Exhibit 4.45
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RECEIVABLES PURCHASE AGREEMENT
dated as of February 6, 2001
among
LG&E RECEIVABLES LLC,
LOUISVILLE GAS AND ELECTRIC COMPANY
as Servicer
THE VARIOUS PURCHASER GROUPS FROM TIME TO TIME PARTY HERETO
and
PNC BANK, NATIONAL ASSOCIATION,
as Administrator
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TABLE OF CONTENTS
ARTICLE I. AMOUNTS AND TERMS OF THE PURCHASES.......................................................................1
Section 1.1. Purchase Facility.................................................................................1
Section 1.2. Making Purchases..................................................................................2
Section 1.3. Purchased Interest Computation....................................................................4
Section 1.4. Settlement Procedures.............................................................................4
Section 1.5. Fees .............................................................................................9
Section 1.6. Payments and Computations, Etc....................................................................9
Section 1.7. Increased Costs..................................................................................10
Section 1.8. Requirements of Law..............................................................................11
Section 1.9. Inability to Determine Euro-Rate.................................................................12
Section 1.10. Extension of Termination Date....................................................................12
ARTICLE II. REPRESENTATIONS AND WARRANTIES; COVENANTS; TERMINATION EVENTS...........................................13
Section 2.1. Representations and Warranties; Covenants........................................................13
Section 2.2. Termination Events...............................................................................13
ARTICLE III. INDEMNIFICATION.........................................................................................14
Section 3.1. Indemnities by the Seller........................................................................14
Section 3.2. Indemnities by the Servicer......................................................................15
ARTICLE IV. ADMINISTRATION AND COLLECTIONS..........................................................................16
Section 4.1. Appointment of the Servicer......................................................................16
Section 4.2. Duties of the Servicer...........................................................................17
Section 4.3. Lock-Box Account Arrangements....................................................................18
Section 4.4. Enforcement Rights...............................................................................19
Section 4.5. Responsibilities of the Seller...................................................................20
Section 4.6. Servicing Fee....................................................................................20
ARTICLE V. THE AGENTS..............................................................................................20
Section 5.1. Appointment and Authorization....................................................................20
Section 5.2. Delegation of Duties.............................................................................21
Section 5.3. Exculpatory Provisions...........................................................................21
Section 5.4. Reliance by Agents...............................................................................22
Section 5.5. Notice of Termination Events.....................................................................23
Section 5.6. Non-Reliance on Administrator, Purchaser Agents and OtherPurchasers..............................23
Section 5.7. Administrators and Affiliates....................................................................23
Section 5.8. Indemnification..................................................................................24
Section 5.9. Successor Administrator..........................................................................24
ARTICLE VI. MISCELLANEOUS...........................................................................................24
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Section 6.1. Amendments, Etc..................................................................................24
Section 6.2. Notices, Etc.....................................................................................25
Section 6.3. Successors and Assigns; Participations; Assignments..............................................25
Section 6.4. Costs, Expenses and Taxes........................................................................28
Section 6.5. No Proceedings; Limitation on Payments...........................................................28
Section 6.6. Confidentiality..................................................................................28
Section 6.7. GOVERNING LAW AND JURISDICTION...................................................................29
Section 6.8. Execution in Counterparts........................................................................29
Section 6.9. Survival of Termination..........................................................................29
