EXHIBIT 10.4
EXECUTION COPY
RECEIVABLES SALE AGREEMENT
DATED AS OF MAY 24, 2002
BETWEEN
AMERICAN COMMERCIAL BARGE LINE LLC
as an Originator
AMERICAN COMMERCIAL TERMINALS LLC
as an Originator
AND
AMERICAN COMMERCIAL LINES FUNDING CORPORATION
as Buyer
TABLE OF CONTENTS
PAGE
ARTICLE I AMOUNTS AND TERMS OF THE PURCHASE ........................... 2
Section 1.1 Purchase of Receivables ................................ 2
Section 1.2 Payment for the Purchases .............................. 3
Section 1.3 Purchase Price Credit Adjustments. If on any day: ...... 4
Section 1.4 Payments and Computations, Etc ......................... 5
Section 1.5 Transfer of Records .................................... 5
Section 1.6 Characterization ....................................... 6
ARTICLE II REPRESENTATIONS AND WARRANTIES .............................. 6
Section 2.1 Representations and Warranties of Originators .......... 6
ARTICLE III CONDITIONS OF PURCHASE ...................................... 10
Section 3.1 Conditions Precedent to All Purchases .................. 10
ARTICLE IV COVENANTS ................................................... 10
Section 4.1 Affirmative Covenants of Originators ................... 10
Section 4.2 Negative Covenants of Originators ...................... 14
ARTICLE V TERMINATION EVENTS .......................................... 16
Section 5.1 Termination Events ..................................... 16
Section 5.2 Remedies ............................................... 16
ARTICLE VI INDEMNIFICATION ............................................. 17
Section 6.1 Indemnities by Originators ............................. 17
Section 6.2 Other Costs and Expenses ............................... 19
ARTICLE VII MISCELLANEOUS ............................................... 19
Section 7.1 Waivers and Amendments ................................. 19
Section 7.2 Notices ................................................ 20
Section 7.3 Protection of Ownership Interests of Buyer ............. 20
Section 7.4 Confidentiality ........................................ 21
Section 7.5 Bankruptcy Petition .................................... 21
Section 7.6 Limitation of Liability ................................ 22
Section 7.7 CHOICE OF LAW .......................................... 22
Section 7.8 CONSENT TO JURISDICTION ................................ 22
Section 7.9 WAIVER OF JURY TRIAL ................................... 22
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TABLE OF CONTENTS
(continued)
Section 7.10 Integration; Binding Effect; Survival of Terms ......... 23
Section 7.11 Counterparts; Severability; Section References ......... 23
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TABLE OF CONTENTS
PAGE
Exhibit I Definitions ............................................... E-1
Exhibit II Originator Company Information ............................ E-II
Exhibit III Lock-Boxes; Collection Account; Collection Banks .......... E-III
Exhibit IV Compliance Certificate .................................... E-IV
Exhibit V Credit and Collection Policies ............................ E-V
Exhibit VI Subordinated Note ......................................... E-VI
Schedule A Documents to be Delivered ................................. E-VII
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RECEIVABLES SALE AGREEMENT
THIS RECEIVABLES SALE AGREEMENT, dated as of May 24, 2002, is by and
between AMERICAN COMMERCIAL BARGE LINE LLC, a Delaware limited liability company
("ACBL"), AMERICAN COMMERCIAL TERMINALS LLC, a Delaware limited liability
company ("ACT", and together with ACBL, the "Originators" and each an
"Originator") and AMERICAN COMMERCIAL LINES FUNDING CORPORATION, a Delaware
corporation ("Buyer"). Unless defined elsewhere herein, capitalized terms used
in this Agreement shall have the meanings assigned to such terms in Exhibit I
hereto (or, if not defined in Exhibit I hereto, the meaning assigned to such
term in Exhibit I to the Receivables Purchase Agreement).
PRELIMINARY STATEMENTS
Each Originator now owns, and from time to time hereafter will own,
Receivables. Each Originator wishes to sell and assign to Buyer, and Buyer
wishes to purchase from such Originator, all of such Originator's right,
title and interest in and to such Receivables, together with the Related
Security and Collections with respect thereto.
Prior to the Effective Date, the Originators sold and assigned to
the Buyer certain other Receivables pursuant to the Prior Sale Agreement
(as defined herein).
The Originators and Buyer intend the transactions contemplated
hereby and by the Prior Sale Agreement to be true sales of the Receivables
from the applicable Originator to Buyer, providing Buyer with the full
benefits of ownership of the Receivables, and the Originators and Buyer do
not intend these transactions to be, or for any purpose to be
characterized as, loans from Buyer to the applicable Originator.
Following the purchase of Receivables from the Originators, Buyer
will sell undivided interests therein and in the associated Related
Security and Collections pursuant to that certain Receivables Purchase
Agreement dated as of the date hereof (as the same may from time to time
hereafter be amended, supplemented, restated or otherwise modified, the
"Receivables Purchase Agreement") among Buyer, ACBL, as Servicer, Jupiter
Securitization Corporation ("Company"), the financial institutions from
time to time party thereto as "Financial Institutions" and Bank One, NA
(Main Office Chicago) or any successor agent appointed pursuant to the
terms of the Receivables Purchase Agreement, as agent for Company and such
Financial Institutions (in such capacity, the "Agent").
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASE
Section 1.1 Purchase of Receivables.
(a) On the Effective Date in consideration for the Purchase
Price therefor and upon the terms and subject to the conditions set forth
herein, each Originator does hereby sell, assign, transfer, set-over and
otherwise convey to Buyer, without recourse (except to the extent expressly
provided herein), and Buyer does hereby purchase from such Originator, all of
such Originator's right, title and interest in and to all Receivables existing
as of the close of business on the Business Day immediately prior to the
Effective Date (the "Initial Cutoff Date") and all Receivables thereafter
arising through and including the Termination Date, together, in each case, with
all Related Security relating thereto and all Collections thereof. In accordance
with the preceding sentence, on the Effective Date Buyer shall acquire all of
such Originator's right, title and interest in and to all Receivables existing
as of the close of business on the Initial Cutoff Date and thereafter arising
through and including the Termination Date, together with all Related Security
relating thereto and all Collections thereof. Buyer shall be obligated to pay
the Purchase Price for the Receivables purchased hereunder in accordance with
Section 1.2. In connection with payment of the Purchase Price for any
Receivables purchased hereunder, Buyer may request that the applicable
Originator deliver, and such Originator shall deliver, such approvals, opinions,
information, reports or documents as Buyer may reasonably request.
(b) It is the intention of the parties hereto that each
Purchase of Receivables made hereunder shall constitute a sale, which sale is
absolute and irrevocable and provides Buyer with the full benefits of ownership
of such Receivables. Except for the Purchase Price Credits owed pursuant to
Section 1.3, and subject to the other terms and conditions hereof, the sale of
Receivables hereunder is made without recourse to the applicable Originator;
provided, however, that such sale does not constitute and is not intended to
result in an assumption by Buyer or any assignee thereof of any obligation of
such Originator or any other Person arising in connection with the Receivables,
the related Contracts and/or other Related Security or any other obligations of
such Originator. In view of the intention of the parties hereto that each
Purchase of Receivables made hereunder shall constitute a sale of such
Receivables rather than loans secured thereby, each Originator agrees that it
will, on or prior to the Effective Date and in accordance with Section
4.1(e)(ii), xxxx its master data processing records relating to the Receivables
with a legend acceptable to Buyer and to the Agent (as Buyer's assignee),
evidencing that Buyer has purchased such Receivables as provided in this
Agreement, and note in its financial statements that its Receivables have been
sold to Buyer. Upon the request of Buyer or the Agent (as Buyer's assignee), the
applicable Originator will execute and file such financing or continuation
statements, or amendments thereto or assignments thereof, and such other
instruments or notices, as may be necessary or appropriate to perfect and
maintain the perfection of Buyer's ownership interest in the Receivables and the
Related Security and Collections with respect thereto, or as Buyer or the Agent
(as Buyer's assignee) may reasonably request.
