1
Exhibit 10.2
PURCHASE AND SALE AGREEMENT
DATED AS OF MAY 29, 1998
BETWEEN
XXXXXX FUNDING CORPORATION
AND
XXXXXX CO.
2
TABLE OF CONTENTS
PAGE
ARTICLE I AGREEMENT TO PURCHASE AND SELL......................................2
1.1 Agreement To Purchase and Sell..........................................2
1.2 Timing of Purchases.....................................................3
1.3 Consideration for Purchases.............................................3
1.4 Purchase and Sale Termination Date......................................3
1.5 Intention of the Parties................................................3
ARTICLE II CALCULATION OF PURCHASE PRICE.......................................4
2.1 Calculation of Purchase Price...........................................4
ARTICLE III CONTRIBUTION OF RECEIVABLES PAYMENT OF PURCHASE PRICE..............5
3.1 Contribution of Receivables; Initial Purchase Price Payment.............5
3.2 Subsequent Purchase Price Payments......................................5
3.3 Settlement as to Specific Receivables and Dilution......................6
3.4 Reconveyance of Receivables.............................................7
ARTICLE IV CONDITIONS OF PURCHASES.............................................7
4.1 Conditions Precedent to Initial Purchase................................7
4.2 Certification as to Representations and Warranties......................9
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR.....................9
5.1 Organization and Good Standing..........................................9
5.2 Due Qualification.......................................................9
5.3 Power and Authority; Due Authorization..................................9
5.4 Valid Sale; Binding Obligations.........................................10
5.5 No Violation............................................................10
5.6 Proceedings.............................................................10
5.7 Bulk Sales Acts.........................................................10
5.8 Government Approvals....................................................11
5.9 Financial Condition.....................................................11
5.10 Licenses, Contingent Liabilities, and Labor Controversies...............11
5.11 Margin Regulations......................................................11
5.12 Quality of Title........................................................11
5.13 Accuracy of Information.................................................12
5.14 Offices.................................................................12
5.15 Trade Names.............................................................12
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5.16 Taxes...................................................................12
5.17 Compliance with Applicable Laws.........................................13
5.18 Reliance on Separate Legal Identity.....................................13
ARTICLE VI COVENANTS OF THE ORIGINATOR.........................................13
6.1 Affirmative Covenants...................................................13
6.2 Reporting Requirements..................................................15
6.3 Negative Covenants......................................................15
6.4 Lock-box Banks..........................................................16
6.5 Accounting for Purchases................................................16
6.6 Transaction Documents...................................................17
6.7 Substantive Consolidation...............................................17
ARTICLE VII ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF THE RECEIVABLES....17
7.1 Rights of the Company...................................................17
7.2 Responsibilities of the Originator......................................17
7.3 Further Action Evidencing Purchases.....................................18
7.4 Application of Collections..............................................18
ARTICLE VIII PURCHASE AND SALE TERMINATION EVENTS..............................19
8.1 Purchase and Sale Termination Events....................................19
8.2 Remedies................................................................19
ARTICLE IX INDEMNIFICATION.....................................................20
9.1 Indemnities by the Originator...........................................20
ARTICLE X MISCELLANEOUS........................................................22
10.1 Amendments, etc.........................................................22
10.2 Notices, etc............................................................22
10.3 No Waiver; Cumulative Remedies..........................................23
10.4 Binding Effect; Assignability...........................................23
10.5 Governing Law...........................................................23
10.6 Costs, Expenses and Taxes...............................................23
10.7 Submission to Jurisdiction..............................................24
10.8 Waiver of Jury Trial....................................................24
10.9 Captions and Cross References; Incorporation
Reference...............................................................24
10.10 Execution in Counterparts...............................................24
10.11 Acknowledgment and Agreement............................................25
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EXHIBIT A - Form of Purchase Report
EXHIBIT B - Form of Company Note
EXHIBIT C - Form of Originator Assignment Certificate
EXHIBIT D - Proceedings
EXHIBIT E - Office Locations
EXHIBIT F - Trade Names
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "AGREEMENT"), dated as of May
29, 1998, is between XXXXXX CO. ("XXXXXX"), a Pennsylvania corporation, as the
Originator (the "ORIGINATOR") and as the initial Servicer, and XXXXXX FUNDING
CORPORATION, a Delaware corporation (the "COMPANY").
DEFINITIONS
Unless otherwise indicated, certain terms that are capitalized and used
throughout this Agreement are defined in Exhibit I to the Receivables Purchase
Agreement of even date herewith (as the same may be amended, supplemented or
otherwise modified from time to time, the "RECEIVABLES PURCHASE AGREEMENT")
among Xxxxxx, the Company, Market Street Funding Corporation, as Issuer (the
"ISSUER"), and PNC Bank, National Association. All references herein to months
are to calendar months unless otherwise expressly indicated.
BACKGROUND
1. The Company is a special purpose corporation, all of the issued and
outstanding shares of which are owned by Originator.
2. The Originator generates Receivables in the ordinary course of its
business.
3. The Originator, in order to finance its businesses, wishes to sell
Receivables to the Company, and the Company is willing, on the terms and subject
to the conditions set forth herein, to purchase Receivables from the Originator.
4. Originator and the Company intend this transaction to be a true sale
of Receivables by Originator to the Company, providing the Company with the full
benefits of ownership of the Receivables and Originator and the Company do not
intend the transactions hereunder to be characterized as a loan from the Company
to Originator.
5. The Company intends to sell the Purchased Interest in the
Receivables to the Issuer pursuant to the Receivables Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
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ARTICLE I
AGREEMENT TO PURCHASE AND SELL
1.1 AGREEMENT TO PURCHASE AND SELL. On the terms and subject to the
conditions set forth in this Agreement (including ARTICLE IV), Originator agrees
to sell to the Company, and the Company agrees to purchase from Originator, from
time to time on or after the Closing Date, but before the Purchase and Sale
Termination Date, all of Originator's right, title and interest in and to:
(a) each Receivable of Originator that existed and was owing
to Originator as of the closing of Originator's business on June 2,
1998 (the "CUT-OFF DATE")(other than the Receivables and Related Rights
contributed by Originator to the Company on the Closing Date pursuant
to SECTION 3.1 (the "CONTRIBUTED RECEIVABLES"));
(b) each Receivable created by Originator from and including
the Cut-off Date to and including the Purchase and Sale Termination
Date (other than Contributed Receivables);
(c) all rights to, but not the obligations under, all Related
Security;
(d) all monies due or to become due with respect to any of the
foregoing;
(e) all books and records related to any of the foregoing; and
(f) all collections and other proceeds of any of the foregoing
(as defined in the applicable UCC) that are or were received by
Originator on or after Cut-off Date, including, without limitation, all
funds which either are received by Originator, the Company or Servicer
from or on behalf of the Obligors in payment of any amounts owed
(including, without limitation, invoice price, finance charges,
interest and all other charges) in respect of Receivables, or are
applied to such amounts owed by the Obligors (including, without
limitation, insurance payments that Originator or Servicer applies in
the ordinary course of its business to amounts owed in respect of any
Receivable and net proceeds of sale or other disposition of repossessed
goods or other collateral or property of the Obligors or any other
parties directly or indirectly liable for payment of such Receivables).