Section 6.10. WAIVER OF JURY TRIAL.............................................................................29
Section 6.11. Sharing of Recoveries............................................................................29
Section 6.12. Right of Setoff..................................................................................30
Section 6.13. Entire Agreement.................................................................................30
Section 6.14. Headings.........................................................................................30
Section 6.15. Purchaser Groups' Liabilities...................................................................30
EXHIBIT I Definitions
EXHIBIT II Conditions of Purchases
EXHIBIT III Representations and Warranties
EXHIBIT IV Covenants
EXHIBIT V Termination Events
SCHEDULE I Credit and Collection Policy
SCHEDULE II Lock-Box Banks and Lock-Box Accounts
SCHEDULE III Trade Names
ANNEX A Form of Information Package
ANNEX B Form of Purchase Notice
ANNEX C List of Excluded Obligors
ANNEX D Form of Assumption Agreement
ANNEX E Form of Transfer Supplement
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This
RECEIVABLES PURCHASE AGREEMENT (as amended, supplemented or otherwise
modified from time to time, this "Agreement") is entered into as of February 6,
2001, among LG&E RECEIVABLES LLC, a Delaware limited liability company, as
seller (the "Seller"), LOUISVILLE GAS AND ELECTRIC COMPANY, a Kentucky
corporation ("LGEC"), as initial servicer (in such capacity, together with its
successors and permitted assigns in such capacity, the "Servicer"), PNC BANK,
NATIONAL ASSOCIATION, a national banking association ("PNC"), as purchaser agent
for Market Street Funding Corporation, and as Administrator for each Purchaser
Group (in such capacity, the "Administrator"), MARKET STREET FUNDING CORPORATION
("Market Street"), a Delaware corporation, as a Conduit Purchaser and as Related
Committed Purchaser, MELLON BANK, N.A., as purchaser agent for Three Rivers
Funding Corporation, THREE RIVERS FUNDING CORPORATION ("TRFCO"), a Delaware
corporation, as a Conduit Purchaser and as a Related Committed Purchaser, and
each of the other members of each Purchaser Group that become parties hereto by
executing an Assumption Agreement or a Transfer Supplement.
PRELIMINARY STATEMENTS. Certain terms that are capitalized and used
throughout this Agreement are defined in EXHIBIT I. References in the Exhibits
hereto to the "Agreement" refer to this Agreement, as amended, supplemented or
otherwise modified from time to time.
The Seller desires to sell, transfer and assign an undivided variable
percentage interest in a pool of receivables, and the Purchasers desire to
acquire such undivided variable percentage interest, as such percentage interest
shall be adjusted from time to time based upon, in part, reinvestment payments
that are made by such Purchasers.
In consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto agree as follows:
ARTICLE I.
AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1. PURCHASE FACILITY.
(a) On the terms and subject to the conditions hereof, the Seller may,
from time to time before the Facility Termination Date, request that the
Conduit Purchasers, or, only if a Conduit Purchaser denies such request or
is unable to fund (and provides notice of such denial or inability to the
Seller, the Administrator and its Purchaser Agent), request that the
Related Committed Purchasers, ratably make purchases of and reinvestments
in undivided percentage ownership interests with regard to the Purchased
Interest from the Seller from time to time from the date hereof to the
Facility Termination Date. Subject to SECTION 1.4(b), concerning
reinvestments, at no time will a Conduit Purchaser have any obligation to
make a purchase. Each Related Committed Purchaser severally hereby agrees,
on the terms and subject to the conditions hereof, to make purchases of
undivided percentage
ownership interests with respect to the Purchased Interest from the Seller
before the Purchaser Group Facility Termination Date for such Related
Committed Purchaser's Purchaser Group, based on the applicable Purchaser
Group's Ratable Share of each purchase requested pursuant to SECTION 1.2(a)
(each a "Purchase")(and, in the case of each Related Committed Purchaser,
its Commitment Percentage of its Purchaser Group's Ratable Share of such
Purchase) to the extent its Investment would not thereby exceed its
Commitment and the Aggregate Investment would not (after giving effect to
all Purchases on such date) exceed the Purchase Limit.
(b) The Seller may, upon 60 days' written notice to the Administrator
and each Purchaser Agent, reduce the unfunded portion of the Purchase Limit
in whole or in part (but not below the amount which would cause the Group
Investment of any Purchaser Group to exceed its Group Commitment (after
giving effect to such reduction)); provided that each partial reduction
shall be in the amount of at least $5,000,000, or an integral multiple of
$1,000,000 in excess thereof and unless terminated in whole, the Purchase
Limit shall in no event be reduced below $20,000,000. Such reduction shall
at the option of the Seller be applied either (i) to reduce ratably the
Group Commitment of each Purchaser Group or (ii) to terminate the Group
Commitment of any one Purchaser Group.