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Section 1.2 Payment for the Purchases.
(a) The Purchase Price for the Purchase of Receivables in
existence on the close of business on the Initial Cutoff Date shall be payable
in full by Buyer to the applicable Originator on the Effective Date, and shall
be paid to such Originator in the following manner:
(i) by delivery of immediately available funds, to the
extent of funds made available to Buyer in connection with its subsequent
sale of an interest in such Receivables and the other Receivables
previously sold by the Originators pursuant to the Prior Sale Agreement to
the Agent for the benefit of the Purchasers under the Receivables Purchase
Agreement (less the amount of any funds required to pay in full the
outstanding balance of the subordinated notes issued by the Buyer to the
Originators under the Prior Sale Agreement); and
(ii) the balance, by such Originator making a
subordinated revolving loan (a "Subordinated Loan") to Buyer. Each
Originator is hereby authorized by Buyer to endorse on the schedule
attached to the applicable Subordinated Note an appropriate notation
evidencing the date and amount of each advance thereunder, as well as the
date of each payment with respect thereto, provided that the failure to
make such notation shall not affect any obligation of Buyer thereunder.
The Purchase Price for each Receivable coming into existence after the Initial
Cutoff Date shall be due and owing in full by Buyer to the applicable Originator
or its designee on the date each such Receivable came into existence (except
that Buyer may, with respect to any such Purchase Price, offset against such
Purchase Price any amounts owed by such Originator to Buyer hereunder and which
have become due but remain unpaid) and shall be paid to such Originator in the
manner provided in the following paragraphs (b), (c) and (d) of this Section
1.2.
(b) With respect to any Receivables coming into existence
after the Initial Cutoff Date, on each Settlement Date, Buyer shall pay the
Purchase Price therefor in accordance with Section 1.2(d) and in the following
manner:
first, by delivery of immediately available funds, to the extent of
funds available to Buyer from its subsequent sale of an interest in the
Receivables to the Agent for the benefit of the Purchasers under the
Receivables Purchase Agreement or other cash on hand; and
second, by the applicable Originator making a Subordinated Loan to
the Buyer in an amount equal to the remaining unpaid balance of such
Purchase Price.
Each Originator irrevocably agrees to make each applicable Subordinated Loan
requested by Buyer on or prior to the Termination Date. The Subordinated Loans
shall be evidenced by, and shall be payable in accordance with the terms and
provisions of the applicable Subordinated Note and shall be payable solely from
funds which Buyer is not
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required under the Receivables Purchase Agreement to set aside for the benefit
of, or otherwise pay over to, the Purchasers.
(c) From and after the Termination Date, each Originator shall
not be obligated to (but may, at its option) sell Receivables to Buyer unless
such Originator reasonably determines that the Purchase Price therefor will be
satisfied with funds available to Buyer from sales of interests in the
Receivables pursuant to the Receivables Purchase Agreement, Collections,
proceeds of Subordinated Loans, other cash on hand or otherwise.
(d) Although the Purchase Price for each Receivable coming
into existence after the Initial Cutoff Date shall be due and owing in full by
Buyer to the applicable Originator on the date such Receivable came into
existence, settlement between Buyer and such Originator of the unpaid Purchase
Price for any Receivables coming into existence during each Calculation Period
shall be effected on a monthly basis on the following Settlement Date based on
the information contained in the Daily and Monthly Report delivered by the
Servicer pursuant to Article VIII of the Receivables Purchase Agreement for such
Calculation Period. Although settlement shall be effected on Settlement Dates,
increases or decreases in the amount owing under the Subordinated Note made
pursuant to Section 1.2(b) shall be deemed to have occurred and shall be
effective as of the last Business Day of the Calculation Period to which such
settlement relates.
(e) Prior to the Initial Cutoff Date, ACBL and ACT sold,
transferred, assigned or conveyed certain Receivables and Related Security to
the Buyer pursuant to the Prior Sale Agreement (the "Prior Sales"). Each of ACBL
and ACT hereby (i) confirms and reaffirms the Prior Sales made (or purported to
be made) by such Originator, (ii) acknowledges that such Originator has received
fair consideration for such Prior Sales and (iii) agrees that such Prior Sales
shall otherwise be subject to the terms, conditions, representations,
warranties, covenants, indemnities and other provisions contained herein
(excluding Sections 1.2(a), (b), (c) and (d)) as though such Prior Sales were
made on the Effective Date.
Section 1.3 Purchase Price Credit Adjustments. If on any day:
(a) the Outstanding Balance of a Receivable is:
(i) reduced as a result of any defective or rejected or
returned goods or services, any discount demurrage or any adjustment or
otherwise by the applicable Originator (other than cash Collections on
account of the Receivables),
(ii) reduced or canceled as a result of a setoff in
respect of any claim by any Person (whether such claim arises out of the
same or a related transaction or an unrelated transaction), or
(b) any of the representations and warranties set forth in
Article II are not true when made or deemed made with respect to any Receivable,
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then, in such event, Buyer shall be entitled to a credit (each, a "Purchase
Price Credit") against the aggregate Purchase Price otherwise payable hereunder
to the applicable Originator with respect to the other Receivables of such
Originator coming into existence on the day that any of the events set forth in
clauses (a) or (b) of this Section 1.3 occurs or is discovered, in an amount
equal to (x) the Outstanding Balance of the affected Receivable if the
Outstanding Balance of such Receivable has been cancelled or if clause (b) of
this Section 1.3 applies, or (y) the amount of any reduction in the Outstanding
Balance of the affected Receivable if clause (a) applies (other than a total
cancellation of the Outstanding Balance). If the total Purchase Price Credit for
all affected Receivables of an Originator coming into existence on any day
exceeds the Original Balance of the other Receivables of such Originator coming
into existence on such day, then the applicable Originator shall pay the excess
amount of such Purchase Price Credit to Buyer in cash immediately, provided that
such Originator shall be allowed to offset the excess amount of such Purchase
Price Credit against any indebtedness owed to it under the Subordinated Note,
subject to the subordination provisions and any other restrictions on payments
set forth therein. The Buyer shall be automatically deemed to sell, assign,
transfer, set-over and otherwise reconvey to the applicable Originator, without
recourse, representation or warranty, any Receivable which is the subject of a
Purchase Price Credit that has reduced the Purchase Price for such Receivable to
zero (and as to which such Originator has complied with the requirements of the
immediately preceding sentence).