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All purchases and contributions hereunder shall be made without recourse, but
shall be made pursuant to, and in reliance upon, the representations, warranties
and covenants of Originator set forth in this Agreement and each other
Transaction Document. No obligation or liability to any Obligor on any
Receivable is intended to be assumed by the Company hereunder, and any such
assumption is expressly disclaimed. The Company's foregoing commitment to
purchase Receivables and the proceeds and rights described in CLAUSES (C)
through (F) (collectively, the "RELATED RIGHTS") is herein called the "PURCHASE
FACILITY."
1.2 TIMING OF PURCHASES.
(a) CLOSING DATE PURCHASES. Originator's entire right, title
and interest in (i) each Receivable that existed and was owing to
Originator as of the close of Originator's business on the Cut-off Date
(other than Contributed Receivables), (ii) all Receivables created by
Originator after the Cut-off Date, to and including the Closing Date
(other than Contributed Receivables), and (iii) all Related Rights
automatically shall be deemed to have been sold to the Company on the
Closing Date.
(b) REGULAR PURCHASES. After the Closing Date, until the
Purchase and Sale Termination Date, each Receivable (and the Related
Rights) created by Originator shall be deemed to have been sold to the
Company immediately (and without further action) upon the creation of
such Receivable.
1.3 CONSIDERATION FOR PURCHASES. On the terms and subject to the
conditions set forth in this Agreement, the Company agrees to make Purchase
Price payments to Originator and to reflect all contributions in accordance with
ARTICLE III.
1.4 PURCHASE AND SALE TERMINATION DATE. The "PURCHASE AND SALE
TERMINATION DATE" shall be the earliest to occur of (a) the date of the
termination of this Agreement pursuant to SECTION 8.2 and (b) the Payment Date
immediately following the day on which the Originator shall have given notice to
the Company at or prior to 10:00 a.m. (New York City time) that the Originator
desires to terminate this Agreement.
1.5 INTENTION OF THE PARTIES. It is the express intent of the parties
hereto that the transfers of the Receivables and Related Rights by Originator to
the Company, as contemplated by this Agreement be, and be treated as, sales or
contributions, as applicable, and not as secured loans secured by the
Receivables and Related Rights. If, however, notwithstanding the intent of the
parties, such transactions are deemed to be loans, Originator hereby grants to
the Company a first priority security interest
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in all of Originator's right, title and interest in and to the Receivables and
the Related Rights now existing and hereafter created, all monies due or to
become due and all amounts received with respect thereto, and all proceeds
thereof, to secure all of Originator's obligations hereunder.
ARTICLE II
CALCULATION OF PURCHASE PRICE
2.1 CALCULATION OF PURCHASE PRICE. On each Monthly Settlement Date, the
Servicer shall deliver to the Company and Originator a report in substantially
the form of EXHIBIT A (each such report being herein called a "PURCHASE REPORT")
with respect to the matters set forth therein and the Company's purchases of
Receivables from Originator:
(a) that are to be made on the Closing Date (in the case of the
Purchase Report to be delivered on the Closing Date), or
(b) that were made during the period commencing on the Monthly
Settlement Date immediately preceding such Monthly Settlement Date to (but not
including) such Monthly Settlement Date (in the case of each subsequent Purchase
Report).
The "PURCHASE PRICE" (to be paid to Originator in accordance with the terms of
ARTICLE III) for the Receivables and the Related Rights that are purchased
hereunder from Originator shall be determined in accordance with the following
formula:
PP = OB X FMVD
WHERE:
PP = Purchase Price for each Receivable as calculated on
the relevant Payment Date.
OB = The Outstanding Balance of such Receivable on the
relevant Payment Date.
FMVD = Fair Market Value Discount, as measured on such
Payment Date, which is equal to the quotient
(expressed as percentage) of (a) one DIVIDED by
(b) the sum of (i) one, plus (ii) the product of
(A) the Prime Rate on such Payment Date plus .25%
and (B) a fraction, the numerator of which is the
Days' Sales Outstanding (calculated as of the last
day of the Settlement Period next preceding such
Payment Date) and the denominator of which is 365.
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"PAYMENT DATE" means (i) the Closing Date and (ii) each Business Day
thereafter that Originator is open for business.
"PRIME RATE" means a PER ANNUM rate equal to the "Prime Rate" as
published in the "Money Rates" section of The Wall Street Journal or such other
publication as determined by the Administrator in its sole discretion.
ARTICLE III
CONTRIBUTION OF RECEIVABLES
PAYMENT OF PURCHASE PRICE
3.1 CONTRIBUTION OF RECEIVABLES; INITIAL PURCHASE PRICE PAYMENT. (a) On
the Closing Date, Xxxxxx shall, and hereby does, contribute to the capital of
the Company Receivables and Related Rights with respect thereto consisting of
each Receivable of Xxxxxx that existed and was owing to Xxxxxx on the Closing
Date, beginning with the oldest of such Receivables and continuing
chronologically thereafter such that the aggregate Outstanding Balance of all
such Contributed Receivables shall be equal to $5,000,000.
(b) On the terms and subject to the conditions set forth in
this Agreement, the Company agrees to pay to Originator the Purchase Price for
the purchase to be made from Originator on the Closing Date partially in cash
(in an amount to be agreed between the Company and Originator and set forth in
the initial Purchase Report) and partially by issuing a promissory note in the
form of EXHIBIT B to Originator with an initial principal balance equal to the
remaining Purchase Price (each such promissory note, as it may be amended,
supplemented, indorsed or otherwise modified from time to time, together with
all promissory notes issued from time to time in substitution therefor or
renewal thereof in accordance with the Transaction Documents, being herein
called a "COMPANY NOTE").
3.2 SUBSEQUENT PURCHASE PRICE PAYMENTS. On each Payment Date subsequent
to the Closing Date, on the terms and subject to the conditions set forth in
this Agreement, the Company shall pay to Originator the Purchase Price for the
Receivables generated by Originator during the immediately preceding month as
follows:
(a) FIRST, the Purchase Price shall be paid in cash to the
extent the Company has cash available therefor; and
(b) SECOND, to the extent any portion of the Purchase Price
remains unpaid, the principal amount outstanding under
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the Company Note issued to Originator shall be increased by an amount
equal to such remaining Purchase Price.