Section 1.2. MAKING PURCHASES.
(a) Each purchase (but not reinvestment) of undivided percentage
ownership interests with regard to the Purchased Interest hereunder shall
be made upon the Seller's irrevocable written notice in the form of ANNEX B
delivered to the Administrator and each Purchaser Agent in accordance with
SECTION 6.2 (which notice must be received by the Administrator and each
Purchaser Agent before 11:00 a.m., New York City time) at least three
Business Days before the requested Purchase Date, which notice shall
specify: (A) the amount requested to be paid to the Seller (such amount,
which shall not be less than $1,000,000, with respect to each Purchaser
Group, being the aggregate of the Investments of each Purchaser within such
Purchaser Group, relating to the undivided percentage ownership interest
then being purchased), (B) the date of such purchase (which shall be a
Business Day), and (C) a pro forma calculation of the Purchased Interest
after giving effect to the increase in the Aggregate Investment. Each
Purchaser Agent shall promptly notify each Purchaser in its Purchaser Group
of the requested Purchase. At its sole discretion, each Conduit Purchaser
may reject such Purchase by giving notice to the Purchaser Agent and the
Administrator, it being understood that if such Conduit Purchaser rejects
such Purchase, the Purchaser Agent for such Conduit Purchaser's Purchaser
Group shall thereafter promptly notify each Related Committed Purchaser in
its Purchaser Group of such rejection and of their obligations as a result
thereof to make a Purchase under this SECTION 1.2. If the Purchase is
requested from a Conduit Purchaser and such Conduit Purchaser determines,
in its sole discretion, to make the requested Purchase, such Conduit
Purchaser shall transfer to the Disbursement Account, an amount equal to
such Conduit Purchaser's Purchaser Group Ratable
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Share of such Purchase on the requested Purchase Date by 3:00 p.m. (New
York time). If the Purchase is requested from the Related Committed
Purchasers for a Purchaser Group (in the case where the related Conduit
Purchaser determined not to or was unable to make such Purchase), subject
to the terms and conditions hereof, such Related Committed Purchasers for a
Purchaser Group shall transfer the applicable Purchaser Group's Ratable
Share of each Purchase (and, in the case of each Related Committed
Purchaser, its Commitment Percentage of its Purchaser Group's Ratable Share
of such Purchase) into the Disbursement Account by no later than 3:00 p.m.
(New York time) on the Purchase Date.
(b) On or before 3:00 p.m. (New York time) the date of each Purchase,
each Purchaser (or the related Purchaser Agent on its behalf), shall make
available to the Seller in same day funds, at PNC Bank, National
Association (Pittsburgh), account number #1011467823, ABA #000-0000-00 (the
"Disbursement Account"), an amount equal to the proceeds of such Purchase.
(c) Effective on the date of each Purchase pursuant to this SECTION
1.2 and each reinvestment pursuant to SECTION 1.4, the Seller hereby sells
and assigns to the Administrator for the benefit of the Purchasers
(ratably, according to each such Purchaser's Investment) an undivided
percentage ownership interest in: (i) each Pool Receivable then existing,
(ii) all Related Security with respect to such Pool Receivables, and (iii)
all Collections with respect to, and other proceeds of, such Pool
Receivables and Related Security.