Section 1.4 Payments and Computations, Etc. All amounts to be paid
or deposited by Buyer hereunder shall be paid or deposited in accordance with
the terms hereof on the day when due in immediately available funds to the
account of the applicable Originator designated from time to time by such
Originator or as otherwise directed by such Originator. In the event that any
payment owed by any Person hereunder becomes due on a day that is not a Business
Day, then such payment shall be made on the next succeeding Business Day. If any
Person fails to pay any amount hereunder when due, such Person agrees to pay, on
demand, the Default Fee in respect thereof until paid in full; provided,
however, that such Default Fee shall not at any time exceed the maximum rate
permitted by applicable law. All computations of interest payable hereunder
shall be made on the basis of a year of 360 days for the actual number of days
(including the first but excluding the last day) elapsed.
Section 1.5 Transfer of Records.
(a) In connection with the Purchase of Receivables hereunder
or under the Prior Sale Agreement, each Originator hereby sells, transfers,
assigns and otherwise conveys to Buyer all of such Originator's right and title
to and interest in the Records relating to such Receivables, without the need
for any further documentation in connection with the Purchase. In connection
with such transfer, such Originator hereby grants to each of Buyer, the Agent
and the Servicer an irrevocable, non-exclusive license to use, without royalty
or payment of any kind, all software used by such Originator to account for the
Receivables, to the extent necessary to administer the Receivables, whether such
software is owned by such Originator or is owned by others and used by such
Originator under license agreements with respect thereto, provided that should
the
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consent of any licensor of such software be required for the grant of the
license described herein, to be effective or to avoid a violation of such
license, the foregoing grant shall not be effective until such consent is
obtained, and each Originator hereby agrees that it will use its reasonable
efforts to obtain the consent of such third-party licensor. The license granted
hereby shall be irrevocable until the indefeasible payment in full of the
Aggregate Unpaids, and shall terminate on the date this Agreement terminates in
accordance with its terms.
(b) Each Originator (i) shall take such action requested by
Buyer and/or the Agent (as Buyer's assignee), from time to time hereafter, that
may be necessary or appropriate to ensure that Buyer and its assigns under the
Receivables Purchase Agreement have an enforceable ownership interest in the
Records relating to the Receivables purchased from such Originator hereunder or
under the Prior Sale Agreement, and (ii) shall use its reasonable efforts to
ensure that Buyer, the Agent and the Servicer each has an enforceable right
(whether by license or sublicense or otherwise) to use all of the computer
software used to account for the Receivables and/or to recreate such Records.
Section 1.6 Characterization. If, notwithstanding the intention of
the parties expressed in Section 1.1(b), any sale by any Originator to Buyer of
Receivables hereunder shall be characterized as a secured loan and not a sale or
such sale shall for any reason be ineffective or unenforceable, then this
Agreement shall be deemed to constitute a security agreement under the UCC and
other applicable law. For this purpose and without being in derogation of the
parties' intention that the sale of Receivables hereunder shall constitute a
true sale thereof, each Originator hereby grants to Buyer a duly perfected
security interest in all of such Originator's right, title and interest in, to
and under all Receivables now existing and hereafter arising, all Collections
and Related Security with respect thereto, each Lock-Box and Collection Account,
all other rights and payments relating to the Receivables and all proceeds of
the foregoing to secure the prompt and complete payment of a loan deemed to have
been made in an amount equal to the aggregate Purchase Price of the Receivables
together with all other obligations of such Originator hereunder, which security
interest shall be prior to all other Adverse Claims. Buyer and its assigns shall
have, in addition to the rights and remedies which they may have under this
Agreement, all other rights and remedies provided to a secured creditor under
the UCC and other applicable law, which rights and remedies shall be cumulative.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Originators. Each
Originator hereby represents and warrants to Buyer on the Effective Date and on
the date of each Purchase that:
(a) Corporate Existence and Power. Such Originator is a
limited liability company, duly organized, validly existing and in good standing
under the laws of its state of organization, and is duly qualified to do
business and is in good
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standing as a foreign entity, and has and holds all power as a limited liability
company and all governmental licenses, authorizations, consents and approvals
required to carry on its business in each jurisdiction in which its business is
conducted, except where the failure to so qualify or so hold could not
reasonably be expected to have a Material Adverse Effect.
(b) Power and Authority; Due Authorization, Execution and
Delivery. The execution and delivery by such Originator of this Agreement and
each other Transaction Document to which such Originator is a party, and the
performance of its obligations hereunder and thereunder and such Originator's
use of the proceeds of the Purchases made hereunder or under the Prior Sale
Agreement, are within its powers and authority as a limited liability company
and have been duly authorized by all necessary limited liability company action
on its part. This Agreement and each other Transaction Document to which such
Originator is a party has been duly executed and delivered by such Originator.
(c) No Conflict. The execution and delivery by such Originator
of this Agreement and each other Transaction Document to which such Originator
is a party, and the performance of its obligations hereunder and thereunder do
not contravene or violate (i) its limited liability company agreement or
certificate of formation or any member agreements, voting trusts or other
similar assignments, (ii) any law, rule or regulation applicable to it, (iii)
any restrictions under any agreement, contract or instrument to which such
Originator is a party or by which such Originator or any of its property is
bound, or (iv) any order, writ, judgment, award, injunction or decree binding on
or affecting such Originator or its property, and do not result in the creation
or imposition of any Adverse Claim on assets of such Originator or its
Subsidiaries except, in any case, where such contravention or violation could
not reasonably be expected to have a Material Adverse Effect; and no transaction
contemplated hereby requires compliance with any bulk sales act or similar law.
(d) Governmental Authorization. Other than the filing of the
financing statements required hereunder, no authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution and delivery by such
Originator of this Agreement and each other Transaction Document to which it is
a party and the performance of its obligations hereunder and thereunder.
(e) Actions, Suits. There are no actions, suits or proceedings
pending, or to the best of such Originator's knowledge, threatened, against or
affecting such Originator, or any of its properties, in or before any court,
arbitrator or other body, that could reasonably be expected to have a Material
Adverse Effect. Such Originator is not in default with respect to any order of
any court, arbitrator or governmental body, which default could be reasonably
expected to have a Material Adverse Effect.
(f) Binding Effect. This Agreement and each other Transaction
Document to which such Originator is a party constitute the legal, valid and
binding obligations of such Originator enforceable against such Originator in
accordance with
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their respective terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws relating to or
limiting creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
(g) Accuracy of Information. All information heretofore
furnished by such Originator or any of its Affiliates to Buyer (or its assigns)
for purposes of or in connection with this Agreement, any of the other
Transaction Documents or any transaction contemplated hereby or thereby is, and
all such information hereafter furnished by such Originator or any of its
Affiliates to Buyer (or its assigns) will be, true and accurate in every
material respect on the date such information is stated or certified and does
not and will not contain any material misstatement of fact or omit to state a
material fact or any fact necessary to make the statements contained therein not
misleading.
(h) Use of Proceeds. No proceeds of any Purchase Price payment
hereunder or under the Prior Sale Agreement will be used (i) for a purpose that
violates, or would be inconsistent with, any law, rule or regulation applicable
to such Originator or (ii) to acquire any security in any transaction which is
subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(i) Good Title. Immediately prior to each Purchase hereunder,
such Originator (i) is the legal and beneficial owner of the Receivables and
(ii) is the legal and beneficial owner of the Related Security with respect
thereto or possesses a valid and perfected security interest therein, in each
case, free and clear of any Adverse Claim. Immediately prior to each Purchase
under the Prior Sale Agreement, such Originator (i) was the legal and beneficial
owner of the Receivables and (ii) was the legal and beneficial owner of the
Related Security with respect thereto or possesses a valid and perfected
security interest therein, in each case, free and clear of any Adverse Claim.