Servicer shall make all appropriate record keeping entries with respect
to Company Notes or otherwise to reflect the foregoing payments, and Servicer's
books and records shall constitute rebuttable presumptive evidence of the
principal amount of and accrued interest on any Company Note at any time.
Furthermore, Servicer shall hold the Company Notes for the benefit of the
Originator. Originator hereby irrevocably authorizes Servicer to xxxx the
Company Notes "CANCELLED" and to return such Company Notes to the Company upon
the final payment thereof after the occurrence of the Purchase and Sale
Termination Date.
3.3 SETTLEMENT AS TO SPECIFIC RECEIVABLES AND DILUTION.
(a) If, on the day of purchase or contribution of any
Receivable from Originator hereunder, any of the representations or
warranties set forth in SECTIONS 5.4 and 5.12 of Originator is not true
with respect to such Receivable or as a result of any action or
inaction of Originator, on any day, any of such representations or
warranties set forth in SECTIONS 5.4 and 5.12 is no longer true with
respect to such a Receivable, then the Purchase Price with respect to
such Receivable (or in the case of a Contributed Receivable, the
Outstanding Balance of such Receivable (the "CONTRIBUTED VALUE")) shall
be reduced by an amount equal to the Outstanding Balance of such
Receivable and shall be accounted to Originator as provided in
SUBSECTION (C) below; PROVIDED, that if the Company thereafter receives
payment on account of Collections due with respect to such Receivable,
the Company promptly shall deliver such funds to Originator.
(b) If, on any day, the Outstanding Balance of any Receivable
(including any Contributed Receivable) purchased or contributed
hereunder is reduced or adjusted as a result of any defective,
rejected, returned goods or services, or any discount or other
adjustment made by Originator, the Company or Servicer or any setoff or
dispute between Originator or the Servicer and an Obligor as indicated
on the books of the Company (or, for periods prior to the Closing Date,
the books of Originator), then the Purchase Price or the Contributed
Value, as the case may be, with respect to such Receivable shall be
reduced by the amount of such net reduction and shall be accounted to
Originator as provided in SUBSECTION (C) below.
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(c) Any reduction in the Purchase Price (or Contributed Value)
of any Receivable pursuant to SUBSECTION (A) or (B) above shall be
applied as a credit for the account of the Company against the Purchase
Price of Receivables subsequently purchased by the Company from
Originator hereunder; PROVIDED, HOWEVER if there have been no purchases
of Receivables from Originator (or insufficiently large purchases of
Receivables) to create a Purchase Price sufficient to so apply such
credit against, the amount of such credit
(i) shall be paid in cash to the Company by Originator in the
manner and for application as described in the following proviso, or
(ii) shall be deemed to be a payment under, and shall be
deducted from the principal amount outstanding under, the Company Note
payable to Originator;
PROVIDED, FURTHER, that at any time (y) when a Termination Event or Unmatured
Termination Event exists under the Receivables Purchase Agreement or (z) on or
after the Purchase and Sale Termination Date, the amount of any such credit
shall be paid by Originator to the Company by deposit in immediately available
funds into the relevant Lock-Box Account for application by Servicer to the same
extent as if Collections of the applicable Receivable in such amount had
actually been received on such date.
(d) Each Purchase Report (other than the Purchase Report
delivered on the Closing Date) shall include, in respect of the
Receivables previously generated by Originator (including Contributed
Receivables), a calculation of the aggregate reductions described in
SUBSECTION (A) or (B) relating to such Receivables since the last
Purchase Report delivered hereunder, as indicated on the books of the
Company (or, for such period prior to the Closing Date, the books of
Originator).
3.4 RECONVEYANCE OF RECEIVABLES. In the event that Originator has paid
to the Company the full Outstanding Balance of any Receivable pursuant to
SECTION 3.3, the Company shall reconvey such Receivable to Originator, without
representation or warranty, but free and clear of all liens created by the
Company.
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ARTICLE IV
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CONDITIONS OF PURCHASES
4.1 CONDITIONS PRECEDENT TO INITIAL PURCHASE. The initial purchase
hereunder is subject to the condition precedent that Servicer (on the Company's
behalf) shall have received, on or before the Closing Date, the following, each
(unless otherwise indicated) dated the Closing Date, and each in form and
substance satisfactory to Servicer (acting on the Company's behalf):
(a) An Originator Assignment Certificate in the form of
EXHIBIT C from Originator, duly completed, executed and delivered by
Originator;
(b) A copy of the resolutions of the Board of Directors of
Originator approving the Transaction Documents to be delivered by it
and the transactions contemplated hereby and thereby, certified by the
Secretary or Assistant
Secretary of Originator;
(c) Good standing certificates for Originator issued as of a
recent date acceptable to Servicer by the Secretary of State of the
jurisdiction of Originator's incorporation and the jurisdiction where
Originator's chief executive office is located;
(d) A certificate of the Secretary or Assistant Secretary of
Originator certifying the names and true signatures of the officers
authorized on such Person's behalf to sign the Transaction Documents to
be delivered by it (on which certificate Servicer and the Company may
conclusively rely until such time as Servicer shall receive from such
Person a revised certificate meeting the requirements of this
SUBSECTION (D));
(e) The certificate or articles of incorporation or other
organizational document of Originator, duly certified by the Secretary
of State of the jurisdiction of Originator's incorporation as of a
recent date acceptable to Servicer, together with a copy of the by-laws
of Originator, each duly certified by the Secretary or an Assistant
Secretary of Originator;
(f) Originals of the proper financing statements (Form UCC-1)
that have been duly executed and name Originator as the assignor and
the Company as the assignee (and the Issuer, as assignee of the
Company) of the Receivables generated by Originator as may be necessary
or, in Servicer's or the Administrator's opinion, desirable under
the UCC of all appropriate jurisdictions to perfect the Company's
ownership interest in all Receivables and such
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other rights, accounts, instruments and moneys (including, without
limitation, Related Security) in which an ownership or security
interest may be assigned to it hereunder;
(g) A written search report from a Person satisfactory to
Servicer listing all effective financing statements that name
Originator as debtor or assignor and that are filed in the
jurisdictions in which filings were made pursuant to the foregoing
SUBSECTION (F), together with copies of such financing statements (none
of which, except for those described in the foregoing SUBSECTION (F),
shall cover any Receivable or any Related Rights) which is to be sold
to the Company hereunder, and tax and judgment lien search reports from
a Person satisfactory to Servicer showing no evidence of such liens
filed against Originator;
(h) A favorable opinion of Xxxxxx, Xxxx & Xxxxxxxx, counsel to
the Originator, in form and substance satisfactory to Servicer and the
Administrator;
(i) A Company Note in favor of Originator, duly executed by
the Company; and
(j) A certificate from an officer of Originator to the effect
that Servicer and Originator have placed on the most recent, and have
taken all steps reasonably necessary to ensure that there shall be
placed on each subsequent, data processing report that it generates
which are of the type that a proposed purchaser or lender would use to
evaluate the Receivables, the following legend (or the substantive
equivalent thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD
TO PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF MAY 29, 1998;
AS AMENDED, BETWEEN XXXXXX CO. AND XXXXXX FUNDING CORPORATION; AND AN
UNDIVIDED, FRACTIONAL OWNERSHIP INTEREST IN THE RECEIVABLES DESCRIBED
HEREIN HAS BEEN SOLD TO MARKET STREET FUNDING CORPORATION PURSUANT TO A
RECEIVABLES PURCHASE AGREEMENT, DATED AS OF MAY 29,1998, AS AMENDED,
AMONG XXXXXX CO., AS SERVICER, XXXXXX FUNDING CORPORATION, MARKET
STREET FUNDING CORPORATION AND PNC BANK, NATIONAL ASSOCIATION".