(d) To secure all of the Seller's obligations (monetary or otherwise)
under this Agreement and the other Transaction Documents to which it is a
party, whether now or hereafter existing or arising, due or to become due,
direct or indirect, absolute or contingent, the Seller hereby grants to the
Administrator, for the benefit of the Purchasers, a security interest in
all of the Seller's right, title and interest (including any undivided
interest of the Seller) in, to and under all of the following, whether now
or hereafter owned, existing or arising: (i) all Pool Receivables, (ii) all
Related Security with respect to such Pool Receivables, (iii) all
Collections with respect to such Pool Receivables, (iv) the Lock-Box
Accounts and all amounts on deposit therein, and all certificates and
instruments, if any, from time to time evidencing such Lock-Box Accounts
and amounts on deposit therein, (v) all rights (but none of the
obligations) of the Seller under the Sale Agreement and (vi) all proceeds
of, and all amounts received or receivable under any or all of, the
foregoing (collectively, the "Pool Assets"). The Administrator, for the
benefit of the Purchasers, shall have, with respect to the Pool Assets, and
in addition to all the other rights and remedies available to the
Administrator and the Purchasers, all the rights and remedies of a secured
party under any applicable UCC.
(e) The Seller may, with the written consent of the Administrator and
each Purchaser Agent (which consent shall not be unreasonably withheld,
conditioned or delayed), add additional Persons as Purchasers (either to an
existing
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Purchaser Group or by creating new Purchaser Groups) or cause an existing
Purchaser to increase its Commitment, in each case automatically increasing
the Purchase Limit by the amount of the new or increased Commitment;
PROVIDED, HOWEVER, that the Commitment of any Purchaser may only be
increased with the consent of such Purchaser and at its sole discretion.
Each new Purchaser (or Purchaser Group) pursuant to this SECTION 1.2(e) and
each Purchaser increasing its Commitment pursuant to this SECTION 1.2(e)
shall become a party hereto or increase its Commitment, as the case may be,
by executing and delivering to the Administrator and the Seller an
Assumption Agreement in the form of ANNEX D hereto (which Assumption
Agreement shall, in the case of any new Purchaser or Purchasers, be
executed by each Person in such new Purchaser's Purchaser Group).
(f) Each Related Committed Purchaser's obligation hereunder shall be
several, such that the failure of any Related Committed Purchaser to make a
payment in connection with any purchase hereunder shall not relieve any
other Related Committed Purchaser of its obligation hereunder to make
payment for any Purchase. Further, in the event any Related Committed
Purchaser fails to satisfy its obligation to make a purchase as required
hereunder, upon receipt of notice of such failure from the Administrator
(or any relevant Purchaser Agent), subject to the limitations set forth
herein, the non-defaulting Related Committed Purchasers in such defaulting
Related Committed Purchaser's Purchaser Group shall purchase the defaulting
Related Committed Purchaser's Commitment Percentage of the related Purchase
PRO RATA in proportion to their relative Commitment Percentages (determined
without regard to the Commitment Percentage of the defaulting Related
Committed Purchaser; it being understood that a defaulting Related
Committed Purchaser's Commitment Percentage of any Purchase shall be first
put to the Related Committed Purchasers in such defaulting Related
Committed Purchaser's Purchaser Group and thereafter if there are no other
Related Committed Purchasers in such Purchaser Group or if such other
Related Committed Purchasers are also defaulting Related Committed
Purchasers, then such defaulting Related Committed Purchaser's Commitment
Percentage of such Purchase shall be put to each other Purchaser Group
ratably and applied in accordance with this paragraph (f)). Notwithstanding
anything in this paragraph (f) to the contrary, no Related Committed
Purchaser shall be required to make a Purchase pursuant to this paragraph
for an amount which would cause the aggregate Investment of such Related
Committed Purchaser (after giving effect to such Purchase) to exceed its
Commitment.
Section 1.3. PURCHASED INTEREST COMPUTATION. The Purchased Interest shall
be initially computed on the date of the initial Purchase hereunder. Thereafter,
until the Facility Termination Date, such Purchased Interest shall be
automatically recomputed (or deemed to be recomputed) on each Business Day other
than a Termination Day. From and after the occurrence of any Termination Day,
the Purchased Interest shall (until the event(s) giving rise to such Termination
Day are satisfied or are waived by the Administrator and the Majority
Purchasers) be deemed to be 100%. The Purchased Interest shall become zero when
the Aggregate Investment thereof and Aggregate Discount thereon shall have been
paid in
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