There have been duly filed all financing statements or other similar instruments
or documents necessary under the UCC (or any comparable law) of all appropriate
jurisdictions to perfect such Originator's ownership interest in each
Receivable, its Collections and the Related Security.
(j) Perfection. This Agreement and the Prior Sale Agreement,
together with the filing of the financing statements contemplated hereby or
thereby, were or are effective to transfer to Buyer (and Buyer acquired or shall
acquire from such Originator) (i) legal and equitable title to, with the right
to sell and encumber each Receivable existing and hereafter arising, together
with the Collections with respect thereto, and (ii) all of such Originator's
right, title and interest in the Related Security associated with each
Receivable, in each case, free and clear of any Adverse Claim, except as created
by the Transactions Documents. There have been duly filed all financing
statements or other similar instruments or documents necessary under the UCC (or
any comparable law) of all appropriate jurisdictions to perfect Buyer's
ownership interest in the Receivables, the Related Security and the Collections.
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(k) Places of Business and Locations of Records. The principal
places of business and chief executive office of such Originator and the offices
where it keeps all of its Records are located at the addresses listed on Exhibit
II or such other locations of which Buyer has been notified in accordance with
Section 4.2(a) and if such locations are in jurisdictions where action is
required by Section 4.2(a), such action has been taken and completed. Such
Originator's Federal Employer Identification Number is correctly set forth on
Exhibit II.
(l) Collections. The conditions and requirements set forth in
Section 4.1(i) have at all times on or after the Effective Date been satisfied
and duly performed. The names and addresses of all Collection Banks, together
with the account numbers of the Collection Accounts of such Originator at each
Collection Bank and the post office box number of each Lock-Box, are listed on
Exhibit III. Such Originator has not granted any Person, other than the Agent or
Buyer (and its assigns) dominion and control of any Lock-Box or Collection
Account, or the right to take dominion and control of any such Lock-Box or
Collection Account at a future time or upon the occurrence of a future event.
(m) Material Adverse Effect. Since December 28, 2001 no event
has occurred that would have a Material Adverse Effect.
(n) Names. In the past five (5) years, such Originator has not
used any corporate names, trade names or assumed names other than as listed on
Exhibit II.
(o) Not a Holding or an Investment Company. Such Originator is
not a "holding company" or a "subsidiary holding company" of a "holding company"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended, or any successor statute. Such Originator is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or any successor statute.
(p) Compliance with Law. Such Originator has complied in all
respects with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject, except where the
failure to so comply could not reasonably be expected to have a Material Adverse
Effect. Each Receivable, together with the Contract related thereto, does not
contravene any laws, rules or regulations applicable thereto (including, without
limitation, but only to the extent applicable, laws, rules and regulations
relating to truth in lending, fair credit billing, fair credit reporting, equal
credit opportunity, fair debt collection practices and privacy), and no part of
such Contract is in violation of any such law, rule or regulation, except where
such contravention or violation could not reasonably be expected to have a
Material Adverse Effect.
(q) Compliance with Credit and Collection Policy. Such
Originator has complied in all material respects with its Credit and Collection
Policy with regard to each Receivable and the related Contract, and has not made
any material change
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to its Credit and Collection Policy, except such material change as to which
Buyer (or its assigns) has been notified in accordance with Section 4.1(a)(v).
(r) Payments to Originators. With respect to each Receivable
transferred to Buyer hereunder or under the Prior Sale Agreement, the purchase
price for such Receivable received by such Originator constituted reasonably
equivalent value in consideration therefor and such transfer was not made for or
on account of an antecedent debt. No transfer by such Originator of any
Receivable hereunder or under the Prior Sale Agreement is or may be voidable
under any section of the Bankruptcy Reform Act of 1978 (11 U.S.C. Sections 101
et seq.), as amended.
(s) Enforceability of Contracts. Each Contract with respect to
each Receivable is effective to create, and has created, a legal, valid and
binding obligation of the related Obligor to pay the Outstanding Balance of the
Receivable created thereunder and any accrued interest thereon, enforceable
against the Obligor in accordance with its terms, except as such enforcement may
be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(t) Eligible Receivables. Each Receivable included at any time
in the Net Receivables Balance as an Eligible Receivable was an Eligible
Receivable on the date of its Purchase (or, with respect to any Receivable sold
pursuant to the Prior Sale Agreement, on the Effective Date).
(u) Accounting. The manner in which such Originator accounts
for the transactions contemplated by this Agreement and by the Prior Sales
Agreement does not jeopardize the characterization of the transactions
contemplated herein as being true sales.
ARTICLE III
CONDITIONS OF PURCHASE
Section 3.1 Conditions Precedent to All Purchases. The Purchases
under this Agreement are subject to the conditions precedent that (a) Buyer
shall have received on or before the date of such purchase those documents
listed on Schedule A hereto and (b) the Effective Date shall have occurred.
ARTICLE IV
COVENANTS
Section 4.1 Affirmative Covenants of Originators. From the Effective
Date until the date on which this Agreement terminates in accordance with its
terms, each Originator hereby covenants as set forth below:
(a) Financial Reporting. Such Originator will maintain, for
itself and each of its Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and furnish to Buyer (or its assigns):
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(i) Compliance Certificate. Together with the financial
statements required hereunder, a compliance certificate in substantially
the form of Exhibit IV signed by such Originator's Authorized Officer and
dated the date of such annual financial statement or such quarterly
financial statement, as the case may be.
(ii) Member Statements and Reports. Promptly upon the
furnishing thereof to the members of such Originator, copies of all
financial statements, reports and proxy statements so furnished.
(iii) S.E.C. Filings. Promptly upon the filing thereof,
copies of all registration statements and annual, quarterly, monthly or
other regular reports which such Originator or any of its Subsidiaries
files with the Securities and Exchange Commission.
(iv) Copies of Notices. Promptly upon its receipt of any
notice, request for consent, financial statements, certification, report
or other communication under or in connection with any Transaction
Document from any Person other than Buyer, the Agent or Company, copies of
the same.
(v) Change in Credit and Collection Policy. At least
thirty (30) days prior to the effectiveness of any material change in or
material amendment to such Originator's Credit and Collection Policy, a
copy of such Credit and Collection Policy then in effect and a notice (A)
indicating such change or amendment, and (B) if such proposed change or
amendment would be reasonably likely to adversely affect the
collectibility of the Receivables or decrease the credit quality of any
newly created Receivables, requesting Buyer's consent thereto.
(vi) Other Information. Promptly, from time to time,
such other information, documents, records or reports relating to the
Receivables or the condition or operations, financial or otherwise, of
such Originator as Buyer (or its assigns) may from time to time reasonably
request in order to protect the interests of Buyer (and its assigns) under
or as contemplated by this Agreement.
(b) Notices. Such Originator will notify the Buyer (or its
assigns) in writing of any of the following promptly upon learning of the
occurrence thereof, describing the same and, if applicable, the steps being
taken with respect thereto:
(i) Termination Events or Potential Termination Events.
The occurrence of each Termination Event and each Potential Termination Event,
by a statement of an Authorized Officer of such Originator.