4.2 CERTIFICATION AS TO REPRESENTATIONS AND WARRANTIES. Originator, by
accepting the Purchase Price related to each purchase of Receivables generated
by Originator, shall be deemed to have certified that the representations and
warranties contained in ARTICLE V are true and correct on and as of such day,
with the same effect as though made on and as of such day.
ARTICLE V
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REPRESENTATIONS AND WARRANTIES OF THE ORIGINATOR
In order to induce the Company to enter into this Agreement and to make
purchases and accept contributions hereunder, Originator hereby makes the
representations and warranties set forth in this ARTICLE V.
5.1 ORGANIZATION AND GOOD STANDING. Originator has been duly organized
and is validly existing as a corporation in good standing under the laws of the
state of its incorporation, with power and authority to own its properties and
to conduct its business as such properties are presently owned and such business
is presently conducted.
5.2 DUE QUALIFICATION. Originator is duly licensed and in good standing
in the jurisdiction where its chief executive office is located and in all other
jurisdictions in which (a) the ownership or lease of its property or the conduct
of its business requires such licensing or qualification and (b) the failure to
be so licensed or qualified would be reasonably likely to have a Material
Adverse Effect.
5.3 POWER AND AUTHORITY; DUE AUTHORIZATION. Originator has (a) all
necessary power, authority and legal right (i) to execute and deliver, and
perform its obligations under, each Transaction Document to which it is a party
and (ii) to generate, own, sell, contribute and assign Receivables on the terms
and subject to the conditions herein and therein provided; and (b) duly
authorized such execution and delivery and such sale, contribution and
assignment and the performance of such obligations by all necessary corporate
action.
5.4 VALID SALE; BINDING OBLIGATIONS. Each sale or contribution, as the
case may be, made by Originator pursuant to this Agreement shall constitute a
valid sale or contribution, as the case may be, transfer, and assignment of
Receivables to the Company, enforceable against creditors of, and purchasers
from, Originator; and this Agreement constitutes, and each other Transaction
Document to be signed by Originator, when duly executed and delivered, will
constitute, a legal, valid, and binding obligation of Originator, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
5.5 NO VIOLATION. The consummation of the transactions contemplated by
this Agreement and the other Transaction
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Documents and the fulfillment of the terms hereof or thereof, will not (a)
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under (i)
Originator's articles or certificate of incorporation or by-laws or (ii) any
indenture, loan agreement, mortgage, deed of trust, or other material agreement
or instrument to which it is a party or by which it is bound, (b) result in the
creation or imposition of any Adverse Claim upon any of its properties pursuant
to the terms of any such indenture, loan agreement, mortgage, deed of trust, or
other agreement or instrument, other than the Transaction Documents, or (c)
violate any law or any order, rule or regulation applicable to it of any court
or of any state or foreign regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over it or any of its
properties.
5.6 PROCEEDINGS. Except as set forth in EXHIBIT D, there is no action,
suit, proceeding or investigation pending before any court, regulatory body,
arbitrator, administrative agency, or other tribunal or governmental
instrumentality (a) asserting the invalidity of any Transaction Document, (b)
seeking to prevent the issuance of Originator's Originator Assignment
Certificate or the consummation of any of the transactions contemplated by any
Transaction Document or (c) seeking any determination or ruling that is
reasonably likely to have a Material Adverse Effect.
5.7 BULK SALES ACTS. No transaction contemplated hereby requires
compliance with, or will be subject to avoidance under, any bulk sales act or
similar law.
5.8 GOVERNMENT APPROVALS. Except for the filing of the UCC financing
statements referred to in ARTICLE IV, all of which, at the time required in
ARTICLE IV, shall have been duly made and shall be in full force and effect, no
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for Originator's due
execution, delivery and performance of any Transaction Document to which it is a
party.
5.9 FINANCIAL CONDITION. Since December 31, 1997, no event has occurred
that has had, or is reasonably likely to have, a Material Adverse Effect.
5.10 LICENSES, CONTINGENT LIABILITIES, AND LABOR CONTROVERSIES.
(a) Originator has not failed to obtain any licenses,
permits, franchises or other governmental authorizations necessary to
the ownership of its properties or to the conduct of its business,
which violation or failure to
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obtain would be reasonably likely to have a Material Adverse Effect.
(b) There are no labor controversies pending against
Originator that have had (or are reasonably likely to have) a Material
Adverse Effect.
5.11 MARGIN REGULATIONS. No use of any funds acquired by Originator
under this Agreement will conflict with or contravene any of Regulations G, T, U
and X promulgated by the Federal Reserve Board from time to time.
5.12 QUALITY OF TITLE.
(a) Each Receivable of Originator (together with the Related
Rights with respect to such Receivable) which is to be sold to the
Company hereunder is or shall be owned by Originator, free and clear of
any Adverse Claim, except as provided herein and in the Receivables
Purchase Agreement. Whenever the Company makes a purchase or accepts a
contribution hereunder, it shall have acquired and shall continue to
have maintained a valid and perfected ownership interest (free and
clear of any Adverse Claim) in all Receivables generated by Originator
and all Collections related thereto, and in Originator's entire right,
title and interest in and to the Related Rights with respect thereto.
(b) No effective financing statement or other instrument
similar in effect covering any Receivable generated by Originator or
any Related Rights is on file in any recording office except such as
may be filed in favor of the Company or the Originator, as the case may
be, in accordance with this Agreement or in favor of the Issuer in
accordance with the Receivables Purchase Agreement.
(c) Unless otherwise identified to the Company on the date of
the purchase or contribution hereunder, each Receivable purchased
thereunder is on the date of purchase or contribution an Eligible
Receivable.
