank of Commerce, a Connecticut banking
corporation, with an office at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000
(the "Purchaser") and Charter Communications International, Inc., a Nevada
corporation, having an office at 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000 (the "Seller"). This Residual Ownership Certificate evidences the
Seller's Residual Receivable Interest in the Purchased Receivables (the
"Seller's Residual Receivable Interest") sold by the Seller to the Purchaser
pursuant to the Agreement. This Residual Ownership Certificate is junior and
subordinated to the ownership interest of the Purchaser in the Purchased
Receivables. As provided in the Agreement, the Purchaser or its assignee shall
be entitled to payment of the Guaranteed Return from the Receivables, which
Guaranteed Return is prior and senior to the rights of the holder of the
Residual Ownership Certificate. The Seller transferred, assigned and pledged
this Residual Ownership Certificate to the Purchaser as security for the
Purchaser's receipt of the Guaranteed Return (or the unpaid portion thereof) and
as collateral security for the Seller's, substitution, repurchase and indemnity
obligations as provided in the Agreement. The Seller is prohibited from
assigning any rights in the Residual Ownership Certificate to any other person
or entity. All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in or by reference to the Agreement.
IN WITNESS WHEREOF, the Seller have executed and delivered this instrument
as of this 20th day of January, 1998.
CHARTER COMMUNICATIONS.
INTERNATIONAL, INC.
By:_______________________
Name:_____________________
Title:____________________
EXHIBIT C
FORM OF ASSIGNMENT OF RECEIVABLE RIGHTS
ASSIGNMENT OF RECEIVABLE RIGHTS
FOR VALUE RECEIVED, the receipt and sufficiency of which is hereby
acknowledged, the undersigned, Charter Communications International, Inc., a
Nevada corporation, having an office at 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 (the "Seller"), does hereby assign, sell and transfer
(the "Assignment") unto Connecticut Bank of Commerce, having an office and place
of business at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (the
"Purchaser"), all of Seller's rights, title and interest in and to Seller's
Residual Receivable Interest in the Purchased Receivables as represented by the
Residual Ownership Certificate as well as all of the Seller's rights, title and
interest in and to all of Seller's Receivables, whether Eligible or Ineligible,
which are being assigned to the Purchaser as collateral security for the
Seller's substitution, repurchase and indemnity obligations and to ensure the
Purchaser's receipt of the Guaranteed Return (or the unpaid portion thereof) as
set forth in the Receivable Purchase Facility Agreement, dated as of January 20,
1998, by and between the Seller and the Purchaser (the "Receivable Purchase
Agreement"). All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in or by reference to the Receivable Purchase
Agreement.
IN WITNESS WHEREOF, on this 20th day of January, 1998, the Seller has
caused this Assignment to be executed in its name by the manual signature of a
duly authorized person.
CHARTER COMMUNICATIONS.
INTERNATIONAL, INC.
By:_______________________
Name:_____________________
Title:____________________
EXHIBIT D
FORM OF UCC-1 FINANCING STATEMENT
EXHIBIT E
FORM OF LOCKBOX AGREEMENT
RIDER A TO UCC-1 FINANCING STATEMENT
DEBTOR: CHARTER COMMUNICATIONS INTERNATIONAL, INC.
SECURED PARTY: CONNECTICUT BANK OF COMMERCE
Debtor hereby grants to Secured Party a security interest in all of the Debtor's
right, title and interest in and to the following (collectively, the
"Collateral"): (i) all currently existing and hereafter arising accounts,
contract rights and all other forms of obligations owing to Debtor arising out
of the sale or lease of goods, the sale or lease of General Intangibles (as
hereinafter defined) or the rendition of services by Debtor, irrespective of
whether earned by performance, and any and all credit insurance, guaranties or
security therefor (collectively, "Accounts") (excluding Accounts purchased by
the Secured Party, from time to time hereafter, but including the Debtor's
residual interest in such purchased Accounts); (ii) the machinery, machine
tools, motors, equipment, furniture, furnishings, fixtures, vehicles (including
motor vehicles and trailers), tools, parts, goods (other than consumer goods),
wherever located, described on Exhibit A to the Security Agreement , dated
October 29, 1997, on Exhibit A to the Security Agreement, dated November 7,
1997, and on Exhibit A to the Security Agreement, dated January 14, 1998,
including the Residual Ownership Interest of the Seller in such Equipment
evidenced by a Residual Ownership Certificate, dated October 29, 1997, a
Residual Ownership Certificate, dated November 7, 1997, and a Residual Ownership
Certificate, dated January 14, 1998; and (iii) the proceeds and products,
whether tangible or intangible, of any of the foregoing, including proceeds of
insurance covering any or all of the foregoing, and any and all Receivables,
general intangibles, Seller's books, negotiable collateral, equipment,
inventory, money, deposit accounts or other tangible or intangible property
resulting from the sale, exchange, collection or other disposition of any of the
foregoing, or any portion thereof or interest therein, and the proceeds thereof,
as described in the Receivable Purchase Facility Agreement (the "Agreement"),
dated January 20, 1998, by and between the Debtor as Seller and the Secured
Party as Purchaser, as security for the Debtor's substitution, repurchase and
indemnity obligations under the Agreement.
RIDER A TO UCC-1 FINANCING STATEMENT
DEBTOR: CHARTER COMMUNICATIONS INTERNATIONAL, INC.
SECURED PARTY: CONNECTICUT BANK OF COMMERCE
Debtor has sold, and will sell in the future, to the Secured Party,
substantially all of its Accounts (as hereinafter defined), whether now owned or
existing or hereafter acquired or arising and wherever located, along with the
proceeds and products of same, whether tangible or intangible, pursuant to a
Receivable Purchase Facility Agreement, dated as of January 20, 1998, by and
among Debtor as a Seller and the Secured Party as Purchaser. "Accounts" shall
mean all currently existing and hereafter arising accounts, contract rights and
all other forms of obligations owing to Debtor arising out of the sale or lease
of goods, the sale or lease of general intangibles or the rendition of services
by Debtor, irrespective of whether earned by performance, and any and all credit
insurance, guaranties or security therefor.
FOR INFORMATION PURPOSES ONLY