(ii) Judgment and Proceedings. The entry of any judgment
or decree against such Originator or any of its Subsidiaries if the aggregate
amount of all judgments and decrees then outstanding against such Originator and
its Subsidiaries exceeds $5,000,000 after deducting (a) the amount with respect
to which Originator or any such Subsidiary is insured and with
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respect to which the insurer has assumed responsibility in writing, and
(b) the amount for which Originator or any such Subsidiary is otherwise
indemnified if the terms of such indemnification are satisfactory to Buyer
(or its assigns), and (2) the institution of any litigation, arbitration
proceeding or governmental proceeding against Originator.
(iii) Material Adverse Effect. The occurrence of any
event or condition that has had, or could reasonably be expected to have, a
Material Adverse Effect.
(iv) Defaults Under Other Agreements. The occurrence of
a material default or an event of default under any other financing arrangement
pursuant to which such Originator is a debtor or an obligor.
(v) Downgrade of the Originators. Any downgrade in the
rating of any Indebtedness of such Originator by Standard and Poor's Ratings
Group or by Xxxxx'x Investors Service, Inc., setting forth the Indebtedness
affected and the nature of such change.
(c) Compliance with Laws and Preservation of Corporate
Existence. Such Originator will comply in all respects with all applicable laws,
rules, regulations, orders, writs, judgments, injunctions, decrees or awards to
which it may be subject, except where the failure to so comply could not
reasonably be expected to have a Material Adverse Effect. Such Originator will
preserve and maintain its corporate existence, rights, franchises and privileges
in the jurisdiction of its organization, and qualify and remain qualified in
good standing as a foreign entity in each jurisdiction where its business is
conducted, except where the failure to so qualify or remain in good standing
could not reasonably be expected to have a Material Adverse Effect.
(d) Audits. Such Originator will furnish to Buyer (or its
assigns) from time to time such information with respect to it and the
Receivables as Buyer (or its assigns) may reasonably request. Such Originator
will, from time to time during regular business hours as requested by Buyer (or
its assigns), upon reasonable notice and at the sole cost of such Originator,
permit Buyer (or its assigns) or their respective agents or representatives, (i)
to examine and make copies of and abstracts from all Records in the possession
or under the control of such Originator relating to the Receivables and the
Related Security, including, without limitation, the related Contracts, and (ii)
to visit the offices and properties of such Originator for the purpose of
examining such materials described in clause (i) above, and to discuss matters
relating to such Originator's financial condition or the Receivables and the
Related Security or such Originator's performance under any of the Transaction
Documents or such Originator's performance under the Contracts and, in each
case, with any of the officers or employees of such Originator having knowledge;
provided, however, that prior to the occurrence of an Amortization Event, only
one audit to be conducted within six months following the Effective Date and one
audit per calendar year thereafter shall be at the expense of such Originator.
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(e) Keeping and Marking of Records and Books.
(i) Such Originator will maintain and implement
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing Receivables in the event of the
destruction of the originals thereof), and keep and maintain all
documents, books, records and other information reasonably necessary or
advisable for the collection of all Receivables (including, without
limitation, records adequate to permit the immediate identification of
each new Receivable and all Collections of and adjustments to each
existing Receivable). Such Originator will give Buyer (or its assigns)
notice of any material change in the administrative and operating
procedures referred to in the previous sentence.
(ii) Such Originator will (A) on or prior to the
Effective Date, xxxx its master data processing records and other books
and records relating to the Receivables with a legend, acceptable to Buyer
(or its assigns), describing Buyer's ownership interests in the
Receivables and further describing the Purchaser Interests of the Agent
(on behalf of the Purchasers) under the Receivables Purchase Agreement and
(B) upon the request of Buyer (or its assigns), (x) xxxx each Contract
with a legend describing Buyer's ownership interests in the Receivables
and further describing the Purchaser Interests of the Agent (on behalf of
the Purchasers) and (y) deliver to Buyer (or its assigns) all Contracts
(including, without limitation, all originals of any such Contract)
relating to the Receivables.
(f) Compliance with Contracts and Credit and Collection
Policy. Such Originator will timely and fully (i) perform and comply with all
material provisions, covenants and other promises required to be observed by it
under the Contracts related to the Receivables, and (ii) comply in all respects
with its Credit and Collection Policy in regard to each Receivable and the
related Contract.
(g) Ownership. Such Originator will take all necessary action
to establish and maintain, irrevocably in Buyer, (A) legal and equitable title
to the Receivables and the Collections and (B) all of such Originator's right,
title and interest in the Related Security associated with the Receivables, in
each case, free and clear of any Adverse Claims (including, without limitation,
the filing of all financing statements or other similar instruments or documents
necessary under the UCC (or any comparable law) of all appropriate jurisdictions
to perfect Buyer's interest in such Receivables, Related Security and
Collections and such other action to perfect, protect or more fully evidence the
interest of Buyer as Buyer (or its assigns) may reasonably request).
(h) Purchasers' Reliance. Such Originator acknowledges that
the Agent and the Purchasers are entering into the transactions contemplated by
the Receivables Purchase Agreement in reliance upon Buyer's identity as a legal
entity that is separate from such Originator and any Affiliates thereof.
Therefore, from and after the date of execution and delivery of this Agreement,
such Originator will take all reasonable steps including, without limitation,
all steps that Buyer or any assignee of Buyer may
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from time to time reasonably request to maintain Buyer's identity as a separate
legal entity and to make it manifest to third parties that Buyer is an entity
with assets and liabilities distinct from those of such Originator and any
Affiliates thereof and is not a division of such Originator or any such
Affiliate. Without limiting the generality of the foregoing and in addition to
the other covenants set forth herein, such Originator (i) will not hold itself
out to third parties as liable for the debts of Buyer nor purport to own the
Receivables and other assets acquired by Buyer, (ii) will take all other actions
necessary on its part to ensure that Buyer is at all times in compliance with
the covenants set forth in Section 7.1(i) of the Receivables Purchase Agreement
and (iii) will cause all tax liabilities arising in connection with the
transactions contemplated herein or otherwise to be allocated between such
Originator and Buyer on an arm's-length basis and in a manner consistent with
the procedures set forth in U.S. Treasury Regulations Sections 1.1502-33(d) and
1.1552-1.
(i) Collections. Such Originator will cause (1) all proceeds
from all Lock-Boxes to be directly deposited by a Collection Bank into a
Collection Account and (2) each Lock-Box and Collection Account to be subject at
all times to a Collection Account Agreement that is in full force and effect. In
the event any payments relating to Receivables are remitted directly to such
Originator or any Affiliate of such Originator, such Originator will remit (or
will cause all such payments to be remitted) directly to a Collection Bank and
deposited into a Collection Account within two (2) Business Days following
receipt thereof and, at all times prior to such remittance, such Originator will
itself hold or, if applicable, will cause such payments to be held in trust for
the exclusive benefit of Buyer and its assigns. Such Originator will transfer
exclusive ownership, dominion and control of each Lock-Box and Collection
Account to Buyer and, will not grant the right to take dominion and control of
any Lock-Box or Collection Account at a future time or upon the occurrence of a
future event to any Person, except to Buyer (or its assigns) as contemplated by
this Agreement and the Receivables Purchase Agreement.
(j) Taxes. Such Originator will file all tax returns and
reports required by law to be filed by it and promptly pay all taxes and
governmental charges at any time owing. Such Originator will pay when due any
taxes payable in connection with the Receivables, exclusive of taxes on or
measured by income or gross receipts of Buyer and its assigns.