5.13 ACCURACY OF INFORMATION. All factual written information
heretofore or contemporaneously furnished (and prepared) by Originator to the
Company or the Administrator for purposes of or in connection with any
Transaction Document or any transaction contemplated hereby or thereby is, and
all other such factual written information hereafter furnished (and prepared) by
Originator to the Company or the Administrator pursuant to or in connection with
any Transaction Document will be, true and accurate in every material respect
on the date as of which such information is dated or certified.
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5.14 OFFICES. Originator's principal place of business and chief
executive office is located at the address set forth under Originator's
signature hereto, and the offices where Originator keeps all its books, records
and documents evidencing its Receivables, the related Contracts and all other
agreements related to such Receivables are located at the addresses specified in
EXHIBIT E (or at such other locations, notified to Servicer and the
Administrator in accordance with SECTION 6.1(f), in jurisdictions where all
action required by SECTION 7.3 has been taken and completed).
5.15 TRADE NAMES. Originator does not use any trade name other than its
actual corporate name and the trade names set forth in EXHIBIT F. From and after
the date that fell five (5) years before the date hereof, except as set forth in
EXHIBIT F, Originator has not been known by any legal name other than its
corporate name as of the date hereof, nor has Originator been the subject of any
merger or other corporate reorganization.
5.16 TAXES. Originator has filed all tax returns and reports required
by law to have been filed by it and has paid all taxes and governmental charges
thereby shown to be owing, except any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books.
5.17 COMPLIANCE WITH APPLICABLE LAWS. Originator is in compliance with
the requirements of all applicable laws, rules, regulations and orders of all
governmental authorities, a breach of any of which, individually or in the
aggregate, would be reasonably likely to have a Material Adverse Effect.
5.18 RELIANCE ON SEPARATE LEGAL IDENTITY. Originator acknowledges that
the Issuer and the Administrator are entering into the Receivables Purchase
Agreement in reliance upon the Company's identity as a legal entity separate
from Originator.
ARTICLE VI
COVENANTS OF THE ORIGINATOR
6.1 AFFIRMATIVE COVENANTS. From the date hereof until the first day
following the Purchase and Sale Termination Date, Originator will, unless the
Administrator and the Company shall otherwise consent in writing:
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(a) COMPLIANCE WITH LAWS, ETC. Comply in all material respects
with all applicable laws, rules, regulations and orders with respect to
the Receivables generated by it and the Contracts and other agreements
related thereto except where the failure to so comply would not
materially and adversely affect the collectibility of such Receivables
or the rights of the Company hereunder.
(b) PRESERVATION OF CORPORATE EXISTENCE. Preserve and maintain
its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and qualify and remain qualified in
good standing as a foreign corporation in each jurisdiction where the
failure to preserve and maintain such existence, rights, franchises,
privileges and qualification would be reasonably likely to have a
Material Adverse Effect.
(c) RECEIVABLES REVIEWS. (i) At any time and from time to time
during regular business hours, and upon reasonable prior notice, permit
the Company or the Administrator, or their respective agents or
representatives, (A) to examine and make copies of and abstracts from
all books, records and documents (including, without limitation,
computer tapes and disks) in possession or under the control of
Originator relating to Receivables, including, without limitation, the
related Contracts and purchase orders and other agreements related
thereto, and (B) to visit the offices and properties of Originator for
the purpose of examining such materials described in CLAUSE (I)(A) next
above and to discuss matters relating to Receivables originated by it
or the performance hereunder with any of the officers or employees of
Originator having knowledge of such matters, and (ii) without limiting
the foregoing CLAUSE (I) above, from time to time on request of the
Administrator, permit certified public accountants or other auditors
acceptable to the Company and Administrator to conduct, at the
Company's expense, a review of Originator's books and records with
respect to such Receivables.
(d) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Maintain and
implement administrative and operating procedures (including, without
limitation, an ability to re-create records evidencing Receivables it
generates 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
such Receivables (including, without limitation, records adequate to
permit the daily identification of each new Receivable
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and all Collections of and adjustments to each existing
Receivable).
(e) PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND CONTRACTS.
Timely and fully perform and comply with all provisions, covenants and
other promises required to be observed by it under the Contracts and
all other agreements related to the Receivables that it generates.
(f) LOCATION OF RECORDS. Keep its principal place of business
and chief executive office, and the offices where it keeps its records
concerning or related to Receivables, at the address(es) referred to in
EXHIBIT E or, upon 15 days' prior written notice to the Company and the
Administrator, at such other locations in jurisdictions where all
action required by SECTION 7.3 shall have been taken and completed.
(g) CREDIT AND COLLECTION POLICIES. Comply in all material
respects with its Credit and Collection Policy in connection with the
Receivables that it generates and all Contracts and other agreements
related thereto.
(h) POST OFFICE BOXES. Within 30 days after the date hereof,
deliver to Servicer (on behalf of the Company) a certificate from an
authorized officer of Originator to the effect that (i) the name of the
renter of all post office boxes into which Collections may from time to
time be mailed have been changed to the name of the Company (unless
such post office boxes are in the name of the relevant Lockbox Banks)
and (ii) all relevant postmasters have been notified that each of
Servicer and the Administrator are authorized to collect mail delivered
to such post office boxes (unless such post office boxes are in the
name of the relevant Lock-box Banks).
6.2 REPORTING REQUIREMENTS. From the date hereof until the
first day following the Purchase and Sale Termination Date, Originator will,
unless Servicer (on behalf of the Company) shall otherwise consent in writing,
furnish to the Company and the Administrator:
(a) PURCHASE AND SALE TERMINATION EVENTS. As soon as possible
after knowledge of the occurrence of, and in any event within three
Business Days after knowledge of the occurrence of each Purchase and
Sale Termination Event or each Unmatured Purchase and Sale Termination
Event in respect of Originator, the statement of the chief financial
officer or chief accounting officer of Originator describing such
Purchase and Sale Termination Event or Unmatured
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Purchase and Sale Termination Event and the action that Originator
proposes to take with respect thereto, in each case in reasonable
detail;
(b) PROCEEDINGS. As soon as possible and in any event within
three Business Days after Originator otherwise has knowledge thereof,
written notice of (i) material litigation, investigation or proceeding
of the type described in SECTION 5.6 not previously disclosed to the
Company and (ii) all material adverse developments that have occurred
with respect to any previously disclosed litigation, proceedings and
investigations; and
(c) OTHER. Promptly, from time to time, such other
information, documents, records or reports respecting the Receivables
or the conditions or operations, financial or otherwise, of Originator
as the Company, Issuer or the Administrator may from time to time
reasonably request in order to protect the interests of the Company,
Issuer or the Administrator under or as contemplated by the Transaction
Documents.
6.3 NEGATIVE COVENANTS. From the date hereof until the date following
the Purchase and Sale Termination Date, Originator agrees that, unless Servicer
(on behalf of the Company) shall otherwise consent in writing, it shall not:
(a) SALES, LIENS, ETC. Except as otherwise provided herein or
in any other Transaction Document, sell, assign (by operation of law or
otherwise) or otherwise dispose of, or create or suffer to exist any
Adverse Claim upon or with respect to, any Receivable or related
Contract or Related Security, or any interest therein, or any
Collections thereon, or assign any right to receive income in respect
thereof.
(b) EXTENSION OR AMENDMENT OF RECEIVABLES. Except as otherwise
permitted in SECTION 4.2(A) of the Receivables Purchase Agreement,
extend, amend or otherwise modify the terms of any Receivable in any
material respect generated by it, or amend, modify or waive, in any
material respect, any term or condition of any Contract related thereto
(which term or condition relates to payments under, or the enforcement
of, such Contract).
(c) CHANGE IN BUSINESS OR CREDIT AND COLLECTION POLICY. Make
any change in the character of its business or materially alter its
Credit and Collection Policy, which change would, in either case,
materially change the credit standing required of particular Obligors
or potential
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Obligors or impair, in any material respect, the collectibility of the
Receivables generated by it.
(d) RECEIVABLES NOT TO BE EVIDENCED BY PROMISSORY NOTES OR
CHATTEL PAPER. Take any action to cause or permit any Receivable
generated by it to become evidenced by any "instrument" or "chattel
paper" (as defined in the applicable UCC).
(e) MERGERS, ACQUISITIONS, SALES, ETC. (i) Be a party to any
merger or consolidation, except a merger or consolidation where
Originator is the surviving corporation, or (ii) directly or indirectly
sell, transfer, assign, convey or lease (A) whether in one or a series
of transactions, all or substantially all of its assets or (B) any
Receivables or any interest therein (other than pursuant to this
Agreement).
6.4 LOCK-BOX BANKS. Make any changes in its instructions to
Obligors regarding Collections or add or terminate any Lock-box Bank unless the
requirements of paragraph 2(g) of Exhibit IV of the Receivables Purchase
Agreement have been met.
6.5 ACCOUNTING FOR PURCHASES. Account for or treat (whether in
financial statements or otherwise) the transactions contemplated hereby in any
manner other than as sales of the Receivables and Related Rights by Originator
to the Company.
6.6 TRANSACTION DOCUMENTS. Enter into, execute, deliver or
otherwise become bound by any agreement, instrument, document or other
arrangement that restricts the right of Originator to amend, supplement, amend
and restate or otherwise modify, or to extend or renew, or to waive any right
under, this Agreement or any other Transaction Documents.
6.7 SUBSTANTIVE CONSOLIDATION. Originator hereby acknowledges
that this Agreement and the other Transaction Documents are being entered into
in reliance upon the Company's identity as a legal entity separate from the
Originator and its Affiliates. Therefore, from and after the date hereof,
Originator shall take all reasonable steps necessary to make it apparent to
third Persons that the Company is an entity with assets and liabilities distinct
from those of Originator and any other Person, and is not a division of
Originator, its Affiliates or any other Person. Without limiting the generality
of the foregoing and in addition to and consistent with the other covenants set
forth herein, Originator shall take such actions as shall be required in order
that:
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(a) Originator shall not be involved in the day to day
management of the Company;
(b) Originator shall maintain separate corporate records and
books of account from the Company and otherwise will observe corporate
formalities and have a separate area from the Company for its business;
(c) the financial statements and books and records of
Originator shall be prepared after the date of creation of the Company
to reflect and shall reflect the separate existence of the Company;
PROVIDED, that the Company's assets and liabilities may be included in
a consolidated financial statement issued by an affiliate of the
Company; PROVIDED, HOWEVER, that any such consolidated financial
statement shall make clear that the Company's assets are not available
to satisfy the obligations of such affiliate;
(d) Originator shall maintain its assets separately from the
assets of the Company (including through the maintenance of a separate
bank account), and the Company's assets, and records relating thereto,
have not been, are not, and shall not be, commingled with those of the
Company (except as permitted by the Receivables Purchase Agreement in
connection with servicing the Pool Receivables);
(e) all of the Company's business correspondence and other
communications shall be conducted in the Company's own name and on its
own stationery;
(f) Originator shall not act as an agent for the Company,
other than in its capacity as the Servicer, and in connection
therewith, shall present itself to the public as an agent for the
Company and a corporation separate from the Company;
(g) Originator shall not conduct any of the business of the
Company in Originator's name;
(h) Originator shall not pay any liabilities of the Company
out of Originator's funds or assets;
(i) Originator shall maintain an arm's-length relationship
with the company;
(j) Originator shall not assume or guarantee or become
obligated for the debts of the Company or hold out its credit as being
available to satisfy the obligations of the Company;
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(k) Originator shall not acquire obligations of the Company;
(l) Originator shall allocate fairly and reasonably overhead
or other expenses that are properly shared with the Company, including,
without limitation, shared office space;
(m) Originator shall identify and hold itself out as a
separate and distinct entity from the Company;
(n) Originator shall correct any known misunderstanding
regarding its separate identity from the Company;
(o) Originator shall not enter into, or be a party to, any
transaction with the Company, except in the ordinary course of its
business and on terms which are intrinsically fair and not less
favorable to it than would be obtained in a comparable arm's-length
transaction with an unrelated third party; and
(p) Originator shall not pay the salaries of the Company's
employees, if any.
ARTICLE VII
ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE RECEIVABLES
7.1 RIGHTS OF THE COMPANY. Originator hereby authorizes the
Company, Servicer or their respective designees to take any and all steps in
Originator's name necessary or desirable, in their respective determination, to
collect all amounts due under any and all Receivables, including, without
limitation, indorsing the name of Originator on checks and other instruments
representing Collections and enforcing such Receivables and the provisions of
the related Contracts that concern payment and/or enforcement of rights to
payment.
7.2 RESPONSIBILITIES OF ORIGINATOR. Anything herein to the
contrary notwithstanding:
(a) COLLECTION PROCEDURES. Originator agrees to direct its
respective Obligors to make payments of Receivables directly to a post
office box related to the relevant Lock-box Account at a Lock-box Bank.
Originator further agrees to transfer any Collections that it receives
directly to Servicer (for the Company's account) within one (1)
Business Day of receipt thereof, and agrees that all
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such Collections shall be deemed to be received in trust for the
Company and shall be maintained and segregated separate and apart from
all other funds and monies of Originator until transfer of such
Collections to Servicer.
(b) Originator shall perform its obligations hereunder, and
the exercise by the Company or its designee of its rights hereunder
shall not relieve Originator from such obligations.