Section 4.2 Negative Covenants of Originators. Until the date on
which this Agreement terminates in accordance with its terms, each Originator
hereby covenants that:
(a) Name Change, Offices and Records. Such Originator will not
change its name, identity or corporate structure (within the meaning of Section
9-507(c) of any applicable enactment of the UCC) or change the location of its
chief executive office, its jurisdiction of organization or any office where
Records are kept unless it shall have: (i) given Buyer (or its assigns) at least
forty-five (45) days' prior written notice thereof and (ii) delivered to Buyer
(or its assigns) all financing statements,
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instruments and other documents requested by Buyer (or its assigns) in
connection with such change or relocation.
(b) Change in Payment Instructions to Obligors. Such
Originator will not add or terminate any bank as a Collection Bank, or make any
change in the instructions to Obligors regarding payments to be made to any
Lock-Box or Collection Account, unless Buyer (or its assigns) shall have
received, at least ten (10) days before the proposed effective date therefor,
(i) written notice of such addition, termination or change and (ii) with respect
to the addition of a Collection Bank or a Collection Account or Lock-Box, an
executed Collection Account Agreement with respect to the new Collection Account
or Lock-Box; provided, however, that such Originator may make changes in
instructions to Obligors regarding payments if such new instructions require
such Obligor to make payments to another existing Collection Account.
(c) Modifications to Contracts and Credit and Collection
Policies. Such Originator will not make any change to its Credit and Collection
Policy that could adversely affect the collectibility of the Receivables or
decrease the credit quality of any newly created Receivables. Except as
otherwise permitted for ACBL in its capacity as Servicer pursuant to Article
VIII of the Receivables Purchase Agreement, such Originator will not extend,
amend or otherwise modify the terms of any Receivable or any Contract related
thereto other than in accordance with its Credit and Collection Policy.
(d) Sales, Liens. Such Originator will not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or grant any option with
respect to, or create or suffer to exist any Adverse Claim upon (including,
without limitation, the filing of any financing statement) or with respect to,
any Receivable, Related Security or Collections, or upon or with respect to any
Contract under which any Receivable arises, or any Lock-Box or Collection
Account, or assign any right to receive income with respect thereto (other than,
in each case, the creation of the interests therein in favor of Buyer provided
for herein), and such Originator will defend the right, title and interest of
Buyer in, to and under any of the foregoing property, against all claims of
third parties claiming through or under such Originator.
(e) Accounting for Purchase. Such Originator will not, and
will not permit any Affiliate to, account for or treat (whether in financial
statements or otherwise) the transactions contemplated hereby or by the Prior
Sale Agreement in any manner other than the sale of the Receivables and the
Related Security by such Originator to Buyer or in any other respect account for
or treat the transactions contemplated hereby in any manner other than as a sale
of the Receivables and the Related Security by such Originator to Buyer except
to the extent that such transactions are not recognized on account of
consolidated financial reporting in accordance with generally accepted
accounting principles.
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ARTICLE V
TERMINATION EVENTS
Section 5.1 Termination Events. The occurrence of any one or more of
the following events shall constitute a Termination Event:
(a) Any Originator shall fail (i) to make any payment or
deposit required hereunder when due and such failure continues for one Business
Day, or (ii) to perform or observe any term, covenant or agreement hereunder
(other than as referred to in clause (i) of this paragraph (a)) or any other
Transaction Document to which it is a party and such failure shall continue for
three (3) consecutive Business Days.
(b) Any representation, warranty, certification or statement
made by any Originator in this Agreement, any other Transaction Document or in
any other document delivered pursuant hereto or thereto shall prove to have been
incorrect when made or deemed made.
(c) Failure of any Originator to pay any Indebtedness when due
in excess of $5,000,000 or the default by such Originator in the performance of
any term, provision or condition contained in any agreement under which any such
Indebtedness was created or is governed, the effect of which is to cause, or to
permit the holder or holders of such Indebtedness to cause, such Indebtedness to
become due prior to its stated maturity; or any such Indebtedness of such
Originator shall be declared to be due and payable or required to be prepaid
(other than by a regularly scheduled payment) prior to the date of maturity
thereof.
(d) (i) Any Originator shall generally not pay its debts as
such debts become due or shall admit in writing its inability to pay its debts
generally or shall make a general assignment for the benefit of creditors; or
(ii) any proceeding shall be instituted by or against any Originator seeking to
adjudicate it bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of it
or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee or other similar official for it or any
substantial part of its property or (iii) any Originator shall take any
corporate action to authorize any of the actions set forth in the foregoing
clauses (i) or (ii) of this subsection (d).
(e) A Change of Control shall occur.
(f) One or more final judgments for the payment of money in an
amount in excess of $5,000,000, individually or in the aggregate, shall be
entered against any Originator on claims not covered by insurance or as to which
the insurance carrier has denied its responsibility, and such judgment shall
continue unsatisfied and in effect for fifteen (15) Business Days without a stay
of execution.
Section 5.2 Remedies. Upon the occurrence and during the
continuation of a Termination Event, Buyer may take any of the following
actions: (i)
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declare the Termination Date to have occurred, whereupon the Termination Date
shall forthwith occur, without demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Originators; provided, however,
that upon the occurrence of a Termination Event described in Section 5.1(d), or
of an actual or deemed entry of an order for relief with respect to any
Originator under the Federal Bankruptcy Code, the Termination Date shall
automatically occur, without demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Originators and (ii) to the fullest
extent permitted by applicable law, declare that the Default Fee shall accrue
with respect to any amounts then due and owing by such Originator to Buyer. The
aforementioned rights and remedies shall be without limitation and shall be in
addition to all other rights and remedies of Buyer and its assigns otherwise
available under any other provision of this Agreement, by operation of law, at
equity or otherwise, all of which are hereby expressly preserved, including,
without limitation, all rights and remedies provided under the UCC, all of which
rights shall be cumulative.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnities by Originators. Without limiting any other
rights that Buyer may have hereunder or under applicable law, each Originator
hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns,
officers, directors, agents and employees (each an "Indemnified Party") from and
against any and all damages, losses, claims, taxes, liabilities, costs, expenses
and for all other amounts payable, including reasonable attorneys' fees (which
attorneys may be employees of Buyer or any such assign) and disbursements (all
of the foregoing being collectively referred to as "Indemnified Amounts")
awarded against or incurred by any of them arising out of or as a result of this
Agreement or the acquisition, either directly or indirectly, by Buyer of an
interest in the Receivables, excluding, however:
(a) Indemnified Amounts to the extent a final judgment of a
court of competent jurisdiction holds that such Indemnified Amounts resulted
from gross negligence or willful misconduct on the part of the Indemnified Party
seeking indemnification;
(b) Indemnified Amounts to the extent the same includes losses
in respect of Receivables that are uncollectible on account of the insolvency,
bankruptcy or lack of creditworthiness of the related Obligor; or
(c) taxes imposed by the jurisdiction in which such
Indemnified Party's principal executive office is located, on or measured by the
overall net income of such Indemnified Party to the extent that the computation
of such taxes is consistent with the characterization for income tax purposes of
the acquisition by the Purchasers of Purchaser Interests under the Receivables
Purchase Agreement as a loan or loans by the Purchasers to Buyer secured by,
among other things, the Receivables, the Related Security and the Collections;
17
provided, however, that nothing contained in this sentence shall limit the
liability of any Originator or limit the recourse of Buyer to the Originators
for amounts otherwise specifically provided to be paid by the Originators under
the terms of this Agreement. Without limiting the generality of the foregoing
indemnification, each Originator shall indemnify Buyer for Indemnified Amounts
(including, without limitation, losses in respect of uncollectible receivables,
regardless of whether reimbursement therefor would constitute recourse to such
Originator) relating to or resulting from:
(1) any representation or warranty made by such
Originator (or any officers of such Originator) under or in connection
with this Agreement, any other Transaction Document or any other
information or report delivered by such Originator pursuant hereto or
thereto that shall have been false or incorrect when made or deemed made;
(2) the failure by such Originator, to comply with any
applicable law, rule or regulation with respect to any Receivable or
Contract related thereto, or the nonconformity of any Receivable or
Contract included therein with any such applicable law, rule or regulation
or any failure of such Originator to keep or perform any of its
obligations, express or implied, with respect to any Contract;
(3) any failure of such Originator to perform its
duties, covenants or other obligations in accordance with the provisions
of this Agreement or any other Transaction Document;
(4) any products liability, personal injury or damage,
suit or other similar claim arising out of or in connection with
merchandise, insurance or services that are the subject of any Contract or
any Receivable;
(5) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the payment of
any Receivable (including, without limitation, a defense based on such
Receivable or the related Contract not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its
terms), or any other claim resulting from the sale of the merchandise or
service related to such Receivable or the furnishing or failure to furnish
such merchandise or services;
(6) the commingling of Collections of Receivables at any
time with other funds;
(7) any investigation, litigation or proceeding related
to or arising from this Agreement or any other Transaction Document, the
transactions contemplated hereby, the use of the proceeds of any Purchase
Price payment, the ownership of the Receivables or any other
investigation, litigation or proceeding relating to such Originator in
which any Indemnified Party becomes involved as a result of any of the
transactions contemplated hereby;
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(8) any inability to litigate any claim against any
Obligor in respect of any Receivable as a result of such Obligor being
immune from civil and commercial law and suit on the grounds of
sovereignty or otherwise from any legal action, suit or proceeding;
(9) any Termination Event described in Section 5.1(d);
(10) any failure to vest and maintain vested in Buyer,
or to transfer to Buyer, legal and equitable title to, and ownership of,
the Receivables and the Collections and all of such Originator's right,
title and interest in the Related Security associated with the
Receivables, in each case, free and clear of any Adverse Claim;
(11) the failure to have filed, or any delay in filing,
financing statements or other similar instruments or documents under the
UCC of any applicable jurisdiction or other applicable laws with respect
to any Receivable, the Related Security and Collections with respect
thereto, and the proceeds of any thereof, whether at the time of the
initial Purchase or at any subsequent time;
(12) any action or omission by such Originator which
reduces or impairs the rights of Buyer with respect to any Receivable or
the value of any such Receivable; or
(13) any attempt by any Person (other than the
Purchaser) to void any Purchase (whether made hereunder or under the Prior
Sale Agreement) under statutory provisions or common law or equitable
action.
Section 6.2 Other Costs and Expenses. The Originators shall be
jointly and severally liable to Buyer for (and shall pay on demand) all costs
and out-of-pocket expenses in connection with the preparation, execution,
delivery and administration of this Agreement, the transactions contemplated
hereby and the other documents to be delivered hereunder. The Originators shall
be jointly and severally liable to Buyer for (and shall pay on demand) any and
all costs and expenses of Buyer, if any, including reasonable counsel fees and
expenses in connection with the enforcement of this Agreement and the other
documents delivered hereunder and in connection with any restructuring or
workout of this Agreement or such documents, or the administration of this
Agreement following a Termination Event.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Waivers and Amendments.
(a) No failure or delay on the part of Buyer (or its assigns)
in exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy
19
preclude any other further exercise thereof or the exercise of any other power,
right or remedy. The rights and remedies herein provided shall be cumulative and
nonexclusive of any rights or remedies provided by law. Any waiver of this
Agreement shall be effective only in the specific instance and for the specific
purpose for which given.
(b) No provision of this Agreement may be amended,
supplemented, modified or waived except in writing signed by each Originator and
Buyer and, to the extent required under the Receivables Purchase Agreement, the
Agent and the Financial Institutions or the Required Financial Institutions.
Section 7.2 Notices. All communications and notices provided for
hereunder shall be in writing (including bank wire, telecopy or electronic
facsimile transmission or similar writing) and shall be given to the other
parties hereto at their respective addresses or telecopy numbers set forth on
the signature pages hereof or at such other address or telecopy number as such
Person may hereafter specify for the purpose of notice to each of the other
parties hereto. Each such notice or other communication shall be effective (i)
if given by telecopy, upon the receipt thereof, (ii) if given by mail, three (3)
Business Days after the time such communication is deposited in the mail with
first class postage prepaid or (iii) if given by any other means, when received
at the address specified in this Section 7.2.
Section 7.3 Protection of Ownership Interests of Buyer.
(a) Each Originator agrees that from time to time, at its
expense, it will promptly execute and deliver all instruments and documents, and
take all actions, that may be necessary or desirable, or that Buyer (or its
assigns) may request, to perfect, protect or more fully evidence the interest of
Buyer hereunder and the Purchaser Interests, or to enable Buyer (or its assigns)
to exercise and enforce their rights and remedies hereunder. At any time, Buyer
(or its assigns) may, at such Originator's sole cost and expense, direct such
Originator to notify the Obligors of Receivables originated by it of the
ownership interests of Buyer under this Agreement and may also direct that
payments of all amounts due or that become due under any or all Receivables be
made directly to Buyer or its designee.
(b) If an Originator fails to perform any of its obligations
hereunder, Buyer (or its assigns) may (but shall not be required to) perform, or
cause performance of, such obligations, and Buyer's (or such assigns') costs and
expenses incurred in connection therewith shall be payable by such Originator as
provided in Section 6.2. Each Originator irrevocably authorizes Buyer (and its
assigns) at any time and from time to time in the sole discretion of Buyer (or
its assigns), and appoints Buyer (and its assigns) as its attorney(ies)-in-fact,
to act on behalf of such Originator (i) to file financing statements necessary
or desirable in Buyer's (or its assigns') sole discretion to perfect and to
maintain the perfection and priority of the interest of Buyer in the Receivables
and (ii) to file a carbon, photographic or other reproduction of this Agreement
or any financing statement with respect to the Receivables as a financing
statement in such offices as Buyer (or its assigns) in their sole discretion
deem necessary
20
or desirable to perfect and to maintain the perfection and priority of Buyer's
interests in the Receivables. This appointment is coupled with an interest and
is irrevocable.
Section 7.4 Confidentiality.
(a) Each Originator shall maintain and shall cause each of its
employees and officers to maintain the confidentiality of this Agreement and the
other confidential or proprietary information with respect to the Agent and
Company and their respective businesses obtained by it or them in connection
with the structuring, negotiating and execution of the transactions contemplated
herein, except that any Originator and its officers and employees may disclose
such information to such Originator's external accountants and attorneys and as
required by any applicable law or order of any judicial or administrative
proceeding.