(c) None of the Company, Servicer or the Administrator shall
have any obligation or liability to any Obligor or any other third
Person with respect to any Receivables, Contracts related thereto or
any other related agreements, nor shall the Company, Servicer, Issuer
or the Administrator be obligated to perform any of the obligations of
Originator thereunder.
(d) Originator hereby grants to Servicer an irrevocable power
of attorney, with full power of substitution, coupled with an interest,
to take in the name of Originator all steps necessary or advisable to
indorse, negotiate or otherwise realize on any writing or other right
of any kind held or transmitted by Originator or transmitted or
received by the Company (whether or not from Originator) in connection
with any Receivable.
7.3 FURTHER ACTION EVIDENCING PURCHASES. Originator agrees
that from time to time, at its expense, it will promptly execute and deliver all
further instruments and documents, and take all further action that Servicer may
reasonably request in order to perfect, protect or more fully evidence the
Receivables and Related Rights purchased by or contributed to the Company
hereunder, or to enable the Company to exercise or enforce any of its rights
hereunder or under any other Transaction Document. Without limiting the
generality of the foregoing, upon the request of Servicer, Originator will:
(a) 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; and
(b) xxxx the master data processing records that evidence or
list (i) such Receivables and (ii) related Contracts with the legend
set forth in SECTION 4.1(j).
Originator hereby authorizes the Company or its designee to file one or more
financing or continuation statements, and amendments thereto and assignments
thereof, relative to all or any of the
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Receivables and Related Rights now existing or hereafter generated by
Originator. If Originator fails to perform any of its agreements or obligations
under this Agreement, the Company or its designee may (but shall not be required
to) itself perform, or cause performance of, such agreement or obligation, and
the expenses of the Company or its designee incurred in connection therewith
shall be payable by Originator as provided in SECTION 9.1.
7.4 APPLICATION OF COLLECTIONS. Any payment by an Obligor in
respect of any indebtedness owed by it to Originator shall, except as otherwise
specified by such Obligor or otherwise required by contract or law and unless
otherwise instructed by the Company or the Administrator, be applied as a
Collection of any Receivable or Receivables of such Obligor to the extent of any
amounts then due and payable thereunder before being applied to any other
indebtedness of such Obligor.
ARTICLE VIII
PURCHASE AND SALE TERMINATION EVENTS
8.1 PURCHASE AND SALE TERMINATION EVENTS. Each of the
following events or occurrences described in this SECTION 8.1 shall constitute a
"PURCHASE AND SALE TERMINATION EVENT":
(a) A Termination Event (as defined in the Receivables
Purchase Agreement) shall have occurred and, in the case of a
Termination Event (other than one described in paragraph (f) of Exhibit
V of the Receivables Purchase Agreement), the Administrator, shall have
declared the Facility Termination Date to have occurred; or
(b) Originator shall fail to make any payment or deposit to be
made by it hereunder when due and such failure shall remain unremedied
for two (2) Business Days; or
(c) Any representation or warranty made or deemed to be made
by Originator (or any of its officers) under or in connection with this
Agreement, any other Transaction Document, or any other information or
report delivered pursuant hereto or thereto shall prove to have been
false or incorrect in any material respect when made or deemed made; or
(d) Originator shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to
be performed or observed and such failure shall remain unremedied for
30 calendar days after
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written notice thereof shall have been given by Servicer to
Originator.
8.2 REMEDIES.
(a) OPTIONAL TERMINATION. Upon the occurrence of a Purchase
and Sale Termination Event, the Company (and not the Servicer) shall
have the option, by notice to the Originator (with a copy to the
Administrator), to terminate the Purchase Facility by declaring the
Purchase and Sale Termination Date to have occurred.
(b) REMEDIES CUMULATIVE. Upon any termination of the Purchase
Facility pursuant to SECTION 8.2(A), the Company shall have, in
addition to all other rights and remedies under this Agreement, all
other rights and remedies provided under the UCC of each applicable
jurisdiction and all other rights and remedies available, whether at
law or equity, which rights shall be cumulative.
ARTICLE IX
INDEMNIFICATION
9.1 INDEMNITIES BY THE ORIGINATOR. Without limiting any other
rights which the Company may have hereunder or under applicable law, Originator
hereby agrees to indemnify the Company and each of its officers, directors,
employees and agents (each of the foregoing Persons being individually called a
"PURCHASE AND SALE INDEMNIFIED PARTY"), forthwith on demand, from and against
any and all damages, losses, claims, judgments, liabilities and related costs
and expenses, including reasonable attorneys' fees and disbursements (all of the
foregoing being collectively called "PURCHASE AND SALE INDEMNIFIED AMOUNTS")
awarded against or incurred by any of them arising out of or as a result of the
failure of Originator to perform its obligations under this Agreement any other
Transaction Document, or arising out of the claims asserted against a Purchase
and Sale Indemnified Party relating to the transactions contemplated herein or
therein or the use of proceeds thereof or therefrom, EXCLUDING, HOWEVER, (i)
Purchase and Sale Indemnified Amounts to the extent resulting from gross
negligence or willful misconduct on the part of such Purchase and Sale
Indemnified Party, (ii) any indemnification which has the effect of recourse for
non-payment of the Receivables to any indemnitor (except as otherwise
specifically provided under this SECTION 9.1) and (iii) any tax based upon or
measured by net income or gross receipts. Without limiting the foregoing,
Originator indemnifies each Purchase and
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Sale Indemnified Party for Purchase and Sale Indemnified Amounts relating to or
resulting from:
(a) the transfer by Originator of an interest in any
Receivable to any Person other than the Company;
(b) the breach of any representation or warranty made by
Originator (or any of its officers) under or in connection with this
Agreement or any other Transaction Document, or any information or
report delivered by Originator pursuant hereto or thereto, which shall
have been false or incorrect in any material respect when made or
deemed made;
(c) the failure by Originator to comply with any applicable
law, rule or regulation with respect to any Receivable generated by
Originator or the related Contract, or the nonconformity of any
Receivable generated by Originator or the related Contract with any
such applicable law, rule or regulation;
(d) the failure to vest and maintain vested in the Company an
ownership interest in the Receivables generated by Originator free and
clear of any Adverse Claim, other than an Adverse Claim arising solely
as a result of an act of the Company, whether existing at the time of
the purchase or contribution of such Receivables or at any time
thereafter;
(e) the failure to file, 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 Receivables or purported Receivables generated by Originator,
whether at the time of any purchase or contribution or at any
subsequent time;
(f) any dispute, claim, offset or defense (other than
discharge in bankruptcy) of the Obligor to the payment of any
Receivable or purported Receivable generated by Originator (including,
without limitation, a defense based on such Receivable's or the related
Contract's 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 services related to any such Receivable
or the furnishing of or failure to furnish such services;
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(g) any product liability claim arising out of or in
connection with services that are the subject of any Receivable
generated by Originator; and
(h) any tax or governmental fee or charge (other than any tax
excluded pursuant to CLAUSE (III) in the proviso to the preceding
sentence), all interest and penalties thereon or with respect thereto,
and all out-of-pocket costs and expenses, including the reasonable fees
and expenses of counsel in defending against the same, which may arise
by reason of the purchase or ownership of the Receivables generated by
Originator or any Related Security connected with any such Receivables.