(b) Buyer shall maintain and shall cause each of its employees
and officers to maintain the confidentiality of this Agreement and the other
confidential or proprietary information with respect to each Originator, the
Obligors and their respective businesses obtained by it in connection with the
due diligence evaluations, structuring, negotiating and execution of the
Transaction Documents, and the consummation of the transactions contemplated
herein and any other activities of Buyer arising from or related to the
transactions contemplated herein provided, however, that each of Buyer and its
employees and officers shall be permitted to disclose such confidential or
proprietary information: (i) to the Agent and the other Purchasers, (ii) to any
prospective or actual assignee or participant of the Agent or the other
Purchasers who execute a confidentiality agreement for the benefit of the
Originators and Buyer on terms comparable to those required of Buyer hereunder
with respect to such disclosed information, (iii) to any rating agency,
Commercial Paper Dealer, provider of a surety, guaranty or credit or liquidity
enhancement to Company or any entity organized for the purpose of purchasing, or
making loans secured by, financial assets, for which the Agent acts as
administrative agent, (iv) to any officers, directors, employees, outside
accountants and attorneys of any of the foregoing, (provided that, if they are
officers, directors, employees, outside accountants or attorneys of a person
described in clause (ii), they are bound by the confidentiality agreement
referred to in clause (ii)) and (v) to the extent required pursuant to any
applicable law, rule, regulation, direction, request or order of any judicial,
administrative or regulatory authority or proceedings with competent
jurisdiction (whether or not having the force or effect of law) so long as such
required disclosure is made under seal to the extent permitted by applicable law
or by rule of court or other applicable body.
Section 7.5 Bankruptcy Petition. (a) Each Originator and Buyer
hereby covenants and agrees that, prior to the date that is one year and one day
after the payment in full of all outstanding senior indebtedness of Company or
any Financial Institution that is a special purpose bankruptcy remote entity, it
will not institute against, or join any other Person in instituting against,
Company or any such entity any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding under the laws
of the United States or any state of the United States.
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(b) Each Originator covenants and agrees that, prior to the
date that is one year and one day after the later to occur of (i) the date on
which all Senior Claims (as defined in its Subordinated Note) shall have been
indefeasibly paid and satisfied in full and (ii) the Collection Date (as defined
in its Subordinated Note), it will not institute against, or join any other
Person in instituting against, Buyer any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States.
Section 7.6 Limitation of Liability. Except with respect to any
claim arising out of the willful misconduct or gross negligence of Company, the
Agent or any Financial Institution, no claim may be made by any Originator or
any other Person against Company, the Agent or any Financial Institution or
their respective Affiliates, directors, officers, employees, attorneys or agents
for any special, indirect, consequential or punitive damages in respect of any
claim for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement, or any act, omission
or event occurring in connection therewith; and each Originator hereby waives,
releases, and agrees not to xxx upon any claim for any such damages, whether or
not accrued and whether or not known or suspected to exist in its favor.
Section 7.7 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF
THE STATE OF ILLINOIS.
Section 7.8 CONSENT TO JURISDICTION. EACH ORIGINATOR HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED
BY SUCH ORIGINATOR PURSUANT TO THIS AGREEMENT AND SUCH ORIGINATOR HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF BUYER (OR ITS ASSIGNS) TO BRING
PROCEEDINGS AGAINST ANY ORIGINATOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY ANY ORIGINATOR AGAINST BUYER (OR ITS ASSIGNS) OR ANY
AFFILIATE THEREOF INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT
EXECUTED BY SUCH ORIGINATOR PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN
A COURT IN CHICAGO, ILLINOIS.
Section 7.9 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER
22
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY THE ORIGINATORS
PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR
THEREUNDER.
Section 7.10 Integration; Binding Effect; Survival of Terms.
(a) This Agreement and each other Transaction Document contain
the final and complete integration of all prior expressions by the parties
hereto with respect to the subject matter hereof and shall constitute the entire
agreement among the parties hereto with respect to the subject matter hereof
superseding all prior oral or written understandings.
(b) This Agreement shall be binding upon and inure to the
benefit of each Originator, Buyer and their respective successors and permitted
assigns (including any trustee in bankruptcy). No Originator may assign any of
its rights and obligations hereunder or any interest herein without the prior
written consent of Buyer. Buyer may assign at any time its rights and
obligations hereunder and interests herein to any other Person without the
consent of any of the Originators. Without limiting the foregoing, each
Originator acknowledges that Buyer, pursuant to the Receivables Purchase
Agreement, may assign to the Agent, for the benefit of the Purchasers, its
rights, remedies, powers and privileges hereunder and that the Agent may further
assign such rights, remedies, powers and privileges to the extent permitted in
the Receivables Purchase Agreement. Each Originator agrees that the Agent, as
the assignee of Buyer, shall, subject to the terms of the Receivables Purchase
Agreement, have the right to enforce this Agreement and to exercise directly all
of Buyer's rights and remedies under this Agreement (including, without
limitation, the right to give or withhold any consents or approvals of Buyer to
be given or withheld hereunder) and each Originator agrees to cooperate fully
with the Agent in the exercise of such rights and remedies. 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
terminated in accordance with its terms; provided, however, that the rights and
remedies with respect to (i) any breach of any representation and warranty made
by any Originator pursuant to Article II; (ii) the indemnification and payment
provisions of Article VI; and (iii) Section 7.5 shall be continuing and shall
survive any termination of this Agreement.
Section 7.11 Counterparts; Severability; Section References. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same Agreement. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Unless otherwise expressly
23
indicated, all references herein to "Article," "Section," "Schedule" or
"Exhibit" shall mean articles and sections of, and schedules and exhibits to,
this Agreement.
Section 7.12 Subordination. Each Originator shall have the right to
receive, and Buyer shall make, any and all payments relating to any
indebtedness, obligation or claim such Originator may from time to time hold or
otherwise have against Buyer or any assets or properties of Buyer, in each case,
to the extent arising hereunder, provided that, after giving effect to any such
payment, (i) the Buyer would continue to be Solvent and (ii) Buyer's Tangible
Net Worth would equal or exceed the Minimum Tangible Net Worth; and provided
further that no Amortization Event shall have occurred and then be continuing or
would result therefrom or after giving effect thereto. Each Originator hereby
agrees that at any time during which the conditions set forth in the immediately
preceding sentence shall not be satisfied, such Originator shall be subordinate
in right of payment to the prior payment of any indebtedness or obligation of
Buyer owing to the Agent or any Purchaser under the Receivables Purchase
Agreement.
[SIGNATURE PAGE FOLLOWS]
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date
hereof.
AMERICAN COMMERCIAL BARGE LINE LLC,
as an Originator
By: /s/ Xxxxx X. Xxxxx
____________________________________
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
Address: 0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxxxxxx, Xxxxxxx
00000-0000
Fax: (000) 000-0000
AMERICAN COMMERCIAL TERMINALS LLC,
as an Originator
By: /s/ Xxxxx X. Xxxxx
____________________________________
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
Address: 0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxxxxxx, Xxxxxxx
00000-0000
Fax: (000) 000-0000
AMERICAN COMMERCIAL LINES FUNDING
CORPORATION, as Buyer
By: /s/ Xxxxx X. Xxxxx
____________________________________
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
Address: 0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxxxxxx, Xxxxxxx
00000-0000
Fax: (000) 000-0000