If for any reason the indemnification provided above in this SECTION
9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient
to hold such Purchase and Sale Indemnified Party harmless, then Originator shall
contribute to the amount paid or payable by such Purchase and Sale Indemnified
Party to the maximum extent permitted under applicable law.
ARTICLE X
MISCELLANEOUS
10.1 AMENDMENTS, ETC.
(a) The provisions of this Agreement may from time to time be
amended, modified or waived, if such amendment, modification or waiver
is in writing and consented to by the Company and the Originator (with
respect to an amendment) or by the Company (with respect to a waiver or
consent by it).
(b) No failure or delay on the part of the Company, Servicer,
Originator or any third party beneficiary in exercising any power or
right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right.
No notice to or demand on the Company, Servicer or the Originator in
any case shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by the Company or Servicer under
this Agreement shall, except as may otherwise be stated in such waiver
or approval, be applicable to subsequent transactions. No waiver or
approval under this Agreement shall require any similar or dissimilar
waiver or approval thereafter to be granted hereunder.
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(c) The Transaction Documents contain a final and complete
integration of all prior expressions by the parties hereto with respect
to the subject matter thereof and shall constitute the entire agreement
among the parties hereto with respect to the subject matter thereof,
superseding all prior oral or written understandings.
10.2 NOTICES, ETC. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including facsimile communication) and shall be personally delivered or sent by
certified mail, postage prepaid, or by facsimile, to the intended party at the
address or facsimile number of such party set forth under its name on the
signature pages hereof or at such other address or facsimile number as shall be
designated by such party in a written notice to the other parties hereto. All
such notices and communications shall be effective (i) if personally delivered,
when received, (ii) if sent by certified mail three (3) Business Days after
having been deposited in the mail, postage prepaid, and (iii) if transmitted by
facsimile, when sent, receipt confirmed by telephone or electronic means.
10.3 NO WAIVER; CUMULATIVE REMEDIES. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Without limiting the foregoing, Originator hereby authorizes the Company, at any
time and from time to time, to the fullest extent permitted by law, to set off,
against any obligations of Originator to the Company arising in connection with
the Transaction Documents (including, without limitation, amounts payable
pursuant to SECTION 9.1) that are then due and payable or that are not then due
and payable but are accruing in respect of the then current Settlement Period,
any and all indebtedness at any time owing by the Company to or for the credit
or the account of Originator.
10.4 BINDING EFFECT; ASSIGNABILITY. This Agreement shall be
binding upon and inure to the benefit of the Company and the Originator and
their respective successors and permitted assigns. Originator may not assign any
of its rights hereunder or any interest herein without the prior written consent
of the Company, except as otherwise herein specifically provided. 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 such
time as the parties hereto shall agree. The rights and remedies with respect to
any breach of any representation and warranty made by Originator pursuant to
ARTICLE V and the indemnification and payment provisions of ARTICLE IX and
SECTION 10.6 shall be continuing and shall survive any termination of this
Agreement.
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10.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
10.6 COSTS, EXPENSES AND TAXES. In addition to the
obligations of the Originator under ARTICLE IX, Originator agrees to pay on
demand:
(a) all reasonable costs and expenses in connection with the
enforcement of this Agreement, the Originator Assignment Certificates
and the other Transaction Documents; and
(b) all stamp and other taxes and fees payable or determined
to be payable in connection with the execution, delivery, filing and
recording of this Agreement or the other Transaction Documents to be
delivered hereunder, and agrees to indemnify each Purchase and Sale
Indemnified Party against any liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes and fees.
10.7 SUBMISSION TO JURISDICTION. EACH PARTY HERETO HEREBY
IRREVOCABLY (A) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF PENNSYLVANIA OR
UNITED STATES FEDERAL COURT SITTING IN PITTSBURGH, PENNSYLVANIA, OVER ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT; (B) AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE OR UNITED STATES FEDERAL COURT; (C) WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OR PROCEEDING; (D) IRREVOCABLY CONSENTS TO THE
SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES OF SUCH PROCESS TO SUCH PERSON AT ITS ADDRESS SPECIFIED IN SECTION
10.2; AND (E) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS SECTION 10.7
SHALL AFFECT THE COMPANY'S RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST ORIGINATOR OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTIONS.
10.8 WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
UNDER OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP
EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT,
AND AGREES THAT (A) ANY SUCH ACTION OR
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PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND (B) ANY PARTY
HERETO (OR ANY ASSIGNEE OR THIRD PARTY BENEFICIARY OF THIS AGREEMENT) MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF ANY OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR
THEIR RIGHT TO TRIAL BY JURY.
10.9 CAPTIONS AND CROSS REFERENCES; INCORPORATION BY
REFERENCE. The various captions (including, without limitation, the table of
contents) in this Agreement are included for convenience only and shall not
affect the meaning or interpretation of any provision of this Agreement.
References in this Agreement to any underscored Section or Exhibit are to such
Section or Exhibit of this Agreement, as the case may be. APPENDIX A and the
Exhibits hereto are hereby incorporated by reference into and made a part of
this Agreement.
10.10 EXECUTION IN COUNTERPARTS. 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.
10.11 ACKNOWLEDGMENT AND AGREEMENT. By execution below,
Originator expressly acknowledges and agrees that all of the Company's rights,
title, and interests in, to, and under this Agreement (but not its obligations),
shall be assigned by the Company pursuant to the Receivables Purchase Agreement,
and Originator consents to such assignment. Each of the parties hereto
acknowledges and agrees that the Administrator and Issuer are third party
beneficiaries of the rights of the Company arising hereunder and under the other
Transaction Documents to which Originator is a party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
XXXXXX FUNDING CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
Address: 0000 Xxxxx Xxxxxx Xxxxxx, Xxx. 0000
Wilmington, Xxx Xxxxxx Xxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (724) 588-2000 ext. 2732
Facsimile: (000) 000-0000
XXXXXX CO.
By:_______________________________
Name:_____________________________
Title:____________________________
Address: 000 Xxxxxxxxx Xx.
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (724) 588-2000 ext. 2732
Facsimile: (000) 000-0000
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ORIGINATOR:
XXXXXX CO.
By:____________________________
Name:__________________________
Title:_________________________
Address: 000 Xxxxxxxxx Xx.
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (724) 588-2000 ext. 2732
Facsimile: (000) 000-0000
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